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Cedar Lounge
For lefties too stubborn to quit

offsite link Someone?s not too happy? 19:52 Wed Oct 01, 2014 | WorldbyStorm

offsite link Sickening? 19:47 Wed Oct 01, 2014 | WorldbyStorm

offsite link More on 1914, and 1916, 1969 and 2014 too! 13:48 Wed Oct 01, 2014 | WorldbyStorm

offsite link Posturing over unfunded tax cuts? 12:44 Wed Oct 01, 2014 | WorldbyStorm

offsite link What you want to say ? 1st of October, 2014 03:46 Wed Oct 01, 2014 | WorldbyStorm

Cedar Lounge >>

Dublin Opinion
Life should be full of strangeness, like a rich painting

offsite link Global Finance, Money and Power: Lecture Four - Global and State Institutions 17:17 Wed Oct 01, 2014

offsite link HOUSING AND THE IRISH STATE 10:48 Tue Sep 30, 2014

offsite link Boomer Times 10:26 Tue Sep 30, 2014

offsite link FALLEN FRUIT 08:26 Mon Sep 29, 2014

offsite link Irish Labour Movement 1880-1924: Lecture Two - New Unionism 09:26 Fri Sep 26, 2014

Dublin Opinion >>

Irish Left Review
Joined up thinking for the Irish Left

offsite link Mark Fielding Speaks to the Nation: We Don?t Owe You Squat Wed Oct 01, 2014 12:15 | Michael Taft

offsite link Demanding the Future: The Right2Water and Another Ireland Tue Sep 30, 2014 21:56 | Paul O'Connell

offsite link IBEC?s Myth Debunking is Just Bunk Tue Sep 30, 2014 16:22 | Michael Taft

offsite link Consumerism and Equality Mon Sep 29, 2014 15:47 | Jaime Dixon

offsite link Investment Remains the Key to a Real Recovery Wed Sep 24, 2014 16:31 | Michael Burke

Irish Left Review >>

Human Rights in Ireland
www.humanrights.ie

offsite link NASC: Invitation to Tender for Immigration Research Tue Sep 30, 2014 11:24 | Liam Thornton

offsite link Update: Ireland ratifies UN complaints mechanism for children Thu Sep 25, 2014 14:51 | Edel Quinn

offsite link Understanding Children?s Rights: A Training Programme on Children?s Rights and Effective Internati... Mon Sep 22, 2014 17:44 | Edel Quinn

offsite link Conference on EU Counter-Terrorism, Dublin, 13 October Sat Sep 20, 2014 10:36 | Fiona de Londras

offsite link Rooney on Hassan v UK: ?symbiotic approaches?, ?subsequent practices? and amicus curiae Fri Sep 19, 2014 11:13 | GuestPost

Human Rights in Ireland >>

Liam Thornton - Tue Sep 30, 2014 11:24
Nasc, the Irish Immigrant Support Centre is commissioning independent research to analyse immigration related detention in Ireland and the treatment of detainees for immigration related offences, including those who are detained following a refusal of permission to land. This project is funded by the St Stephen’s Green Trust. Details of this tender, including aims and(...)

NASCNasc, the Irish Immigrant Support Centre is commissioning independent research to analyse immigration related detention in Ireland and the treatment of detainees for immigration related offences, including those who are detained following a refusal of permission to land. This project is funded by the St Stephen’s Green Trust.

Details of this tender, including aims and objectives of the research, key responsibilities of the researchers and the application process for consideration of tenders can be found here.

Nasc, the Irish Immigrant Support Centre, is a leading non-governmental organisation working for an integrated society based on the principles of human rights, social justice and equality. Nasc (which is the Irish word for link) works to link migrants to their rights through protecting human rights, promoting integration and campaigning for change. Nasc was founded in 2000 in response to the rapid rise in the number of asylum seekers and migrant workers moving to the city of Cork. It is the only NGO offering legal information and advocacy services to immigrants in Cork.

Edel Quinn - Thu Sep 25, 2014 14:51
Ireland has ratified the Third Optional Protocol to the UN Convention on the Rights of the Child, which establishes a quasi-judicial complaints mechanism for children and their advocates to the UN Committee’s on the Rights of the Child. Minister for Foreign Affairs and Trade, Mr. Charlie Flanagan, signed and ratified the Protocol at the 69th(...)

Ireland has ratified the Third Optional Protocol to the UN Convention on the Rights of the Child, which establishes a quasi-judicial complaints mechanism for children and their advocates to the UN Committee’s on the Rights of the Child.

Minister for Foreign Affairs and Trade, Mr. Charlie Flanagan, signed and ratified the Protocol at the 69th General Assembly of the United Nations in New York yesterday, 24 September 2014.

This follows a commitment last week by the Minister for Children and Youth Affairs, Dr. James Reilly, to ratify the Protocol.

Edel Quinn - Mon Sep 22, 2014 17:44
Ireland will appear before the UN Committee on the Rights of the Child in 2015/2016 to report on its record for children under the UN Convention on the Rights of the Child. In advance of this examination, the Children?s Rights Alliance is providing an exciting opportunity to upskill on children?s rights and effective international advocacy.This(...)

Ireland will appear before the UN Committee on the Rights of the Child in 2015/2016 to report on its record for children under the UN Convention on the Rights of the Child. In advance of this examination, the Children?s Rights Alliance is providing an exciting opportunity to upskill on children?s rights and effective international advocacy.This training programme is the first of four key activities that we will undertake in advance of Ireland?s examination which includes: conducting a nationwide consultation, drafting a national parallel/shadow report, coordinating a children and young people?s report and advocating/leading a delegation before the UN Committee on the Rights of the Child.

This two-day interactive training programme will take place on Thursday 16 and Friday 17 October 2014. The programme will cover:

  • Understanding childhood
  • Introduction to children?s rights
  • Exploring ways to make children and young people active agents in their rights
  • Enforcement of children?s rights in Ireland
  • Understanding the UN Human Rights Reporting Process and the workings of the UN Committee on the Rights of the Child
  • Writing impactful Parallel Reports and taking part in effective international advocacy

 

An array of expert speakers will provide interactive, engaging and practically-focussed sessions. Each participant will receive a full training pack and resources for each session. Speakers include:

  • Brian Barrington BL
  • Professor Dympna Devine, University College Dublin
  • Anne O?Donnell, Department of Children and Youth Affairs, Participation, Play, Recreation and Culture
  • Dr. Geoffrey Shannon, Special Rapporteur on Child Protection
  • Dr. Liam Thornton, University College Dublin
  • Veronica Yates, Children?s Rights Information Network

 

Venue: Carmelite Centre, 56 Aungier Street, Dublin 2

Cost:    Children?s Rights Alliance members: ?50; non-members: ?100

Places: Places are limited and preference will be given to Children?s Rights Alliance members. The Irish Council for Civil Liberties will subsidise up to six places for those on limited incomes.

For more information and to book your place contact: Edel Quinn, Children?s Rights Alliance by phone at (01) 6629400 or by email at edel@childrensrights.ie.

This training programme is kindly co-sponsored by the UN Human Rights Council Legacy Project of the Irish Council for Civil Liberties. For more information, visit www.rightsnow.ie and www.iccl.ie.

Fiona de Londras - Sat Sep 20, 2014 10:36
On 13 October, 2014 the SECILE Consortium will hold a major conference in Dublin on the impact, legitimacy and effectiveness of EU counter-terrorism. The conference represents the culmination of almost 18 months’ work by the consortium investigating questions such as ‘how can we measure impact, legitimacy and effectiveness of counter-terrorism measures in the EU?’, ‘what(...)

On 13 October, 2014 the SECILE Consortium will hold a major conference in Dublin on the impact, legitimacy and effectiveness of EU counter-terrorism. The conference represents the culmination of almost 18 months’ work by the consortium investigating questions such as ‘how can we measure impact, legitimacy and effectiveness of counter-terrorism measures in the EU?’, ‘what is the scale and scope of EU counter-terrorism activities?’, and ‘what happens to human rights in the making, implementation and review of EU counter-terrorism?’. A short outline of the project is here, and the reports from the project so far can be downloaded on the website here. This short video gives a taster of the conference.

The conference on October 13 both presents these findings and places them in a  wider context. Starting with a keynote address from Ben Wizner of the ACLU, the conference will go on to critically assess both the results of the research and what they suggest about key questions of counter-terrorism, rights, social cohesion, and operational security for the member states of the EU and the EU itself.

Registration is free and the conference will take place in the European Parliament Building in Dublin. In order to manage catering as well as space, we ask people to register through the EventBrite page here. Tickets are now limited, but we will attempt to issue further tickets over the coming weeks.

GuestPost - Fri Sep 19, 2014 11:13
We are very pleased to publish this guest post from Jane Rooney, a PhD candidate at Durham Law School, on the recent decision in Hassan v UK from the European Court of Human Rights. On 16th September 2014 the Grand Chamber found no violations of Tarek Hassan?s Article 5, 2 and 3 rights under the(...)

We are very pleased to publish this guest post from Jane Rooney, a PhD candidate at Durham Law School, on the recent decision in Hassan v UK from the European Court of Human Rights.

On 16th September 2014 the Grand Chamber found no violations of Tarek Hassan?s Article 5, 2 and 3 rights under the European Convention on Human Rights (the Convention) after he was arrested and detained in Camp Bucca by British armed forces in Iraq in April 2003. The Grand Chamber decision of Hassan v United Kingdom constitutes one of the most important decisions to date taken by the European Court of Human Rights (the Court) on the issue of applying the standards of the Convention abroad in wartime situations where international humanitarian law (IHL) standards would traditionally apply. The Court?s most important and positive contribution to resolving the tension between Convention standards and IHL was what Lawrence Hill-Cawthorne has described as its ?symbiotic? approach to Article 5 right to liberty and security of person which will be described below. Another important finding of this decision was that IHL could apply even if a Contracting Party did not derogate under Article 15. Whether or not a state could derogate abroad was left unanswered, but the impetus for extraterritorial derogations will probably wain in light of this decision because they are not needed for IHL to apply. I describe here why they were unnecessary. In this post I will give a very brief summary of the facts and I will look at the approach adopted by the Court. In analysing the approach I will address criticisms against the Court?s reliance on ?subsequent practice? by states, explain the symbiotic approach and acknowledge the importance of the amicus curiae application brought by the Human Rights Centre of the University of Essex.

The Facts

The applicant was Mr Khadi Resaan Hassan acting on behalf of his brother, Mr Tarek Hassan, who was allegedly arrested and detained by British forces in Iraq and subsequently found dead in unexplained circumstances. Khadi Hassan had been a general manager in the national secretariat of the Ba?ath Party and a general in the Ba?ath Party army. Following the occupation of Basrah by coalition forces in April 2003, British forces began arresting high ranking officials of the Ba?ath party. British forces had gone to the applicant?s home with the intention of arresting him but instead arrested his brother, Tarek Hassan found armed on the roof of the applicant?s home, and took him to Camp Bucca where he was detained. The applicant brought actions under Article 5 (right to liberty and security of person), Article 2 (right to life) and Article 3 (right against torture and inhumane and degrading treatment). The actions under Article 2 and 3 were found to be ?manifestly ill-founded? under Article 35(3)(a) for lack of evidence of UK forces? involvement in Tarek Hassan?s death. In considering the application under Article 5, the requirement that a Contracting State must have ?jurisdiction? pursuant to Article 1[1] was satisfied under the ?state agent authority and control? test[2] (para 75) as British forces exercised control over him during his detention.

The Court?s approach to applying the Convention in Armed Conflict

The Court?s approach to resolving the conflict between Article 5 and IHL contained two steps evolving around two rules of treaty interpretation from the Vienna Convention on the Law of Treaties (VCLT). The first step was to take into account the subsequent practice of states (para 100 citing the VCLT s 31(3)(b)) and the second step was to interpret the Convention in harmony with general international law (para 102 citing VCLT s31(3)(c)). The first step meant that the Court took account of consistent practice by states that could have indicated that they had formed an agreement as to how the text was to be interpreted or even modified after the ratification of a treaty. The Court found that the practice of states indicated that Contracting Parties did not derogate abroad in wartime (para 101). The Court concluded from this that states did not need to derogate in order for IHL standards to apply. Therefore, IHL standards could apply in the present case where the UK had not derogated. The first step has given rise to considerable confusion but its presence can only be understood when seen as a response to submissions made by the applicant and arguments surrounding derogations that preceded the hearing. I will look at the confusion, dispel it and surmise as to what significance this step will have in the future.

?Subsequent practice?

The Court was directly addressing an argument made by the applicants which was very important to their submission: if the UK had wanted or intended to derogate from the Convention in order to apply IHL standards, they would have and could have done so. This was followed by an academic debate as to whether states could derogate abroad – a debate which gained much momentum (see here for a thorough analysis of the potential for extraterritorial derogations). One element of the question as to whether a state could derogate abroad in order to apply IHL standards instead of human rights standards consisted of the question as to whether states believed that this was the state of affairs. Take the state that has not derogated. Why did they not derogate? There were two possible solutions (is how the argument goes): (1) a state believed it couldn?t derogate and therefore did not: this was said to be evidence that derogations abroad were not possible; (2) a state believed they could derogate abroad but had chosen not to for whatever reason: this was said to be evidence that derogations were possible but the state had chosen not to. All the while, it was argued that derogating meant applying IHL standards whilst not derogating meant applying human rights standards.

Thus commenced the academic debate about why states did not derogate abroad (I also contributed to the debate in a comment), some saying because they believed they weren?t possible, but most saying that there were motives for not derogating and therefore that extra-territorial derogations were possible and could provide a solution to the norm conflict between Convention standards and IHL standards where such a conflict might arise. It is within this context that the Court wrote that state practice consistently indicated that states advocated IHL standards to be applied abroad rather than Convention standards and that a derogation was not required for this to happen (para 101). This is a conflation of the questions as to whether a state can derogate abroad and whether IHL standards can be applied without a derogation. For the Court, a practice of not ever lodging derogations in time of war was a sign that states believed IHL applied in wartime despite international human rights obligations.

The Court?s reasoning is flawed in its conflation of the two questions as to whether the state derogated and whether IHL applied; it forgets about the opinio juris of the state ? or determining whether the state actually believes it can derogate or whether IHL applies ? and relies instead solely on the actions of states; it does not address theoretical difficulties with s32(3)(b). However, appraising its reasoning within the broader scheme of the judgment – and seen from the perspective of an international human rights court which often uses the VCLT and other rules of general international law in a superficial way to shape and justify its approach ? it can be seen that ?subsequent practice? played a part in doing only one thing. From the Court?s point of view it enabled the Court to say: ?In light of the above considerations, the Court accepts the Government?s argument that the lack of a formal derogation does not prevent the Court from taking account of the context and the provisions of [IHL] when interpreting and applying Article 5 in this case? (para 103). It thus directly answered the argument that the applicant had placed at the core of his submissions as to whether a state had to derogate to apply IHL: the Court made it clear that a state does not need to derogate from the Convention to apply IHL standards (reiterated expressly at para 107). It would be wise of the Court, having settled that matter, to not return to s32(3)(b).

The ?symbiotic? approach

Article 31(3)(c) provides that in interpreting a Treaty relevant rules of international law must be taken into account: in this case, IHL. Under this provision the Court attempted to strike a balance that prevented it from surrendering Convention standards to IHL standards whilst also being cognisant of those standards. The Court acknowledged that the provisions of the Third and Fourth Geneva Conventions relating to interment ?were designed to protect captured combatants and civilians who pose[d] a security threat? (para 102).

?Nonetheless, the Court considers that, even in situations of international armed conflict, the safeguards under the Convention continue to apply, albeit interpreted against the background of the provisions of international humanitarian law. By reason of the co-existence of the safeguards provided by international humanitarian law and by the Convention in time of armed conflict, the grounds of permitted deprivation of liberty set out in subparagraphs (a) to (f) of that provision should be accommodated, as far as possible, with the taking of prisoners of war and the detention of civilians who pose a risk to security under the Third and Fourth Geneva Conventions.  The Court is mindful of the fact that internment in peacetime does not fall within the scheme of deprivation of liberty governed by Article 5 of the Convention without the exercise of the power of derogation under Article 15 (see paragraph 97 above). It can only be in cases of international armed conflict, where the taking of prisoners of war and the detention of civilians who pose a threat to security are accepted features of international humanitarian law, that Article 5 could be interpreted as permitting the exercise of such broad powers.? (para 104) [emphasis added]

As with the grounds of permitted detention already set out in those subparagraphs, deprivation of liberty pursuant to powers under international humanitarian law must be ?lawful? to preclude a violation of Article 5 § 1. This means that the detention must comply with the rules of international humanitarian law and, most importantly, that it should be in keeping with the fundamental purpose of Article 5 § 1, which is to protect the individual from arbitrariness (para 105).

The case then provided the first example of the ?symbiotic? approach in operation. The Court applied this principle to Articles 5(2) and (4), which provide that the individual should be informed promptly for the reasons of his arrest and that an individual shall be ?entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful?. It acknowledged that the Four Geneva Conventions applied where territory was occupied (para 108 citing Article 2 common to all Four Geneva Conventions). The Court found that although there had been no access to an ?independent court? which was required under Article 5(4), in times of armed conflict, a review by a ?competent body? would suffice as was necessitated under Articles 43 and 78 of the Fourth Geneva Convention (para 106). It was however necessary that the competent body provided ?sufficient guarantees of impartiality and fair procedure to protect against arbitrariness? and the first review had to take place shortly after the person was taken into detention with subsequent reviews at regular intervals (para 106).

The Court found that Tarek Hassan was not arbitrarily detained because there was enough evidence to suggest that he could have been an enemy combatant or a civilian who posed a threat to security which were legitimate reasons for internment under Articles 4A and 21 of the Third Geneva Convention (para 109). Article 5(4) was satisfied because he was ?[a]lmost immediately? interviewed and released as soon as they determined that he did not pose a threat to security (para 109). Therefore no violation of Article 5(4) was found because it was interpreted through the prism of IHL. Furthermore, because he was interviewed as soon as he was brought to Camp Bucca he knew the reasons for his arrest quite promptly. Although there may be discrepancies as to whether the ?competent body? was sufficiently impartial or whether he was released promptly, the symbiotic approach represents a positive development in this area of law.

Amicus curiae

The third party amicus curiae application of the Human Rights Centre of the University of Essex must be acknowledged for having helped significantly to shape the ?symbiotic? approach. The Court appeared to take into consideration three of their proposals: that the doctrine of lex specialis[3] was ?unhelpful? in clarifying the relationship between international human rights law and IHL (para 93); that the Court might be accused of being ?disconnected from reality? if it imposed only human rights law standards in times of war and ignored IHL (para 94); and that there were two options for the court in confronting the tension between Convention standards and IHL. These were described as follows: ?[w]here the State had not derogated but had relied on [IHL], it would be open to the human rights body either to take account of [IHL] or to insist that the only way of modifying international human rights obligations was by derogation? (para 94).

It also advised that:

?Any given situation was likely to require elements of both bodies of law workingtogether, but the balance and interplay would vary. Accordingly, there might be situations, such as the detention of prisoners of war, in which the combination of criteria lead to the conclusion that international humanitarian law would carry more weight, and determination of human rights violations regarding issues such as grounds and review of detention would be based on the relevant rules of international humanitarian law. Even in such contexts, however, human rights law would not be under absolute subjection to international humanitarian law. For example, if there were allegations of ill treatment, human rights law would still assist in determining issues such as the specificities of the acts which constituted a violation. From the perspective of the human rights body, it would be advantageous to use human rights law as the first step to identify the issues that needed to be addressed, for example, periodicity of review of lawfulness of detention, access to information about reasons of detention, legal assistance before the review mechanism. The second step would be to undertake a contextual analysis using both international humanitarian law and human rights law, in the light of the circumstances of the case at hand. On condition that the human rights body presented its analysis with sufficient coherence and clarity, the decisions generated would provide guidance to both States and armed forces ahead of future action. It went without saying that the approaches and the result had to be capable of being applied in practice in situations of armed conflict? (para 95).

The importance of this advice by the amicus curiae cannot be understated. It indicates the importance of scholarship directly engaging with the Court in order to help shape its approach in politically charged situations in the most effective and sensible ways without forcing the Court to sacrifice its ideals. The impact of this scholarship on this case was crucial and should be applauded for its balanced approach.

Conclusion

This is not an exhaustive list of the issues arising from this case. However, it hopefully highlights important points: forgive its reasoning on ?subsequent practices?, celebrate the ?symbiotic approach?, and thank the University of Essex for its helpful submission.

[1] Article 1 of the Convention requires that a Contracting Party must secure Convention rights to everyone ?within their jurisdiction.? If the Contracting Party does not have jurisdiction in the circumstances then the state is not bound by the Convention in that instance.

[2] Invoking Al Skeini v the United Kingdom at para 196.

[3]Lex specialis provides that the more specific rule will trump the general rule. IHL is considered to be provide a more specific set of rules governing armed conflict than human rights law.

 

Edel Quinn - Thu Sep 18, 2014 13:51
On 17 September 2014, the new Minister for Children and Youth Affairs, Dr. James Reilly, announced that Ireland would sign and ratify the Third Optional Protocol to the UN Convention on the Rights of the Child (UNCRC). This will allow children and young people an international route by which to vindicate their rights where this(...)

On 17 September 2014, the new Minister for Children and Youth Affairs, Dr. James Reilly, announced that Ireland would sign and ratify the Third Optional Protocol to the UN Convention on the Rights of the Child (UNCRC). This will allow children and young people an international route by which to vindicate their rights where this has not been possible through state agencies or the courts at domestic level.

The Third Optional Protocol to the UNCRC establishes a communications procedure or, in effect, a complaints mechanism.  This is a quasi-judicial mechanism that allows children and their advocates (parents, guardians etc.) to submit a complaint to the UN Committee on the Rights of the Child, a group of 18 international children?s rights experts. Complaints must relate to specific violations of rights under the UNCRC and its first two optional protocols, if ratified. Violations must be ongoing when the Protocol is ratified or occur after ratification in order to be admissible under the procedure.

Because the original text of the UNCRC did not include a communications procedure, a new Optional Protocol is required in order to facilitate its establishment. Ireland ratified similar communications procedures under Optional Protocols to the International Covenant on Civil and Political Rights in 1989 and the Convention on the Elimination of Discrimination against Women in 2000. In 2011, the State committed to ratifying the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights which also establishes a complaints procedure. This has yet to happen.

As with other similar regional or international mechanisms, a complaint under the new mechanism can only be made after domestic remedies have been exhausted. In Ireland, there are, of course, a variety of existing legal and quasi-legal remedies open to children and families when their rights are violated such as taking a case through the courts, the Equality Tribunal or the Ombudsman for Children?s office.

Unlike complaints taken to the European Court of Human Rights, decisions by the Committee are non-binding on States. However, by ratifying the Optional Protocol, States commit themselves to follow the decisions and provide redress to victims. There is also provision for the facilitation of friendly settlements, if parties to the communication find an agreeable solution between them.

The Protocol provides for three separate procedures:

  •  The Individual Communications Procedure allows individuals, groups of children and their representatives to bring complaints in respect of alleged violations of rights under the UNCRC and its Optional Protocols.
  •  The Inquiry Procedure provides for any person or organisation to submit information to the UN Committee on the Rights of the Child alleging grave or systematic children?s rights violations under the UNCRC by a State. If the Committee receives reliable information indicating that grave or systematic children?s rights violations have occurred, it can decide to conduct an inquiry. The inquiry procedure is an ?opt-out? mechanism, meaning that States can chose not to be subject to the inquiry procedure when they ratify the Optional Protocol.
  • The Inter-State Communications Procedure allows the Committee to receive and consider communications from a State against another State that is not fulfilling its obligations under the UNCRC. The inter-state communications procedure is an optional mechanism and both States must have ratified the Optional Protocol in order for it to be invoked.

Complaints have been taken against Ireland under similar international complaints mechanisms, under the UN International Covenant on Civil and Political Rights for example. In 1998, in the case of Kavanagh v Ireland, the UN Human Rights Committee found that Ireland had breached the applicant?s rights under Article 26 of the Covenant (equality before the law). The Committee found that the State failed to provide him with a reasonable and objective justification for its denial of his right to a trial by jury by trying him before the Special Criminal Court. He was again before the Committee in 2002 claiming a violation under Article 2(3) of the Covenant for the State?s failure to provide him with an effective remedy but this was deemed inadmissible.

Ireland will be the twelfth State to ratify the Protocol after Albania, Belgium, Bolivia, Costa Rica, Gabon, Germany, Montenegro, Portugal, Slovakia, Spain and Thailand. It entered into force on 14 April 2014 after its tenth ratification.

The UNCRC has two other Optional Protocols – First Optional Protocol on the Involvement of Children in Armed Conflict was signed by Ireland on 7 September 2000 and ratified on 18 November 2002) and the Second Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography  was Signed by Ireland on 7 September 2000 but it has not yet been ratified.

Now that this commitment has been made, signature and ratification of the Optional Protocol should happen simultaneously and without delay, in order to open up this important new avenue of redress for children in Ireland who have been unable to receive an effective remedy at home as quickly as possible.

GuestPost - Thu Sep 18, 2014 10:14
The Law Society?s Human Rights Committee and the Dublin Solicitors Bar Association invite tenders for a report on the application of the European Convention on Human Rights Act 2003 and the European Charter of Fundamental Rights in the Irish courts.  The report will be provisionally entitled ?A Report on the Application of the European Convention(...)

Law SocietyThe Law Society?s Human Rights Committee and the Dublin Solicitors Bar Association invite tenders for a report on the application of the European Convention on Human Rights Act 2003 and the European Charter of Fundamental Rights in the Irish courts.  The report will be provisionally entitled ?A Report on the Application of the European Convention on Human Rights Act 2003 and the European Charter of Fundamental Rights in Irish Law?.

For details of the proposed report, funding, and the tender process, please review the attached invitation to tender.

The closing date for receipt of tenders is 30 September 2014.

If you need further information, please contact Helen Kehoe, secretary to the Human Rights Committee, at h.kehoe@lawsociety.ie.

 

GuestPost - Tue Sep 16, 2014 15:14
Emma Cassidy is Legal & Communications Trainee in PILnet, The Global Network of Public Interest Law. PILnet: The Global Network for Public Interest Law is pleased to announce that registration for the  2014 European Pro Bono Forum?to take place on 5-7 November in London, U.K.?is now open. The Forum has played a major role in building(...)

PILnetEmma Cassidy is Legal & Communications Trainee in PILnet, The Global Network of Public Interest Law.

PILnet: The Global Network for Public Interest Law is pleased to announce that registration for the  2014 European Pro Bono Forum?to take place on 5-7 November in London, U.K.?is now open. The Forum has played a major role in building support for pro bono across the continent and around the globe. By bringing together a growing community that recognizes the urgent need for pro bono?leading figures from law firms, corporations, bar organizations, NGOs, and law schools?the event offers a setting where participants can explore how they can most effectively collaborate to address critical issues of social justice. Through interactive workshops, engaging social events, and structured networking opportunities, attendees gain insight into the pro bono community and forge alliances that can help deliver justice and protect rights around the world.

The 2014 Forum will include a heightened focus on the real-world tools that are needed to run a successful pro bono program, projects for in-house counsel, Roma rights, and the use of technology to promote change. Local, European and global concerns regarding the application of pro bono will all be on the table. The winners of PILnet?s prestigious European Pro Bono Awards will also be announced at the Forum.

The Forum will run as a central event of the U.K.?s National Pro Bono Week–a time to celebrate and encourage the contributions lawyers make, free-of-charge, to those in need.

The essential event for pro bono lawyers, NGO leaders, and others who are dedicated to using law to achieve social justice. PILnet?s eighth annual European Pro Bono Forum will be held 5-7 November in London, U.K. 

For more details and to register, visit
www.probonoforum.eu
Register Now

GuestPost - Tue Sep 16, 2014 15:08
Helen Kehoe is policy development executive at the Law Society of Ireland. The Irish Human Rights and Equality Commission Designate and the Human Rights Committee of the Law Society extend an invite to  ?Criminal Justice and Human Rights in Ireland? – the Annual Human Rights Conference 2014. The 12th Annual Human Rights Conference will take place(...)

Law SocietyHelen Kehoe is policy development executive at the Law Society of Ireland.

The Irish Human Rights and Equality Commission Designate and the Human Rights Committee of the Law Society extend an invite to  ?Criminal Justice and Human Rights in Ireland? – the Annual Human Rights Conference 2014.

The 12th Annual Human Rights Conference will take place on Saturday, 11 October 2014, in the Law Society of Ireland, from 10 am ? 2 pm.

The aim of this conference is to examine recent developments in the area of criminal justice in the light of Irish human rights law. Topics will include police accountability and possible reform, the broader social issues affecting Irish prisons and penal policy, and the Irish prison system and related human rights issues.

Speakers include:

Frances Fitzgerald, T.D., Minister for Justice and Equality

Dr Vicky Conway, Senior Lecturer in Law, University of Kent

Conor Brady, Former Member of the Garda Síochána Ombudsman Commission

Fr Peter McVerry, Peter McVerry Trust

 Michael Donnellan, Director General of the Irish Prison Service

The event is free to attend. For further details and to register ? please visit https://www.lawsociety.ie/Criminal_Justice_and_Human_Rights_in_Ireland.aspx#.VAnW3fldVqX ? or complete the booking form and return to Lspt@lawsociety.ie.

admin - Thu Sep 11, 2014 08:43
Our regular contributor Mairead Enright spoke at the recent ‘Repeal the 8th’ conference in Dublin last Saturday. A video of her presentation is below. You can find other videos of the day (by Paula Geraghty) here. To join Lawyers for Choice, email lawyers4choice@gmail.com. To write to your TD on the issue see here. To sign(...)

Our regular contributor Mairead Enright spoke at the recent ‘Repeal the 8th’ conference in Dublin last Saturday. A video of her presentation is below. You can find other videos of the day (by Paula Geraghty) here.

To join Lawyers for Choice, email lawyers4choice@gmail.com.

To write to your TD on the issue see here.

To sign the Repeal the 8th petition see here.

For details of the March for Choice see here.

 

The effects of the 8th Amendment range far beyond abortion. The Amendment has come to have consequences for all cases of maternal-foetal conflict.

For example, it may be that prevailing interpretations of the constitution entail that:

  • A living but unviable foetus (fatal foetal abnormality or inevitable miscarriage) can evidently assert the constitutional right to life against the mother, even at grave cost to the woman?s health.
  • It may be that the unborn has a right to an opportunity to be born alive, such that doctors are required to
    • attempt to sustain a second semester pregnancy until viability, even at grave cost to the mother’s mental and physical health.
    • favour an attempted early live birth even where this is not in the best interests of woman or child.
  •  The mother’s consent to medical treatment ? as an offshoot of her constitutional rights to privacy, dignity and bodily integrity – plays almost no constitutional role in cases of maternal/foetal conflict. Thus women can be subjected to treatment in the form of Caesarean section, induced labour and so on, without very much regard for their best interests, or their refusal of medical treatment. There is more than an echo of the past justification of symphysiotomy here.

There is no legislation or reported judgment, which adequately clarifies the law as it applies to any of these scenarios. Very little has been published to explain the ethical and legal underpinnings of likely treatment options. At the very least we should investigate opportunities for specific legislation on maternity care in cases of maternal-foetal conflict.

The presence of the 8th Amendment leads to the mischaracterization of certain medical issues which can occur during pregnancy as ?abortion adjacent?, when they are nothing of the sort.  The 8th Amendment requires us to misinterpret and misconstrue women?s valid treatment needs.

The 8th Amendment is poorly designed. It has strayed away from the people?s intention, and ground to a halt. When a constitutional provision becomes mechanically unworkable in this way, repeal and replacement are standard responses.

The 8th Amendment is an unusual constitutional provision because ? through the Protection of Life During Pregnancy Act 2013 and practice guidelines for the medical professions ? it is regularly interpreted and applied by agents other than the courts. Indeed, we might say that doctors are the primary interpreters of the 8th Amendment.

Over the course of thirty years, we would have expected the courts to flesh out the text of the Amendment much more than has already been done. However, the courts very rarely have the opportunity to consider the Amendment because it is often impossible for a pregnant woman ? especially if she is ill or distressed – to bring her case to the superior courts in good time, and because it will be very difficult for her to assert standing before the courts if her pregnancy is already terminated. The criminalization of abortion poses another obstacle to the emergence of suitable litigation. Most of our constitutional jurisprudence on abortion derives from (i) cases brought by third parties such as S.P.U.C. and (ii) unusual cases of young women in the care of the state.

Because the courts so rarely have the chance to consider the 8th Amendment:

  • Our abortion jurisprudence is very vague and very thin. The X case (which concerns a raped, suicidal, teenage girl in early pregnancy) has been stretched to apply to very different kinds of case.
  • Doctors must guess at the application of the X case to a wide range of scenarios which have never been considered by any court.
  • The 8th Amendment has fossilized. This is because doctors are not judges. They do not have the authority to develop new law. They have, naturally, been unduly cautious and the law has stagnated. The Supreme Court has repeatedly expressed that the Constitution should adapt to the developing needs of the people, but the 8th Amendment is no longer able to do so.

 When a constitutional provision is placed beyond workable interpretation, we are entitled to remove that provision and start again. There are plenty of precedents for this course of action. For example:

  • The 1992 referendum which secured the right to information and the right to travel was a response to judicial restriction of those rights by virtue of their interpretation of the 8th Amendment.
  • The Citizenship referendum in 2003 was, in part, a response to judicial decision-making on the rights of Irish-born children whose parents were vulnerable to deportation.
  • The recent children?s rights referendum was, in part, a response to judicial interpretations of the constitutional rights of the marital family.
  • The forthcoming marriage equality referendum is designed to respond to difficulties with the interpretation of the constitutional provisions on marriage.

A Referendum on the 8th Amendment is an opportunity to bring the Constitution into line with prevailing social values around pregnant women?s medical care.

 The Constitution is the place for broad statements of shared communal values, which guide the courts in their interpretation of the law, and in their development of constitutional rights.  It is not the place for tests, rules and regulations.

If we remove the 8th Amendment, the right to life will remain, and it will be possible to maintain strong  (but not unworkably absolute) standards of respect for unborn human life. In addition, it will be possible for certain of women?s constitutional rights, which have been limited by the 8th Amendment, to bloom in the gap it will leave. There is a strong argument for adding an expressly enumerated right to bodily integrity to the Constitution. The right already exists as an unenumerated right. Explicitly including it in the Constitution, in the context of a repeal of the 8th Amendment, would:

  • Firmly guide the Courts in future cases of maternal-foetal conflict, and prevent the re-introduction of an 8th Amendment style interpretation ?by the back door?.
  • Incentivise the future development of human rights oriented medical practice in Ireland.

Human Rights in Ireland >>

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