Blog Event: Human Rights Lexicon

On this St Patrick’s Day we are delighted to feature a Human Rights Lexicon event. In this event we feature posts from some of our regular contributors and a guest contributor on contentious questions relating to human rights law. The purpose of the event is to present perspectives on some of the ongoing controversies relating to human rights law and to how human rights law interacts with other parts of the legal system. We hope you enjoy reading!

• Liz Campbell on Human Rights and the Criminal Justice System
• Illan Rua Wall on Radical Responses to the Right to Housing
• Colin Murray on Rights and Security in the context of the Binyam Mohamed Case
• Aoife O’Donoghue on Sovereignty and Human Rights
• Fiona de Londras on ‘Foreign Law’ in Constitutional Adjudication

Human Rights Lexicon: ‘Foreign Law’ in Constitutional Adjudication

In this fifth contribution to today’s Human Rights Lexicon, Dr Fiona de Londras—a regular contributor here at HRinI—considers the role that comparative and international human rights law can play in domestic rights protections.

Human Rights Lexicon: Using ‘Foreign Law’ to develop Constitutional Rights

Using international and comparative law in human rights litigation and scholarship often results in a hostile or at the least sceptical response. After all, the typical respondent to such a suggestion will say, we have a constitution with a bill of rights and an independent judiciary; what do we need to use other law for? Thankfully in Ireland this response is not that prevalent; it is certainly less prevalent here than in other jurisdictions. However, there remains some scepticism about the extent to which comparative and international law can be useful and, indeed, some concerns that using these sources of law in our domestic rights protection can undermine our sovereignty. In this contribution to the human rights lexicon I want to take on these claims by considering the contribution that international and comparative law can play in developing constitutional understandings of rights and arguing that using these sources of law in constitutional development is appropriate and helpful.

Human Rights Lexicon: Sovereignty and Human Rights

In this, the fourth contribution to our Human Rigths Lexicon, Aoife O’Donoghue–a regular contributor here on HRinI–considers sovereignty and human rights.

The Irish use of sovereignty, as with most invocations, developed as part of the system of law between nation states which evolved in Europe after the Treaty of Westphalia and alongside the move away from the monarch as sovereign to the modern constitutional state. However both as a legal concept and as a general tool of politics sovereignty is a very difficult idea to define; though it is an oft used word.  It can be described as a system of power allocation, where the level of governance is decided by the state. The state through a system of consent makes horizontal agreements with other similar sovereign bodies as well as vertically either as a federal system, a system of devolution or local government scheme within the domestic state. In this description however the power allocation always emanates from the state at the core. As such sovereignty is considered by many to be the backbone of international law and more specifically of international human rights treaties where state consent underlies all law which is made.

Human Rights Lexicon: Security v Rights and the Case of Binyam Mohamed

In this, the third contribution to today’s Human Rights Lexicon, Colin Murray–a regular contributor to HRinI–takes on the tensions between rights and security looking at them in the context of the Binyam Mohamed Case.

Redact, Retain, Rewrite? The Saga of Binyam Mohamed and Paragraph 168

Human rights and national security exist, at one level, as interests upon which many legal systems place a high value. Much has been written about which interest trumps the other in England and Wales and as to the shifts in the balance between these interests since the (UK) Human Rights Act 1998. But despite assertions that the HRA tilted the balance in favour of the individual’s interests in her human rights and away from the societal interest in national security, in truth no such uniform approach on the part of the judiciary is evident. 

Human Rights Lexicon: Wall on the Right to Housing

We are delighted to welcome this guest contribution from Dr Illan Rua Wall of Oxford Brookes University. You can find out more about Illan on the guest contributors page. This is the second contribution to our Human Rights Lexicon and in this post Illan considers radical responses to the right to housing.

Radical Social Responses to the Right to Housing

Ireland is in the middle of a catastrophized recession. This will come as no surprise to anyone in Ireland, though perhaps it is not known as well internationally as one might think. One of the crucial features of the time leading up to the boom was the activity of the property developers, the ‘risk-taking’ darlings of the neo-liberal miracle. The developers built and built, while prices and availability of cheap credit grew. Until one day it all fell apart and the Irish economy collapsed into a heap on the floor. What was once ‘prime residential’ housing, is now a ‘toxic’ asset. A crucial feature of the post-crash Irish landscape is the presence of vacant or half-built houses and apartments. The question I want to address here is what those radicals concerned with social justice in Ireland should do in the face of this landscape. To get to the point, I would like to go back and point towards an alternate historiography which reveals that rights have been used in truly radical demands and assertions. This is necessary to challenge the (neo)liberal hegemony that rights are ultimately a relation to the state, and that the economy/market is the necessary determinant of policy. Unsurprisingly, perhaps, questions of property are key.

Human Rights Lexicon: Human Rights in Criminal Justice

In this first contribution to our St. Patrick’s Day blog event, the Human Rights Lexicon, Dr Liz Campbell–a regular contributor to HRinI–considers Human Rights in Criminal Justice

The prevailing attitude in the political sphere is that the influence of human rights in the Irish justice process is a negative one, resulting in a system which is focused unjustifiably on due process rights, and pays scant regard to the imperatives of crime control. The criminal process is seen as excessively concerned with the rights and liberties of the suspect or accused, while disregarding the harm caused to the community and the victim by criminal acts. This is believed to result in a justice system which is biased disproportionately towards the individual accused, and which stymies effective crime control, by circumscribing the powers of the State, and which denigrates the victim and wider society.

The Draft Constitutional Amendment on the Child: Blog Carnival

Today on Human Rights in Ireland we are delighted to host a mini Blog Carnival on the draft wording for a constitutional amendment on the child set out in the final report of the Oireachtas Committee on the Constitutional Amendment on Children.

As one Carnival contributor highlights, the proposed amendment ‘offers much material for discussion in terms of scope, substance and process’. On the day upon which the Committee’s report was released, I wrote a piece analysing the draft wording from the perspective of the compliance of such with Ireland’s obligations under the UN Convention on the Rights of the Child. The contributions to today’s Carnival continue, and contribute significantly to, the widespread discussion and debate initiated by the publication of the Committee’s Final Report. Focussing on key questions related to the protection of children’s rights in Ireland, each commentator provides their perspective on issues arising from the proposed constitutional amendment wording.

• Fergus Ryan of DIT addresses the implications of the proposed constitutional amendment in terms of family law reform.
• Ursula Kilkelly of UCC considers the issue of the ‘best interests’ principle, which is explicitly included in the draft wording.
• The Children’s Rights Alliance sets out its response to the Committee’s proposed amendment, arguing that the time is ripe for constitutional change on children’s rights.
• Conor O’Mahony of UCC looks at the education-related implications of the draft wording.
• Nicola Carr of QUB discusses the proposed amendment in terms of the rights of children in care.
• Finally, Fiona de Londras of UCD and (of course) HRinI writes about the importance of a reflective and careful debate and the dangers of unquestioningly accepting the proposed wording

As always, comments are very welcome.

Ryan on Family Law and the Children’s Rights Amendment

You can learn more about Fergus Ryan on our guest contributors page.

Waiting for family law reform is a bit like waiting for a bus. You linger forlornly for what seems likes an eternity, stoically weathering the elements. Then, just as you are about to give up, along comes a bus — and two more buses directly behind it.

In the past year, the Republic of Ireland has seen three major proposals for family law reform. The Civil Partnership Bill 2009, which is currently before the Dáil, promises a substantial new civil status for registered same-sex couples, with additional protective measures for cohabiting couples, same-sex and opposite-sex. The Law Reform Commission consultation paper, The Legal Aspects of Family Relationships, provisionally recommends some long overdue reforms to the law as it relates to guardianship, custody and access.

There is much to be welcomed also in the proposed constitutional amendment on children. For one, the proposed new Article 42 will apply to all children, and not just those born within marriage. The proposed amendment contains, in particular, a ground-breaking assertion that “[t]he State shall cherish all the children of the State equally.” This will banish, one hopes, the spectre of O’B v S, [1984] IR 316, a Supreme Court decision that affirmed the constitutional validity of measures that discriminate against non-marital children. The Court concluded that the constitutional preference for marriage trumped the child’s right to equality. This constitutional amendment would arguably reverse that stance.

Kilkelly on ‘Best Interests’ and the Proposed Constitutional Amendment

You can learn more about Ursula Kilkelly on our guest contributors page.

The report of the Joint Oireachtas Committee on the amendment to the Irish Constitution includes a proposal to include what is commonly known as the ‘best interests principle’ into the new Article 42 in two forms. The first form appears in Article 42.1.2° which recognizes the rights of all children and specifies that this includes the right ‘to have their welfare regarded as a primary consideration’. Although this provision refers to ‘welfare’ rather than ‘best interests’ and so could be said to be narrower (and arguably more paternalistic) in nature it otherwise mirrors the standard set out in Article 3 of the Convention on the Rights of the Child (CRC). Although the latter has been criticised for not requiring that the child’s interests are paramount, its strength is that it has wide application, potentially applying to all areas of state decision-making that affect children. Including this principle here, therefore, should require the state to ensure that regard is had to the child’s welfare in areas like budgetary decision-making, planning, immigration and criminal justice.

van Turnhout on ‘The Time is Ripe for Children’s Rights Referendum’

You can learn more about Jillian van Turnhout on our guest contributors page.

The vision of the Children’s Rights Alliance is that Ireland will be one of the best places in the world to be a child. On 16 February 2010, the Joint Committee on the Constitutional Amendment on Children moved us that bit closer towards securing this vision, when it published its Final Report. Crucially, the Report includes all-party agreement on a proposed wording for a constitutional amendment to strengthen children’s rights and this, in itself, is a significant step forward.

A major stumbling block to realising our vision has always been the Irish Constitution – the fundamental law of the country. Written in 1937, at a time when children were ‘seen and not heard’ and where, for example, it was the norm for teachers to physically chastise children and for children to be seen as mere possessions of adults, it has become very outdated. A litany of reports, court cases, and inquiries, have, over the years, also highlighted the need for constitutional change for children.