On World Refugee Day: a crisis of protection in Europe


UNHCRThe crisis in Europe is more properly understood as a crisis of protection and of policy. It is fundamentally a crisis of human rights. Core protections provided to refugees and migrants by European and international law, including the right to seek and to enjoy asylum from persecution and protection against refoulement, have come under threat. Faced with forced displacement of almost five million Syrian refugees, the focus of responses has continued to be on deterrence, deflection and return. As Wendy Brown has noted, at a time when neoliberals, cosmopolitans and humanitarians fantasize a world without borders, nation-states continue to exhibit a passion for wall building. In the European Union, the ‘stark physicalism’ of walls and fences have been supplemented by the launching of a military operation, EUNAVFOR-Med, which includes among its stated aims, the prevention of loss of life at sea, preventing ‘illegal migration flows’ and disruption of the ‘business model of smugglers’.

The business model of smugglers, however, is closely linked to the limited accessibility of pathways to regular migration, and the absence of a comprehensive resettlement response to the humanitarian crisis triggered by millions of people forcibly displaced by conflict.  The reluctance to issue humanitarian visas, or to expand the scope of family reunification, combined with continued use of carrier sanctions underpins the very business model that the EUNAVFOR-Med operation seeks to disrupt. Within the context of the EU’s Common European Asylum System, the uneven sharing of responsibility for protection among Member States, and divergence in the protection afforded to refugees and asylum seekers, remain to be addressed. Against this background, core principles underpinning the EU’s foundational treaties – fair sharing of responsibility and solidarity – are not being met.

This crisis raises questions as to the limits and potential of human rights norms, when invoked by migrants and refugees. As such, it also raise questions as to the current state of play of both the theory and practice of international law, and the conflicting interests that underpin its shifting frontiers. These conflicts include legal reforms that reflect, as Brown notes, simultaneous opening and blocking, ‘universalization combined with exclusion and stratification’ – an apt description of the politics of the 2016 EU-Turkey agreement.   

Protection against refoulement

The Agreement – including its very legal status as an ‘Agreement’ – is now the subject of several challenges that raise questions as to its compatibility with the prohibition of refoulement. Recent judgments of the European Court of Human Rights have highlighted the positive procedural obligations on states arising from Article 4, Protocol no.4 to the Convention. In Klaifia and Others v Italy – (a case now pending before the Grand Chamber) – the Court held, by five votes to two, that the applicants had been subjected to a collective expulsion. The ‘mere introduction of an identification procedure’ was not considered sufficient in itself to rule out the existence of a collective expulsion. A number of factors led the Court to the conclusion that the impugned expulsion was collective in nature: There was no reference to the personal situation of applicants in the refusal-of-entry orders; there was no evidence that individual interviews concerning the specific situation of each applicant had taken place prior to the issuance of the orders; and perhaps, most tellingly, a large number of Tunisian nationals – the same nationality as the applicants – received the refusal-of-entry orders around the same time. Khalifia followed on from earlier judgments by the Court on collective expulsions, Hirsi Jamaa and Others v. Italy and Sharifi and Others v. Italy and Greecein which the absence of ‘sufficient guarantees’  demonstrating that the personal circumstances of each of the migrants concerned had been ‘genuinely and individually taken into account’ was critical.

These judgments of the Court weigh heavily on the legal issues arising under the implementation of the EU-Turkey agreement. The judgment of the Court in Khalifia is particularly instructive, given its references to ‘exceptional waves of immigration’, and its acknowledgment of the many duties assumed by the Italian authorities, including rescue at sea, and provision for the health and accommodation of migrants on arrival on the island of Lampedusa. In a particularly important statement, the Court noted, however, that those factors cannot exempt the State from its obligation to guarantee conditions that are ‘compatible with respect for human dignity to all individuals’.

The collective expulsion cases reveal a willingness on the part of states to test the limits of legality, including of the safe third country concept. In Khlaifia, Judge Keller, noted that the preliminary investigations judge of Palermo had invoked the state of necessity (stato di necessità) to justify the ‘immediate transfers’ of migrants. This argument, and related arguments concerning international law and state responsibility in times of ‘distress’, were rejected by Judge Keller.

The rush to conclude the Agreement is likely to come under continuing scrutiny, particularly given the trust placed in the Greek asylum determination procedures and capacity for reception. At the time its conclusion, the Committee of Ministers of the Council of Europe had not yet closed its supervision of execution of the judgment in M.S.S. v. Belgium and Greece.  Of particular note in the Court’s judgment, is the Concurring Opinion of Judge Rozakis, in which he took the opportunity to highlight the deficiencies of EU immigration policy, including the Dublin II Regulation (as it then was). The Regulation, he noted, did not reflect the present realities, or ‘do justice to the disproportionate burden that falls to the Greek immigration authorities.’ His comments were prescient, and have only increased in relevance subsequently. There was, he said, ‘an urgent need for a comprehensive reconsideration of the existing European legal regime.’ Despite this urgency, however, this comprehensive reconsideration has yet to be realised. Proposals for a fairer process of allocation of responsibility continue to be contested. Against the background of a ‘crisis situation in the Mediterranean’, even the limited ‘temporary and exceptional’ relocation decision adopted by the European Council in 2015 is facing legal challenges by Hungary and Slovakia.

In a carefully worded assessment of the legal considerations of returning asylum seekers and refugees from Greece to Turkey, UNHCR cautions that ‘sufficient protection’ must be ensured before the safe third country and first country of asylum concepts can be applied. The requirement of ‘sufficient protection’ is stated in Article 35 of the Recast Asylum Procedures Directive, and is considered by UNHCR to require more than a guarantee against refoulement.

The legislative reforms and the legal underpinning of the Agreement itself, however, was challenged by a decision of a Greek appeals tribunal, sitting in Lesbos, refusing to recognise Turkey as a safe third country. The tribunal decision found that the temporary protection afforded by Turkey to the appellant, as a Syrian citizen, ‘does not offer him rights equivalent to those required by the Geneva convention.’ The decision echoes concerns expressed with regard to the level of protection afforded in Turkey, and brings into question the EU’s presumptions as to the legality of its return and resettlement trade-off.

The position of children on the move, and in particular, unaccompanied minors, in Europe has attracted particular concern. In March 2016, the Council of Europe Secretary General wrote to all 47 Member States of the Council of Europe setting out a list of proposals for immediate action to ensure better protection of migrant and asylum seeking children. The GRETAletter cites the findings of the Council of Europe Group of Experts on Action against Trafficking (GRETA) that significant gaps in the protection of unaccompanied minors persist in most Council of Europe Member States, with often tragic consequences.[1]

The phenomenon of ‘missing migrant children’ is not new. However, the conceptual and practical challenges posed by increasing numbers of migrant children in Europe has brought the limits of state responses into sharp focus. Against this background, the question of how child and adolescent migrants can translate the principles of international law into meaningful human rights protections’ remains open.

Core norms of the Law of the Sea – obligations of search and rescue, of assisting persons in distress at sea and delivering survivors to a place of safety – have gained prominence in Europe’s crisis of protection. There have been significant failures of the maritime legal framework, including disputes as to the proper demarcation of Search and Rescue zones, and significant loss of life – tragically captured in Dutch MEP, Tineke Strike’s report on the ‘left-to-die’ boat incident. While the technical norms of the Law of the Sea have sometimes provided a comforting tool to allay fears of further dereliction of duty, moving beyond rescue has proven more difficult.

The EU-Turkey agreement marks a process of de-juridification, an enactment of limits. While legal challenges and the claiming of rights will persist, the fundamental reforms required to ensure safe passage to those seeking protection, and the expansion of pathways to lawful migration, remain elusive.

[1] Council of Europe Group of Experts on Action against Trafficking in Human Beings (GRETA), Fifth General Report on GRETA’s Activities, (2016)

Mellet v Ireland: Legal Status of the UN Human Rights Committee’s ‘Views’

MellettFollowing the UN Human Rights Committee’s decision in Mellet v Ireland, handed down on June 9th 2016, a number of questions have been raised as to the legal status of the Committee’s views. The Taoiseach Enda Kenny has noted that the Committee is not like the ‘European Court’. On this, he is, of course, correct. On his comment that the Committee’s views are ‘non-binding’ – it’s a bit more complicated.

This short post focuses on the questions raised as to the legal status of the Committee’s views, and the obligations that they give rise to for the State. While this may seem to be a point of limited interest to international lawyers, it is in fact a critical issue for the enforcement and implementation of international human rights law. Challenges to the competence of UN bodies, and the status of their findings in the human rights domain, are not infrequent. This challenge, and the consequent enforcement gap, is one that has been recognised by the UN Human Rights Committee.

Its General Comment no.33 “The Obligations of States Parties under the Optional Protocol to the International Covenant on Civil and Political Rights” specifically addresses this challenge. As the Committee notes, its functions in considering individual communications are “not that of a judicial body,” However, they go on to point out that the views issued by the Committee under the Optional Protocol exhibit some important characteristics of a judicial decision, and are ‘arrived at in a judicial spirit’. That ‘judicial spirit’ includes, ‘the impartiality and independence of Committee members, the considered interpretation of the language of the Covenant, and the determinative character of the decisions.’ (para.11)

The legal basis for the Committee’s competence to issue ‘views’ on individual communications and State’s compliance, or lack thereof, with the Covenant, derive from the Covenant and the Optional Protocol themselves. On this, it is of interest to note that the Protocol is an optional extra. Ireland, has chosen not only to ratify the Covenant itself, but also the Optional Protocol, thereby specifically recognising the competence of the UN Human Rights Committee to give an authoritative interpretation of the State’s obligations under the ICCPR. Specifically, as noted by the Irish Supreme Court in Kavanagh v Governor of Mountjoy Prison,  [2002] IESC 13 (01 March 2002),the Optional Protocol enables the Human Rights Committee “to receive and consider …communications from individuals claiming to be victims of violations of any of the rights set forth in the Covenant …..” Article 1 of the Protocol provides that a “State Party that becomes a party to the …. Protocol recognises the competence of the Committee…” in respect of such individual claims.

The status of the Committee’s views and the competence of the Committee are linked to wider principles of international law, including those stated in the Vienna Convention on the Law of Treaties. The principle of pacta sunt servanda is enshrined in Article 26 of the VCLT: ‘Every treaty in force is binding upon the parties to it and must be performed in good faith.’

Linked to this general principle is a core norm of customary international law and one that is particularly relevant to the current debate in Ireland: A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. (Article 27 VCLT). This is without prejudice to the provisions of Article 46 of the VCLT, concerning the competence of states to conclude treaties. And, in the Irish context, the precise legal meaning of the reference to a provision of internal law regarding competence to conclude treaties has generated both litigation and debate, particularly with regard to Ireland’s relationship with the European Union, and to Anglo-Irish relations (See Crottey and McGimpseyin particular). (See Clive Symmons comments on this potential clash here).

Of relevance also to this debate is the characterization of an act as a ‘wrongful act’ under international law, and the International Law of State Responsibility. As noted by the International Law Commission, affirmed by the General Assembly, the characterization of an act as ‘internationally wrongful’ is not affected by the characterization of the same act as lawful by internal law.  It is of significance also that Article 1 of the ILC’s Articles on Responsibility of States for Internationally Wrongful Act, does not confine their scope to the responsibility of states towards other states, which, as James Crawford has noted,  would have significantly curtailed the scope of the obligations covered by the Articles and ‘could have stifled the development of international law.’

In the text of the ICCPR itself, it is important to remember the treaty obligation on all States Parties to provide an ‘effective remedy’ for a violation of the Covenant (article 2(3)(a)). This obligation is re-stated in the final paragraphs of the Committee’s views in Mellet v Ireland, and forms part of the consistent wording of its views. (See also General Comment no.33 para.14)

And so, although the Committee’s views are not those of a judicial body, and do not have a status equivalent to that of a judgment of an international court, they do have legal consequences and do give rise to legal obligations for the State. Indeed in Kavanagh v Governor of Mountjoy Prison, Justice Fennelly, speaking for the Supreme Court, commented that he was ‘prepared to assume that the State may, by entering into an international agreement, create a legitimate expectation that its agencies will respect its terms.’ (para.43)

The Irish Government has been slow in the past to give effect to views of the UN Human Rights Committee. This failure was the subject of the proceedings before the Supreme Court in the Kavanagh case, in which the appellant sought inter alia, a declaration that section 47(2) of the Offences against the State Act, 1939 was incompatible with the  Covenant on Civil and Political Rights and was repugnant to the Constitution ,in particular, Articles 29(2) and (3). The case followed on from the finding of a violation by Ireland of Article 26 ICCPR (guarantee of equality before the law) by the UN Human Rights Committee in Kavanagh v Ireland  concerning the role and scope of jurisdiction of the Special Criminal Court. The Committee upheld Kavanagh’s complaint of a violation of article 26 observing that:

“No reasons are required to be given for the decisions that the Special Criminal Court would be “proper”, or that the ordinary courts are “inadequate,” and no reasons for the decision in the particular case has been provided to the Committee. Moreover, judicial Review of the DPP’s decisions is effectively restricted to the most exceptional and virtually undemonstrable circumstances.”

The Committee went on to note that “the State Party [had] failed to demonstrate that the decision to try the author before the Special Criminal Court was based on reasonable and objective grounds.” It continued: “Accordingly, the Committee concludes that the author’s right under article 26 to equality before the law and to the equal protection of the law has been violated.”

Before the Supreme Court, Kavanagh argued that Article 29(3) of the Irish Constitution, effectively constitutionalises the general principles of international law, including the principles of equal treatment. Given the UN Human Rights Committee’s findings of a violation of Article 26 also in Mellett v Ireland, this argument takes on particular significance. In support of this argument, counsel for Kavanagh, Dr Forde, invoked the dissenting judgment of Judge Tanaka in the South West Africa Cases (1966) on “the essence and nature of fundamental rights ..[in the context of the United Nations Charter] … in which the principle of equality before the law occupies the most important part ….”

His argument, however, was not accepted by the Supreme Court. Invoking again its findings in In Re O Láighleis [1960] IR 93, the Court concluded that article 29 (3) confers no rights on individuals. While accepting that O’Láighleis  was ‘probably correct in its time’, Dr Forde had argued that the substance of the principles of international law had ‘changed so radically’ that the case would no longer be decided in the same way. Given, he argued, that these principles take effect in Irish law by virtue of article 29(3), there is thus no need for their enactment into Irish law pursuant to art 29 (6).

It was a nuanced argument, recognising the diverse sources of international law and seeking to move beyond the limits imposed by a strict dualist approach to the relationship between domestic and international law.  The Supreme Court was not to be persuaded. The O’Láighleis case, Fennelly J concluded, remains the law, having been followed in other cases: see, for example State (Sumers Jennings) v Furlong [1966] IR 183; State (Gilliland) v Governor of Mountjoy Prison [1987] 201. O Laighleis,  in his view, had ‘stood the test of time’,  because the words that it interpreted were, ‘clear beyond argument and do not admit of any other construction.’

Of interest is the somewhat different approach taken by the High Court and Supreme Court in cases concerning Ireland’s obligations under the 1951 Convention relating to the Status of Refugees. In Fakih & Ors v. Minister for Justice,[1]  the High Court held that a letter sent by the Minister for Justice to the UNHCR representative in London, Mr von Arnim, had given rise to a legitimate expectation on the part of the applicant that his asylum claim would be assessed in accordance with the procedures laid down in the 1951 Convention. In Gutrani v. Minister for Justice,[2]  the Supreme Court, speaking through McCarthy J, held that the same result followed, not because of any legitimate expectation that the letter may have given rise to, but simply because of the binding undertaking given by the Minister. Thus, the 1951 Convention, not yet incorporated into domestic law, was given indirect effect, circumventing the strict requirements of Article 29.6 of the Constitution.

(I have discussed these cases in the context of transnational judicial dialogue in asylum law in Goodwin Gill and Lambert eds. The Limits of Transnational Law (CUP: 2010) It may, of course, be of some relevance, that at the time of these judgments, giving effect to the requirements of the 1951 Refugee Convention, would have been considerably less controversial than questioning the role of the Special Criminal Court, or the interpretation of Article 40.3.3 of the Irish Constitution.)

Beyond and within the law, there is of course politics. And as the now President of the UN Committee on the Elimination of Racial Discrimination (CERD), Dr Anastasia Crickley, commented earlier this year, it is important to remember that the Irish Government in an exercise of its sovereign authority, has chosen to ratify the ICCPR and other UN human rights treaties. It has, simply by this act of ratification, incurred an obligation to ‘all those subject to its jurisdiction’ to give effect to the rights protected by the Covenant. Those rights include the right to be free from cruel, inhuman or degrading treatment, the right to be free from arbitrary interference with one’s privacy, and to equality before the law and equal protection of the law.

[1] Fakih & Ors v. Minister for Justice [1993] ILRM 274.

[2]Gutrani v. Minister for Justice [1993] 2 IR 427.


Forensics: ID to Intelligence

We are delighted to welcome this guest post from Eimear Moroney, IRC Postgraduate Scholar and PhD candidate at the CCJHR and School of Law, UCC

From Sherlock Holmes at the end of the 19th century, to the emergence in the early 2000s of CSI and its televisual progeny, to the current ‘true crime’ serialisation phenomenon, public interest in forensics has long been piqued. In practice, cold cases are being re-opened and long-condemned individuals have been exonerated on foot of forensic (especially DNA) evidence, owing to to: (a) heightened modes of scientific analysis; and (b) the likes of the Innocence Network, a global association of not-for-profit organisations, which strive to prove the innocence of the wrongly convicted (see further: Irish Innocence Project). Following the activation of Ireland’s DNA Database System in November 2015, the nexus between forensic evidence, guilt and innocence has never been more topical.

The forensic science of popular cognisance developed, in the aftermath of the industrial revolution, out of concern to identify criminals for the purpose of meting out appropriate punishment: differential punishment was accorded to first time offenders and recidivists. This focus on repeat offenders manifested in Ireland and England through the enactment of the Habitual Criminals Act 1869 and the Prevention of Crimes Act 1871, the latter of which prescribed the maintenance of a Habitual Crime Register, entailing the photographing and measuring of prisoners. This anthropometric system, which measured prisoners’ heads and limbs, subsequently incorporated fingerprint marks. Less cumbersome and ultimately more accurate, fingerprinting supplanted the metric system.

As forensic techniques developed, policing agencies realised the Locardian principle “every contact leaves a trace” could play a role in criminal investigations. This role was traditionally conceived as a corroborative one within a case construction model of policing: forensic evidence was used to build up a case against an identified suspect for prosecutorial purposes.

However, a move away from a reductive model of reactive policing towards proactive, intelligence-led policing is increasingly discernible, both internationally and more locally: see for example, An Garda Síochána Policing Plans 2014 and 2015. Concurrently, Williams has suggested that the true utility of forensic science lies in intelligence-led policing, “… in other words as information to further direct ongoing criminal investigations and disruptions, rather than as props in the dramaturgy of a criminal trial.”

In Ireland, a 2007 report entitled Review of Resource Needs in the Forensic Science Laboratory and the Wider Scientific Context in Ireland  averred that “[t]he work of a forensic laboratory does not only concern evidence for the courts but should also give impulses to the investigation. The findings of the laboratory can often give valuable information that can assist the investigation or can be used as intelligence.” This theme has grown roots in the context of Ireland’s long-gestated DNA database,  from the Law Reform Commission, who in 2005, described the proposed database as an “intelligence tool,” to the Minister for Justice and Equality, who in November 2015 described the database as “a high quality intelligence tool” and “a hugely significant development in assisting the Garda Síochána in the investigation of crime.”

The utility of any database is necessarily commensurate with the quantity of samples contained therein. Accordingly, the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 sanctions the sampling of detained suspects, so as to generate a profile for the reference index of the DNA database system, under the authorisation of a member of An Garda Síochána not below the rank of Sergeant. In turn, this profile may be compared with profiles held in the crime scene index and the missing and unknown persons index. The sole fact of detention for a “relevant offence” is sufficient to ground the taking of a sample for this purpose. However, in order for this profile to be used for evidential purposes, the authorisation of a member of An Garda Síochána not below the rank of Inspector is required. To authorise same, the member must have reasonable grounds for suspecting the involvement of the detainee in the commission of the offence for which they are detained, and furthermore, that the sample will tend to confirm or disprove the involvement of the detainee in the offence.

In acknowledging that information generated by forensic science can form part of the detection process notwithstanding that such data is not (or possibly was never intended to be) admitted into evidence, the 2014 Act arguably places intelligence-led policing on a statutory footing. It follows whilst forensic science was initially used to compile and maintain a record of criminal identity, this very record-keeping function has had a renaissance in the Digital Age.

However, it cannot be forgotten that forensically generated information is nonetheless “potential evidence.”  To quote Ashworth and Redmayne, “[t]he possible end result of the process is adjudicative: a trial. Whether a trial will result will depend on many other factors. …  But what matters is the potential of the probability. Criminal procedure is a process that may lead to trial.”

Notwithstanding that a minuscule fraction of offences proceeds to a contested trial, the criminal justice continuum, and any analysis thereof, must be ultimately trial-oriented. Whether providing the impetus to an investigation, or eliminating potential suspects, it is clear that forensic science can impact the course of a criminal case prior to trial. After all, to advance along the continuum from criminal investigation to trial entails traversing a number of preliminary stages: a negative determination with respect to the decision to prefer charges results in exodus from the continuum prior to trial. Hence, the very “evidential potential” attaching to forensic data, from fingerprints to DNA analyses, may impact, or indeed determine, decisions throughout criminal process, including those pre-trial decisions relating to arrest, prosecution and plea.

Having regard to the potential for forensic science to play a determinative role in the pre-trial process, there is a heightened need to ensure the reliability of forensic science throughout the low-visibility portions of the continuum. When tendered as evidence at trial, forensic data is, in theory at least, subjected to the checks and balances of the adversarial process: it must first be admitted into evidence before being subjected to robust cross-examination. However, there is no equivalent oversight of forensic evidence pre-trial.

This lack of scrutiny is all the more disquieting given that, internationally, forensic science has received bad press in recent years: for example, see Broeders (reference below); here; and here. However, caution must be exercised before extrapolating from other jurisdictions.

Two agencies conduct forensic analysis for the State in Ireland, Forensic Science Ireland (FSI) and the Garda Technical Bureau (GTB), both of which sought and achieved accreditation to International Organisation for Standardisation (ISO) 17025, the international laboratory standard for calibration and testing (FSI in 2002 and more recently, the GTB in 2016). Maintaining this status requires that the laboratories must pass annual, independent inspections, whilst all routinely used methods must be validated and proficiency trials must be conducted. The efforts of FSI and the GTB in this respect must be recognised not only as positive developments but also as necessary advancements, having regard to the advent of forensic databases and the newfound emphasis on proactive, intelligence-led policing.


Non-hyperlinked References

Ashworth, A. & Redmayne, M., The Criminal Process, 3rd ed. (Oxford: OUP, 2005)

Barnes, J.G., “History” in National Institute of Justice, The Fingerprint Sourcebook (Washington DC: US Department of Justice; Office of Justice Programs; National Institute of Justice, 2012)

Broeders, A.P.A, “Of earprints, fingerprints, scent dogs, cot deaths and cognitive contamination-a brief look at the present state of play in the forensic arena” (2006) 159 Forensic Science International 148

Cole, S.A., “Fingerprint Identification and the Criminal Justice System: Historical Lessons for the DNA Debate” in D. Lazer, ed. DNA and the Criminal Justice System: The Technology of Justice (MIT Press, 2004)

Cole, S.A., Suspect Identities: A History of Fingerprinting and Criminal Identification (Cambridge: Harvard University Press, 2009)

Finn, J., “Photographing Fingerprints: Data Collection and State Surveillance” (2005) 3(1) Surveillance and Society 21

Littlefield, M.M., “Historicizing CSI  and its Effect(s): The Real and Representational in American Scientific Detective Fiction and Print News Media, 1902-1935 (2011) 7 Crime Media Culture 133

McCartney, C., Forensic Identification and Criminal Justice: Forensic science, justice and risk (Devon: Willan, 2006)

Redmayne, M., Expert Evidence and Criminal Justice (Oxford: OUP, 2001)

Roberts, P., “Science in the Criminal Process” (1994) 14(4) Oxford Journal of Legal Studies 469

Schweitzer, N.J. & Saks M.J., “The CSI Effect: Popular fiction about forensic science affects the public’s expectations about real forensic science” (2007) 47 Jurimetrics 357

Thornton, J.I., “Uses and Abuses of Forensic Science” (1983) 69 ABA 289

Twining, W., Rethinking Evidence: Exploratory Essays, 2nd ed. (Cambridge, CUP, 2006)

Williams, R., “Policing and Forensic Science” in T. Newburn, Handbook of Policing, 2nd ed. (Devon: Willan, 2008)


We are delighted to welcome this guest post from Sarah M. Field. Sarah has a blend of academic and applied experience supporting the fulfillment of international human rights law through international research and legal advocacy projects. She is presently a National Project Coordinator of the cross-European GENOVATE Project at University College Cork, Ireland and blogs occasionally at rights-streams.com. This is the first of a four part series; the second part ‘Converging law, equivocation and delimits on the supposed inviolability of spaces of learning’ is accessible here; the others are forthcoming and will be cross-posted here

CCJHR blog image

Image courtesy of Marcus Bleasdale


Chibok. Rafah. Peshawar. Garassa. Donetsk. Aleppo. Sana’a.

Disparate places, among others, bound by attacks—acts of violence—on the supposed inviolable spaces of lower and higher learning, schools and universities, among others. The attacks and their impact—the hurt and harm—on children and adults’ embodied selves resonate far beyond their geographical axis. Or, to invoke the Martens Clause, they may be supposed as violating ‘[…] the laws of humanity and the dictates of public conscience.’ And, in doing so, they undergird the continuing juristic shift of the past century towards the international legal protection of our ‘embodied vulnerability’ to hurt and harm of all forms.* Like other serious violations of international law, then, the attacks transcend the—sometime—distance between us.  But is the clarity of our collective sense of justice reflected in the law?

To an extent, the answer lies in the space: the spark to condemnation relates less to the violated spaces of learning and more to violated bodies within—the incursions of bodily and inner inviolability or violations of the rights to life, bodily integrity and security of the person, among others.  Thus viewed, the spaces of learning are less the object and more the holders of the object of protection: they are holders for embodied subjects of rights, principally learners, and their multidimensional right to education. There lies one source of international legal protection: international human rights law. Or viewed another way, there is a duo dimensional obligation to protect the embodied rights holder within the space from acts of violence and the space as a safe space of learning. And these continue within the converging contexts of emergencies, threats to international and peace and security and non/international armed conflicts. Indeed the latter triggers a second source: international humanitarian law. There is thus an international humanitarian obligation to respect and ensure respect for the principles of distinction between civilians and combatants and civilian objects and military objectives—or in other words to refrain from attacking learning spaces as civilian objects, and embodied persons in relation to the space, as civilians (persons not directly participating in hostilities). Indeed transgressions of these humanitarian rules may, infamously, be subject to domestic or international criminal investigations as war crimes.

The legal protection, then, may be viewed as doubling itself: the human rights obligation to protect the space from acts of violence and humanitarian obligation to refrain from attacking the space are complementary and mutually reinforcing. Considered in this way, there is legal and substantive convergence: the legal obligations to protect the space converge legally through the concurrent application of the two bodies of law, and substantively through the protection of ‘embodied vulnerability’ in relation to space within the context of non/international armed conflict. Of course probe more deeply and the convergence is partial. Though bound by embodiment, they are positioned on oppositional axes: in one body of law the embodied persons are subjects of rights; in the other they are more objects of protection—humanitarian rules limiting (the vulnerability creating effects of) violence in armed conflict. The framing of the respective obligations, therefore, diverge in form, content and scope. Held within the principle of distinction, for example, is international legal protection—and also its limits. Therein lies divergence in substantive protection. Learning spaces may lose their protection from attack; they may be transformed from a civilian object to a military objective including both a military contribution and advantage (whether by nature, location, purpose or use) and consequently be lawfully attacked.

Still this difference in scope may be viewed as a necessary accommodation to the extraordinary context of non/international armed conflict. Prima facie, if learning spaces are former learning spaces, there is minimal impact on learners and their teachers, among others, embodied selves. However viewed through a vulnerability lens* this potentiality may create, at least, four points of potential extraordinary embodied vulnerability to hurt and harm: (i) misinformed attacks on learning spaces of which remain civilian objects/retain their civilian character; (ii) proximate extraordinary embodied vulnerability in attack due to the likely close proximity of other aspects of civilian life (for example, learners’ homes); (iii) partial transformation of the space from a civilian object to a military objective by armed forces/groups; and (iv) broader multidimensional hurt and harm (or violations of the right to education and ipso facto violations of the rights in and through education) as a consequence of closure of learning spaces due to the potentiality of (i)-(iii).

Yet the narrative of the law, itself, is reflective of these four points of vulnerability in so far as it includes rules to limit the vulnerability creating effects of the principle of distinction. Of course in treaty law the determinacy differs between non and international armed conflict. However, three of the four points of vulnerability have determinate legal protection within customary law (see indicative overview), for example, the potentiality of misinformed attacks is limited by the obligation to do everything feasible to verify that targets are military objectives, among other rules. The fourth is more equivocal: there is no express obligation, for example, to respect the civilian character of learning spaces. Still it may be inferred from existing treaty and customary law: basic rules according protection to the civilian population and civilian objects, more specific rules informing their content and others. To these rules, there is a vital dignifying safeguard: the concurrent application of international human rights law generally—and the human right obligations to protect embodied rights holders in relation to the space specifically. As complementary international legal obligations, they continue at points of convergence and divergence in substantive protection, reinforcing the vulnerability limiting effects of applicable humanitarian rules (express or implied).

And, in doing so, they may have protective effects: law determining effects—or in others words, guide and inform the content of the humanitarian rules. Thus where the two bodies of law converge substantively, the applicable humanitarian rule may be determined with regard to (or interpreted in light of) the more specific human rights obligations, most particularly where it is less determinate or more equivocal than its human rights complement. And even where the protection diverges substantively (i.e. when the human rights obligation is determined by more specific humanitarian rules) the human rights obligation, as  a complementary international legal obligation, may be viewed as undergirding those rules, complementing and reinforcing their vulnerability limiting effects. Overall it creates a meta-juridical imperative to protect the inviolability of spaces of learning from attack and as spaces of learning. And this may have compliance conducing effects: domestic legal embodiment of the human rights obligations within the context of non/international armed conflict including knowledge and practice of law may (over time) effect practice of complementary humanitarian rules.

Considered in this way, rights-infused humanitarian law may be viewed as more reflective of our collective sense of justice. Yet the law is less converged and more converging. The protective effects are undercut by the undercurrent of oppositional legal argumentation vis-a-vis the concurrent application of the two bodies of law. And also by legal equivocation about its legal effects—specifically the content and scope of the multi-dimensional right to education. There remains a dual imperative to refute the former and contribute determinacy to the latter, most particularly at the point of divergence.

*On vulnerability and the law, see scholarship of Martha Albertson Fineman and Anna Grear, among others.

Migrant domestic and care workers in Ireland

We are delighted to welcome this post from Dr. Fulvia Staiano, Irish Research Council Post-doctoral Researcher based at the CCJHR, UCC.


In September 2015, the Migrant Rights Centre Ireland (MRCI) published a report entitled Migrant Workers in the Home Care Sector: Preparing for the Elder Boom in Ireland. The report describes the current state of the home care sector in Ireland and predicts an impending “elder boom” which will increase the demand for migrant domestic workers in the care and domestic work sector. Although Ireland has the fastest-ageing population in Europe, recent cuts to the Health Service Executive home care supports made this option expensive, fostering an informal care sector increasingly filled by migrant workers.

Despite this situation, Irish immigration law has become increasingly restrictive. From 2009, the issue of residence permits for the purpose of being employed as a domestic worker or carer in Ireland started to be increasingly limited. This process ultimately resulted in the inclusion of domestic workers among ineligible categories by the 2015 Employment Permits Regulations.

Predictably, the current impossibility to enter Ireland with an employment permit for the purpose of carrying out domestic or care work has not curbed the demand for workers in this sector. In this respect, the Report highlights how “an inevitable outcome of the absence of government labour migration policy in this area is a home care sector populated by informal and irregular workers – students and undocumented migrants”. At the same time, existing regulations on health services for the elderly (such as the Health Act 2007 or the 2012 National Standards for Safer Better Healthcare) do not apply to home care, which thus remains a widely unregulated sector in Ireland.

The retreat of law from the sector of domestic and care work is particularly worrisome for migrant workers. Demanding working hours, low pay, and difficult working conditions are often experienced by all workers in this sector regardless of nationality. Migrant care workers, however, run a particularly high risk of suffering from exploitation, abuse and discrimination. This was highlighted by both the MRCI and the Fundamental Rights Agency, which lists “activities of households as employers” as the fourth sector most at risk of exploitation in Europe. The same report places this sector at the top of the list for Ireland.

The Irish case is not at all unique in Europe. The exclusion of domestic work from general labour protections and the imposition of links with employers within labour migration law are recurring issues among EU Member States. For example in the UK section 57 of the National Minimum Wage Regulations 2015 allows employers to pay less than minimum wage to domestic workers who are “not a member of that family, but [are] treated as such.”  In Spain the Preamble of Real Decreto 1620/2011 states that the specific features of domestic work “justify the need for a different regulation than that of the common labour relationship”.

The legally-imposed dependence on employers in domestic immigration law is visible in both first-entry visa schemes and regularisation procedures. The UK Overseas Domestic Workers visa scheme, for instance, was reformed in 2012 so as to remove the possibility for visa holders of settling in the country by extending their stay and sponsoring family reunification. It also prevents migrants holding such visas to change employer. Despite the Government’s statement whereby such limitations offered “the biggest protection” against employers’ abuse, it appears that the prohibition on changing employer de facto presents domestic workers with the impossible choice of either enduring abusive and exploitative situations or jeopardising their residence status and risking expulsion. A similarly dangerous link between the regularity of domestic workers’ residence and continuous work for a specific employer was established in the past by an Italian regularisation procedure for domestic workers employed in the informal sector. In particular, law 102/2009 granted control to employers over the commencement and the continuation of the regularisation procedure, exposing domestic workers to blackmail by employers and discouraging them from reporting violence, abuse, sexual harassment or labour exploitation.

Against this background, it is worth noting that the European Court of Human Rights’ jurisprudence concerning the exploitation of domestic work has so far exclusively concerned extreme cases such as slavery and domestic servitude. Since its landmark judgment of Siliadin v. France, the ECtHR has identified positive state obligations under Article 4 of the ECHR which relate to the criminalisation of slavery, servitude and forced labour as well as their effective enforcement.

This commendable incursion of human rights law in the private realm of the household can be seen as a positive first step towards the protection of migrant domestic workers’ rights under the ECHR. However, this judgment and the following case law (C.N. v. the United Kingdom, C.N. and V. v. France and Kawogo v. the United Kingdom) reveal an exclusive focus on criminal law provisions, disregarding the broader issue of normative triggers to labour exploitation within other areas of domestic law. In Rantsev v. Cyprus and Russia, where the ECtHR found Cyprus in breach of Article 4 of the ECHR for putting in place a so-called “artiste visa” regime which, due to the strong control granted to employers over the employees’ migration status as well as living and working conditions, exposed foreign women to trafficking for the purpose of sexual exploitation.

The ECtHR case law also shows a clear focus on civil rights violations, without offering cues as to state obligations in relation to socio-economic rights. However, such a perspective is crucial for migrant domestic workers, because it relates to the more common forms of “everyday” exploitation experienced as a consequence of the described lack of legal protections in both labour and immigration law. Since the judgment in Airey v. Ireland the ECtHR has shown openness to examine claims related to socio-economic rights, including to a certain extent labour rights, but unfortunately to date it is not possible to identify meaningful examples of cross-fertilisation in respect to migrant workers’ claims in this field. This is particularly regretful in light of the low ratification rate among EU Member States of the 2011 ILO Domestic Workers Convention – which has yet to be acknowledged by the ECtHR.

In the light of the potential 5.5 million jobs in the Personal and Household Services Sectors predicted by the European Commission – a significant portion of which will be fulfilled by migrant women – the issue of the protection of domestic and care workers’ socio-economic rights is only destined to acquire relevance. In this respect, bridging the gap between the current focus of European human rights law on domestic servitude and migrant domestic workers’ need for legal protections in relation to “everyday” exploitation appears to be crucial.

Human Rights and Making Change: Looking Backwards and Moving Forwards from the Northern Ireland High Court Decision on Abortion

We are delighted to welcome this guest post from Dr Catherine O’Rourke, Ulster University Transitional Justice Institute.

Catherine O'RourkeDr Catherine O’Rourke is Senior Lecturer in Human Rights and International Law at Ulster University Transitional Justice Institute. She is currently also co-coordinator of the Gender Stream of the DFID-funded Political Settlements Research Programme, where she is investigating how international law norms for gender equality influence domestic power-brokering.

In the aftermath of last week’s High Court judgment declaring Northern Ireland’s prohibition of abortion to be incompatible with UK human rights legislation in specific instances, there has been much valuable consideration of the judgment’s legal and political implications, for this jurisdiction and others.  In this contribution, I reflect on what the litigation and judgment say about human rights advocacy in Northern Ireland.

In summer 2013, in response to the Department of Health, Social Services, and Public Safety consultation on the draft ‘Guidance on the Limited Circumstances of Termination of Pregnancy’, I blogged on the need for local human rights organisations to ‘step-up’ to defend the human rights under threat by the failure of successive governments to bring clarity to abortion law in the jurisdiction, as well as the (then) urgent threat posed by the manifold potential civil and political rights violations raised by the 2013 Draft Guidance. The context for the call to local human rights organisations, including the Northern Ireland Human Rights Commission, to begin to advocate on the access to abortion as a human rights issue reflected several years of silence and inaction in the face of clear human rights concerns presented by the legal status quo. Specifically, the call reflected the failure of any local human rights organisation to support the request for an inquiry to be conducted by the CEDAW Committee under the Convention’s Optional Protocol into access to abortion in Northern Ireland.

Since summer 2013, much has changed. While I was writing my call for the local human rights community to ‘step up’ on abortion and human rights in Northern Ireland, the Committee on the Administration of Justice, Amnesty International and the Northern Ireland Human Rights Commission were all preparing responses to the consultation on the 2013 draft Guidance, emphasizing the manifold human rights compliance concerns raised therein. NI Abortion AmnestyAmnesty International has made reform to abortion law in Northern Ireland one of its priorities in its ‘My Body, My Rights’ campaign, involving inter alia the excellent report ‘Northern Ireland: Barriers to Accessing Abortion Services’. The Committee on the Administration of Justice has started to include access to abortion as a human rights concern in its 2015 shadow reporting to CESCR and to the Human Rights Committee. This marked an important new departure for a human rights organisation that had not previously raised the issue of abortion even in its shadow reporting to the CEDAW Committee.

NIHRCThe transformation of the approach of the Northern Ireland Human Rights Commission to abortion is arguably the most notable of all. In its 2008 Guidance to the Secretary of State on the proposed content for a Bill of Rights for Northern Ireland, the Human Rights Commission included only one reference to abortion:

The issue of women’s rights in respect of reproduction, and especially the issue of termination of pregnancy, has been one of the most controversial in the Commission’s consultations on a Bill of Rights for Northern Ireland. Forceful and deeply felt submissions have been made, in respect of a right to life for unborn children and in respect of a right of choice for women. There is no clear widely accepted international standard in respect of the underlying issues. (emphasis added)

In 2015, the Commission initiated the judicial review proceedings that were to ultimately prove successful in last week’s High Court decision, determining that Northern Ireland’s prohibition of abortion in cases of fatal foetal abnormality and in cases of sexual crime, up to the date when the foetus can exist independently, is incompatible with UK human rights legislation. The proceedings included also a third party written intervention from the Amnesty International Belfast office, in addition to Alliance for Choice, the Family Planning Association, Sarah Ewart and a number of anti-choice organisations.

Why the change and where to from here? When considered within the broader context of human rights advocacy in Northern Ireland, the significance of the litigation and its outcome is even more apparent. Local developments in human rights advocacy in Northern Ireland reflect – and were no doubt reinforced by – important legal developments in the European Court of Human Rights jurisprudence on access to abortion since Tysiac v Poland, and developed most notably through A,B,C v Ireland, RR v Poland and P and S v Poland. For rights issues that are locally contentious, such as abortion, the clear articulation of regional human rights obligations can be helpful in emboldening and providing cover for local human rights organisations to take on such issues. (There are inevitably limitations, however, in a human rights approach that articulates right of access to abortion in limited circumstances as a matter of private and family life, but not as a matter of gender equality.) The importance of the international is also evident from the central role of Amnesty International’s Belfast office to the litigation and surrounding press and public affairs activity. Amnesty International adopted the ‘My Body, My Rights’ campaign at a global level and, since then, has pursued a very active local campaign on abortion and human rights, in coordination with local pro-choice groups and constituencies. Arguably important also has been the diversification of human rights advocacy more broadly in the jurisdiction. From the traditional almost exclusive focus on conflict and post-conflict accountability issues (which I document in chapter 3 of my book, Gender Politics in Transitional Justice), contemporary human rights advocacy in Northern Ireland now takes in a broad swathe of issues from marriage equality to mental health and many others.

Taken together, these international, regional and locally-led developments have created a very changed context for pro-choice advocacy in Northern Ireland. Whereas human rights and pro-choice organisations traditionally maintained separate spheres of activity, with little cooperation or interface, last week’s High Court judgment evidences the potential effectiveness of coordinated strategies across human rights and pro-choice groups. Looking forward, as we consider strategies for translating the High Court judgment into progressive legal change, the particular skills of the human rights community in activating international scrutiny, combined with the critical role of pro-choice groups in continuing the articulate the essential equality arguments in working for social change, offer reasons for optimism.



Copyright Issues for Community Digital Archives

We are pleased to welcome this guest post from Orla Egan, PhD Candidate in Digital Arts and Humanities at University College Cork.

Cork has a long and rich history of LGBT (Lesbian, Gay, Bisexual, Transgender) activism and community formation and development. Since at least the 1970s the Cork LGBT community has established organisations, set up services, reached out to others and campaigned for social and legal change.  Yet this community, like many other LGBT communities worldwide, has been largely invisible in historical accounts and its contribution to social and political change and developments largely unacknowledged.

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This exclusion and invisibility has motivated me to develop a Cork LGBT Digital Archive to begin to document and acknowledge this rich and important history.  This community digital archive seeks to make available information and artefacts in relation to the history of the LGBT communities in Cork, including digitised copies of newsletters, leaflets, posters etc. produced by various LGBT organisations and activists.  The initial source of items for the digital archive comes from a private collection, the Arthur Leahy collection, and this will be added to with items from other community members.  Oral histories will also be recorded and added to the digital archive.

Given the nature of this work, it is important to give some consideration to copyright issues that may be relevant to this work.[1]   However, as I began to explore this issue, I found that very little work has been published in relation to copyright issues for community digital archive projects, particularly in the Irish context.

In Ireland Copyright and Intellectual Property rights are covered by the Copyright and Related Rights Act 2000 and the 2012 Statutory Instrument that updated the 2000 Act. The prime focus of this legislation is on the protection of ownership and any accruing economic rights and benefits.  The “author” of a work is seen as the first owner of copyright for that work and people can pay the author or copyright owner for the right to use, reproduce or distribute their work.  Section 38, for example, discusses this in relation to paying to play sound recordings.

The main focus then is on protecting ownership and economic rights and benefits. This emphasis can also be seen in the case law in the area (EMI v Eircom [2005] IEHC 233 and EMI v UPC [2013] IEHC 274), where most file sharing copyright cases in Ireland have been taken by record companies who have been trying to get Internet Service Providers (ISPs) to intervene to prevent illegal (and free) downloading of music.

The question arises then as to how well this legislation can apply to not-for-profit community activities and organisations, where there is no clear economic benefits to be gained from works produced?

The Cork LGBT Digital Archive that I am developing is a community-based and community-motivated project whose aim is to make the history of this community more visible and accessible and to acknowledge the community’s contribution to social and political change in Ireland.  The organisations whose materials I am digitising and sharing have a similar altruistic motivation and purpose i.e. to improve the experiences of LGBT people through service provision, political activism and community formation. It is challenging to fit this work into a legislative framework that is primarily designed to cover private ownership of profitable products.  If there is no profit to be made, what is being protected?

As copyright arises automatically, and does not have to be applied for, it must be assumed that there is copyright attaching to all the data and documents in the Arthur Leahy collection and other materials which will be included in the Digital Archive.   Who owns this copyright, and where it rightly resides, is complex and unclear, given the nature of materials and how they were produced.

Chapter 6 of Part II of the 2000 Copyright and Related Rights Act  covers Acts Permitted in Relation to Works Protected by Copyright. Section 50, subsection 4 of this Chapter is of particular relevance for my work.  It states:

“(4) In this Part, “fair dealing” means the making use of a literary, dramatic, musical or artistic work, film, sound recording, broadcast, cable programme, non-electronic original database or typographical arrangement of a published edition which has already been lawfully made available to the public, for a purpose and to an extent which will not unreasonably prejudice the interests of the owner of the copyright.”

The emphasis here is on use which “will not unreasonably prejudice the interests of the owner of the copyright.”

The Cork LGBT Digital Archive  is digitising, displaying and disseminating information in relation to the history of the Cork LGBT community, including a wide range of data and documents produced by various LGBT activists and organisations over the years.  These items were explicitly designed to be in the public domain, to highlight issues of concern to the LGBT community and to inform the public about activities and campaigns.  They were produced through collective endeavour with the explicit intention of creating community works.  They were not intended to be individual products produced for personal financial gain.

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The posters, newsletters, leaflets etc. were produced to provide public information and to increase awareness.  It is abundantly clear that there was never any intention by those who produced them, and therefore own the copyright, to prevent public access or to prevent the public dissemination of the information contained within.

I would argue therefore that enabling public access to these documents and artefacts, through inclusion in the Cork LGBT Digital Archive, is fair dealing and reasonable use as it does not in any way “unreasonably prejudice the interests of the owner of the copyright.”  By facilitating public access and the dissemination of information about the Cork LGBT community, through the Cork LGBT Digital Archive, my actions are in keeping with the ethos in which the artefacts were produced.   My work can be seen as a continuation of the same ethos and agenda of the individuals and organisations that produced the materials I am digitising and disseminating.

It should also be noted that, in digitising the materials, I am not modifying the content, only changing how it is displayed and made available.

Digitising these community resources in a publicly accessible digital archive can be seen as fair dealing and reasonable use of these materials and in keeping with the ethos and purpose with which they were produced (as defined in Section 50, Subsection 4 of Chapter 6, Part II of the 2000 Copyright and Related Rights Act).

It can be argued therefore, that I have the right to digitise these materials and have no need to seek permission to use them.  Despite this, however, I am also striving to take all reasonable steps to seek consent to use these materials, in as far as it is possible to do so.  I plan to use a permissions-based model, similar to that adopted by the Digital Library of the Caribbean (dLOC).

In addition to seeking permission to use the materials, I would seek to attach proper accreditation for those who produced the works.  This is what the dLOC refers to as respect for moral rights, which differs from copyright: “dLOC supports moral rights by ensuring proper attribution is included for materials, for their creators and the partner institution that contributing materials.”

The owner of the private collection, Arthur Leahy, has granted me the right to digitise, store and disseminate copies of the materials contained in his collection.   As well as owning the collection, he was also centrally involved in many of organisations that produced the items in the collection and is therefore one of the key people able to grant the right to use them.

In addition to obtaining the permission of the owner of the Arthur Leahy Collection, I am seeking permission from the LGBT organisations that produced some of the materials in the collection.  Two different paths are to be taken here, depending on whether the organisation still exists or not.

For organisations which still exist today, for example the Quay Co-Op and the UCC Gay Society (LGBT Society), I am seeking the permission of the current members of these groups to digitise and disseminate documents and artefacts in relation to their organisations.

A number of Cork LGBT organisations established in the 1970s, 1980s and 1990s no longer exist, so it is not possible to take the same approach as that taken with the still existing organisations. Where possible I will seek permission from people who were involved in these organisations. I am also taking an approach of establishing a lineage between these organisations and current LGBT organisations in Cork.  I would argue that there is a clear line of continuity, development and sometimes overlap between the earlier organisations and the current LGBT organisations. Therefore I am seeking permission from the current Cork LGBT organisations, LINC and the Cork Gay Project, to digitise and display information in relation to earlier organisations.

Exploring copyright issues in relation to such a community based and motivated project is complex.  It is often unclear as to who owns the copyright in relation to the various items to be included in the digital archive.   It can be strongly argued that there is no need to seek permission from the copyright holders as the inclusion of these items in the digital archive can be seen as fair dealing and reasonable use, as outlined above.  Despite this, however, I have taken all reasonable steps to ensure that I have the right to use, digitise, display and disseminate this important information in relation to the rich and vibrant history of the Cork LGBT community.

[1] I am grateful to Dr. Louise Crowley, School of Law, UCC for advice in relation to these issues.

Recognition, Equality and Marriage

MarriageThe expansion of equality laws and the adoption in Ireland of a ‘modern equality code’ (to borrow from former Minister for Justice, Mr Dermot Ahern T.D.), has addressed many of the inequalities that perpetuated discrimination and prejudice in Ireland – but not all.  The introduction of civil partnership in Ireland was an important step towards a more equal regime of relationship recognition, but it did not secure either formal or substantive equality in law for gay and lesbian communities in Ireland.

Extending and opening up civil marriage to same sex couples seeks to bring an end to legally sanctioned discrimination, by providing constitutional recognition to same sex relationships. As the campaign posters note, it does nothing more, and nothing less.

EquinetAs Ireland’s National Human Rights Institution, and National Equality Body, the Irish Human Rights and Equality Commission has expressed its view that ‘the opening out of civil marriage to two persons without distinction as to their sex is a matter of equality and human rights.’ Recognising that marriage is celebrated in Ireland as ‘a key part of an individual’s and a family’s participation in the social and cultural life of the State’, the Commission concludes that the current constitutional position relating to marriage does ‘not provide full recognition and equality of status for same-sex couples’.

Fundamentally, this referendum is about equal recognition, and about the normative, symbolic and practical value of constitutional texts and equality guarantees. The significance of such recognition has been recognized by many constitutional courts worldwide. The Canadian Supreme Court, in Egan v Canada, has held that ending discrimination is fundamentally about ‘recognition’. Excluding same sex couples from marriage, they held, perpetuates the view that same sex relationships are less worthy of recognition than different sex relationships.

In the United States v Windsor, the U.S. Supreme Court pointed out that in providing legal recognition to the Canadian marriage of Ms Windsor and her spouse, the State of New York had ‘enhanced the recognition, dignity, and protection’ of same sex couples.

These statements were echoed in the Irish High Court in Zappone and Galligan, where Dunne J noted  – in a comment that remains very relevant today:

‘…there are two individuals at the heart of this case who have spoken eloquently of the sense of social exclusion they feel by virtue of being denied entry to the institution of marriage.’

The words of Marshall C.J. in the Massachusetts case, Goodridge, were also extensively cited by the High Court:

Recognising the right of an individual to marry a person of the same sex will not diminish the validity or dignity of opposite sex marriage,…. If anything, extending civil marriage to same sex couples reinforces the importance of marriage to individuals and communities.

In Minister of Home Affairs and Another v Fourie and Another, the South African Constitutional Court stated that denying same sex couples the right to marry, negated their right to self-definition ‘in a most profound way’.

These are not abstract judicial statements. They recognise the everyday injuries and harms, caused by legally sanctioned exclusions from the institutions that function as markers of equality and recognition in Irish society.

The words of CJ Warren in Loving v Virginia are often cited in debates on marriage equality, and rightly so:

The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. Skinner v. Oklahoma,316 U. S. 535, 316 U. S. 541 (1942).

The ‘unsupportable’ racial classifications impugned in the proceedings before the Court were he said, ‘directly subversive of the principle of equality’.  There can be, he said, ‘no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification’. In the forthcoming referendum, we are being asked to rewrite the text, and to dismiss the invidious and subversive distinctions that limit recognition of the equal worth of same sex relationships.

Gender, and the regulation of gender roles within the family remains at the heart of the referendum debate, though less attention has been paid to this aspect of the campaigns to date. In the 1873 Supreme Court case of Bradwell v. Illinois, Justice Bradley stated clearly the link between women’s societal roles and the institution of marriage:

“The civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman …[]..The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood.”

As Judge Bradley’s quote indicates, the marital family was defined by distinct and hierarchical roles across gender. The ideology of separate spheres that underlies Judge Bradley’s statement continues to be reflected in the Irish Constitution – in the gendered reference to “women’s duties in the home” and in legislative exclusions of same sex couples from the institution of civil marriage. Such gendered divisions are appealed to yet again, in this referendum, as they have frequently been in Submissions to UN human rights treaty bodies, and in resistance to constitutional and legislative change.

The Child and Family Relationships Act 2015 is a significant step towards securing the best interests and rights of all children and families in this State. The (much delayed) coming into force of the 31st Amdt to the Constitution gives constitutional recognition to the best interests of the child. These constitutional and legislative protections for children will not be diminished if marriage equality is introduced into Irish law, contrary to the views expressed in several confusing and confused statements about the forthcoming marriage referendum. If anything, the rights of children and the constitutional protections of family life will only be strengthened by a move towards a more inclusive and equal society, and by the constitutional recognition of an equal right to marry for same sex couples.

Generating traditional values: on the Marriage Referendum

Aengus UNAengus Carroll is a PhD candidate in international human rights law at UCC and author of State Sponsored Homophobia: A World Survey of Laws: criminalisation, protection and recognition of same-sex love, 2015, launched by the UN Office of the High Commissioner of Human Rights in Geneva on 13 May 2015.

Generating traditional values: Tradition is a powerful political force in all cultures around the world. Indeed many would identify that culture itself is largely defined by the traditions of a place. Increasingly, the demands of implementing human rights law in national settings conflict with states’ traditions regarding issues of female genital mutilation, child brides, women driving cars and the imprisonment, or execution of gays and lesbians, as examples.

ILGALegislation in every country in the world discriminates against LGBT people in penal or civil codes to some degree: 76 criminalise, 10 have the death penalty, and only eight have constitutional bans on discrimination based on sexual orientation. They generally discriminate by exclusions from, or non-inclusions in, legal protections provided to others. Enacting law, or indeed codifying the constitution, that differentiates a class of people based on a particular characteristic is discrimination whether in Ireland, Uganda or Russia. It just is. And the more the public discusses the issues, the more clearly that fact is realized.

Claiming that treating difference differently is not inequality when there are direct and known burdens being carried by the excluded class of person is a false paradigm worthy of Brave New World. Lately, in the print edition of the Irish Times of 16 May 2013 but curiously not headlined as such online, Breda O’Brien’s offering was “New Thought Police Push Dogmatism and Intolerance”. In it she expressed dismay about how the Irish National Teacher’s Organisation “intend to normalize same sex marriage” to children “as young as four”.  Her observation about normalizing, reveals her true position that same sex relations are not normal, and we should not teach kids it is.

This is exactly the logic that has informed laws in Russia, Nigeria, Lithuania and Algeria of the last two years about the ‘propaganda of homosexuality to minors’ resulting in the repression on privacy, freedom of expression, association and other core human rights. These attitudes share themes: fear of a gay-friendly education, and fear of the commodification of reproductive technologies. Since earlier this year, 220 million US citizens now live under equal marriage laws. Children across 37 states are being taught that its okay to be gay, that some people have same sex parents and others don’t. This has been the case in Massachusetts since 2004 where there are a lot of respectful young people around.

The No campaign state there is no human right to same sex marriage (while accepting that there is an equivalent right to different sex marriage). What the European Court of Human Rights actually said is that it was not prepared to compel States to recognize marriage regardless of ‘sex’ at this time. The wriggle room the Court affords to states to figure out weighty social issues, known as the margin of appreciation, tends to run out. This happened in the transgender legal recognition case in Goodwin in 2002 after 20 years of ‘grace’ and prior cases at the Court. The Court did not say that marriage between people of the same sex is not a human right – that is blatant misinformation by the No campaign – the Court just has not affirmed it is. Yet.

Tradition is something that has always evolved, and this is how it is ‘owned’ and passed on by the generations. Marriage, as so many have pointed out already, has changed utterly since women were the vehicles for property and progeny (much like livestock). As Professor Lee Badgett (who writes about the economic cost of homophobia globally) in her extensive research found, in today’s world attitudes to marriage are primarily about human companionship. This then means it is less about the gendered historical, marital roles on which traditional marriage is predicated. Where there are children, the privilege vested to parenthood is given legal shape by a society that supports all familial forms equally.

It beggars belief to accept that this somehow means it’s all about selfish adults with their commodified children modeled as accessories, who put themselves and not their children first. The No posters that elevate a mother’s love as ‘irreplaceable’ sneakily mislead: the person who brings you up and holds you close and gives you the love and protection that all babies and children flourish within is irreplaceable, and these bonds need to be supported, with whoever that is.

The inference being made by the No campaign is that same sex partners are intrinsically ‘unnatural’ in their familial construction, because they may need assistance in the reproductive process. Just extend that to other people that need medical assistance and you see its rather twisted logic. This line of argument posits that rights claims are actually the ‘promotion of homosexuality’ in a new liberalized human reproduction industry. In effect, this position actually attacks the core and intrinsic identity of gays and lesbians. If followed through it in fact seems to suggest a mal-intent on behalf of same sex partners, and it may be very interesting after the referendum is over to examine the nature of such speech. It might be that the cautionary tendencies of many mild ‘Don’t Know’ voters are being triggered by fear stoked all in the name of tradition.


Call for Papers Extended CCJHR PhD Symposium

Call for Papers: EXTENDED until 11th May 2015
Centre for Criminal Justice and Human Rights, U.C.C.
PhD Symposium (2015)
Rights in Conflict: Socio-Legal and Critical Approaches to Human Rights
June 8th-9th 2015
Keynote Speakers:
• Prof. Kieran McEvoy, Queen’s University Belfast
• Dr Liz Campbell, University of Edinburgh
• Prof. Illan Rua Wall, Warwick University
The Centre for Criminal Justice and Human Rights (CCJHR) at University College Cork welcomes submissions for its 9th Annual PhD Symposium. The symposium will examine socio-legal and critical approaches to human rights law and practice, with a particular focus on conflicting rights claims, and to rights in conflict. We welcome papers from doctoral candidates researching in law, politics, criminology, philosophy, sociology and related social sciences. The symposium will include workshops on a range of themes including: ‘Linking Research / Praxis’; Critical Research methodologies; Socio-Legal approaches to human rights.
Please forward an abstract (max. 300 words), including a working title, name and institutional affiliation to ucclawconf@gmail.com by May 11th 2015. Selected participants will be notified no later than 15th May 2015. To be considered for the best paper prize, full papers should be submitted by 22nd May. (Best Paper Prize: €200)
Please note: a registration fee of €20 will apply to all attendees.

For updates: Twitter: @CCJHRlawucc ; W: http://www.ucc.ie/en/ccjhr/
FB: (Centre for Criminal Justice and Human Rights Postgraduate Conference)