The 7th Annual Distinguished lecture of the centre for Criminal Justice and Human Rights, UCC
to be delivered by
Philippe Sands QC
Professor of Law, Member of Matrix Chambers and Director of the Centre for International Courts and Tribunals at University College London
“The Origin of International Crime:
A Personal History”
Chair: Joe Noonan, Solicitor, Noonan Linehan Carroll Coffey Solicitors
Wednesday February 13th, 2013
in the Aula Maxima, UCC
6.00 to 7.30 pm
Admission Free: Advance booking is not necessary
For queries, telephone: 021 – 490 3414 or email email@example.com
1.5 Hours General CPD
Certificate of Attendance will be issued
Philippe Sands QC is Professor of Law and Director of the Centre for International Courts and Tribunals at University College London. He is a member of Matrix Chambers. As a practicing barrister, Professor Sands has extensive experience litigating cases before the English courts and the International Court of Justice, the International Tribunal for the Law of the Sea, the International Center for the Settlement of Investment Disputes, and the European Court of Justice. He frequently advises governments, international organisations, NGOs and the private sector on aspects of international law.
Professor Sands many publications include: Torture Team: Cruelty, Deception and the Compromise of Law (Penguin, May 2008); Lawless World: America and the Making and Breaking of Global Rules (Penguin, 2005); From Nuremberg to The Hague: The Future of International Criminal Justice, Cambridge University Press, 2003 (editor). He also contributes regularly to the New York Review of Books, Vanity Fair and The Guardian.
Professor Sands co-directs the Project on International Courts and Tribunals (PICT) at London University and New York University. He has served as Specialist Adviser to the House of Lords Select Committee on Science and Technology. In 2011 he was appointed by the UK government as a member of the Commission on a Bill of Rights.
Please note that parking is very limited on UCC campus
This post first appeared on website of the EUDO Observatory on Citizenship
In a report on citizenship acquisition in Ireland issued in 2011, the Immigrant Council of Ireland highlighted a number of issues which make the process of applying for Irish citizenship unduly difficult for migrants. One of these issues, the Minister for Justice’s freedom to refuse applications for naturalisation without an accompanying explanation, has been dealt a death blow by a Supreme Court decision delivered on Thursday, 6 December.
In Mallak v. The Minister for Justice, Equality and Law Reform the applicant was a Syrian national who, along with his wife, successfully applied for asylum after arrival in Ireland in 2002.
Mr. Mallak and his wife subsequently applied for Irish citizenship. While his wife’s application was approved, Mr. Mallak was informed that the Minister had decided not to grant him a certificate of naturalisation and that
In reaching this decision, the Minister has exercised his absolute discretion, as provided for by the Irish Nationality and Citizenship Acts 1956 and 1986 as amended. There is no appeals process provided under this legislation. However, you should be aware that you may reapply for the grant of a certificate of naturalisation at any time.
Mr. Mallak was granted leave to apply for judicial review of the Minister’s decision on the grounds that he did not know the reasons for denying him a certificate of naturalisation and that the failure to provide such reasons hindered any future applications he might make for naturalisation.
The Irish Nationality and Citizenship Act 1956 has been amended numerous times. It provides that the conditions for naturalisation include a requirement of good character and a minimum of five years residence in the State during the 9 years prior to application for naturalisation. The Act provides that if the Minister is satisfied that the conditions for naturalisation have been met, he may “in his absolute discretion” grant a certificate of naturalisation.
John Cooke in the High Court found that the Minister was not obliged to furnish reasons for his decision refusing Mr. Mallak an award of Irish citizenship. This was because, firstly, the legislation provided that it was within the Minster’s “absolute discretion” to grant or refuse a certificate of naturalisation and, secondly, the Minister’s decision left the applicant in no worse a position than he had been before the decision was made.
In a separate High Court case in 2010, Abuissa v Minister for Justice, Equality and Law Reform, Maureen Clark had also held that the Minister’s discretion in considering applications for naturalisation was absolute and that there was no obligation on him to provide reasons in the event of a refusal.
Following an appeal against the High Court finding, Nial Fennelly delivered judgment for the five-judge Supreme Court last Thursday. On the basis of a wide array of sources such as Irish legislation, Article 296 TFEU, Article 41 of the Charter of Fundamental Rights and the case-law of the Irish and UK courts, he held that there was an emerging commonly held view that persons affected by administrative decisions have a right to know the reasons on which such decisions are based and that “at this point, it must be unusual for a decision maker to be permitted to refuse to give reasons.”
The Supreme Court found, firstly, that the Minister’s failure to provide reasons for refusing Mr. Mallak’s application for naturalisation prevented Mr. Mallak from challenging the decision on substantive grounds and from making an effective second application, as he would not be in a position to address whatever concerns the Minister may have about him. Secondly, the failure to provide reasons also prevents the courts from effectively exercising their power of judicial review.
Noting that the underlying objective of the attainment of fairness requires decision makers to give reasons for their decisions, Nial Fennelly granted an order of certiorari quashing the Minister’s decision. The Minister will now have to consider Mr. Mallak’s application afresh and, in the event of refusal, provide reasons or justify his refusal to provide reasons.
Refugees and Citizenship
The applicant in his appeal drew attention to the fact that Article 34 of the Geneva Convention provides that Contracting States shall as far as possible facilitate the assimilation and naturalisation of refugees. The importance attached to the naturalisation of refugees is similarly underscored by the fact that the Irish Nationality and Citizenship Act 1956 provides that in certain cases, including the case of refugees, the Minister may award citizenship even if the statutory conditions for naturalisation have not been met.
A Question of EU Law?
The applicant had also contended that the provisions of the Irish Nationality and Citizenship Act 1956 allowed the Minister to prevent access to EU citizenship without stating any reasons, thereby infringing Article 41(2)(c) of the Charter of Fundamental Rights which codifies the right to good administration and the administrative obligation to provide reasons for decisions made.
The right to award citizenship is, of course, within the competence of each Member State. It is clear, however, from the Rottmann case that the loss of EU citizenship, by virtue of its nature and consequences, brings the denaturalisation decision of a Member State within the scope of EU law. Less clear is whether the application of EU law might be triggered by a refusal on the part of a Member State to award citizenship to a non-EU national.
John Cooke in the High Court had dismissed the Rottmann-based argument that as the Minister’s decision to grant or refuse Irish citizenship also determines the applicant’s access to EU citizenship, the Minister is required to comply with general principles of EU law when exercising his discretion.
The Supreme Court noted that the Charter would only apply if the State, in deciding on Mr. Mallak’s application, was “implementing Union law”. In light of the order quashing the Minister’s decision, it held that it did not need to decide whether or not in this situation the State was engaged in implementation of EU law.
Thus the question as to whether refusal of an application for naturalisation might constitute implementation of EU law, thereby triggering application of EU law princples, remains to be answered.
The Supreme Court judgment in Mallak represents a victory for all current and prospective applicants for Irish citizenship. It will have repercussions for administrative decisions beyond the field of citizenship and immigration but serves to highlight, in particular, the lack of transparency which blights much of the Irish immigration system. It is of course by no means certain that Mr. Mallak will now be granted a certificate of naturalisation, but if again refused he will be in a position to challenge the refusal on substantive grounds or make a more effective renewed application for naturalisation.
Alan is a PhD candidate in UCC and an IRCHSS Government of Ireland Scholar.
Submission to the Oireachtas Committee on Health and Children, on the implementation of the A.B.C. v Ireland (Application no. 25579/05) Judgment 16 December 2010, European Court of Human Rights.
I welcome this opportunity to make a submission to the Joint Committee on Health and Children on Ireland’s response to the A,B, and C v Ireland judgement of the European Court of Human Rights. (Application no. 25579/05) Judgment 16 December 2010
In its judgment delivered 16th December 2010 in the case of A.B.C. v Ireland (Application no. 25579/05) Judgment 16 December 2010, the Grand Chamber of the European Court of Human Rights found that there had been a violation of the State’s obligations under Article 8 in respect of the third applicant C:
“the authorities failed to comply with their positive obligation to secure to the third applicant effective respect for her private life by reason of the absence of any implementing legislative or regulatory regime providing an accessible and effective procedure by which the third applicant could have established whether she qualified for a lawful abortion in Ireland in accordance with Article 40.3.3 of the Constitution.” (para.267)
It now falls to the Government to implement the Court’s judgment, under the supervision of the Committee of Ministers of the Council of Europe, according to Article 46 of the European Convention of Human Rights.
A legislative framework
A key question facing the Government is what form the implementation of the judgment at a domestic level will take and whether legislation is required to give effect to the State’s obligations under Article 8 ECHR.
As noted in the extract cited above (para.267), the Court identified the ‘absence of any implementing legislative or regulatory regime’ (emphasis added) as central to its finding of a violation of Article 8 in respect of the third applicant. This comment suggests that either a legislative or regulatory regime could satisfy the State’s positive obligations under Article 8. It should be noted, however, that at several points throughout the judgment, the Court pointed to the specific difficulties that arise because of the absence of a legislative framework to give effect to Article 40.3.3° of the Constitution. See, for example:
The Court considers that the uncertainty generated by the lack of legislative implementation of Article 40.3.3, and more particularly by the lack of effective and accessible procedures to establish a right to an abortion under that provision, has resulted in a striking discordance between the theoretical right to a lawful abortion in Ireland on grounds of a relevant risk to a woman’s life and the reality of its practical implementation (at para 264).(emphasis added)
At para 266 of its judgment, the Court noted that while it would not indicate the most appropriate means for the State to comply with its positive obligations (citing Marckx v. Belgium judgment, § 58; Airey v. Ireland judgment, § 26; and B. v. France, § 63), legislation had been adopted in many Contracting States. Such legislation had served to:
…specify the conditions governing access to a lawful abortion and put in place various implementing procedural and institutional procedures (Tysiąc v. Poland judgment, § 123).
On his 2011 visit to Ireland, the Council of Europe Commissioner for Human Rights, Mr Thomas Hammarberg, reiterated his previous recommendation to clarify the scope of legal abortions through a coherent legal framework including adequate services in line with domestic jurisprudence and the European Court of Human Rights case law, without further delay.
The absence of a legislative framework to give effect to Article 40.3.3° has been the subject of criticism by the Irish courts and in domestic policy documents. In Attorney General v. X and Others  1 IR 1, Mr Justice McCarthy, in an oft-cited judgment, reflected on the lack of legislation implementing Article 40.3.3°:
I think it reasonable, […], to hold that the People when enacting the Amendment were entitled to believe that legislation would be introduced so as to regulate the manner in which the right to life of the unborn and the right to life of the mother could be reconciled.
[…] the failure by the legislature to enact the appropriate legislation is no longer just unfortunate; it is inexcusable. What are pregnant women to do? What are the parents of a pregnant girl under age to do? What are the medical profession to do? They have no guidelines save what may be gleaned from the judgments in this case. What additional considerations are there? […] The Amendment, born of public disquiet, historically divisive of our people, guaranteeing in its laws to respect and by its laws to defend the right to life of the unborn, remains bare of legislative direction… (paras.146-147) (emphasis added)
In the Attorney General (S.P.U.C.) v. Open Door Counselling  I.R. 593, Mr Justice Finlay C.J. found it:
…unfortunate that the [Parliament] has not enacted any legislation at all in respect of this constitutionally guaranteed right.
The European Court of Human Rights also pointed out that several policy and political documents had recognised the need for greater clarity in the legal framework regulating abortion in Ireland. In 1996, the Report of the Constitution Review Group recommended the adoption of legislation to regulate the application of Article 40.3.3. Such legislation, it was noted, should include a certification process by medical specialists and a time-limit for any certified termination in the case of an abortion considered lawful under Article 40.3.3°
The 1999 Green Paper on Abortion, in discussing the possible options available for abortion reform, noted the potential advantages of legislation in this area. It would:
Provide a “framework within which the need for an abortion could be assessed, rather than resolving the question on a case-by-case basis before the courts, with all the attendant publicity and debate”;
Allow “pregnant women who establish that there is a real and substantial risk to the their life to have an abortion in Ireland rather than travelling out of the jurisdiction”; and
Provide legal protection for medical and other personnel involved in a procedure to terminate the pregnancy in Ireland.
Against the background of ‘substantial uncertainty,’ the European Court of Human Rights concluded that the criminal provisions of the 1861 Act constitute,
‘a significant chilling factor for both women and doctors in the medical consultation process’ (para. 254).
In addition to the risk of criminal sanction, doctors also risked professional disciplinary proceedings. As the Court also noted, the Review Group Report 1996, the Green Paper 1999 and the Fifth Progress Report on Abortion 2000, each expressed concerns about the lack of legal protection for medical personnel in Ireland in the context of decision-making on the lawfulness of a termination of pregnancy.
The Expert Group on the Implementation of the A,B and C v Ireland judgment notes the greater clarity that would come with legislation, and regulations, to give effect to both the X and A, B and C judgments.
Procedural Safeguards: Decision making processes
In its Judgment of December 16th 2010 in A,B and C v Ireland, the European Court of Human Rights rejected the argument that:
‘[…] the normal process of medical consultation could be considered an effective means of determining whether an abortion may be lawfully performed in Ireland on the ground of a risk to life.’ (para. 255)
As was noted by the Court, there is no framework whereby any difference of opinion can be examined and resolved, and which would establish:
‘as a matter of law whether a particular case presented a qualifying risk to a woman’s life such that a lawful abortion might be performed.’ (para 253)
In the recent case of P and S v Poland, (Application no. 57375/08), the European Court of Human Rights recognised the significance of timely decision-making:
The nature of the issues involved in a woman’s decision to terminate a pregnancy or not is such that the time factor is of critical importance. The procedures in place should therefore ensure that such decisions are taken in good time. (para 111)
The possibility of determining the lawfulness of an abortion to be carried out in Ireland through recourse to the courts, was also dismissed by the European Court of Human Rights, echoing the views expressed by the Irish High Court in, A and B v. Eastern Health Board, Judge Mary Fahy and C, and the Attorney General (notice party),  1 IR 464 (“the C case”):
[…] I think it highly undesirable for the courts to develop a jurisprudence under which questions of disputed rights to have a termination of pregnancy can only be determined by plenary action in the High Court. […] it would be wrong to turn the High Court into some kind of licensing authority for abortions.
The UN Committee Against Torture has recommended that Ireland
“clarify the scope of legal abortion through statutory law and provide for adequate procedures to challenge differing medical opinions as well as adequate services for carrying out abortions in the State party, so that its law and practice is in conformity with the Convention.” Committee against Torture, concluding observations on Ireland, UN Doc AT/C/IRL/CO/1. (2011), para. 26.UN CAT
At a seminar on the A,B, and C judgment, hosted by the Centre for Criminal Justice and Human Rights, University College Cork, Mr Juris Rudevskis, (lawyer at the Registrar of the European Court of Human Rights) noted that it was not clear under the current legal framework, how the Irish courts would enforce a mandatory order requiring doctors to carry out an abortion. He concluded that the legal framework should not be shaped in a way that would ‘limit real possibilities to have access to abortion.’ It should, he said, ensure clarity of the pregnant woman’s legal position.
Mr Rudevskis, drawing on the case law of the European Court of Human Rights, concluded that the procedural safeguards required for situations where a disagreement arises as to whether the preconditions for a legal abortion are satisfied in a given case, should be the following: 
[…] first, they should take place before an independent body competent to review the reasons for the measures and the relevant evidence and to issue written grounds for its decision;
second, the pregnant woman should be heard in person and have her views considered;
third, the decisions should be timely, and;
fourth, the whole decision-making procedure should be fair and afford due respect to the various interests safeguarded by it.
Risks to life and health arising from mental health problems / illness, including suicide ideation
The right to the highest attainable standard of health, protected by the International Covenant on Economic Social and Cultural Rights includes both physical and mental health. The European Court of Human Rights has also recognised that mental health and the ‘preservation of mental stability’ is an ‘indispensable precondition’ to the enjoyment of the right to private life, protected by Article 8 ECHR. Bensaid v. the United Kingdom (Application no. 44599/98).
Access to a safe and legal abortion in cases of a non-viable foetus
In the case of KL v Peru, the UN Human Rights Committee found that the denial of a therapeutic abortion to a 17 year old girl who was pregnant with an anencephalic foetus was a denial of her rights under Articles 2, 7, 17 and 24 of the International Covenant on Civil and Political Rights. Notably the Human Rights Committee’s finding of an Article 7 violation (prohibition of torture, cruel and inhuman and degrading treatment or punishment) did not depend on the lawfulness of the procedure. The Committee recognised therefore that both legal and practical obstacles to a therapeutic abortion could violate the State’s obligations under the ICCPR.
The right of access to a safe and legal abortion in cases where the foetus is non viable was implicitly acknowledged by the Irish Government as protected under Irish constitutional law in the admissibility hearing before the European Court of Human Rights in D v Ireland (Application no. 26499/02) . Specifically the Government in challenging the failure to exhaust domestic remedies argued:
[…] although it was true that Article 40.3.3 had to be understood as excluding a liberal abortion regime, the courts were nonetheless unlikely to interpret the provision with remorseless logic particularly when the facts were exceptional. If therefore it had been established that there was no realistic prospect of the foetus being born alive, then there was “at least a tenable” argument which would be seriously considered by the domestic courts to the effect that the foetus was not an “unborn” for the purposes of Article 40.3.3 or that, even if it was an “unborn”, its right to life was not actually engaged as it had no prospect of life outside the womb. (para 69)
Permitting abortion in circumstances beyond a ‘real and substantial risk’ to the life of the mother
Ireland’s abortion law has attracted criticism from UN treaty bodies. In 2005, the UN Committee on the Elimination of All Forms of Discrimination against Women expressed its concern at the consequences of Ireland’s ‘very restrictive abortion laws’.
The UN Human Rights Committee has highlighted Ireland’s obligations under Article 7 of the International Covenant on Civil and Political Rights, pointing out that compelling a woman to continue with a pregnancy, particularly where that pregnancy is a result of rape, may be in violation of the prohibition on torture, cruel, inhuman and degrading treatment. In its Concluding Observations on Ireland’s Third Periodic Report under the ICCPR, the UN Human Rights Committee (2008) reiterated its concern regarding the highly restrictive circumstances under which women can lawfully have an abortion in the State.
In Attorney General v. X and Others  1 IR 1, Mr Justice McCarthy asked:
Is the victim of rape, statutory or otherwise, or the victim of incest, finding herself pregnant, to be assessed in a manner different from others?
The UN Special Rapporteur on Health has stated that criminal laws and other legal restrictions on sexual and reproductive health may have a negative impact on the right to health in many ways, including by interfering with human dignity. Dignity, he says:
[…] requires that individuals are free to make personal decisions without interference from the State, especially in an area as important and intimate as sexual and reproductive health.
The UN Special Rapporteur has noted that it is only in the ‘most severe cases’, that abortion is completely criminalized without exception — a situation that exists in only a handful of States — or allowed only to save the life of the woman. Ireland currently falls within this handful of ‘most severe cases’. He goes on to note that:
Approximately 25 per cent of the world’s population lives under legal regimes that prohibit all abortions except for those following rape or incest, as well as those necessary to save a woman’s life. Slightly less restrictive legal regimes permit abortion on a number of physical health, mental health and socio-economic grounds, such as poverty and number of children. Finally, abortion is unrestricted on any grounds in 56 States, though limits still exist with respect to how late in pregnancy. (para. 23)
There is now a consensus on the right to access to a safe and legal abortion in specified circumstances in most Member States of the Council of Europe. All but five (including Ireland) of the Members permit abortion to protect both the life and the health of the pregnant woman. Most Member States also allow access to abortion for wider socio economic reasons or upon request within gestational time limits.
While conscientious objection on the part of medical personnel can be accommodated within international human rights law, the State has an obligation to ensure that the life of a pregnant woman is not endangered as a result of a refusal to perform a life-saving medical procedure, including abortion. (See: Report of the UN Special Rapporteur on the Right to Health (2011)).
The European Court of Human Rights has stated that:
“States are obliged to organise their health service system in such a way as to ensure that the effective exercise of freedom of conscience by health professionals in a professional context does not prevent patients from obtaining access to services to which they are entitled under the applicable legislation”; R.R. v. Poland, (Application no. 27617/04), May 26, 2011, para. 206.
Given the above, it is clear that steps to put in place a comprehensive, fair and accessible legal framework to effectively vindicate the right to a safe and legal abortion are urgently required. As was noted in another case involving this State: Airey v Ireland:
“the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective” (para. 24).
Professor Siobhán Mullally
Faculty of Law
Coordinator, Gender Law and Sexuality research initiative (GLAS)
Director, LLM in International Human Rights Law
University College Cork
 Report by Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe, following his visit to Ireland, CommDH(2011)27 / 15 September 2011, para.48
 J Rudevskis ‘Abortion and the Case Law of the European Court of Human Rights’, paper presented at the Centre for Criminal Justice and Human Rights, Nov 10th 2011. (copy on file with the author).
 Ibid. p.9
 Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, UN Doc. A/66/254, August 3, 2011, para.15