The 2010 edition of the Dublin University Law Journal is out (available by subscription on Westlaw IE) and features a number of articles of interest to readers, including pieces by past guest contributors to HRinI Rachael Walsh and Paul Daly. I would recommend in particular Siobhan Mullally and Tanya Ni Mhuirthile’s article “Reforming Laws on Female Genital Mutilation in Ireland: Responding to Gaps in Protection”. Ireland lacks any legislation specifically addressing FGM. An exerpt follows after the break.
This article accepts that legislative reform is necessary, though noting that the form that such reform measures may take, needs to be explored further. It is clear that central to any process of reform will be the introduction of legislative provisions for extra-territorial effect to address the problem of FGM occuring outside of the State’s jurisdiction. Possible defences of consent or culture that might arise in any future prosecutions will also need to be addressed, to ensure that essentialising claims of cultural difference do not undermine the effective operation of the law, or conversely, stigmatise the immigrant ‘other.’ Asylum law and policy may also require reform and further scrutiny. Although FGM has been recognised in Irish law as potentially giving rise to a claim to asylum or to subsidiary protection, questions remain as to how asylum law is implemented in practice, and whether the state is fully complying with its non-refoulement obligations, where risks of FGM arise. Despite more than a decade of gender guidelines on international protection standards and procedures, refugee women continue to face difficulties in presenting claims of persecution and in demonstrating a failure of state protection when the harm suffered takes place, as the European Court of Human Rights recently noted, ‘within personal relationships or closed circuits.’ Many of the challenges that are now faced by asylum applicants bubble beneath the surface, less likely to raise the grand conceptual debates that for so long preoccupied asylum adjudicators. Instead, it is the lower level preoccupations with credibility, availability of protection and internal relocation, that now function as the primary gatekeepers in asylum adjudication.
