Hague Justice Journal: Call for Papers

The Hague Justice Journal First Edition in Association with the International Criminal Tribunal for the former Yugoslavia launches its call for submissions

The editorial board of The Hague Justice Journal (HJJ) is delighted to announce that it is soliciting submissions for its 2017 volume relating to the ICTY’s legacy in this its final year of operations. Such submissions will include selected papers from the ICTY Legacy Conference due to be held from 23-24 June 2017 in Sarajevo, Bosnia, and will be published in Autumn 2017. The HJJ undertakes this endeavor in formal cooperation with the ICTY, in line with a number of legacy-related activities being organized in 2017 by the ICTY and by the Peace, Justice and Security Foundation. Continue reading “Hague Justice Journal: Call for Papers”

Hague Justice Journal: Call for Papers

Reflections on the Citizen’s Assembly (3): The Presentation of Dr. Joan McCarthy

We are pleased to welcome this guest post from Donnchadh O’Conaill, of the Department of Philosophy, History, Culture and Art Studies at the University of Helsinki. This is the third of a series of posts Donnchadh is writing on presentations of ethicists to the Citizens Assembly; the first can be found here, and the second here

While debates over the status of the foetus are central to ethical and philosophical discussions of abortion, the freedom of women to choose to have abortions is crucial to political debates on this subject. Dr. Joan McCarthy presented a defence of this freedom, taking as her starting point “the body and the life of the woman or girl who is pregnant”, considered as a moral agent, i.e., as making ethical choices in concrete situations.[1] In assessing the choices such women face, McCarthy draws on two principles: autonomy and justice. Continue reading “Reflections on the Citizen’s Assembly (3): The Presentation of Dr. Joan McCarthy”

Reflections on the Citizen’s Assembly (3): The Presentation of Dr. Joan McCarthy

Reflections on the Citizens Assembly (2): The Presentation of Bobbie Farsides

We are pleased to welcome this guest post from Donnchadh O’Conaill, of the Department of Philosophy, History, Culture and Art Studies at the University of Helsinki. This is the second of a series of posts Donnchadh is writing on presentations of ethicists to the Citizens Assembly; the first can be found here.

Debates about abortion can often be traced back to disagreements about the status of the foetus, e.g., whether it is a being with any independent moral significance. All parties to this disagreement share two assumptions: that ethical debates over abortion are primarily a matter of the moral importance of the foetus, and that the nature of the foetus is what determines its moral status. Hence many opponents of abortion will appeal to the fact that the foetus is a human being, e.g. it has a soul or has the potential to become a rational being; many proponents of liberal abortion laws will counter that the foetus, at least early in its development, lacks certain capacities which are crucial to having moral status.[1] The arguments here are often complex and involve subtle points of metaphysics which are not easy to resolve. More generally, regardless of what one thinks about these issues, it might seem that such esoteric matters are not appropriate as a basis for legislation.

In her submission to the Citizen’s Assembly, Prof. Bobbie Farsides outlines an alternative approach: a way of justifying a pro-choice regime which seeks to avoid disputes about the nature or moral status of the foetus.[2] Continue reading “Reflections on the Citizens Assembly (2): The Presentation of Bobbie Farsides”

Reflections on the Citizens Assembly (2): The Presentation of Bobbie Farsides

Languishing in Direct Provision: Rights in ‘Reasonable’ and ‘Unreasonable’ Times

imagesThe length of time that asylum seekers reside within direct provision accommodation, continues to cause significant concern, as it has done so for almost seventeen years.  The practical impact of the implementation of the limited recommendations contained within the  McMahon Report still remains to be fully seen. The Minister for Justice and Equality has stated that 80% of all recommendations made by the McMahon Report are implemented or are being implemented. However, this claim has not to date been backed up with comprehensive assessment from the Department of Justice.  The commencement of the International Protection Act 2015 on 31 December 2016, will hopefully ensure that persons in the protection system receive a fair, procedurally proper and clear decisions on whether they qualify for protection in a timely manner. However, as noted by David Costello, Chief International Protection Officer at a seminar last week, there are 4,000 cases to hand in the International Protection Office (IPO) due to the commencement of the International Protection Act. [With thanks to Fiona Finn, CEO of NASC for making me aware of this]. Oldest cases will be decided first. Those already with a negative determination of refugee status by the now abolished Office of the Refugee Applications Commissioner under the old law, will return to the IPO for determination of their subsidiary protection claim. If subsidiary protection is rejected by the IPO decision maker, then both refugee and subsidiary protection appeals will be considered by the International Protection Appeals Tribunal. Whether this impacts slightly or majorly on timely and fair delivery of protection decisions remains to be seen. A case decided last week may have significant impacts on the right to a timely decision on a protection claim. Continue reading “Languishing in Direct Provision: Rights in ‘Reasonable’ and ‘Unreasonable’ Times”

Languishing in Direct Provision: Rights in ‘Reasonable’ and ‘Unreasonable’ Times

The Story of King Tex: A Modern Allegory

We are pleased to welcome this guest post from Dr Dug Cubie, UCC. In it, he reworks Fuller’s Story of King Rex for contemporary times.

In Lon Fuller’s 1969 book The Morality of Law, Fuller set out the story of King Rex as a cautionary tale of the need for clarity, consistency and predictability within legal systems. Profoundly influenced by the horrors of the 20th Century, in particular the Nazi regime in Germany and the Stalinist regime in the USSR, Fuller desired to establish certain benchmarks for legal systems based on his view of the “inner morality of the law.” Fuller argued that the inner morality of a legal system was based first on the morality of duty (the duty to provide basic rules for the ordering of society) and then the morality of aspiration (the aspiration of excellence within a legal system). Surprisingly little of Lon Fuller’s account of King Rex needs to be changed to fairly accurately reflect the start of President Trump’s administration…

So, as Fuller might have written: This story concerns the unhappy reign of a monarch who bore the convenient, but not very imaginative and not even very regal sounding name of Tex. Continue reading “The Story of King Tex: A Modern Allegory”

The Story of King Tex: A Modern Allegory

A boon for parliament? An initial response to the decision in Kerins v McGuinness

We are pleased to welcome this post by Dr. Tom Hickey, School of Law and Government, Dublin City University.

Sometimes constitutional law has an ironic effect and one that perhaps goes against the intuitions of lawyers, and of people generally. It prevents one arm of government from doing justice in order to allow another arm of government to do its job well. In today’s High Court judgment in Kerins v McGuinness, we see something like that at play, although it is probably better to say that in this instance constitutional law prevented one institution (the courts) from considering whether to offer a remedy for alleged injustices done unto Angela Kerins in order to allow another institution (parliament) to freely carry out its functions.

Continue reading “A boon for parliament? An initial response to the decision in Kerins v McGuinness”

A boon for parliament? An initial response to the decision in Kerins v McGuinness

Reflections on the Citizens Assembly (1): The presentation of Dr Helen Watt

We are pleased to welcome this guest post from Donnchadh O’Conaill, of the Department of Philosophy, History, Culture and Art Studies at the University of Helsinki. This is the first of a series of posts Donnchadh is writing on presentations of ethicists to the Citizens Assembly.

Regardless of what one thinks about the need for a Citizen’s Assembly, its deliberations have already thrown up a number of interesting approaches to thinking about ethical issues, particularly concerning abortion. What follows is a series of articles on the presentations by ethicists to the assembly, examining the arguments that they offer and their potential implications for a possible referendum to repeal the 8th Amendment.

Dr. Helen Watt presented an argument against abortion which was of interest, particularly in the context of Irish debates about abortion, in not relying (at least not explicitly) on religious doctrine. Indeed, Watt’s arguments rest on certain assumptions which are difficult or impossible to reconcile with the beliefs of many religions, for instance the belief in an immortal soul. But as with more familiar religiously-motivated discussions, Watt’s argument appeals to the nature of the foetus to justify its having a certain moral status. By the ‘nature’ of the foetus I mean not just its physical or biological features but those features which might be thought to give it moral significance in and of itself, regardless of what anyone thinks about it. This kind of moral significance is what is usually meant when ethicists speak of the ‘moral status’ of the foetus. Continue reading “Reflections on the Citizens Assembly (1): The presentation of Dr Helen Watt”

Reflections on the Citizens Assembly (1): The presentation of Dr Helen Watt

The Final Countdown: Ireland’s Ratification of the UN Convention on the Rights of Persons with Disabilities

Over the next two days, two pieces of legislation which the government has deemed necessary for Ireland’s ratification of the UN Convention on the Rights of Persons with Disabilities will be debated in the Dail. While several calls have been made by the disability community to ensure that Ireland ratifies the Convention without delay, there are ongoing human rights concerns with the legislation being proposed which will have a significant impact on the day to day lives of people with disabilities in Ireland.

The Criminal Law (Sexual Offences) Bill is going through its Report and Final stages in the Dail tonight. This Bill includes an amendment by Minister Fitzgerald to define sexual consent, which is vitally important and widely supported by civil society. The wording of the Minister’s amendment in respect of persons with disabilities could however be improved. For example, the amendment states that a person does not consent to a sexual act if “he or she is suffering from a physical disability which prevents him or her from communicating whether he or she agrees to the act.” The term ‘physical disability’ seems unnecessarily limiting here, as there are many different physical and psychological reasons that might prevent the person from communicating consent or refusal. Instead, it would be preferable if the amendment provided that a person does not consent if “he or she is experiencing an impairment which prevents him or her from communicating whether he or she agrees to the act.” Continue reading “The Final Countdown: Ireland’s Ratification of the UN Convention on the Rights of Persons with Disabilities”

The Final Countdown: Ireland’s Ratification of the UN Convention on the Rights of Persons with Disabilities

Is the United States in Breach of the Air Transport Preclearance Agreement 2008?

This post is authored by Dr Darren O’Donovan, Senior Lecturer in International Law, Administrative Law and Human Rights, in  LaTrobe Law School, Melbourne. 

A lot of Irish media discussion in the preclearance debate has begun to feature rhetoric such as Ireland can’t “let the United States operate preclearance given the new executive order”, or that “Ireland should make a statement and close preclearance”. Opponents (they would call themselves realists) would argue that as a small country with a small economy this is far too dramatic a foreign policy step. To debate the legality of preclearance fully however, we need to emphasise that United States obliged, under international law, to operate its preclearance in line with the bilateral agreement between Ireland and the United States signed in 2008.

In this post I want to therefore frame questions for the United States government, and for use by United State citizens. The big one is of course simply: Is the United States in breach of its international legal agreements with Ireland by applying the executive order in Irish airports? The key provision of the 2008 Agreement Article II (1) which states that:

“Nothing in this Agreement shall be construed as diminishing the rights enjoyed by individuals under the Constitution and laws of Ireland and, where applicable, the United States.”

As we have discussed in an earlier blogpost there are a range of potential, to be explored, arguments as to why the application of the executive order within Ireland’s jurisdiction may be unlawful under Irish law. What is significant however, is that we in Ireland cannot simply say that US law is a matter for US authorities. US law in fact sets the scope of their international legal obligations towards us, and it may even require us to give redress to some individuals (see question 4 below). We need to fold the United States’ bilateral obligations into the debates about preclearance.

Questions for the US Embassy/State Department:

  • As under the Article II of the 2008 Agreement, the scope of your authorisation under Article V to carry out preclearance cannot extend to actions which diminish the rights of individuals under Irish law, what steps have you taken to ensure that the application of the executive order does not exceed the terms of the 2008 Agreement?
  • As under Article II of the Agreement, the scope of your authorisation under Article V to carry out preclearance cannot extend to actions which diminish the rights of individuals under United States law, can you confirms what steps you have taken to confirm that the provisions of the executive order are compliant with United States law?
  • In the event you determine the executive order is not compliant with Irish law, are you willing to commit to not applying the executive order in preclearance areas at Dublin and Shannon Airport?
  • Given the close and abiding bilateral ties between the United States and Ireland, is it appropriate for the executive order to be applied in Irish airports while it is currently before the United States courts? We refer you in particular to Article IV(2) which appears to require Ireland to provide a system of redress in event of the “unlawful exercise of powers associated with the administration of preclearance“. This Article is not limited in its express terms to the unlawful administration of Irish law . Can you provide your view of the extent to which the Government of Ireland may be liable to provide redress for the actions of US government officials under this Article?

Ireland: The Supporters of the Preclearance System

What this post attempts to show is that being a supporter of preclearance means actually enforcing the agreement we made in 2008, and exploring potential United States’ breaches of it. It is difficult to imagine Irish parliamentarians not supporting the principle that preclearance only extends to the scope of the 2008 Agreement. Any Irish legislation which implements this principle does not ground any United States entitlement to immediately modify or withdraw from the 2008 Agreement. It would enjoy only its usual right to withdraw after one year. It should, however, be noted that in the event the United States is in material breach of the treaty, Ireland enjoys the right to suspend or withdraw from the 2008 Agreement after a brief period of consultation (as per Article 60 of the Vienna Convention on the Law of Treaties).

Is the United States in Breach of the Air Transport Preclearance Agreement 2008?

Irish Human Rights Bodies: Permitting Pre-Clearance to Operate in Ireland May Violate Human Rights

HR Grps 21

 Joint Statement from Irish Human Rights Organisations

Monday, 30 January 2017

 

FOR IMMEDIATE RELEASE

President Trump’s Executive Order adopting a targeted ban on refugees and migrants from certain countries should be strongly and categorically condemned by the Irish government. This Executive Order is a barely concealed attempt to discriminate on nationality and religious grounds, itself a gross violation of freely accepted international human rights obligations. We stand in solidarity with US civil society organisations working to uphold the legal rights of all those affected by this Executive Order.

Closer to home, we express collective concern that the operation of US pre-clearance at Dublin and Shannon Airports may result in individual Gardaí and immigration officials providing assistance to US pre-clearance officials’ implementing the Executive Order.

We welcome the call by the Minister for Children and Youth Affairs, Katherine Zappone for an urgent review of the Irish pre-clearance agreement with the US.

We call on the Minister for Foreign Affairs and Trade and the the Minister for Justice and Equality to take steps to immediately:

  1. Conduct an urgent review of the pre-clearance system operating in Ireland and take appropriate action, up to and including suspension of pre-clearance agreement, where there might be a reasonable chance of a person’s rights under the constitution, EU or the European Convention on Human Rights may be under threat.
  1. Provide appropriate information on the applicable law and procedures to any person refused pre-clearance on the basis of the operation of the Executive Order. Irish immigration officials should also give any person refused pre-clearance the opportunity to seek legal advice. The organisations issuing this statement stand ready to give advice and/or make appropriate referrals, to any person refused pre-clearance in Ireland on the basis of the Executive Order.
  1. Clarify the role of Gardaí and immigration officials in the US pre-clearance process to ensure that in the exercise of their public functions, a person’s rights under the Irish Constitution, European Convention on Human Rights, EU law or international human rights law will not be violated.

 

Signed:

Brian Killoran, CEO of Immigrant Council of Ireland (ICI)

Colm O’Gorman, Executive Director of Amnesty International Ireland

Edel McGinley, Director of Migrant Rights Center of Ireland (MRCI)

Eilis Barry, CEO of Free Legal Advice Centres (FLAC)

Fiona Finn, CEO of Nasc, the Irish Immigrant Support Centre (Nasc)

Liam Herrick, Executive Director of Irish Council for Civil Liberties (ICCL)

Nick Henderson, CEO of Irish Refugee Council (IRC)

Signatories are available for interview, please contact:

Caroline Reid, IRC, caroline@irishrefugeecouncil.ie; Ph: 085 858 5510

Clare Herbert, Amnesty International Ireland, media@amnesty.ie ; Ph: 085 814 8986

Edel McGinley, MRCI, edel@mrci.ie;  Ph: 087 748 5695

Emily Glen, ICCL, emily.glen@iccl.ie; Ph: 087 998 1574.

Jennifer DeWan, NASC, jennifer@nascireland.org; Ph: 086 085 3923

Pippa Woolnough, ICI, pippa@immigrantcouncil.ie; Ph: 085 835 3757

Yvonne Woods, FLAC, yvonne.woods@flac.ie FLAC, Ph: 01 887 3600

 

Irish Human Rights Bodies: Permitting Pre-Clearance to Operate in Ireland May Violate Human Rights