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Ntina Tzouvala - Fri May 06, 2016 11:36
Dr Alan Greene The ambiguous outcome of the general election has been heralded as an opportunity for a new politics to emerge in Ireland. Dáil reform to deal with this new reality has featured highly in the news cycle as no longer can the Government dominate the legislative agenda and expect all its bills to […]
Dr Alan Greene
The ambiguous outcome of the general election has been heralded as an opportunity for a new politics to emerge in Ireland. Dáil reform to deal with this new reality has featured highly in the news cycle as no longer can the Government dominate the legislative agenda and expect all its bills to be enacted. Similarly, it can no longer expect to be able to veto opposition legislation or opposition tabled amendments to Government bills. This has a potential to reinvigorate the Oireachtas, enhancing constitutional dialogue, not just between the legislature and the executive, but also between the legislature and the courts in instances where there may be doubts as to the constitutionality of a proposed bill.
Constitutional Debate and the Oireachtas
To date, the Oireachtas has essentially treated the Irish courts as having a monopoly on constitutional interpretation. Certainly, there is an arguable case to be made that this is a result of the strong form judicial review seen in the Irish constitutional structure which potentially stymies political debate. The Oireachtas has relied heavily on the expert legal opinion of the Attorney General with in the questionable constitutionality of a bill often used as a reason for the Government to vote it down at an early stage. Despite the clear importance that this evidence has in the overall outcome of the debate, the opinion of the Attorney General is never published.
A textbook example of this can be seen in the manner in which the last government voted down Clare Daly?s Bill to allow for the termination of a pregnancy in the case of a fatal foetal abnormality. During the Dáil debate on the Protection of Life during Pregnancy (Amendment) (Fatal Foetal Abnormalities) Bill 2013, Taoiseach Enda Kenny argued that the bill was quite clearly unconstitutional. Moreover, he refused to publish the advice of the Attorney General on the matter as, ?It has been a long-standing situation in this country, where the advice given by the Attorney General of the day has never been published.?
In light of this, judicial supremacy as seen in Ireland has been criticised by political constitutionalists who argue that it takes decisions about human rights away from the legislature. Human rights, according to this conception, are ?the statement of a political conflict masking as the resolution of it?. Instead, human rights should beconceptualised as political contestations that people invariably agree over. The resolution of such disputes should, as a result, be done by the representatives of the people in the democratic branches of government.
Even notable bastions of political constitutionalism have, however, come around to the idea of some degree of judicial protection of human rights. The UK?s Human Rights Act 1998 (HRA) is seen as conceptualising a ?third way? between judicial supremacy on the one hand and parliamentary supremacy on the other. Moving away from this adversarial conceptualisation of the legislature and judiciary, instead, it seeks to foster a dialogue on rights between courts and the British Parliament with the final say resting with Parliament. It does this through requiring courts to interpret legislation compatibility with the European Convention on Human Rights (ECHR) so far as it is possible to do so, and also gives courts the discretionary power issue a declaration of incompatibility when it believes it cannot reconcile the statutory provision in question with the ECHR. The resolution of this incompatibility therefore resides with Parliament. Dialogue is also created through the work of the Joint Committee on Human Rights (JCHR) and the requirement under s19 of the HRA for government ministers to issue a declaratory statement before Parliament that a bill is compatible with the Convention.
Such attempts at constitutional dialogue are not alien to Ireland. Ireland?s equivalent to the HRA ? the European Convention on Human Rights Act 2003 ? mirrors closely the interpretive obligation and the declaration of incompatibility provisions of the HRA, thus leaving the resolution of such incompatible provisions in the hands of the Oireachtas.
Indeed, a referral of a bill to the Supreme Court for a pre-emptive test as to its constitutionality under Article 26 of the Constitution is also a possibility for dialogue to take place between the legislature and the judiciary in Ireland as to the scope of constitutional rights. This potential for dialogue has, however, been significantly weakened by the Second Amendment of the Constitution Act 1941 which amended Article 34 to prevent bills deemed constitutional under an Article 26 reference from ever having their constitutionality challenged again. As a result, consecutive presidents ? themselves constituent parts of the legislature ? have been reluctant to make use of this power. This is particularly so in light of the fact that Article 26 cases are based on hypothetical legal argument, thus lacking the force or urgency of concrete facts to illuminate the actual impact of the legislation in question. The Second Amendment of the Constitution Act 1941 was not enacted by referendum but was instead done through a simple legislative procedure in accordance with the transitory provisions of the Constitution.
Moreover, judicial supremacy is not inimical to dialogue on rights. With regards to ordinary challenges to the constitutionality of legislation, while the courts under the Constitution have the final say in an individual case as to the scope of constitutional rights; this does not mean that the courts should or do have the only say along the way. Procedural aspects to constitutional challenges ? the presumption of constitutionality, reaching constitutional issues last, and the double construction rule? are all mechanisms by which courts show respect to the Oireachtas? democratic mandate. In addition, saying that once a judgment of the Supreme Court is issued does the debate stop is problematic. A statement as to the content of a constitutional, convention or other rights provision is rarely, if ever, the final statement as to the condition of law for all time. Human rights do not work like that; law does not work like that. The constitution is a living and breathing document and constitutional dialogue is important for it to evolve.
Judicial Supremacy or Executive Supremacy?
Constitutional dialogue, however, has been stymied in Ireland but this is not the fault of judicial supremacy; rather, this argument overlooks the exceptionally strong hold the executive branch in Ireland has had over the legislature. Strong governments have instead used legal opinion as a justification to avoid contentious issues, halting legislation at an early stage before the Oireachtas has gotten a chance to scrutinise the legislation in earnest.
Returning to the earlier example of Claire Daly?s private members bill on fatal foetal abnormalities, the constitutionality of this bill was not as clear cut as the Taoiseach suggested. There is, at present, ambiguity in Article 40.3.3° of the Constitution as to whether ?unborn? extends to foetuses that have no chance of surviving outside the womb. This very point was raised by the Irish Government before the European Court of Human Rights in D v Ireland. In that case the applicant was pregnant with twins and was informed by her doctor that one foetus has stopped developing after 8 weeks? gestation and that the other foetus tested positive for Edward?s Syndrome, the median age of survival of which is 6 days. The applicant, ?unable to tolerate the physical and mental toll of a further five months of pregnancy with one foetus dead and with the other dying? travelled to the UK for an abortion. She did not consider any legal proceedings in Ireland as her various doctors indicated to her that they ?appreciated that she was not eligible for an abortion in Ireland? when she informed them of her decision to terminate the pregnancy.
D?s case under Article 3, 8, 10, and 14 was, however, dismissed as inadmissible by the Fourth Section of the Court on the grounds that she had not exhausted all domestic remedies. The Court upheld the Irish Government?s submission that:
It was an open question as to whether Article 40.3.3 could have allowed a lawful abortion in Ireland in the applicant?s circumstances?[A]lthough it was true that Article 40.3.3 had to be understood as excluding a liberal abortion regime, the courts were nonetheless unlikely to interpret the provision with remorseless logic particularly when the facts were exceptional. If therefore it had been established that there was no realistic prospect of the foetus being born alive, then there was ?at least a tenable? argument which would be seriously considered by the domestic courts to the effect that the foetus was not an ?unborn? for the purposes of Article 40.3.3 or that, even if it was an ?unborn?, its right to life was not actually engaged as it had no prospect of life outside the womb.
Minority Government and Constitutional Dialogue
In actuality, it is not judicial activism or judicial innovation in Ireland that is stymieing debates on rights and constitutionality in Ireland; rather, it is an overly strong executive that has a stranglehold on both houses of the Oireachtas. Legal advice is used as a convenient excuse to kick apparently contentious issues such as reproductive rights to touch.
Indeed, inaction can sometimes be louder than action. The UK Government?s failure to enfranchise prisoners despite a declaration of incompatibility under the HRA and a finding of a breach of the Convention from the Grand Chamber of the ECtHR is a concrete example of this. Similarly, the failure for over 20 years of successive Irish governments to legislate for the X-Case could be interpreted as these governments disagreeing with the Supreme Court?s judgment that abortions are lawful in Ireland where there is a real and substantial risk to the life of the mother arising from suicide. Two separate attempts to over-turn this judgment (the proposed 12th and 25th amendments respectively) via a constitutional amendment would also corroborate this; however, it also reveals the importance of an additional voice to the dialogue on rights in Ireland: the direct voice of the people through a referendum.
A reinvigorated Dáil therefore has an opportunity to break free from the domination of the executive branch and increase its scrutiny of legislation. No longer can an opinion of the Attorney General act as a de facto legislative veto. Indeed, it may be the case that such evidence may have to be published where it is suitable in order for the Oireachtas to scrutinise its substantive content. Merely claiming that the Attorney General advises that a proposed bill is unconstitutional may convince those subject to the minority government?s whip; however, the opposition benches may require a stronger justification than an appeal to authority. In this way, the Oireachtas can contribute more forcefully to the debate regarding the scope of constitutional rights protection in Ireland.
Ultimately, if the Oireachtas disagrees with a judgment of the Courts, it can submit a constitutional amendment to the people for ratification. This process can act as a safety valve, relieving political pressure that may build up in the face of a particularly contentious decision of the Supreme Court. In this way, the temptation to pack the court with ideological counterparts that may be seen in the United States is avoided as there are simpler, quicker, and more reliable ways to over-turn such a judgment.
The value of political constitutionalism or republican conceptualisations of human rights lies in processes. It requires legislative processes to be fora for disagreement rather than a mere rubber-stamp government decision-making. The prospect of a minority government is perhaps the best opportunity Ireland has had for such a culture of justification to embed itself in parliamentary processes. Time will tell whether this newly invigorated Dáil with grasp this opportunity.
Dr Alan Greene is a Lecturer in Law at Durham Law School and Co-Convenor of the Durham Human Rights Centre. He tweets @DrAlanGreene.
Image credit: https://flic.kr/p/eRVtiA?utm_source=rss&utm_medium=rss
 JAG Griffith, ?The Political Constitution? (1979)42(1) Modern Law Review 1,14.
 Francesca Klug, ?The Human Rights Act – a “third way” or “third wave” Bill of Rights?  EHRLR 361.
 Prohibition on torture or inhuman and degrading treatment
 Right to respect for privacy and family life
 Freedom of expression
 Prohibition on discrimination
 D v Ireland, para 69.
GuestPost - Wed May 04, 2016 06:46
We are pleased to publish this guest post from Ciarán Finlay, Legal & Policy Officer with the Free Legal Advice Centres (FLAC). The value of shining an international spotlight on domestic human rights issues has long been recognised by civil society organisations working in Ireland. Prior experience has shown that international scrutiny by United Nations […]
We are pleased to publish this guest post from Ciarán Finlay, Legal & Policy Officer with the Free Legal Advice Centres (FLAC).
The value of shining an international spotlight on domestic human rights issues has long been recognised by civil society organisations working in Ireland. Prior experience has shown that international scrutiny by United Nations (UN) bodies and experts can yield tangible results in the form of positive state action.
However, while domestic actors place much emphasis on periodic reporting to UN Human Rights Treaty Bodies and the Universal Periodic Review mechanism, considerably less focus is placed on engagement with UN Special Procedures mandate holders and taking individual complaints to UN Treaty Bodies.
To bridge this gap, FLAC has developed two guides which aim to better equip civil society actors seeking to engage with UN Special Procedures mandate holders and individuals taking complaints to UN Treaty Bodies as well as civil society actors taking cases on their behalf.
The first guide is intended for civil society organisations seeking to engage with UN Special Procedures mandate holders. Mandate holders are independent human rights experts who examine, monitor, advise and publicly report on human rights situations in specific countries or on certain thematic human rights issues such as migrants, minorities, education and violence against women.
Drawing on case studies from Ireland, the guide describes the tools available to mandate holders to fulfil their functions, explains how civil society organisations can engage with these experts and identifies the criteria which must be satisfied in order to do so.
In terms of powers, mandate holders can, first of all, send communications to states concerning alleged human rights violations. Oftentimes, mandate holders will mobilise on the basis of information received from civil society. For example, in April 2015, acting upon information transmitted by civil society, the Working Group on the issue of discrimination against women in law and in practice and the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health transmitted a joint communication to the Government concerning the potential discriminatory effects of the Gender Recognition Bill.
In particular, the mandate holders expressed concerns and asked detailed questions regarding mandatory medical certification, the ?forced divorce? clause and disproportionate safeguards applied to children which, in their view, discriminated against transgender people and their rights to privacy, equality and education and could affect physical and mental health. The mandate holders requested an official state response to their allegations.
Importantly, civil society organisations can provide information on alleged human rights violations even where Ireland has not ratified the relevant UN treaty. For example, while Ireland has yet to ratify the UN Convention on the Rights of Persons with Disabilities, or its Optional Protocol, organisations can submit communications to the UN Special Rapporteur on the Rights of Persons with Disabilities concerning alleged human rights violations affecting persons with disabilities.
Second, mandate holders can undertake country visits which allow them to assess the human rights situation on the ground. In January 2011, then Independent Expert on extreme poverty and human rights, Magdalena Sepúlveda Carmona, undertook a country visit to Ireland. Her visit focused on the impact of the economic crisis in Ireland and the effect of austerity measures on the enjoyment of human rights. She looked in particular at how vulnerable groups were impacted by recovery measures.
During her visit, civil society actors raised awareness of the visit through the media, met directly with Ms Sepúlveda Carmona and provided her with briefings on issues relevant to her mandate. In May 2011, Ms Sepúlveda Carmona published her mission report on Ireland. She made a range of recommendations including to reverse austerity measures which had disproportionately impacted on the most vulnerable and to strengthen the social protection system, infrastructure and social services.
It is relevant to note in this regard that civil society organisations will have the opportunity to engage with both the Special Rapporteur on the human right to safe drinking water and sanitation and the Special Rapporteur on the sale of children, child prostitution and child pornography in the near future as both have requested to visit Ireland.
Thirdly, mandate holders frequently undertake detailed studies on specific human rights violations or situations affecting a certain vulnerable group. Civil society can provide information for inclusion in these reports. For example, the UN Special Rapporteur on the right to adequate housing presented a report on homelessness to the UN Human Rights Council in March 2016. The Special Rapporteur?s report notes that, in Ireland, families with children have become the fastest growing group within the homeless population. To support her argument, the Special Rapporteur referenced a submission she received from an Irish organisation working with people who are homeless.
The second guide is a toolkit for individuals taking complaints to UN Treaty Bodies as well as civil society actors taking cases on their behalf. UN Treaty Bodies are committees of independent experts which are responsible for monitoring compliance with international human rights treaties. The guides specify which mechanisms people in Ireland can access, the procedures involved and the requirements which must be fulfilled.
Thus far, Ireland has ratified six core international human rights treaties. Of these, individuals can bring complaints to five UN Treaty Bodies, the sole exception being complaints to the UN Committee on Economic, Social and Cultural Rights. Despite signing the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights in March 2012, Ireland has yet to ratify this instrument. Ratification would enable individuals to bring complaints alleging violations of the International Covenant on Economic, Social and Cultural Rights which protects basic rights such as health, housing and social security.
The guide also contains case studies on complaints which have been brought against Ireland to UN Treaty Bodies. To date, five complaints have been made against Ireland. All of these petitions have been filed with the Human Rights Committee alleging violations of the International Covenant on Civil and Political Rights (ICCPR).
Three complaints, including Ó Cólchúin v Ireland, which concerned voting restrictions imposed on Irish citizens living abroad, were deemed inadmissible.
Nevertheless, two petitions were found to be admissible and were considered on the merits. In Kavanagh, Ireland was found to have breached the ICCPR for failing to demonstrate that the decision to try the complainant before the Special Criminal Court was based upon reasonable and objective grounds. In O?Neill & Quinn, the Human Rights Committee found no violation of the Covenant, holding that the Government?s decision to exclude the complainants from the early release scheme under the Good Friday Agreement was not discriminatory and their continuing detention was not arbitrary.
An information piece on the guides with links is available on the FLAC website.
Eoin Daly - Fri Apr 29, 2016 17:15
Dublin City University is inviting applications for PhD studentships in Politics, International Relations and Law. Further details are here.
Dublin City University is inviting applications for PhD studentships in Politics, International Relations and Law. Further details are here.
Eoin Daly - Mon Apr 11, 2016 10:54
We are pleased to welcome this guest post by Conor Talbot, PhD Candidate at the European University Institute, Florence, and an Associate Researcher at the Department of Economics, Trinity College Dublin (contact firstname.lastname@example.org). Sport is an integral part of the culture of almost every nation and its ability to shape perceptions and influence public opinion should not […]
We are pleased to welcome this guest post by Conor Talbot, PhD Candidate at the European University Institute, Florence, and an Associate Researcher at the Department of Economics, Trinity College Dublin (contact email@example.com).
Sport is an integral part of the culture of almost every nation and its ability to shape perceptions and influence public opinion should not be underestimated. The United Nations has highlighted the potential for using sport in reducing discrimination and inequality, specifically by empowering girls and women. Research indicates that the benefits of sport include enhancing health and well-being, fostering empowerment, facilitating social inclusion and challenging gender norms.
In spite of the possible benefits, the successful implementation of sport-related initiatives aimed at gender equity involves many challenges and obstacles. Chief amongst these is the way that existing social constructs of masculinity and femininity ? or socially accepted ways of expressing what it means to be a man or woman in a particular socio-cultural context ? play a key role in determining access, levels of participation, and benefits from sport. This contribution explores recent developments in the interaction between transgender and intersex rights and the multi-billion dollar industry that the modern Olympic Games has become. Recent reports show that transgender people continue to suffer from the glacial pace of change in social attitudes and, while there has been progress as part of a long and difficult journey to afford transgender people full legal recognition through the courts, it seems clear that sport could play an increasingly important role in helping change or better inform social attitudes.
?The practice of sport is a human right. Every individual must have the possibility of practising sport, without discrimination of any kind and in the Olympic spirit, which requires mutual understanding with a spirit of friendship, solidarity and fair play.? – Olympic Charter
While proclaiming the practice of sport to be a human right, the Olympic Charter unequivocally states that the International Olympic Committee (IOC) has ?supreme authority? over the staging of the Olympic Games. Under the IOC?s stewardship, and in line with other major sporting events worldwide, a narrative has been carefully cultivated to the effect that events such as Olympic Games would not be possible without the support and resources of the broadcasters and, ultimately, sponsors. Therefore, while on the one hand, the use of sports as a development tool and strategy to reduce discrimination generally is growing, there is also a distinct field of commentary which is critical of the approach of the Olympic ?industry? (indeed, the term “industry” is used to draw attention to the profit-making goals of the Olympics).
Given the top-down nature of sporting governance, research from Wales and Scotland reveals that whilst many lesbian, gay, bisexual and transgender people continue to be put off by negative experiences or the perception that it is an unpleasant and unsafe environment for LGBT people. This post focuses in particular on the treatment of transgender and intersex athletes under the rules enforced by international sporting federations. In attempting to get ahead of the curve with transgender issues, with the stated aim of protecting the sporting integrity (and therefore the reputational and commercial value) of competitions by minimising sex-related advantages, the IOC has a long history of insensitive and often unproductive testing protocols for athletes. As it is probably the most visible of all international sporting federations, the IOC became the standard bearer for such testing policies and, indeed, it has been argued that IOC policies gave impetus (and sometimes political cover) for other groups to follow suit.
Gender/Sex Verification Tests and the Stockholm Consensus
The issue of gender- or sex-verification gained global attention in recent times after South African runner Caster Semenya was ordered to undergo tests after winning the 800m world title in 2009. She was eventually cleared to compete by the IAAF and won silver in the 800m at the 2012 London Olympics.
IOC had maintained a practice of conducting gender verification tests at the Olympic Games, with the testing of Dora Ratjen in 1938 and Foekje Dillema in 1950 being early cases to gain attention. The initial testing protocols amounted to rather crude and undoubtedly humiliating physical examinations. These techniques later gave way to the method of determining ?sex? chromatin through buccal smear examination, introduced at the Mexico City Olympic Games in 1968. Chromosome-based screenings were criticised for being unscientific and unfairly excluding many athletes, in particular since only the chromosomal (genetic) sex is analysed by sex chromatin testing, not the anatomical or psychosocial status. These techniques were abandoned by the IAAF in 1991 and the IOC since Sydney 2000.
Under the so-called Stockholm Consensus, the IOC granted permission for men and women who had undergone gender reassignment surgery to participate in competitive sport. The Consensus recommended that individuals undergoing sex reassignment from male to female after puberty (and the converse) be eligible for participation in female or male competitions, respectively, once surgical anatomical changes had been completed (gonadectomy), legal recognition of their assigned sex had been conferred; and verifiable hormonal therapy had been administered for a sufficient length of time to minimise gender-related advantages. Under the Consensus, eligibility for competition could begin no sooner than two years after the athlete?s gonadectomy.
Regulation of Hyperandrogenism in Female Athletes
Hyperandrogenism is a term used to describe the excessive production of androgens (testosterone). Given its influence on endurance and recovery, controversies have arisen in the past surrounding cisgender women athletes with high levels of testosterone. An Indian sprinter, Dutee Chand, was suspended by the IAAF in 2014 due to her elevated testosterone levels. However, the Court of Arbitration for Sport (CAS) suspended the IAAF rule in July 2015, on the grounds that the IAAF had failed to prove that women with naturally high levels of testosterone had a competitive edge. The CAS ordered the IAAF to present new scientific evidence regarding the degree of competitive advantage enjoyed by hyperandrogenic females by July 2017, otherwise its 2011 Regulations Governing Eligibility of Females with Hyperandrogenism to Compete in Women?s Competition would be declared void.
While Chand was cleared to compete following her high profile appeal, a study published in April 2013 in the Journal of Clinical Endocrinology & Metabolism, a US peer-reviewed journal for endocrine clinical research, recounts the rather less fortunate fate of four anonymous young athletes who, it appears, were effectively forced to undergo surgery to allow them to compete in women?s sports ahead of the 2012 Olympics. When the story emerged in June 2013, the IAAF reportedly denied that it had taken place.
The young women, who were 18, 20, 21, and 20 years of age at the time of the study, came from rural or mountainous regions of developing countries. Clinical inspection of the women revealed varying degrees of intersexuality: they had never menstruated and had male bone characteristics, no breast development and partial or complete labial fusion. Consanguinity was confirmed for three of them (first cousins in two cases and siblings in another) and was suspected in the fourth case with her parents originating from neighbouring villages. The authors of the report opine that the gender abnormalities of the athletes may not have been formally diagnosed or given medical attention because they had been born in rural regions of countries with poor care. In all cases, they were tall, slim, muscular women and had manifested strong motivation and high tolerance to intensive daily training, which had made them good candidates for elite sports competition.
Rather than requesting gender change, the study reports that the athletes wished to maintain their female identity in order to continue elite sport in the female category. Although leaving male gonads carried no health risk, and despite the negative effect that a gonadectomy would have on their performance levels and general health, the athletes underwent the feminising surgical procedures. The study concludes that the sports authorities then allowed them to continue competing in the female category one year after their procedures. The radical nature of the surgery required, as well as the unknown future impact on the athletes? health, highlight the dangers of such policies for inclusion in women’s sporting events.
New IOC Guidelines
Under new IOC Transgender Guidelines, which were reported as stemming from an unpublicised Consensus Meeting on Sex Reassignment and Hyperandrogenism, surgery such as that described above will no longer be required. Female-to-male transgender athletes are now eligible to take part in men?s competitions ?without restriction?, while male-to-female transgender athletes will need to demonstrate that their testosterone level has been below 10 nanomols per litre for at least one year before their first competition. That said, the IOC document does contain a provision allowing for a the imposition of a period of longer than one year, based on a confidential case-by-case evaluation, considering whether or not 12 months is a sufficient length of time to minimize any advantage in women?s competition. No further detail is provided on the nature of these case by case evaluations so it is unclear just how much progress these guidelines actually represent compared to the crude sex verification tests used in the past. Again, the IOC justifies these regulations as being necessary to avoid accusations of an unfair competitive advantage.
The IOC document also refers directly to CAS decision in relation to Dutee Chand. Specifically, the IOC encourages the IAAF, with support from other International Federations, National Olympic Committees and other sports organisations, to revert to CAS with arguments and evidence to support the reinstatement of its hyperandrogenism rules. Therefore, the IOC?s appears to contest the validity of the CAS award and seems determined to provide scientific grounds for upholding its ban on female athletes with elevated levels of testosterone, even where it is naturally occurring and the athletes? bodies are partially unable to process it.
Taken together, the net result of these regulations is that if a female transgender or intersex athlete?s natural testosterone levels are considered too high, she is expected to undergo treatment to reduce her testosterone to levels considered to be within the normal range for women before being allowed to compete in women?s sports. This has come to be the subject of severe criticism because it is argued that such athletes are being medically harmed by sport under these regulations. Testosterone is essential for the development of male growth and masculine characteristics, and is vital for any athlete in aiding recovery times from physical exertion. Although the health effects of the presence of high levels of testosterone in women?s bodies is still the subject of research, testosterone occurs naturally in both males and females and would appear to be vital for the body?s all-round health.
Kristen Worley Litigation
The potential for these testosterone limits to lead to harm to the athletes involved is the focus of a major case being brought by a Canadian cyclist, Kirsten Worley, a female athlete who has transitioned from male to female by undergoing sex reassignment surgery with the result that she no longer produces either testosterone or estrogen. She alleges that the Ontario Cycling Association and Cycling Canada Cyclisme gender verification and anti-doping rules discriminate against her on grounds of sex, contrary to the Canadian Human Rights Code. The rules in question are based on the Union Cycliste Internationale (UCI) directives which are, in turn, based on IOC policies. Worley claims that these policies have damaged not only her ability to continue taking part in competitive cycling, but also her health.
Interestingly, Worley effectively bypassed international sport’s usual dispute-settlement procedures by bringing her claim through the mainstream human rights judicial instances. After the preliminary issue of whether the respondents received effective legal notice, a further dealy was caused when the IOC requested that the Tribunal defer consideration of Worley?s application pending the completion of a judicial review application commenced by the IOC. The IOC also argued that the Human Rights Tribunal of Ontario was not competent to hear the case, since it concerns sporting rules. Likewise, the UCI objected to the Tribunal?s ability to adjudicate and argued that the UCI Arbitral Board and/or the Canadian Center for Ethics in Sport are the competent authorities to address the allegations contained in Worley?s application.
Importantly, the court hearing the preliminary proceedings in the Worley application held that it is established law that parties cannot contract out of the Canadian Human Rights Code?s protections. Therefore, the court rejected the proposition that the Human Rights Tribunal lacked jurisdiction purely because there are alternate mechanisms to which Worley could have, but did not, file a claim. As such, the Worley litigation is extremely interesting as it will be a rare instance of the sheltered world of international sporting organisations being subjected to the full rigours of human rights principles.
It will be very interesting to follow how this claim is dealt with by the Canadian courts, and received by the international sporting community generally, in the months and years to come. Worley herself has pursued this campaign for over a decade and, given the publicity garnered by the latest steps in her litigation, it now appears to have the potential to inspire other athletes to avail of human rights avenues to open up sports-based disputes to courts of law rather than courts of arbitration. From the IOC?s perspective, it is clear that it has a legitimate interest in acting to preserve fair competition but this agenda cannot be pursued irrespective of the repercussions. The most recent changes to its Transgender Guidelines are expressly stated to have been introduced in recognition of how requiring surgical anatomical changes as a pre-condition to participation may be inconsistent with ?notions of human rights?.
If nothing else, the new IOC Transgender Guidelines proves that international sport does not operate in a vacuum and is capable, to some extent at least, of reflecting social progress. However, it remains to be seen whether the most visible sporting governance body is prepared to play a true leadership role in utilising all the benefits of sports in helping to change perceptions of transgender and intersex athletes. In that sense, the Kirsten Worley litigation represents a crystallisation of a struggle to apply human rights principles in a new area and, as such, will be worthy of our attention going forward.
Conor Talbot is a PhD candidate at the European University Institute. He can be contacted at firstname.lastname@example.org and his research is available at www.ssrn.com/author=1369709?utm_source=rss&utm_medium=rss.
GuestPost - Wed Mar 23, 2016 17:58
The deadline for submission of abstracts to the PGR and early career conference to be held in Griffith College Dublin on 10 June 2016, and entitled ?International and Comparative Law in the 21st Century: Lessons learned??, is Friday 8th April 2016 at 5pm The keynote speaker will be full time Commissioner of the Law Reform Commission, Finola […]
The deadline for submission of abstracts to the PGR and early career conference to be held in Griffith College Dublin on 10 June 2016, and entitled ?International and Comparative Law in the 21st Century: Lessons learned??, is Friday 8th April 2016 at 5pm
The keynote speaker will be full time Commissioner of the Law Reform Commission, Finola Flanagan. She was previously Director General of the Office of the Attorney General and, more recently, she was co-ordinator of EU and ECHR law in Ireland. She is a member of the Venice Commission, the Council of Europe?s advisory body on constitutional matters and has acted as rapporteur on a number of its Opinions.
Applicants are requested to submit a 300 word abstract of the paper which they intend to present to email@example.com which will be peer-reviewed by the selection Committee.
There will be an Award for the candidate who presents the best paper. In order to be considered for the ?Best Paper? Award, candidates must submit a full length paper of no more than 2,000 words in addition to the 300 word abstract. If you wish to be considered for the ?Best Paper? award, please indicate so clearly in your submission email.
Deadline: The final date for abstract submissions is Friday 8th April at 5pm.
Timeline: The Conference Committee will send acceptance notifications and paper feedback in April 2016.
Contact details: Please e-mail firstname.lastname@example.org should you have any queries in this regard.
Fee: ?30 per delegate. This will include refreshments and a light lunch.
Call for Contributions & Engagement #directprovision16: Direct Provision 16 years on, and on, and on?
Liam Thornton - Tue Mar 15, 2016 13:08
Post by, Caroline Reid, Communications Officer with the Irish Refugee Council #DirectProvision16 On April 10th 2016 the system of Direct Provision will be 16 years in existence. For the last few years this date has been marked by many people contributing to an open call for submissions (see www.humanrightsireland.ie or #DirectProvision15). These submissions have been varied […]
Post by, Caroline Reid, Communications Officer with the Irish Refugee Council
On April 10th 2016 the system of Direct Provision will be 16 years in existence. For the last few years this date has been marked by many people contributing to an open call for submissions (see www.humanrightsireland.ie?utm_source=rss&utm_medium=rss or #DirectProvision15). These submissions have been varied and came from many different people, sectors and angles. They all served to highlight and explore the failings of Direct Provision and the detrimental impact it is having, and has had, on the men, women and children forced to live within it. The date has been marked retrospectively up until now. This year we want to look forward and concentrate on what could be.
The Government say that there is no alternative.
They say that alternatives have never been put forward.
They say if they end Direct Provision it will mean over 4,000 people will become homeless, as if that is what those who campaign for an end to this inhumane system are advocating for.
Alternatives are possible, they are achievable, but unfortunately there has been no political will from our successive governments to address Ireland?s current and ongoing form of institutionalised living.
Last year saw thousands of people across Ireland offer rooms, houses and other practical solutions for the initial reception of refugees.
The principles of initial short term reception for people in need of asylum have been talked about for quite some time. Based on these, and perhaps more focused areas or groups that may be of interest to you, we are this year not focusing on the legacy of Direct Provision. Instead we are looking forward and we are making a public call for submissions on what alternative models could look like.
Your idea may be for a general initial reception system, a community cooperative scheme, housing collectives or for schemes that enable people to live with people in the community. Perhaps you have something in mind for a particular group of people? We are seeing different models being tried out in other European countries, e.g. for the LGBTIQ asylum seeking community; Female only housing; Specialised accommodation for people who have particular vulnerabilities; Family only accommodation; Perhaps you think there should be special provisions for young people who turn 18 and are removed from their foster carers as they are now considered ?aged out minors?? The only thing restricting your submissions is your own creativity in developing a humane and open reception system for people.
Submissions can be written, visual, a blueprint, design based, or simply links to other initiatives happening across the world that you believe we can replicate here. The online campaign will hopefully culminate in plenty of food for thought for our soon to be Government. Let?s make #DirectProvison16 something that we can build on and move forward with. Let?s create political will by offering practical solutions that counter the current government line.
~ cap on length of time in initial reception
~ embodies the best interests of the child
~ allows for self-determination
~ is based on care, not profit
~ identifies & supports individuals with special needs & vulnerabilities early on
~ makes early legal advice available
~ includes independent complaints (to the national Ombudsmen)
~ includes inspection mechanisms
~ provides the right to work
~ fosters rather than deters social inclusion
For those not wishing to submit a blog post, but wishing to other wise engage, please let others who may be interested know about this blogathon:
Please share this information on your own Facebook/Twitter/Tumblr page and aim for a Twitter storm for the hashtag #directprovision16
admin - Fri Mar 11, 2016 11:14
We are pleased to welcome this Guest Post from Eimear Spain and Shane Kilcommins. The Garda Siochana Ombudsman Commission is an independent agency established under the 2005 Garda Siochana Act to deal with matters involving possible misconduct by members of the Garda Síochána. Last month it was revealed that it scrutinised the phone records of […]
We are pleased to welcome this Guest Post from Eimear Spain and Shane Kilcommins.
The Garda Siochana Ombudsman Commission is an independent agency established under the 2005 Garda Siochana Act to deal with matters involving possible misconduct by members of the Garda Síochána. Last month it was revealed that it scrutinised the phone records of two journalists. The Minister for Justice and Equality, Frances Fitzgerald, has appointed Mr Justice John Murray to carry out a review of the legislative framework in respect of access to communications data of journalists. In defending the use of such powers, the current GSOC Commissioners pointed out that it was the legislative body of the State which made Garda leaks a serious offence, and it was also the same body which granted powers to access phone records and internet data to GSOC. As the Commissioners noted: ?Gsoc must use any lawful means provided by the legislature ?to ensure that its functions are performed in an efficient and effective manner???.
Surveillance powers are provided for under three main pieces of legislation in Ireland: the use of surveillance and tracking devices under the Criminal justice (Surveillance) Act 2009; the interception of postal packets and telephone conversations (phone tapping) under the Postal Packets and Telecommunications Messages (Regulations) Act 1993; and the use of information that has been generated by various service providers arising from the use of mobile phones and landlines under the Communications (Retention of Data) Act 2011. Under the 2011 Act, a request for disclosure of data may be made if a member of An Garda Siochana is satisfied that the data is required for the prevention, detection, investigation or prosecution of a serious offence. It is clear that the legislature made leaking of data by a member of An Garda Siochana is a serious criminal offence under section 62 of the Garda Siochana Act 2005, thus giving power to request data in any such investigation.
What are GSOC?s surveillance powers?
Upon establishment in 2005, designated officers within GSOC were conferred with all the powers, immunities and privileges conferred on any member of the Garda Síochána under any enactment or common law in existence at that time or enacted subsequently including powers of entry, arrest, charge, summons, search, detention, questioning, and the taking of bodily samples. The only exclusions were contained in section 98(5) of the Garda Siochana Act, 2005 and related to powers under the Offences Against the State Acts and in relation to phone tapping. GSOC were specifically excluded from having powers under the 1993 Act, with members of the legislature submitting that giving GSOC powers to tap telephones would permit them to act ?as a separate police force?. Michael McDowell, the then Minister for Justice, was even more explicit: ?I would not be comfortable giving the Ombudsman Commission the right to tap the telephones of politicians or journalists in pursuit of its criminal investigations?. GSOC were also subsequently specifically excluded from the 2009 Surveillance Act, section 17 of which expressly provides that the powers under the Act, including surveillance and tracking powers, did not apply to them. This provoked considerable debate in the Dail but a proposed amendment to provide them with surveillance powers was not carried (69 against the proposed amendment as opposed to 63 for it).
However, GSOC were given powers upon establishment in 2005 under the Postal and Telecommunications Act 1983 (as amended) to request information on the use made of telecommunications services. They were also conferred with powers under the Criminal Justice (Terrorist Offences) Act 2005 which compelled a service provider to comply with a request for disclosure of traffic or location data retained for the purposes of the prevention, detection, investigation or prosecution of crime (including but not limited to terrorist offences). This Act was replaced by the Communications (Retention of Data) Act 2011, which was introduced in the dying days of the 30th Dail. Most recently, section 5 of the Garda Síochána (Amendment) Act 2015, permits GSOC to use surveillance and tracking devices, and to intercept postal packets and telephone conversations, powers which were previously unavailable to them.
What are the potential issues with GSOC?s accessing of phone records under the 2011 Act?
The Communications (Retention of Data) Act 2011 provides under section 6 that a member of An Garda Siochana not below the rank of Chief Superintendent, an officer of the Permanent Defence Forces below the rank of Colonel, or an officer not below the rank of principal officer in the Revenue Commissioners could request data from the service providers under the Act. While GSOC was not mentioned in the section 6 access provision, as the Act conferred powers on members of An Garda Síochána, it is reasonable to argue that GSOC had an implied power under the 2011 Act. Nevertheless such an interpretation raises a number of concerns.
When the legislature confers powers on any agency to suspend or qualify the individual rights of citizens it should, where possible, not do so by implication. In order to maintain the integrity of the right in issue, the legislature should expressly provide the agency with the power, and be in a position, particularly at debate stage, to justify that power in the light of the right at issue. This ensures that limitations on the right have been reflected upon and considered, better ensuring that any limitations are proportionate, the least restrictive in the circumstances, and apply only so far as is strictly necessary. Catch-all provisions, such as that provided for under section 98 of the Garda Síochána Act 2005, do not facilitate or promote reflection about the rights of citizens in the Dáil.
The second concern relates to clarity around the existence of GSOC?s powers to access data under the 2011 Act. Given the value placed by society on the autonomy of the individual, it follows that our laws should be predictable and certain so as to ensure that each citizen has fair opportunity to know the rules and how they will be applied. While it may be implied that the powers conferred upon An Garda Síochána by section 6 were also conferred upon GSOC, it is significant in this regard that section 12 of the Act, which provides for judicial oversight of compliance by the various agencies with powers under the Act, makes no reference to GSOC as one of the bodies subject to review. The Garda Siochana, the Defence Forces, the Revenue Commissioners and, since 2014, the Competition and Consumer Protection Commission are specifically mentioned. If the legislature intended to confer the relevant powers on GSOC, why did it not specifically reference it in the review provision under section 12 given that it did so with the other agencies? Furthermore, legal commentaries on the 2011 Act in the Annotated Statutes and Bar Review did not refer to GSOC in their interpretations of the agencies conferred with powers under section 6 of the 2011 Act. Such gaps do little to enhance comprehension or conceptual consistency; if lawyers are unsure, how does this sit with the ?fundamental value? that citizens ?should know, or at least be able to find out, with some considerable measure of certainty, what precisely is prohibited and what is lawful??
Given such ambiguity, one wonders whether GSOC sought clarification on its interpretation of s.6 of the 2011 Act, particularly in the light of the rights at stake and its absence from the provision for review under section 12. This requirement of certainty takes on an added resonance when the rules in question provide powers to lawfully curtail the individual rights of citizens. Power conferring laws that suspend or qualify rights should ? in order to maintain the integrity of the right in issue ? be expressly provided for and justified in each instance, rather than included by in a catch-all provision under the 2005 Act which offers a rather imperfect mandate. The European Court of Human Rights has, for example, noted as far back as 1984 that because the implementation in practice of measures of secret surveillance of communications is not open to scrutiny by the individuals concerned or the public at large, ?the substantive law itself?must indicate the scope and manner of exercise of any such discretion with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference?. More recently in Shimovolos v Russia (2011), the European Court of Human Rights held that
‘because of the lack of public scrutiny and the risk of abuse intrinsic to any system of secret surveillance, the following minimum safeguards should be set out in statute law to avoid abuses: the nature, scope and duration of the possible measures, the grounds required for ordering them, the authorities competent to permit, carry out and supervise them, and the kind of remedy provided by the national law’.
In addition to promoting clarity, this demand for positive express legislative authorisation, review and justification can serve the important didactic purpose of reminding the power bearer of how seriously the State takes the rights of its citizens.
The third issue relates to legality, and in particular whether the designated judge has jurisdiction to review the exercise of powers by GSOC under the 2011 Act. It is important to note here that the 2005 Act confers the powers, immunities and privileges of membersof An Garda Siochana on designated officers of GSOC. While the 2005 Act specifically equates personnel within the two organisations, at no point in the 2005 Act is GSOC equated with An Garda Síochána. Section 12 can therefore not be read as providing for a review of compliance by GSOC with the terms of the Act by the designated High Court judge. This is significant, and raises issues about the actual existence of an express legal framework for reviewing GSOC?s practices, together with the lawful authority of an overseer to do so.
Aside from the difficulties relating to the protection of rights, clarity and legality, there are also questions to be addressed in relation to the oversight process between 2011 and 2014. It is not clear what oversight existed in relation to the 2011 Act until 2014. The designated judge under section 12 of the 2011Act makes no reference to GSOC in his 2011, 2012 or 2013 reports. It is only in the 2014 report that the designated judge mentions for the first time that he ?attended the Office of An Garda Síochána Ombudsman Commission?. The report of 2015 also mentions that GSOC was visited. The legitimate question this begs is whether GSOC was using its perceived powers under the 2011 Act prior to 2014, and, if so, what independent oversight was in place in that period. If it was using its powers under the Act between 2011 and 2014, but was not subject to oversight, does this have consequences for information gathered by GSOC during that period?
If, as seems to be the case, powers to access data records were also exercised by GSOC between 2005-2011, the question of whether there was any oversight of the exercise of those powers also looms large. Again there is no reference to oversight of compliance by GSOC in any publically available reports by the designated judge under the 1993 and 2005 Acts in the relevant period. Such practices would also have to be measured against ECHR jurisprudence, which demands at a minimum that oversight mechanisms in respect of surveillance ?must be vested with sufficient powers and competence to exercise an effective and continuous control over the surveillance?. In Klass v Germany the ECtHR noted that “[t]he Court must be satisfied that, whatever system is adopted, there exist adequate and effective guarantees against abuse.”
The right to privacy is viewed as a fundamental right that promotes autonomy and human dignity whilst also ensuring democratic freedom of association and expression. If the essence of such a right is to be protected and valued in a society, it requires that any limitations on its exercise should be justified, laid down in clear laws, apply only so far as is strictly necessary, and have robust, continuous, and effective statutory oversight mechanisms. Even from a simple analysis of the legislative process through which powers of surveillance have been conferred on GSOC, it is not clear that the legislature is taking such rights very seriously in Ireland.
Professor Shane Kilcommins and Dr Eimear Spain lecture at the School of Law at the University of Limerick.
admin - Tue Mar 08, 2016 12:40
We are pleased to welcome this post from Claire McGettrick of Justice for Magdalenes. This post is an updated version of a statement given to Oireachtas Retort for an article commemorating Election Day 2016. Last Sunday, hundreds of people around Ireland honoured the women who lived and died behind Magdalene Laundry walls as part of […]
We are pleased to welcome this post from Claire McGettrick of Justice for Magdalenes. This post is an updated version of a statement given to Oireachtas Retort for an article commemorating Election Day 2016.
Last Sunday, hundreds of people around Ireland honoured the women who lived and died behind Magdalene Laundry walls as part of the fifth annual Flowers for Magdalene commemorations held at various cemetaries around Ireland. Every year, I walk around the Magdalene graves at Glasnevin prior to the ceremony to ascertain if there have been any changes. It has been six years since the Sisters of Our Lady of Charity claimed they were at ?an advanced stage in making arrangements for the full and accurate details relating to these women…to be recorded in Glasnevin Cemetery?. In that time, just 10 new names have been added to the High Park gravestones, with no changes in the past 12 months. None of these changes rectify the discrepancies identified by Justice for Magdalenes Research (JFMR) over a year ago.
The very idea of celebrating International Women?s Day under such circumstances seems futile, even disrespectful. Regardless of how you mark International Women?s Day, please take a moment to read the following and consider how it is possible in 2016 for some of our most vulnerable citizens to be treated with such contempt.
On 19th February, we marked the third anniversary of Enda Kenny’s emotional apology to Magdalene survivors. When footage from that day is shown it usually focuses on the moment when the Taoiseach was reduced to tears in the Dáil chamber. Two weeks previously, when the McAleese Report was published on 5th February 2013, there were no such tears. Refusing to apologise, the Taoiseach alleged that because of the McAleese Report, ‘the truth and reality‘ had been ‘uncovered and laid out for everyone to read and to understand‘. Two weeks later, however, the historic apology finally came and thereafter, there was little interest ? from media or otherwise (Conall O’Fátharta is a notable exception) ? in anything other than the former government?s ‘good news story’, which began and ended with the apology.
Was the Taoiseach’s tearful apology the result of a ‘road to Damascus’ moment that occurred at some point between 5th and 19th February? Or, was it a political decision designed to make the Magdalene problem go away? The experiences of survivors in contact with our organisation would suggest that, unfortunately, it was the latter.
During that two-week period, the Taoiseach came under immense public criticism for his performance on the day the McAleese Report was released. Mr Kenny also faced pressure at cabinet level from his coalition partners, while junior Labour TDs and senators also threatened a walk out from a parliamentary party meeting.
The Taoiseach also had a busy diary between 5th and 19th February. Just days prior to the release of the Report, Senator McAleese resigned on 1st February. On 11th February the Taoiseach met with Nuala Ní Mhuircheartaigh, Senator Martin McAleese?s legal advisor and co-author of the McAleese Report. Also on 11th February, Enda Kenny met a group of Magdalene survivors. On 14th February, the Taoiseach had a meeting at Beechlawn Nursing Home, also the location of the generalate of the Sisters of Our Lady of Charity, who ran the High Park and Gloucester Street laundries in Dublin. The facts surrounding the purpose of this meeting and who was in attendance remain unknown. Two days later on 16th February Enda Kenny travelled to London to meet Magdalene survivors, many of whom left or escaped from the laundries to leave Ireland behind by emigrating to the UK.
On 8th February, JFM was also approached informally by a civil servant in the Department of Foreign Affairs about organising a meeting between the Taoiseach and survivors in contact with our organisation. In accordance with our survivor-centred ethos, we wished to ensure that survivors could make a decision regarding their attendance at such a meeting in an informed capacity. Thus, we responded to the civil servant the same day, requesting a letter from the Taoiseach?s office setting out the purpose of the meeting; the format of the meeting; the agenda for the meeting; who would be present and whether it would be open to all survivors who wished to attend. We also asked what guarantees could be given that survivors would be protected from the media. No response was forthcoming from the Taoiseach?s office and therefore, survivors in contact with JFM did not meet with Enda Kenny during this time.
On the night of the apology, Enda Kenny announced that he had asked Mr Justice John Quirke to make recommendations to government on a scheme for Magdalene Laundry survivors. In June 2013, Mr Justice Quirke published The Magdalen Commission Report and while the financial element of the ex gratia scheme fell far short of what survivors deserve, JFMR nonetheless welcomed it, in recognition of the other recommended benefits and services, particularly the establishment of a Dedicated Unit and the provision of an enhanced medical card which would provide access to ?the full range of services currently enjoyed? by HAA Card holders. We were pleased when the government announced that it would accept all of Judge Quirke?s recommendations.
A month previous to the publication of the Quirke Report, on 22nd May 2013, Felice Gaer, Rapporteur for Follow-up on Concluding Observations at the United Nations Committee Against Torture (UNCAT) wrote to the Irish State as part of the follow-up process on UNCAT?s recommendations in 2011. In this letter, the Rapporteur noted that the McAleese inquiry ?lacked many elements of a prompt, independent and thorough investigation, as recommended by the Committee [Against Torture] in its Concluding Observations?. The letter went on to ask the Irish State whether it ?intends to set up an inquiry body that is independent, with definite terms of reference, and statutory powers to compel evidence, and retain evidence obtained from relevant religious bodies?.
On 8th August 2013, just six months after the apology, the Irish State responded to UNCAT, asserting that ?[n]o factual evidence to support allegations of systematic torture or ill treatment of a criminal nature in these institutions was found? by the McAleese Committee and ?in light of facts uncovered by the McAleese Committee and in the absence of any credible evidence of systematic torture or criminal abuse being committed in the Magdalene Laundries, the Irish Government does not propose to set up a specific Magdalen inquiry body?.
Three years later the government has seriously undermined Magdalene survivor?s trust, as it has cut corner after corner on the implementation of the ex gratia scheme. Survivors are still awaiting the establishment of a Dedicated Unit, a measure that should have been put in place immediately and not after the women, in many cases, have had to navigate the Ex Gratia Scheme alone. Some survivors have difficulty in proving duration of stay because of the religious orders? poor record keeping, yet incredibly, the government affords greater weight to the religious orders? contentions than survivor testimony.
The healthcare provisions as outlined in the RWRCI Guide do not provide Magdalene survivors with the same range of drugs and services made available to HAA cardholders. The women who have signed up to the Magdalene scheme thus far were required first to waive their rights to take additional legal action against the State, In return, they were led to expect that they would receive the full range of benefits and services recommended by Mr Justice Quirke.
In July 2015, six months after JFMR called on the HSE to provide survivors with a comprehensive guide to their entitlements under the scheme, the HSE sent survivors a five-page document. The Guide to Health Services under the Redress for Women Resident in Certain Institutions Act 2015, is an insult when compared to the comprehensive 48-page guide provided to HAA cardholders.
The government has failed Magdalene survivors living overseas. In this regard the government has repeatedly said it is ?examining the practical arrangements? for the provision of health services to women living abroad, however no timeframe has been given as to when this ?administrative process? will be in place. The needs of elderly survivors who are part of our Diaspora appear to have dropped off the State?s agenda. This is particularly the case for survivors based outside of Ireland and the UK.
And, if survivors who are still alive have dropped off the agenda, unsurprisingly, the deceased do not feature at all.
To-date, JFMR has recorded the details of 1,663 women who died in Ireland?s Magdalene Laundries, almost twice the figure cited in the McAleese Report. The Report does not count the deaths of women who died in the laundries before 1922. Neither does the report count women who lived and died in institutionalized settings, still in the charge of the religious orders, after the laundries closed down. The McAleese Report maintains that the ?vast majority? of women who entered the Magdalene Laundries prior to 1922 were no longer in the institutions after the foundation of the State and consequently these so-called ?legacy cases? were ?excluded from the statistical analysis?
Alice K, Agnes D and Maggie M are three of the women who were compartmentalised into the category of ?legacy cases? and who were thus omitted from the McAleese Report.
Alice K was twenty-nine years old when she was recorded in the 1911 Census for the Peacock Lane laundry in Cork. On 26th November, 1961 an Alice O?K died and was interred in the Peacock Lane grave site at St Finbarr?s Cemetery in Cork. If this is one and the same woman, Alice spent a minimum of 50 years at Peacock Lane.
At the age of twenty-eight, Agnes D appears in the 1901 Census record for High Park Laundry. The 1911 Census was recorded differently at High Park, with only initials used for each woman. An ?A. D.? is recorded as aged thirty-four and from Dublin City. An Agnes D is interred at the High Park burial site at Glasnevin Cemetery in Dublin. She died on 4th August, 1967. Agnes?s name does not appear on the exhumation licence for High Park and it is unclear whether or not she was one of those exhumed there in 1993. Again, if this is the same woman, Agnes spent at least 66 years at High Park.
Maggie M is recorded in the 1911 Census for the Good Shepherd Laundry in Limerick at just eighteen years of age. On 2nd December 1985, Margaret M died and was interred at the Good Shepherd Laundry grave at Mount St Oliver Cemetery in Limerick. If this is the same woman, Maggie was confined for her entire adult life, a minimum of 74 years in the Good Shepherd Laundry in Limerick. Maggie is doubly excluded from the McAleese Report as she entered before 1922 and died after the laundry closed.
As part of our various submissions to the McAleese Committee, JFMR (then JFM) provided/shared all of its research materials and databases of names on Magdalene graves. Despite having this information, as well as enjoying access to the records of the religious orders, the IDC nonetheless managed to omit certain deaths from the Report and did not identify the discrepancies as outlined by JFMR here. These discrepancies include the fact that 51 women from Gloucester Street Magdalene Laundry whose names are inscribed on three headstones at a particular location in Glasnevin are not buried at that location, but are interred elsewhere.
For JFMR, and our sister organisation Adoption Rights Alliance (ARA), thoughts of celebration are far from our minds. Our work continues in reporting to the United Nations (for example, our submissions to the UN Committee on the Elimination of Discrimination Against Women here and here). We are also assisting with the provision of information to the Commission of Investigation into Mother and Baby Homes and Certain Related Matters and in the coming months we will be making a joint announcement in this regard.
During the week of the general election a vulnerable Magdalene survivor ? we?ll call her Bridget ? phoned to say she had spent 17 hours on a drip, sitting in a chair in a crowded A&E. Bridget shed tears of happiness in the Dáil on the night of the apology. She phoned me the next day, concerned about the Taoiseach ? ?the poor man was very upset? she said. Three years later however, she feels completely hoodwinked. Her lump sum payment is gone ? she had debts to clear and had family to look after. Bridget has serious health issues and for her the enhanced medical card is of the utmost importance. She read Appendix G of Judge Quirke?s report and signed away her right to sue the State based on the legitimate expectation that she would receive a comprehensive healthcare suite of services. She certainly expected better than waiting 17 hours in A&E. Bridget has lived a hard life which has been a constant struggle, but she is a fighter ? again and again she picks herself up and keeps going. She?s tired however, and keeps asking me when it will be over. The State apology represented hope and she thought the fight was finished on 19th February 2013 ? I haven?t the heart to tell her that it?s nowhere near finished, and that the State itself will likely resist her every step of the way.
On this International Women?s Day, take a moment to think of Bridget, Alice, Agnes, Maggie and the other women who were incarcerated in Ireland?s Magdalene Laundries. Indeed, think of all the women who have had to shoulder the burden of progress ? Louise O?Keeffe, Joanne Hayes, Eileen Flynn, Ann Lovett, the women infected with Hepatitis C, symphysiotomy survivors, Ms X, Ms Y, Savita Halappanavar, Philomena Lee and the thousands of women whose children were forcibly adopted ? to name but a few.
Think of them, remember them and honour them however you see fit.
GuestPost - Fri Feb 12, 2016 11:47
?The fourth is freedom from fear?which, translated into world terms, means a world-wide reduction of armaments to such a point and in such a thorough fashion that no nation will be in a position to commit an act of physical aggression against any neighbor?anywhere in the world.? ? Franklin Delano Roosevelt I am delighted, as part of the […]
?The fourth is freedom from fear?which, translated into world terms, means a world-wide reduction of armaments to such a point and in such a thorough fashion that no nation will be in a position to commit an act of physical aggression against any neighbor?anywhere in the world.?
? Franklin Delano Roosevelt
I am delighted, as part of the University of Iowa Centre for Human Rights? 75th anniversary celebration of the Four Freedoms Speech, to consider Roosevelt?s fourth and final freedom ? freedom from fear. David Keane pondered whether the four freedoms ought to be considered in terms of hierarchy and he suggested that freedom of speech might come out tops ? not just because it is the first of the freedoms but because freedom of speech is a ?gateway? right. This may be so but freedom from fear outranks the others in its own ways. On the one hand, freedom from fear was the most ambitious of Roosevelt?s four (although ?freedom from want? puts up quite the challenge). Freedom from fear represented the aspiration of an international prohibition on aggression or, indeed, the ?human right to peace?. There is though another way of reading Roosevelt?s fourth freedom. Freedom from fear was in fact the leitmotif of the entire speech. Fear is invoked ambiguously ? equivocally, even ? both as a provocation, to rally public support and to justify American intervention in the war, and as a promise, of future freedom. In other words, Roosevelt was telling the American public ? in order to enjoy this freedom, in order to secure freedom from fear, we must go to war. From a rhetorical perspective, by neatly and rhythmically rounding off the four freedoms, freedom from fear represented the alliterative crowning glory of Roosevelt?s speech and his call to intervention.
As Shane Darcy and Brian Farrell have noted, Roosevelt?s four freedoms sowed the seeds for the post-war international order and also played a sizeable role in the development of the international system of human rights. So where, beyond the preamble of the Universal Declaration of Human Rights, does freedom from fear feature in this international system? What does freedom from fear even mean? And, perhaps more importantly, how are we doing in the achievement of this freedom?
Freedom from aggression is not as aurally evocative but that is essentially what Roosevelt meant by freedom from fear. His vision, on a surface reading of the speech, was an end to aggressive wars precipitated by an end to the production of arms. The Atlantic Charter, the joint declaration signed by Churchill and Roosevelt in Newfoundland in August 1941, articulating their war aims and their vision of a post-war international order, incorporated, and elaborated on, the idea of freedom from fear. Principle six envisaged: ??after the final destruction of the Nazi tyranny ? a peace which will afford to all nations the means of dwelling in safety within their own boundaries, and which will afford assurance that all the men in all lands may live out their lives in freedom from fear and want?. Principle eight contemplated a ban on the use of force in international relations and the disarmament of aggressive nations: ?? all of the nations of the world, for realistic as well as spiritual reasons must come to the abandonment of the use of force. Since no future peace can be maintained if land, sea or air armaments continue to be employed by nations which threaten, or may threaten, aggression outside of their frontiers ?. pending the establishment of a wider and permanent system of general security ? the disarmament of such nations is essential.?
The United Nations Charter ? conceived of and drafted in the throes of the war ? codifies a system of collective security, underpinned by the infamous ban, under Art 2(4), on the threat or use of force in international relations. The Charter specifies exceptions to this ban. Under article 42, the Security Council is authorised to take measures ?as may be necessary to restore international peace and security?. Under article 51, Member states are endowed with ?the inherent right of individual or collective self-defense if an armed attack occurs against a Member?. More recently, in 2010, following a fraught process, the Rome Statute of the permanent International Criminal Court (established in 1998) was amended to include the crime of aggression. The Rome Statute defines in detail an act of aggression as a manifest violation of the UN Charter and provides a jurisdictional regime for the prosecution of that crime. The limitations to and the challenges inherent in the UN Charter use of force regime are well known. These range from interpretative indeterminacy around the scope and meaning of ?armed attack? and of self-defense to endless debates around the legality or propriety of humanitarian intervention. The permanent membership of the Security Council, invested as it is with the authority to determine threats to international peace and security, exacerbates the legal and political contestation. For interpretative and geopolitical reasons, it is easy to see that the prosecution of the crime of aggression will be a challenge.
Do, then, the UN Charter and the crime of aggression fulfil Roosevelt?s aspiration of freedom from fear? Certainly, Roosevelt would have applauded the international prohibition and criminalisation of acts of aggression. He did not, however, only advocate a legislative ban on aggression. He saw a direct link between the production of arms and the use of force. His vision was, arguably, not just for a ban on the use of force but for a ban on the production of weapons in order to deter or prevent aggression. The United Nations does promote nuclear disarmament and non-proliferation as well as the disarmament of biological, chemical and conventional weapons. The Office for Disarmament Affairs admits to some of the challenges it faces ? political and technical. But let?s be clear, the biggest challenge to disarmament is economic. Weapons are big business.
The disarmament paradox was explicit in Roosevelt?s speech. He asked Congress outright for the authority to manufacture additional munitions and war supplies for the Allies and for American defense. There may be little doubt today about the justification for this supply of ?ships, planes, tanks, guns? or the propriety of American involvement in the war. But this is the point ? just war is always in the eye of the beholder. The beholder is rarely the aggressor. Weapons? manufacture is always for defense. Roosevelt?s speech was not a call to global disarmament nor was it an absolute appeal to end aggression ? it was an appeal to end ?their? access to arms, their aggression. From a political, military or foreign policy perspective, this, for many, is not controversial ? of course a nation will justify its own defense and its resort to war. However, this speech is memorialised for the four freedoms that Roosevelt envisaged. Those four freedoms may now be reflected in international human rights law. The strategy of Roosevelt?s speech is also an enduring one, however. Just as in 1941, today, freedoms and rights are instrumentalised, and reflected, in justifications for armed conflict, self-defense and military/humanitarian intervention.
Freedom from fear was one of the ?ends? of Roosevelt?s policy. But fear was also one of his means to achieve this ?end?. His speech opened with the spectre of the unprecedented threat ? ?No previous time has American security been as seriously threatened from without as it is today?. It culminated in an invocation of the ?supremacy of human rights everywhere?. To bridge that gap, it was necessary to fight for rights, literally.
Without a doubt, Roosevelt?s words had impact. But freedom from fear, and what it represents, was then, and remains, a slippery concept.
Michelle Farrell is a senior lecturer in law at the School of Law and Social Justice, University of Liverpool. She is also currently a Fellow in Residence in the Centre for Human Rights and Legal Pluralis, University of McGill.
 See William A. Schabas, ?Freedom from Fear and the human right to peace? in David Keane and Yvonne McDermott, The Challenge of Human Rights: Past, Present and Future (Edward Elgar, 2012) 36 for a discussion of freedom from fear as the forgotten human right to peace.
GuestPost - Fri Feb 12, 2016 11:46
?The third is freedom from want . . . everywhere in the world.? ? Franklin Delano Roosevelt The first and second of the Four Freedoms articulated by President Franklin Delano Roosevelt during his State of the Union speech on January 6, 1941, would have seemed familiar and comfortable to most listeners. After all, the freedom […]
?The third is freedom from want . . . everywhere in the world.?
? Franklin Delano Roosevelt
The first and second of the Four Freedoms articulated by President Franklin Delano Roosevelt during his State of the Union speech on January 6, 1941, would have seemed familiar and comfortable to most listeners. After all, the freedom of speech and freedom of religion were two classic limits on the power of government ? what we often call ?negative? rights, or civil and political rights. Such rights were at the core of the American constitutional order, enshrined in the Bill of Rights.
As Roosevelt continued his speech, he identified two additional Freedoms of a very different character. The third of the Four Freedoms was ?freedom from want ? which, translated into world terms, means economic understandings which will secure to every nation a healthy peacetime life for its inhabitants ? everywhere in the world.? This was followed by freedom from fear. Unlike the first two Freedoms, these did not limit government interference with the individual; rather, they contemplated an affirmative government obligation to deliver these societal necessities to its citizens.
Although not rooted in the Bill of Rights in the same way as the previous Freedoms, the freedom from want would not have appeared as an entirely novel concept. It evoked the legislative development of a social safety net as part of Roosevelt?s domestic New Deal. Earlier in the speech, the President pointed to economic security as one of the foundations of a healthy democracy. He called for ?Equality of opportunity for youth and others. Jobs for those who can work. Security for those who need it. The ending of special privilege for the few.? The rise of European fascism in the 1930s was at least partially a result of the dire economic conditions that prevailed during the early years of the Depression. Freedom from want, then, was not just an altruistic goal. It was also a strategy aimed at ensuring a stable and peaceful post-war world.
Indeed, when the Universal Declaration of Human Rights was adopted by the United Natiosl General Assembly on December 10, 1948, it proclaimed that ?recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice, and peace in the world.? Among the inalienable rights enumerated in the Universal Declaration were the right to social security (Ar. 22); the right to work (Art. 23); and the right to an adequate standard of living, ?including food, clothing, housing, and medical care? (Art. 25).
While the freedom from want was articulated in these and other articles of the Universal Declaration, the Declaration itself was framed as being a ?common standard of achievement,? rather than a binding legal document. Thus, the question of how to interpret and enforce these principles did not carry immediate urgency. As the human rights system matured, however, such issues became troublesome. Was a state truly under an obligation to guarantee jobs for all? What level of housing or medical care was ?adequate?? Would these answers be viewed differently depending whether a state was poor or wealthy? Moreover, the discourse became colored by the politics of the cold war, as Soviet bloc states frequently advocated for these economic and social rights while Western states championed civil and political rights.
Ultimately, the effort to create a binding human rights framework was bifurcated, and two treaties emerged from the General Assembly in 1966: the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights. The split has been viewed by many as unfortunate because it can lead to ?prioritization? of rights (usually the view that the rights in the former treaty take priority over the latter). In any event, the two Covenants frame state obligations differently. Whereas the Covenant on Civil and Political Rights simply directs states to respect and ensure those rights, the Covenant on Economic, Social, and Cultural Rights takes a different approach. It requires that each signatory ?undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measure.? This language recognizes that, unlike, for example, the prohibition against torture, many economic and social rights cannot be immediately realized and are dependent on a state?s resources.
Following adoption of the Covenant there have been further attempts to clarify how freedom from want is to be understood and implemented. In 1999, for example, the U.N. Committee on Economic, Social, and Cultural Rights adopted a ?general comment? on the right to food. It explained that the right to food meant the availability of food in a quantity and quality sufficient to satisfy the dietary and cultural needs of individuals, in a sustainable manner. The Committee went on to identify three levels of state obligation: first, a state cannot prevent existing access to food; second, it must protect against interference with an individual?s access by third parties; third, it must engage in activities intended to strengthen access to and production of food; and fourth, it must provide food if an individual is unable to secure food for reasons beyond their control.
In turn, these obligations beg the question of enforcement. It is not unusual for a court to find a person has been unlawfully detained and order them released from jail, but the same judge may be much less comfortable determining whether a state has met its obligations under the right to an adequate standard of living. And if violation is found, how does the court compel a state to implement legislative policies and allocate resources to fulfil its obligations, particularly if the state does not have the financial resources to do so? These are difficult issues that reflect as much about the judiciary as about the nature of economic and social rights, although courts in countries like India and South Africa have shown that courts can address such issues.
Of course, the complexity of interpreting and enforcing economic and social rights highlights the very existence and growth of these rights. ?Freedom from want,? a principle articulated by an American president in 1941, has actually been incorporated into the international post-war order in the form of binding universal human rights. This, in itself, is quite remarkable.
Dr. Brian Farrell is Lecturer in Law and Associate Director of the Center for Human Rights at the University of Iowa.