Northern/Irish Feminist Judgments: First Workshop 'The Foreign Subject'

NIFJPWe are delighted to welcome back Ruth Houghton, a Graduate Teaching Assistant and Ph.D. candidate at Durham Law School who has previously written for us here and here. Ruth is also a commentator on the Northern/Irish Feminist Judgments Project. The post was published on Inherently Human.

The Project

As has been previously mentioned on this blog, the  Northern/Irish Feminist Judgments Project (@irishfjp) is led by Aoife O’Donoghue (Durham Law School), Julie McCandless (LSE Law) and Máiréad Enright (Kent Law School). A feminist judgments project writes the ‘missing feminist judgment’; it takes original decisions and rewrites them from a feminist perspective. Abiding to the strictures of precedent and custom that judges adhere to, the feminist judge shows how the law could have been interpreted or applied differently. This particular project builds on the work of the Canadian, Australian and English feminist judgments projects, and focuses specifically on the creation of identity in Ireland and Northern Ireland. The project will explore both jurisdictions, rewriting cases from both the Irish and Northern Irish courts. The Northern/Irish Feminist Judgments project explores the building of communities and the importance of diaspora for Irish identity as well as creating a space to explore the ways that Northern Irish and Irish identities have ‘affected, and defined themselves in relation to one another over time’.

First Drafting Workshop

On the 23rd October 2014, in Ulster University, five feminist judges presented their draft judgments to an interdisciplinary audience. The judges were free to choose the cases that they wanted to rewrite from a feminist perspective, which meant that there was a broad range of issues covered. From Irish constitutional law to vicarious liability for child sexual abuse, from employment law to public appointments and police powers and duties, these cases raised questions about community, identity, harm and the limitations of the legal systems.  The cases that were discussed at this workshop were; In re White (Judge: Catherine O’Rourke), McGimpsey v Ireland (Judge: Aoife O’Donoghue), In re E (Judge: Colin Murray), O’Keefe v Hickey (Judge: Maeve O’Rourke) and Flynn v Power (Judge: Eoin Daly).

Interspersed between the cases, were panels from scholars and activists from a variety of disciplines. The project aims to engage with the particular social, political and sectarian context and so issues of religion, sexuality and abortion were discussed during the two-day’ workshop. Photographer and filmmaker Emma Campbell (@frecklescorp) shared her video, When they put their hands out like scales, which includes the words from the Hansard debate on abortion in the Northern Ireland Assembly on 20th June 2000. Listening to words from the debate highlighted the prevalence of religion within the political debate on abortion. The images of walkways, paths and finally images of the docks were used to demonstrate the journeys women in Ireland have to take to seek an abortion and ultimately the denied statehood of these women. The extent to which abortion effects the construction or deconstruction of women’s identities was highlighted in the short-film as an actor read aloud Mrs Carson’s statement from the debate in the Assembly, ‘they should not be made to feel like criminals having to hide their identities. Nor should they be ostracised by society.’ Leanne McCormick demonstrated the role of female sexuality in the creation of women’s identities. She displayed images from ‘douching’ advertisements and told of how women were represented within trial reports from the early 20th century following accusations of abortions, attempted terminations and infanticide.

The construction of the foreign subject

The theme of the first drafting workshop was the ‘Foreign Subject’. Ex-President of the United States of American, Bill Clinton was noted to have said that ‘the most urgent issue facing the world [is] that of identity’ (quoted by Marianne Elliott). The creation of identities in Ireland and Northern Ireland was the focus of the panels at the first drafting workshop. Scholars from history, sociological, English literature and law came together to discuss the effects of the social, geographical, political and religious contexts on the construction of Irish identities. One element of this identity creation was migration and more broadly, travel and movement. Louise Ryan argued that identity is relational; it is located within particular places and created by the different relations between people. She discussed the effect of migration to England on Irish identity, showing how the perception of Irish people in England effects the way individuals present their Irish-ness.

In particular, the panels were interested in the way more marginalised groups build identities or have identities imposed upon them. Throughout the workshop the term foreign was constantly conceptualised and reconceptualised, stretched and expanded, to include those groups of people who are considered ‘foreign’ because they do not fit within societies expectations. ‘Foreign’ could include migrants, religious identities, LGBT persons, or women. Marianne Elliot noted how the word for foreign and protestant in Irish is the same and Anne Mulhall from University College Dublin spoke on the representation of migrant and LGBT persons in campaign literature.

One of the questions that the project seeks to explore is the role of the judiciary in the creation of identities. In judicial decisions, identities are created and the case law acts as a permeant record of this identity. The McGimpsey v Ireland case is an interesting example of the way litigants are constructed by the courts. The McGimpsey brothers lived in Northern Ireland and were well-known political actors amongst unionist supporters, their political belief was a rejection of Irish jurisdiction over Northern Ireland. They took a case to the courts in the Republic of Ireland challenging the Anglo-Irish Agreement of 1985. Even though the brothers rejected Ireland’s territorial claims and unionists in general would have been disliked in the Republic, when the case was in the High Court in the Republic of Ireland, Barrington J described the litigants as being ‘patently sincere and serious people’. Emphasising the brothers’ good standing within the community and their public and civic lives, the court fashioned an ideal litigant. This raises the question whether a housewife could have brought the same case and received the same favourable treatment; a question that Aoife O’Donoghue considered in her feminist rewrite of the Irish Supreme Court judgment.

The interrelationship between questions of community and identity in Northern Ireland and Ireland is strong. The community in Northern Ireland meant Protestant and Catholic or Unionist and Nationalist. Marianne Elliot highlighted how these different community groups had very different oral histories, which are used to crystallise identities. The pervasiveness of this divide is seen by the nature of party politics, which draws a distinction between “unionist”, “nationalist” and “other”. Yet, Myrtle Hill, a historian at Queen’s University Belfast and Monica McWilliams from the Transitional Justice Institute, talked about and shared experiences of the women’s movement in Northern Ireland in the 1970s. They noted how the movement distanced itself from the political-party lines that were drawn and engaged in cross-community activism. More recently, the Northern Ireland Women’s Coalition created in 1996, also refused to align with one ideology and were designated as “other” within the Irish National Assembly.

Still, a reoccurring trend in the Northern Irish and Irish judgments was the construction of identity along political and sectarian lines, dividing the community into Protestants and Catholics or unionists and nationalists. In re White concerned the appointment of representatives to the Northern Ireland Parades Commission (overseeing the parades or marches that take place in Northern Ireland). Despite the fact that women took part in the parades and were affected by the parades that took place on their streets, in the original decision it was held that ‘representative of the community’ did not include representing women. Similarly, in the case of McGimpsey v Ireland the original judgment talks of majority and minority community (invoking the Protestant majority and the Catholic minority). There is no thought to those people who fell outside of these divides, in particular those people who were excluded by the community: in response to the 1978 draft Homosexual Offences (Northern Ireland) Order, the Democratic Unionist Party started a petition to “Save Ulster from Sodomy”.

The feminist judgments in the Northern/Irish Feminist Judgments Project demonstrate how these decisions could have been decided or reasoned differently to improve the place of women and minorities within society. Each judge had a different feminism and so had different methods of creating a feminist judgment. By placing women within the text of the judgment, by focusing on the specific gendered nature of the harm suffered, by telling the stories of the women involved or in the cases of In re White and McGimpsey v Ireland by reconceptualising ‘community’, the Northern/Irish Feminist Judgments Project is able to critique the original decisions. The Irish feminist judges are now challenging judicial decisions that had a negative effect on women and minority groups.

The Northern/Irish Feminist Judgments Project has been assisted by research from Zoe Carter and Eleanne Hussey (LSE) and Ellen Jepson from Gender and Law at DurhamThank you to the University of Ulster, Transitional Justice Institute and Law School for hosting and supporting the first workshop.

Taxing Times for Human Rights, but not for Multinational Corporations

apple-logoWe are delighted to welcome the latest in a series of cross-posts by Dr Shane Darcy from the Business and Human Rights in Ireland Blog.  The Business and Human Rights in Ireland Blog is dedicated to tracking and analysing developments relating to business and human rights in Ireland. It aims to address legal and policy issues, as well as highlighting human rights concerns raised by the activities of Irish companies or multinational corporations based in Ireland. The blog is run by Dr Shane Darcy who is a lecturer at the Irish Centre for Human Rights, National University of Ireland Galway.

Ireland is one of many countries that is being put through the mill of so-called austerity measures. Cuts all across public services, including in health and education, as well increased unemployment and personal debt are having a severe impact on society. David Stuckler and Sanjay Basu have convincingly argued in their recent book that “austerity kills”. The devastating effects of austerity can actually be measured in lives, specifically the observable increase in suicide in countries such as Greece Continue reading Taxing Times for Human Rights, but not for Multinational Corporations

Amnesty International's Annual Report for Northern Ireland and Ireland

amnestyintl.logo_.2Amnesty International’s Annual Report on Northern Ireland and Ireland was published last week  as part of its annual series of country reports. Globally, the report considered the world to be a more dangerous place for refugees and migrants and stated that countries were increasingly using the cover of ‘internal affairs’ to block full consideration of their human rights standards. These reports are part of a broader reporting process by governmental and non-governmental together with  global and regional bodies including state-led reports on individual countries’ commitments and abuses of human rights standards. Indeed, previously we have highlighted the US State Department’s Human Rights Reports, the Universal Periodic Review by the UN Human Rights Council and the UK’s FCO Human Rights’ Report, amongst others. Often, these reports are conscious political campaigns, such as the Regan administration’s initiation of State Department country reports during the Cold War or the Universal Periodic Review as a method of moving beyond past failures in the UN’s human rights’ accountability mechanisms.  Amnesty International, as a NGO, perhaps brings a more ‘independent’ overview of state activity, but even here, a country’s co-operation, or otherwise, may be critical in gaining access in order to compile the report. The priorities of a particular NGO may also alter the focus of such reports. Further, the ultimate utility of these kinds of general reports without any form of enforcement mechanism should be questioned, particularly when considerable resources are sunk into their compilation. At the very least, these reports offer an opportunity for countries to assess their human rights standards and in the case of critical reports, attempt, if possible, to save face or explain their poor standards of observation. Amnesty International historical record of accurate and influential reports makes their contribution particularly important.

The Report on Ireland focuses on prison conditions, the right to health, violence against women and girls, police and security forces, and constitutional and legal changes. In particular, the report criticised conditions in young offender institutions, though it did welcome the Government’s plan to end placement in St. Patrick’s for 16 year olds, the fact that 17 year olds would still be held there coupled with inadequate health and education facilities for young offenders, remained extremely problematic. The Report also stated that while the instigation of a process of investigation of serious complaints by prisoners was a step forward, this remained well short of what is required under the UN Torture Convention and mandated by the Torture Committee’s Report on Ireland in 2011. The 2011 Report had also highlighted the need for full investigations into the Magdalene Laundries and Amnesty also questions whether the Government has fully complied with its requirements on this matter. The Report mentions the Right to Health and particularly the death of Savita Halappanavar focusing on the lack of clarity in law on access to abortion, a point that the Oireachtas Committee would be well cautioned to consider. Amnesty also mentioned the Smithwick Tribunal on collusion with the IRA. The Report welcomed Ireland’s signing of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, the Constitutional Convention and the passage of the Constitutional amendment on Children’s Rights.

The Report on Northern Ireland forms part of the broader report on the UK. Here, Amnesty focused on the continuing activity of paramilitary forces, in particular the shooting dead of prison officer David Black and the intimidation of elected officials and journalists by these groups. The Report also looked at the Inspectorate of Constabulary’s review of the Historical Enquiries Team which re-examines all deaths related to the conflict in Northern Ireland and examines whether those cases involving the army are human rights compliant. The Report also highlighted the ongoing investigations into the death of Pat Finucane and Blood Sunday. In similar terrain to previous reports on Ireland, the Report also looked at the instigation of the inquiry into institutional child abuse in Northern Ireland from 1922-1995. More generally, Amnesty highlighted questions relating to torture and ill-treatment by UK forces with regard to terror suspects, the impact of counter-terrorism measures, gender based violence and the UK’s lead of a new initiative regarding violence against women and girls in conflict and post-conflict scenarios as well as the UK’s treatment of refugees and asylum seekers.

The issues raised are familiar to anyone interested in human rights standards across Ireland and the UK. Yet, importantly, the report highlights the on-going issues, which have also been the focus of many previous Amnesty Reports and questions the good faith of both the Dublin and London Government as well as the devolved Government in Stormont to actually deal with rights questions, such as those relating to youth offending or women’s rights, that are often sidelined in favour of more publically acceptable human rights issues that are less electorally difficult. Repeated highlighting of these more difficult issues is perhaps the most important contribution that these forms of Reports can make, even if broader questions regarding their multitude and impact can be raised.

Cathleen Ní Houlihan and the protection of Ireland's femininity

cathleen ni houlihanIn the years preceding independence, the vision of Ireland as a women in need of protection became a standard of nationalism. Genderised Ireland has roots in Róisín Dubh and the Earl of Tyrone’s attempts to stay off the Tudor expansion in Ireland. Directly linking the Earl’s resistance to his daughter’s woes, standing in for a forsaken Ireland, the image of a women as Ireland needing male intervention to fully substantiate both her rights as a sovereign power but also to fully embrace her Irishness, as opposed to any foreign interpretations of femininity, became an entrenched trope of nationalism. This was replicated by Yeats and Gregory in the play Cathleen Ní Houlihan. In this play, Maud Gonne, as elderly mother Ireland, is only revived as young and, importantly, beautiful, upon the sacrifice of young men to regain her freedom to be distinctly Irish. Thus, Ireland becomes a women who while personifying the very character of Irishness also requires others, always men, to protect, vindicate and guard her from outside influences and interference. Cullingford has described the depiction of Ireland as a women as neither natural nor archetypal but so common as to be ‘rhetorically invisible.’ Further, she argues that Ireland as women has been so effective  that it is entrenched in the idea of women in stereotypical roles invariably linked to nature that is to be possessed and cultivated to its utmost by men, becoming a settled trope of Irish culture. This has created a state structure and culture in Ireland where men occupy the political role of fighting and vindicating rights on Ireland’s, and as such, women’s behalf.

Such characterisations of states possessing both sex and gender are not restricted to Ireland. A recent speech by Patriarch Kirill, the head of the Russian Orthodox Church, warned against the evils of feminism. Arguing that the ‘Motherland’ or Russia, as a state, would be threatened should women step outside their traditional role in the home and take the active political and social roles advocated by feminism. Motherland Russia requires women to be in the private sphere to survive.  Bharat Mata or Mother India was used as a symbol of both Indian and women’s emancipation during the struggle for Indian independence, though the latter was largely forgotten upon independence, other than among the elites. Male personifications are also common, from John Bull and Uncle Sam to Dangun in Korea. Yet, in the incidences of male personifications it is as an active player in the public sphere who commands and directs citizens, offering protection rather than requiring it.

Hanafin and Collins point to the 1937’s Constitution’s use of myths and maidens in their critique of the use of gender in the Constitution. Particularly, they discuss the role of women as mothers in the present constitution and link this to nationalist trends towards myth-making which preceded the Constitution and post-colonial structures. The role of mother as forging a basis for re-birth is particularly important in their analysis. Arguably, in the present debates on abortion legislation, see here, here, here and here,  it has become ever more prominent in the perceived vindication and protection of Irish women within Ireland’s constitutional structure. The personification of Ireland as a women in need of protection, where the Irish male vindicates their rights, certainly appears to be fully operational in the language used in the political debates. The language employed has been heavily patriarchal as women are invariably discussed in a manner that suggests they are not capable of making informed medical decisions or indeed have cognisance of their own mental welfare, particularly regarding  suicide. Rather, women are in need of the protection offered by the State, and as such, the Constitution as was originally intended in 1937. Their role as mothers, apparently an anathema to any decision to terminate a pregnancy, is inherent to our understandings of Ireland itself and Irishness.

Such rhetoric, though not quite as bare-faced as Patriarch Kirill, is not so far removed either. Irish women fulfil a role within the constitutional structure and, as such, the state, as is clearly evident in Article 42.2 and the support for women’s place in the home. While most agree this particular article is archaic there has been no rush to remove it either. Arguably, article 42.2  merely is an open portrayal of how the 1937 Constitution regards the state and the particular role of women in ensuring the maintenance of its unique Irishness, as envisaged by the male power holders of its time, particularly as this article’s interpretation has permeated the use of other constitutional articles and wider societal debates. While Cathleen Ní Houlihan may appear to be a long forgotten relic of nationalism in the pre-state era, her presence is more clearly felt than perhaps it should. Irish women do no need the male citizenship to vindicate their rights, their own citizenship should enable them to do so in the same public sphere. The emergence of a beautiful maiden ready to take the role of mother no longer is representative of Ireland or Irish women, the Constitution, and its implementation should reflect this.

Irish Centre for Human Rights Launch Report on Business and Human Rights

A new report calls on the Government to ensure that companies respect human rights and to provide guidance to businesses on the requirements of human rights due diligence, including when operating overseas. Such due diligence should be a mandatory requirement underpinned by legislation, according to the report’s authors at the Irish Centre for Human Rights in NUI Galway.  ‘Business and Human Rights in Ireland’ aims to contribute to policy, practice and law on business and human rights in Ireland. The report will be officially launched this evening by Professor Michael O’Flaherty, who is a member of the United Nations Human Rights Committee and Chief Commissioner of the Northern Ireland Human Rights Commission.  Illustrative examples of business negatively impacting on human rights provide a context for the report. Prominent examples mentioned in the report include Irish technology companies implicated in Syrian censorship, the Corrib gas dispute involving Shell and Statoil, the working conditions of migrant workers engaged in mushroom picking, the treatment of GAMA construction workers, and the working conditions in the supply chain for Penneys/Primark.  Multinational companies headquartered in Ireland, such as Apple, Continue reading Irish Centre for Human Rights Launch Report on Business and Human Rights

Ruggie, Rights and Regulation: Ireland and UN Framework on Business and Human Rights

We are delighted to welcome this Guest Post from Dr. Ciara Hackett.  Ciara is a lecturer in the School of Law at NUI Galway where she also serves as Deputy Director of the LL.M in Public Law.  Her research interests include corporate social responsibility, corporate governance, globalisation and marxist theories of development.

In 2011, Ireland signed up to the United Nations Framework on Business and Human Rights (Ruggie Principles) (see here).  The initial aim of the framework was to ensure that companies have the same obligations and range of duties under International Human Rights Law as states, namely “to promote, secure the fulfilment of, respect, ensure respect of, and protect human rights.”  The only distinctions made between the two seems to be that states have a “primary” duty and companies have a “secondary” duty.

The framework rests on three main pillars.  First is States’ duty to protect against human rights abuses by third parties, including business enterprises through appropriate policies regulation and adjudication.  The second is the corporate responsibility to respect human rights (i.e. avoid infringing on rights and address adverse impacts) and finally the need for access by victims to remedy (para. 6).

Reactions to the principles suggest that the framework is a weak formulation and does not go far enough (see here).  Addressing this framework in the context of the on-going financial crisis and indeed the particular case of Ireland raises some questions as to the effectiveness of the framework or indeed whether or not the aims are realistic.  In particular this post refers to the foundational principles of the framework: that states must protect against human rights abuse in particular through effective policies, legislation and regulations.  This requires a re-imagining of the current Irish regulatory framework for addressing the responsibilities of business.

As society endeavours to emerge from the economic crisis, governments are faced with a balancing exercise between retaining or achieving a desired competitiveness in a post recessionary era and developing regulatory structures to ensure that the same problems do not occur again.  For states like Ireland the problem is more ingrained, stemming from the nature of an economy that was for so long Continue reading Ruggie, Rights and Regulation: Ireland and UN Framework on Business and Human Rights

Ireland and the OSCE

In December of  2009 we discussed on the blog the announcement that Ireland was to take over the Chair of the Organization for Security and Co-Operation in Europe (OSCE) in 2012. The OSCE is a regional European security body that has over 56 participating states including members in Europe, Central Asia and North America such as the United States, the UK, the Holy See, France, Russia and Canada. Ireland joined the organisation as an original member in 1973, though the organisation in its current form emerged in 1994 in the post Cold War era.  Its work covers areas such as arms control, anti-trafficking, combating terrorism, conflict prevention, democratisation, elections, gender equality, minority rights, policing, rule of law, tolerance and non-discrimination.

Since the announcement the OSCE has undergone the Chairship of Lithuania and Kazakhstan, the latter having been an extremely controversial choice given its human rights record. Indeed quite a number of human rights organisations have been critical of both the choice and the lack of reform in Kazakhstan following and during its tenure. Indeed Amnesty International 2011 Report on Kazakhstan states that,

Reports of torture or other ill-treatment remained widespread, despite government promises to adopt a zero tolerance policy toward its practice. Impunity for such human rights violations persisted. The authorities stepped up efforts to forcibly return asylum-seekers and refugees to China and Uzbekistan under national security and counter-terrorism measures.

Given, what many argued was an ill-considered choice of Chair for the OSCE, it is incumbent on the states which followed, Lithuania and now Ireland, to re-establish the OSCE’s reputation, most particularly in the field of human rights. On this note, the Tánaiste Eamon Gilmore presented the priorities for Ireland’s term of as Chair of the organisation. In his address to the Organization, the Tánaiste stressed that Ireland’s priorities would be, Continue reading Ireland and the OSCE

Amnesty International CDLP Seminar on Legal Capacity

The Centre for Disability Law and Policy (NUI Galway) and Amnesty International (Ireland) held a seminar today on getting legal capacity law right.  The seminar can be viewed here.  The seminar heard from Oliver Lewis from MDAC who spoke about the CRPD in international Best Practice on legal capacity law.  Christine Gordon who spoke about the lessons from British Columbia on supported decision-making.  Professor Gerard Quinn spoke about the challenges in realising supported decision-making.  The seminar was chaired by Colm O’Gorman the Executive Director, Amnesty International (Ireland) and was addressed by Kathleen Lynch the Minister for Disability, Equality, Mental Health and Older People.  One of the really interesting aspects of the seminar was the contribution from the “experts through experience” who spoke of their perspectives on legal capacity when decision-making is called into question.  Mary Farrell spoke about her experience in terms of her son who was made a Ward of Court following a High Court Award of damages for an acquired brain injury.  Paul Alford spoke about his experience of moving from an institutional setting to living independently in the community and making his own decisions about how he lived his life.  Bill Lloyd an advocate for older persons spoke about the deficiencies of Irish law in respecting the decision-making of one of his clients who was diagnosed with dementia.  Jim Walsh shared his experience and perspectives on decision-making and persons seen as having a mental health problem.

Call for Papers: Ireland and the United Nations Framework for Business and Human Rights

A one-day conference organised by the Irish Centre for Human Rights and the School of Law, NUI Galway entitled “Ireland and the United Nations Framework for Business and Human Rights” will take place on 24 March 2012 at the National University of Ireland Galway.  The conference seeks to explore and analyse issues of law and policy for Ireland arising from the 2011 adoption by the United Nations of Professor John Ruggie’s framework for business and human rights.  The framework emphasises a State’s duty to protect human rights, a corporate responsibility to respect human rights and the need to provide remedies to respond to violations of human rights by business.  This conference seeks to look beyond the voluntary corporate social responsibility approach to business and human rights; as Maurice Manning, President of the Irish Human Rights Commission has observed, “voluntarism can never be a substitute for global standards on businesses’ mandatory compliance with human rights”. The organisers welcome in particular contributions which address seek to address legal questions which arise in relation to the UN framework on business and human rights.  Ireland represents an obvious case study in this context, given the presence of numerous multinational corporations, increasing privatisation of public services and allegations of corporate involvement in human rights violations both in and outside of Ireland. The conference aims to address the following topics:

  • Legal and policy approaches to regulation of Irish companies for human rights
  • Obligations of the State and companies when public functions are privatised
  • Role of extraterritorial jurisdiction in Irish law to address violations committed overseas by Irish companies or multinationals based here
  • The potential role of criminal law to address violations of human rights by business
  • Civil litigation as a means accountability – lessons from the Alien Tort Claims Act
  • Remedies for victims

Abstract Submission

Abstracts should be sent by 21 December 2011 to: Dr Shane Darcy ( and Dr Ciara Hackett ( Successful applicants will be informed in January 2012 of their acceptance to the conference. For further information and registration for the conference please contact: Hadeel Abu Hussein:

UNHCR #do1thing: Subsidiary Protection

In an earlier post, I outlined the core meaning of the terms refugee and asylum seeker. In addition to refugee protection in Ireland, an asylum seeker who fails to fall within the terms of this definition may be entitled to subsidiary protection. Subsidiary protection came about as a result of European Union law. Where an asylum seeker can show that she will face a real risk of serious harm in her home country, she will be entitled to subsidiary protection. Serious harm is defined as the: