The Rule of Law Inches Forward: UN Sanctions in EU Law
Chafiq Ayadi is one of only two individuals resident in Ireland whose assets are frozen under the UN sanctions regime established by UN Security Council resolution 1267. Two years ago I published a short note in the 2007 Dublin University Law Journal (‘Ayadi v Council: Competence and Justice in the “War on Terrorism”’  Dublin University Law Journal 426) critically commenting upon the decision of the EU General Tribunal (then the Court of First Instance) in his legal challenge to the freezing of his assets (Ayadi v Council). I concluded, somewhat pessimistically, by noting that
For the European resident targeted by the sanctions, access to justice is guarded by Kafka’s doorkeepers. For his subsistence, the individual must petition his government. For his delisting, he must petition the Sanctions Committee. For protection of his rights, he must wait, for the doorkeepers are many and the door, though apparently open, cannot be passed through.
The United Nations High Commission for Refugees (Ireland) is seeking to recruit a Protection Assistant for a position in their Dublin Office.
Further particulars regarding the post and application procedure can be found here.
Last week saw the Supreme Court hand down its judgment in the important case of Meadows v Minister for Justice, Equality and Law Reform . This case considered whether a proportionality analysis is generally applicable to administrative decisions that have an impact on one’s constitutional and/or fundamental rights. This case, in which the Supreme Court appears to have introduced a general requirement for proportionality analyses in all administrative action that has individual rights implications, is a potentially monumental one that might have wide-ranging implications for administrative decision-making in this jurisdiction for quite some time to come. Although the case takes place within the context of asylum and refugee law it seems quite clear that its implications are much broader than this; the ratio as stated is a general one applicable to all situations of rights-endangerment by administrative review, although of course the severity of potential interferences with individual rights will be a factor to be taken into account in the conduct of any proportionality analysis.
The case concerned an applicant for asylum in Ireland who claimed that she suffered a real risk of persecution if returned to Nigeria because she would be forced to enter into a marriage arranged by her father and would be subjected to female genital mutilation. The applicant had been refused asylum on the basis that she was determined not to have made out a well founded fear of persecution on a Refugee Convention ground and was subsequently unsuccessful before the Refugee Appeals Tribunal, which was not satisfied that she had established “a credible connection between her circumstances and forced marriage and female genital mutilation”. On applying for leave to remain in the state, the applicant claimed that forcing her to return to Nigeria would violate her rights in both national and international law given the severity of the danger that it was alleged awaited her there. The application for leave to remain was refused, with the Minister claiming he was satisfied that the prohibition on refoulement was not breached and that “the interests of public policy and the common good in maintaining the integrity of the asylum and immigration systems outweigh such features of [the] case as might tend to support [the applicant] being granted leave to remain in this State.”
In the Supreme Court case Meadows argued that whether or not questions of fundamental human rights had been taken into appropriate account in administrative decision making ought to be considered in judicial review proceedings. Judicial review is a means of challenging the decision-making process and not the outcome, but if the process is found to have been deficient then the outcome is a priori also deficient. Unreasonableness has always been a basis for judicial review and this case essentially centred on whether or not a decision making process could be said to be unreasonable if it is found that a proportionality analysis was not properly engaged in, taking into account the grave repercussions of interference with individual rights that might flow from an administrative decision.
Narratives of Progress: Who Stands by the Republic Now?
In his speech in yesterday’s Civil Partnership debate, Deputy James Reilly (FG) said:
I know that some speakers do not feel it goes far enough, but it is useful to remind ourselves from whence we have come. It is well within living memory when homosexuality was a crime in this country. Before that, it was even considered to be an illness. Awareness and enlightenment has slowly come, but it has come nonetheless.
Yesterday saw the Civil Partnership Bill claimed from both sides of the house as emblematic of Ireland’s move towards not merely progressive but secular politics. Labour’s Ciaran Lynch, for instance said that ‘this Bill is a milestone, as Ireland moves from a theocracy to a democracy’. The Civil Partnership Bill, it seems, is the mirror in which we look when we no longer want to see the Ireland of the Ryan Report gazing back.
On Thursday, the second stage debate on the Civil Partnership Bill picked up where it left off on December 3rd. The Adoption Bill was debated (see our guest post from Brid Nic Suibhne here) on the same day.
For reasons of space, there will be 2 posts about yesterday’s debate. On will focus on some important arguments made about the operation of the Bill. The second will flag up a line of rhetoric which developed in the course of the debate about the proper place of religion in the republic.
The Department of Foreign Affairs has recently updated its Documents on Irish Foreign Policy on-line resource. This resource has been developed in association with the Royal Irish Academy and the National Archive. The entire collection, which covers the period from 1919-1941, has been available in print since 1998, each book covering a number of years, but the addition of the on-line collection covering the period 1919-1932 will aid in research into this interesting period of Irish history as Ireland developed its place as an independent country in international relations. The papers cover the negotiation of the Treaty, the Boundary Commission, the Imperial Conferences during the period, the Kellogg-Briand Pact, the League of Nations, the collapse of Weimar Germany, the Japanese invasion of Manchuria, the development of the Irish policy of neutrality among many other topics.
This is a very interesting project that hopefully will continue with the publication of the rest of the documentation covering the Second World War. Hopefully this too will be made available with the rest of the collection on-line soon.
We are pleased to welcome this guest post from Diarmuid Griffin, Lecturer in Law at NUI Galway. You can read more about Diarmuid on our Guest Contributors Page.
The National Commission on Restorative Justice published its final report in December 2009. The Commission, announced in March 2007, was set up to examine the wider application of restorative justice within the criminal justice system. The Commission was established following the report of the Joint Committee on Justice, Equality, Defence and Women’s Rights which recommended the development of a restorative justice programme for adult offenders in the Irish criminal justice system.
Restorative justice programmes can already be seen in operation in Ireland for juvenile offenders through the Garda Diversion Programme or a court-referred Probation Service Conference and ad hoc programmes dealing with adult offenders in Nenagh and Tallaght. While there are various different models of restorative justice, the practice generally involves the bringing together of the victim, offender and, where possible, members of the community to negotiate the outcome for the offending behaviour. For example, rather than sentencing an offender to a traditional term in prison a judge may refer an offender into a restorative programme where such a negotiation may occur.
In its final report, the Commission recommends the national implementation of restorative justice for adult offenders. The Commission believes that such a programme “will make a positive contribution to the lives of all citizens, and particularly to those more closely connected to the offending behaviour.” Having conducted an extensive examination of the use of restorative justice in Ireland and in other jurisdictions, the report attempts to provide a workable framework for the development of restorative justice that is mindful of both economic and criminal justice realities.
Today in the Second Stage debate on the Civil Partnership Bill 2009, Ruairi Quinn (you can watch his speech here) quoted part of Charles Stewart Parnell’s ‘ne plus ultra’ speech, made in Cork on January 21 1885. Deputy Quinn was responding to the claim that the Bill, which does not provide for same sex marriage on a basis of equality with the institution of marriage made available to heterosexual couples, is part of an appropriately gradual movement towards equality. Rather, he said that the Government had bowed to conservative religious elements in Irish society, and accordingly had produced a ‘fundamentally bad bill’. These elements he accused, following Parnell, of halting the progress of the nation.
It has been my experience in this republic and Chamber that change does not come but is driven by the passion and energy of citizens who want to be free. It is dragged through against the resistance of conservatives who believe that anything other than the order they have inherited cannot stand because any change would lead to the entire edifice falling down around their feet. This change has not come, nor has it matured or found its place in the sun because today is different from yesterday. What is different today is that a reluctant, so-called republican Government, which more properly earns the title of “publicans’ Government”, has been forced to bow to the inevitable but it has not bowed far enough.
We will have a full summary of today’s debate once the full transcript is available. For now, here is a reminder of Parnell’s speech:
But no man has the right to fix the boundary to the march of a nation (great cheers). No man has a right to say to his country: ‘Thus far shalt thou go, and no further’; and we have never attempted to fix the ne plus ultra to the progress of Ireland’s nationhood, and we never shall (cheers).
But gentlemen, while we leave those things to time, circumstances, and the future, we must each one of us resolve in our own hearts that we shall at all times do everything which within us lies to obtain for Ireland the fullest measure of her rights (applause). In this way we shall avoid difficulties and contentions amongst each other. In this way we shall not give up anything which the future may put in favour of our country, and while we struggle today for that which may seem possible for us with our combination, we must struggle for it with the proud consciousness, and that we shall not do anything to hinder or prevent better men who may come after us from gaining better things than those for which we now contend (prolonged applause).
Via Irish Press Releases comes the news that Anastasia Crickley has been elected to the United Nations Committee on the Elimination of Racial Discrimination for a four year term. The press release from the Department of Foreign Affairs says:
Ms. Crickley has a distinguished international record in working against racism and discrimination. She served until very recently as the Inaugural Chair of the European Union Fundamental Rights Agency and previously as Chair of the EU Monitoring Centre on Racism and Xenophobia.
At a national level, she has been a founding member and chairperson of a number of innovative agencies devoted to promoting the rights of minorities and the marginalised, and to combating racism in Ireland. She is currently the Head of Department of Applied Social Studies at the National University of Ireland Maynooth. She is also a member of the Council of State.
Ms Crickley also served as head of the ill-fated National Consultative Committee on Racism and Inequality. Her other achievements are set out here and here. The Committee on the Elimination of Racial Discrimination is composed of ’18 independent experts, who are persons of high moral character and recognized competence in the field of human rights’.