Human Rights in Ireland

In recent days, the compressed run up to the Fiscal Treaty referendum has been heavily criticized as  providing little time for Irish public to measure consequence and order our future. Beyond ‘trains  departing’, ‘being for Europe’ or the alleged construction of some all powerful deathstar of  austerity,  what are the important baselines to the debate?

1. The Referendum Wording
The Government selected a permissive wording, which allows for the ratification of the Treaty, and  provides relevant immunities. Usually, going for a permission rather than transplanting the rules  into our Constitution, makes it easier for future governments to withdraw from the agreement. As I discussed in my previous blog, however, the Treaty makes no provision for withdrawal, and the general rules of international law favour the blocking of unilateral withdrawal. While domestic legislation can be revoked, it is difficult to see a right to withdraw from the Treaty internationally once ratified. Der Spiegel reported last week that this lack of right to rescind has come to the attention of German politicians and that a constitutional challenge there is now likely. Read Full Post »

Within its core obligations, the Fiscal Compact Treaty fails to secure basic values such as clarity and predictability. It omits express explanation of certain fundamental issues, which I want to clarify in order to inform debate on the document. This is a text rich in ambiguity. How that ambiguity will be resolved is critical. The ‘No’ side will cite the ambiguity as the space from which austerity will be imposed. The ‘Yes’ side will try to show the ambiguity is rooted in concessions to make the text weaker and more flexible. If we as a nation do vote yes, it should not be a passive yes. We often deride the referendum process – but it helps to stop and closely examine the text, to find out points of concern and act to defend our interests. If the referendum campaign identifies genuine concerns, the government must take steps to mark out our interpretations, to build support for our interpretations.

It is clear that the drafters, so long familiar with the self-contained, uniquely self-perpetuating universe of European Union Law, have been passive in dealing with some key factors which emanate from the fact that this intergovernmental treaty. Its terms and interpretation will be guided by the rules of general public international law. I believe there are key omissions and ambiguities in the document, which actually offer opportunities to both the ‘Yes’ and ‘No’ sides in the forthcoming referendum campaign. There are two pretty standard clauses you would expect to be in here, that are not.

(1)    A clause regulating withdrawal from or revocation of the Treaty

(2)   A clause regulating the ability of parties to lodge reservations or interpretive declarations Read Full Post »

In what was a surprise to most of the political establishment, the Taoiseach has just announced that the Government has decided to hold a referendum on the Fiscal Treaty. Speaking in the Dáil this afternoon Taoiseach Enda Kenny stated:

Throughout the process leading to this new Treaty, the Government has consistently said that the final text would be referred to the Attorney General for her advice as to whether a referendum was required to ratify it in Ireland. At this morning’s Cabinet meeting, the AG conveyed her advice that, as this treaty is a unique instrument, outside the European Union treaty architecture, on balance, a referendum is required to ratify it. On foot of this advice, the Government has decided to hold a referendum on this issue in which the people of Ireland will be asked to give their authorisation for the ratification of this treaty.

We here at Human Rights in Ireland had identified a number of possible reasons why a referendum might be required, centering mainly on the unclear demands of Article 3 of the Treaty, the potential for enforcement by the European Court of Justice and the conditioning of the disbursing of European Stability Mechanism funds on compliance with the Treaty’s terms. Read Full Post »

In my last blog on Friday, I focused on whether the terms of the Fiscal Treaty (Article 3) require Ireland to change its Constitution. The next step of the analysis will be to ask whether the Irish Constitution, specifically its protections of sovereignty, require a referendum to be held. As evidence grows that the Government, and to some extent EU officials, may have consciously sought to design the Treaty terms to avoid a referendum, it is nevertheless not certain that this was achieved. This is not a comment on the lack of legal skills in their possession (!), but rather ‘referendum proofing’ is very difficult when the guidance provided by the Irish Supreme Court in its previous cases was unclear. In the cases central to the issues at hand, Crotty and McGimpsey, the judges selectively focused on certain issues while others lay undeveloped or poorly defined. Read Full Post »

The word at the forefront of everyone’s mind for the next two weeks will be ‘referendum’ – whether one is required or, from a more jaundiced perspective, whether the government has leveraged the Treaty text sufficiently to evade one. In this blog, I want to explore why even the most careerist of us should not envy the position of Attorney General Maire Whelan this weekend.

So firstly to explain my title: a three shell game is the one played at carnivals where after three shells are shuffled with bewildering speed, you have to guess under which shell the pea is hidden. It is a useful image for understanding the game that is currently being played out by politicians across the EU. The goal has been to confuse and keep events moving, not allowing them to settle at any point, shifting rapidly between politics, economics and law, to give the markets, and the people an impression of action in the absence of concrete result.  The creation of the Fiscal Treaty, represents a rare moment of substance in a process of rhetoric and politicking. From the commentary of the last number of days, many believe it to be incoherent economics, and neither, as I think we’ll see, is it particularly coherent law. It is clear, by process of elimination, that politics, and German and French electoral politics in particular, are the key to understanding its difficult birth.

Read Full Post »

  The extraordinary speed of events in Brussels make forming a legal opinion on the need for constitutional referendum challenging, but based on the information available, we can begin a preliminary identification of the major issues involved in what is frankly revolutionary step which swaps political complications for legal complications. At least the markets may be sufficiently bamboozled by the proposal to defer their reaction. It will be extremely difficult for a referendum to be avoided.

If a referendum is held, it will be for the same reasons as Ireland’s long forgotten, low profile referendum on the International Criminal Court.  This was necessary because the international agreement was formally transferring powers previously vested exclusively in the organs of our national governments to the International Criminal Court. This vesting of what Hogan and Whyte term ‘national, executive and juridical sovereignty to the International Criminal Court’ mandated a referendum. The main issue emerging is whether the intergovernmental regime purports to vest control over the  implementation of our budgetary policy to the institutions it charges with enforcement. The trigger for a referendum is vesting of control over, or transferring, national executive functions.

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The student Law Society of University College Cork will host a keynote address from Michael Mansfield QC, tomorrow, Wednesday, 7.30, in Boole 4, UCC.

Michael Mansfield is a prestigious and prolific British barrister, who has represented defendants in criminal trials, appeals and inquiries in some of the most controversial cases the UK has seen.  These include representing victims at the Bloody Sunday inquiry and the Birmingham Six, who were released nearly sixteen years after being wrongly convicted and the successful representation of Fatmir Limaj, the Deputy Prime Minister of Kosovo at the International Criminal Tribunal for the Former Yugoslavia in The Hague. He was awarded Legal Aid Lawyer of the Year award in 2010 by the Legal Aid Practitioners Group. He has recently taken prominent stands on issues such as controversial kettling tactics and on environmental ‘crimes’ in international law

What Just Happened?

President Abbas has submitted the application for a granting of Member State of the United Nations status to Palestine.

The Secretary General has forwarded the application to UN Security Council which is the body which initially adjudicates on its validity. Under the UN Charter, the admission of a new Member state is ‘effected by a decision of the General Assembly upon the recommendation of the Security Council”. The decision is to be made according to provisions of Article 4(1) of the Charter which stipulates that membership is open to ‘all peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the organization, are able and willing to carry out these obligations’.

According to the International Court of Justice, no other conditions or requirements may be attached to membership apart from this (First Advisory Opinion of the Internatonal Court of Justice, Conditions of Admission of a State to Membership in the United Nations).

If the Security Council motion to approve the application is vetoed, what would follow within the U.N. system? Read Full Post »

The Response of the Holy See to Ireland is a dense document defined as much by its omissions as by its technical terminology. Here, I want to evaluate its engagement with the central issue: the degree to which the bureaucratic architecture of the Church facilitated or failed to tackle abuse, by omission, by cultural practice and political pressure. The latter three categories are carefully used. It is clear from the response that the Holy See would like the discussion to relate to formal authority: the authority to take decisions (seen as belonging to local bishops), the authority to bind (something denied to relevant documents). For them, illegitimate interference with Ireland’s domestic affairs, requires an order/directive rather than negligence/omission/insensitive practice on their part. It reviews its actions according to administrative process, not in terms of its obligations to provide, and collaborate with Ireland to ensure, effective rights protection. Read Full Post »

In the aftermath of the publication of the Report into Child Sexual Abuse in the diocese of Cloyne, the status and nature of Irish diplomatic relations with the Holy See have come into sharp focus.  The exceptionally strong findings that the Holy See’s dismissal of the Irish Church’s framework guidelines as a “study document” was “entirely unhelpful” in its impact on practices in the diocese have provoked a direct government response. The report accuses the Holy See, through this secret letter to bishops, as having given comfort to dissenters to who did not wish to implement the guidelines.

The Holy See is currently party to various conventions including, most controversially, the Convention of the Rights of the Child 1989 and the Vienna Convention on Diplomatic Relations 1961. These now represent clear gateways for Ireland in ensuring the accountability of the Holy See. Read Full Post »