Monthly Archives: May 2008

Cluster Munitions Treaty Agreed in Dublin

Posted on by
A ground-breaking international treaty to ban cluster munitiions is to be agreed in Dublin today. The text of the treaty was provisionally adopted by 110 states participating in the Croke Park Conference on Wednesday May 28th. The treaty will ban all types of existing cluster munitions. Proposals for transition periods allowing states to use the weapons for between seven and twelve years were defeated. The treaty will impose an obligation on states parties to destroy existing stockpiles of cluster munitions within eight years. Specific provision for humanitarian assistance for victims is included and the treaty imposes obligations in relation to clearance of contaminated land. These provisions go beyond what was agreed in the 1997 Ottawa landmine treaty. The main producers and deployers of cluster bombs, the United States, China, Russia, Israel, India and Pakistan, did not participate in the Conference. A last minute intervention by UK Prime Minister Gordon Brown overcame initial resistance on a blanket ban for cluster munitions. News that the UK was willing to give up cluster munitions that it has used in recent years in Iraq marked a distancing between the US and the UK positions on this issue. Difficulties remain however. New generations of smart cluster munitions fall outside of the scope of this treaty. Particularly controversial has been the introduction of a provision on joint military operations, which will allow states parties to this treaty to participate in military operations with non-states parties who hold stockpiles of cluster munitions.

Negotiations on the adoption of the cluster munition treaty have been led by Ireland, New Zealand, Norway, Peru, Austria and the Vatican, following the extensive of cluster munitions by Israel in Lebanon in 2006. For further information on the Dublin Diplomatic Conference see: http://www.clustermunitionsdublin.ie/

This blog post is contributed by Dr. Siobhan Mullally

International Experts to Gather at the CCJHR to Discuss Legal Responses to Crimes of Sexual Violence

Posted on by
On 27th June 2008 the CCJHR will hold its 3rd Annual Criminal Law Conference. This year’s conference, supported by the Department of Foreign Affairs in recognition of Ireland’s chair of the Human Security Network, concerns “Reforming the Law on Sexual Violence: International Perspectives”.

The conference will feature papers from renowned experts in international and Irish law:

* Judge Teresa Doherty (Special Court for Sierra Leone)

* James Hamilton, Director of Public Prosecutions
* Kelly D. Askin (Open Society Justice Initiative)
* Doris Buss (Carleton University, Canada)
* Martha Fineman (Emory University)
* Fionnuala ni Aolain (Univ. of Minnesota and TJI, University of Ulster)
* Penny Andrews (Valparaiso University and La Trobe University)
* Madeleine Rees (OHCHR)
* Ben Klappe (Netherlands Defence Academy)
* Ollie Barbour (Irish Defence Forces)
* Nora Owen (Commission for Victims of Crime)
* Tom O’Malley (NUI Galway)
* Amira Khair Khair (ICC Women/Sudan)
* Milena Pires (Timor Leste)
* Mary Ellen Ring (Senior Counsel; to be confirmed)

A preliminary programme is available here and the booking form is available here. Those interested in attending are advised to BOOK EARLY to avoid disappointment as this is an ever-popular event.

Any queries relating to the conference can be directed to ccjhr[at]ucc.ie

Same Sex Marriage Decision in California and its Possible Value in Irish Litigation

Posted on by
Yesterday the California Supreme Court declared state statutes that defined marriage as being between a man and a woman as unconstitutional (by reference to the Californian Constitution). In In re Marriage Cases (Cal. May 15, 2008) (Opinion) the State Supreme Court held that the essential substance and significance of the right to found a family required that the Californian Constitution had to be interpreted in a manner that would guarantee the right to all Californians, whether in opposite or same-sex relationships. Although California already had impressive domestic partnership laws that gave registered couples almost all the rights and obligations of marriage, the Supreme Court held that absolute equivalence was required. The Court did not hold that the term ‘marriage’ would have to be used to describe the required new legal framework, but whatever is introduced must be exactly the same in every way, including in name, for opposite and same-sex couples.

This decision echoes many of the elements of Perez v Sharp [(Oct. 1, 1948) 32 Cal.2d 711, 198 P.2d 17] – a decision from the same court in 1948 overturning laws that barred interracial marriage. As in Perez the Court held that the right to marry is a fundamental human right and means a right to establish a legally recognized family with a person of one’s own choice. Although this has historically been an opposite-sex structure, George CJ held that “tradition alone…does not justify the denial of a fundamental constitutional right”. The Court again echoed Perez when it held that the equal protection clause was engaged in relation to marriage-bans for same-sex couples. This case is the first one (to my knowledge) where a federal court has held that ‘strict scrutiny’ applies to differentiated treatment based on sexual orientation. In relatively simple terms, this means that rigorous justification must be advanced for differentiated treatment – ‘tradition’ would not be enough. [An ECHR lawyer can not help, it seems, but to hear echoes of Karner in this element of the judgment].

In re Marriage Cases is an extremely important decision for American law – its constitutional reasoning seems very sound, although there is an activist element which the dissenting judges, who claimed marriage was a question for the legislature alone, were particularly critical of. This case may also be useful in Ireland where constitutional principles are not entirely dissimilar to those with which the Californian Supreme Court was dealing. The Irish Constitution includes a right to marry [which does not specify marital form] and an equality clause [admittedly quite weak in historical perspective]. It seems quite plausible that similar reasoning would fit within our constitutional framework and it is to be expected that In re Marriage will make a comparative law appearance when the Supreme Court hears the appeal in Zappone & Gilligan v Revenue Commissioners. [KAL Case information is available here]

Five CCJHR/Faculty & Department of Law PhD Candidates Awarded IRCHSS Doctoral Scholarships

Posted on by
The CCJHR and Faculty & Department of Law congratulate our five PhD Candidates who have just been awarded the prestigious IRCHSS Doctoral Scholarship. This brings the total of IRCHSS Doctoral Scholars in the UCC Faculty & Department of Law to 12, with two more candidates being funded through an IRCHSS Thematic Grant awarded to CCJHR Co-Director Dr. Siobhan Mullally. In addition, the PhD student community in UCC includes holders of the prestigious EJ Phelan and Travelling Studentship awards from the NUI and scholars funded through PRTLI 2 and 3.

The five new IRCHSS Scholars here in the CCJHR are Sinead Ring, Joe McGrath, Eoin Daly, Eilionoir Flynn, and Louise Kennefick.

Sinéad Ring holds a first class honours BCL (Law and German) and an LLM (Criminal Justice) from UCC. She worked with the Law Reform Commission from 2004-2006 and was Principal Legal Researcher on the Commission’s Report on A Fiscal Prosecutor and A Revenue Court and the Report on Prosecution Appeals and Pre-Trial Hearings. She is reading for a PhD entitled, “The Social Contingency of Judicial Discretion: A Study of Pre-Trial Applications for Prohibition in Cases of Alleged Child Sexual Abuse”. She is being supervised by Professor Caroline Fennell. She holds a Faculty of Law PhD Scholarship.

Joe McGrath graduated with a First Class Honours BCL from UCC. He holds the Faculty of Law PhD scholarship. His doctoral thesis is entitled “The Criminalisation of Corporations and Corporate Officers”. He is being supervised by Prof. Irene Lynch Fannon and Dr. Shane Kilcommins.

Eoin Daly is a BCL (Law and French) graduate of UCC (First Class Honours). He holds the Faculty of Law PhD scholarship. His doctoral thesis, under the supervision of Dr. Conor O’Mahony, is entitled “Freedom of Religion in the Context of Public Education: a Comparative Analysis”.

Eilionoir Flynn graduated with a BCL from UCC in 2006. Her PhD thesis is entitled “Advocacy Services for People with Disabilities – the Potential for Improved Enforcement of Disability Rights” and is being supervised by Dr. Conor O’ Mahony. She holds a Law Faculty PhD Scholarship and recently completed a research visit to La Trobe University, Melbourne, using the Aidan Synott Bursary.

Louise Kennefick graduated with a BCL Degree from UCC in 2003. She subsequently completed a postgraduate legal diploma in 2004 and qualified as a solicitor in 2006 following a two year apprenticeship in London. She is currently pursuing a PhD in the area of Criminal Law with a particular emphasis on the Criminal Law (Insanity) Act 2006 under the supervision of Professor Caroline Fennell and Dr. Darius Whelan.

UCC Faculty & Department of Law enjoys enormous success in attracting funding for members of our PhD community, and also has a number of internal funding opportunities available to candidates. Anyone considering pursuing PhD studies here in UCC is recommended to view our PhD page and contact either the Chair of the Graduate Studies Committee, Professor John Mee, or an individual member of staff they would like to supervise their work. Details of academic staff are available here.

Commentary on Saadi v Italy

Posted on by
We wrote about the important Grand Chamber decision in Saadi v Italy (on Article 3, non-refoulement, and diplomatic assurances) here. CCJHR member Fiona de Londras was invited to prepare an Insight on the case for the American Society of International Law.

According to the Society, “Insights provide decision makers, the general public, and members of the legal profession around the world with brief, balanced accounts and analyses of significant legal developments and newsworthy events involving international law”.

The Saadi Insight is now published and is available here.

Mildred Loving R.I.P.

Posted on by
Mildred Loving died on 2 May at her home in Virginia. She achieved notoriety in 1967 when her groundbreaking case – Loving v Virginia – resulted in the United States Supreme Court handed down a unanimous judgment in which it held that miscegenation laws prohibited inter-racial marriage were unconstitutional.

For more on the case, and on Mildred Loving, see this Obituary in the New York Times

COE Human Rights Report on Ireland Released

Posted on by

As part of his visit to Ireland last November, COE Commissioner for Human Rights Thomas Hammarberg visited the Centre for Criminal Justice and Human Rights and met with members to discuss and highlight issues of particular concern. This visit is mentioned in his Report which was released yesterday. The Report makes a total of 34 Recommendations, which are listed below. The Government of Ireland’s response to these recommendations is included as an Appendix.

National system for protecting human rights

– Ratify Protocol No. 12 to the European Convention on Human Rights and the Convention on Action against Trafficking in Human Beings.
– Adjust the legal aid scheme to the extent that it reflects actual cost of living standards.
– Review the mandates of the different human rights complaints bodies with a view to optimising their effectiveness and independence as well as closing current protection gaps, with particular reference to the remits of the Ombudsman and the Ombudsman for Children.
– Provide comprehensive and comparative information to the public on the mandates and functions of different complaints mechanisms.
– Facilitate the interaction of authorities with civil society representatives at all levels to ensure that their experience and expertise can benefit policy formulation and implementation.
– Conduct a base-line study to assess the extent to which human rights are integrated into education and training, so that further needs can be identified and addressed for ensuring that human rights awareness reaches all walks of society.
– Develop a national action plan on human rights as an inclusive process for continuously improving human rights in Ireland.

Children’s rights

– Implement the National Action Plan for Social Inclusion 2007-2016 so as to significantly reduce the number of children experiencing consistent poverty.
– Use the opportunity of the proposed constitutional amendment to incorporate the best interests of the child as a general principle in the Irish Constitution, in line with the UN Convention on the Rights of the Child.
– Prohibit corporal punishment of children in a comprehensive way.
– Provide for professional care in the accommodation facilities for separated children and assign a guardian ad litem to each separated child.
– Address the increasing demand for choice within the educational system, in particular with regard to cultural and religious diversity.
– Provide adequately resourced separate facilities and services for minor psychiatric patients, and make early intervention at a local level possible for such children.

Juvenile justice

– Ensure full implementation of the Children Act 2001 and its sentencing principles, for example, by providing guidance and specific training to the judiciary.
– Develop further the system of alternative sanctions for juvenile delinquents and ensure adequate funding for the system across the country.
– Review the current system of Anti-Social Behaviour Orders so that it does not lead to an increased use of detention and ensure its independent monitoring.
– Apply the Children Detention School model when the detention of juvenile offenders is deemed a necessary measure and discontinue the imprisonment of children in adult facilities.

Non-discrimination and women’s rights

– Review the resource needs of the Equality Tribunal to minimise its backlog of cases.
– Clarify the scope of legal abortions through statutory law in line with domestic jurisprudence and provide for adequate services for carrying out such abortions in Ireland.
– Change the law on birth registration in such a way that transgender persons can obtain a birth certificate reflecting their actual gender.
– Provide the National Office for the Prevention of Domestic, Sexual and Gender-based Violence with adequate resources for the effective fulfilment of its broad mandate while, in particular, ensuring effective support for women victims of violence through services supplied by both state and civil society operators.

Measures against racism and xenophobia

– Monitor the implementation of the National Action Plan against Racism and the local anti-racism and diversity plans in close cooperation with civil society and ethnic and cultural minority representatives, while preparing new action plans to succeed the current ones.
– Improve data collection on racist and xenophobic incidents.
– Provide for the racist motivation of a crime to be considered as an aggravating circumstance in Irish criminal law.

Situation of Travellers

– Work closely with Travellers when preparing, implementing and monitoring policies and programmes designed for the Travellers.
– Promote the participation of Travellers in political decision-making at local and national level.
– Ensure that Travellers are effectively protected against discrimination and racism under national and international law.

Treatment of migrants and asylum-seekers

– Ensure that the right to remain in Ireland during the procedure is granted to asylum-seekers who appeal asylum decisions which raise questions in relation to Article 3 of the European Convention on Human Rights.
– Reconsider the provision in the proposed Immigration, Residence and Protection Bill which would direct costs for so called “frivolous and vexatious” proceedings to the legal counsel of the applicant.
– Provide family accommodation to families with children seeking asylum in Ireland.
– Introduce temporary work permits for asylum-seekers.
– Introduce statutory provisions regulating family reunification for all groups of people.
– Implement the principle of the best interests of the child in decisions within the field of immigration and refugee law related to children.

Fight against terrorism: extraordinary renditions

– Review the current inspection and monitoring arrangements in Ireland with a view to ensuring that effective and independent investigations are carried out into any serious allegation of extraordinary renditions