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.

First of all, to set the scene, I would recommend reading the piece by Carol Coulter from this morning’s Irish Times which draws upon Dr. Gavin Barrett’s and Professor Gerry Whyte’s views on the referendum question. I want to use the blog format to provide a couple of posts, so I am going to concentrate here on analysing one of the core parts of the Treaty’s text. Later on, I’m going to talk about the Crotty judgment and how the Supreme Court will attempt to approach the issue of protecting and defining the value of sovereignty in Ireland’s constitution.

Issue 1: Does Article 3(1) of the Treaty require Ireland to place the debt brake rule into our Constitution or can it be done using legislation?

*Note: If the answer is the Constitution, start preparing the electoral posters.*

So Article 3(2) states that the agreed European rules governing the management of budget shall:

…take effect in the national law of the Contracting Parties at the latest one year after the entry into force of this Treaty through provisions of binding force and permanent character, preferably constitutional, or otherwise guaranteed to be fully respected and adhered to throughout the national budgetary processes.

This quote to put it mildly, is a mangled mess of legalese. Let’s break down the important phrases.

1. ‘binding force and permanent character’. Does legislation qualify as permanent or binding? All legislation created by the Parliament can be amended or revoked by the Dail. It’s worth noting as well that a Constitution isn’t necessarily ‘permanent’ either of course, it can be amended by referendum, but a constitutional provision would ‘bind’ the Dail the final decision-maker on budgetary matters.

A separate interpretation is that the use of the word ‘permanent’ could refer to the idea that the rules and commitments contained within the legislation would not be time limited e.g. that it stops the government passing a law saying Ireland would keep a balanced budget for the next five years, and makes us commit to doing it for all time. This is I think why Whyte and Barrett in the Irish Times this morning can legitimately differ in their interpretation.

2. ‘preferably constitutional’: This seems promising from a Government point of view, especially considering that it is far more open than the earlier drafts which demanded ‘constitutional or equivalent’. That latter phrase would have guaranteed a referendum. But ‘preferably’ seems to soften the demand. But that is only an appearance not a guarantee. Chancellor Merkel herself indicated in her post summit press conferences that it may have been included to cover states without constitutions or to accommodate different constitutional cultures, and that Ireland could require a referendum. It is open to an Irish or International Court to find that the ‘preferably constitutional’ phrase is an accessory to ‘binding force and permanent character’, and doesn’t open up the possibility for us to use legislation –  a form of law which lacks that permanent character. Just to note also that any attempt to innovate, and to pass a unique form of special legislation which could not be amended or revoked for even a short period, would be clearly unconstitutional.

3. ‘or otherwise guaranteed to be fully respected and adhered to throughout the national budgetary processes’

I haven’t yet read anyone address this last phrase in commentary. For restrictions on Ireland’s debt ratio to be ‘fully respected and adhered to’ throughout the national budgetary process, the Dail itself would have to obey the rule when it votes through the Budget. This last clause contains the word ‘otherwise’, which indicates that the purpose of the article as a whole is to ensure the full removal of any possibility of going against the rules in the budgetary process. The implication may be construed that the Dáil is to have its freedom of action removed. If this interpretation is taken, it is clear that our sovereign powers are being transferred and a referendum must occur, which I will explore that more fully in my next blog on how the Supreme Court will interpret the idea of sovereignty under Ireland’s Constitution.

Understanding How to Interpret Treaties in International Law

We have ambiguity, and an important point for anyone involved in trying to access a referendum or avoid it, that as this is an intergovernmental treaty, it is subject to the rules of general public international law relating to Treaty interpretation.

So the first rule of identifying the content of a treaty is to read it according to the ordinary meaning given to the words. We attempted this above, and came to a number of possible interpretations. Under international law, the next thing we must do is to look at the words of the treaty in the light of its overall ‘object and purpose’. The object and purpose of the Treaty as a whole includes the 3 page long preamble, clearly the aim is to ensure an effective debt brake rule. In addition, international law requires us to interpret the words in order to give the Treaty ‘maximum effectiveness to the treaty’ – clearly a debt brake rule would be most effective if it was in the Constitution where it could only be changed with great difficulty.

These rules are counterbalanced by a need to take into account the intention of the parties when writing the Treaties. So in order to help its interpretation along, the Government should have ensured that throughout drafting process, it was common knowledge that the clause was drafted with the intent to avoid a referendum in Ireland. Reference to this in the preparatory materials, official record of discussions and public statements by relevant countries will boost this case. At the political level, I would be intrigued to find out the extent of international legal knowledge of those Irish participants at the summit – the negotiations were not simply a matter of diplomacy but of defending Ireland’s interests. Was the Government sufficiently aware of the importance of extracting direct statements about the intention of the clause from each government signing up to the Pact?

Conclusion

The fact that there are a number of possible interpretations of the obligations Ireland has signed up to under Article 3(2) is a matter of grave concern. Let’s say the Supreme Court decides that the Treaty permits Ireland to use legislation to pass the debt brake. If later, an International  Court (whether the ECJ, the ICJ or other body), decides to interpret Article 3(2) differently, it could be found that Ireland is in breach of the Treaty. It was also a concerning development that access to stability funds from the European Stability Mechanism is going to be linked to the Fiscal Pact. The European Stability Mechanism Treaty was signed yesterday, and it states not just that we must ratify the Pact to receive funds from the ESM, but that, after an initial one year period, our compliance with Article 3 is required to access fund.

So let’s say the government implements the debt brake by legislation, and the Supreme Court allows this. Now imagine a scenario where financial conditions are so dire in Europe, that  France or Germany want to find a way to deny us access to funds. They could take a case that Article 3(2) requires a constitutional debt brake, and without it Ireland is in breach of the Treaty and is therefore not entitled to funds from the European Stability Mechanism. It would be no defence for the government to say it was obeying its domestic legal requirements and the advice of our Supreme Court in attempting to implement the debt brake through legislation (this is a rule of general public international law). This might be an informal point that the pro-referendum side could use in any litigation; that the Supreme Court should be cautious if in reaching its decision and that a referendum is the safer course as an international court may not follow the Supreme Court’s interpretation of Article 3(2).

In my next blog post I’m going to pin down what the existing Supreme Court case-law tells us about how this will ultimately play out. I would be delighted to hear people’s reactions to the above, I haven’t yet roadtested this interpretation with the public or colleagues here on HRinI!

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We are very pleased to feature this guest contribution from Catherine Kenny, a researcher on an IRCHSS-funded Senior Fellowship project, led by Professor Siobhán Mullally, University College Cork. The research team includes Dr Cliodhna Murphy, Post-Doc Fellow. The project will focus specifically on recent developments in the EU and selected Member States: Ireland, UK, France, the Netherlands and Sweden.

In recent years there have been significant developments in the expansion of international human rights standards for the protection of non-citizens. This blog post examines the progressive development of international standards relating to the rights of migrant domestic workers, a group that is marginalised not only because of their frequently precarious migration status, but also because of the often hidden and isolated nature of their work. In 2011 the ILO adopted a Convention and Recommendation on Decent Work for Domestic Workers. The rights of migrant domestic workers were the subject of the first General Comment adopted by the UN Committee on the Rights of Migrant Workers and their Families in 2010. Domestic work, and the particular challenges faced by migrant domestic workers, is also addressed by the UN CEDAW Committee in their 2009 General Recommendation on Women Migrant Workers. These developments and their implications for EU migration law and policy is the subject of a recently launched Irish Research Council Senior Fellowship project, led by Professor Siobhán Mullally, University College Cork. 

The numbers of domestic workers has increased significantly in recent years.  In Europe, the increased labour force participation of women, the ageing population in Europe and the consequential need for long-term care, the privatisation of social services and the decreased role of the State in the provision of care, are key factors in the increase in demand for domestic workers.   Statistics published by the International Labour Organisation (ILO), show that at least 52.6 million women and men over the age of 15 were engaged in domestic work as their main occupation.  Women comprise 83% of the total domestic workers worldwide. Many countries including some European States do not recognise domestic work as work and domestic workers do not enjoy the same protections under labour legislation as other workers.

In June 2011, governments, trade unions, and employers’ organizations that make up the ILO overwhelmingly voted to adopt the  Convention concerning Decent Work for Domestic Workers, supplemented by a Recommendation.   While only one Government voted against the adoption of the Convention (Swaziland), eight abstained including the UK and the Czech Republic.  The Czech Republic had during the drafting process supported the adoption of a (non-binding) Recommendation only. The UK representative explained that although the UK had legislation in place to protect domestic workers, it was not always appropriate to treat domestic workers identically to others which the Convention requires. The decision not to support the adoption of the Convention was widely criticised NGOs and other civil society groups in the UK..

The Convention and Recommendation were adopted after many years of campaigning and lobbying by workers organisations and other civil society organisations worldwide including the Irish Congress of Trade Unions (ICTU) and the Migrant Rights Centre of Ireland (MRCI).  The ICTU in its response to the draft Convention advocated in particular for legal standards to:  protect  domestic workers in diplomatic households; ensure that the right of domestic workers not to be required to undertake a HIV or pregnancy test and not to reveal their HIV or pregnancy status; include au pairs within the scope of the Convention and; require the adoption of  ‘dissuasive sanctions’ to protect domestic workers from having  passports and other documents retained by employers.

The MRCI highlighted the importance of ensuring that the Convention addressed gaps under existing international law and national legislation regarding the protection of domestic workers. It also advocated for attention to protecting access to social security benefits including maternity provisions.  Other issues raised included the need for limitations on payments in kind and equality of treatment with other workers in relation to occupational health and safety protections.

The Convention is significant for a number of reasons.  It defines domestic work and domestic workers, until the adoption of the Convention there was no internationally accepted definition of domestic work or domestic workers and some states did not recognise domestic work as work. However the Convention does not regard those who undertake domestic work occasionally or sporadically and not on an occupational basis as a domestic worker and article 2 permits states to exclude from its protection ‘limited categories of workers in respect of which special problems of a substantial nature arise.’

Article 3 of the Convention obliges Members to take measures to promote, protect and realise the rights of domestic workers to freedom of association and effective recognition of collective bargaining rights and other fundamental rights at work.  The right of domestic workers to form organisations or join organisations of their own choosing is also recognised.  Many domestic workers have been prohibited from joining trade unions. The Convention reaffirms minimum age standards set out in other ILO conventions and stipulates that states must take measures to ensure that domestic workers under 18 are not deprived of their rights to education and training (Article 4).  States are also required to take measures to ensure that receive effective protection against abuse, harassment and violence (Article 5) and that they will enjoy fair terms of employment and decent working conditions (Article 6).

Under the Convention domestic workers must  be informed of their terms and conditions of employment in an understandable manner, preferably through written contracts of employment, however, these shall only be provided where possible (Article 7).  States are also obliged to take measures to extend that minimum wage provisions (Article 11) and social security protection (Article 14) to domestic workers. Domestic workers will also receive equal treatment with other workers in relation to hours of work, overtime, rest periods and annual leave (Article 10). The Convention also provides that migrant domestic workers, who are recruited in one country for domestic work in another, will be provided with contract of employment setting out the terms and conditions of employment before the worker crosses national borders.  The contract must be legally enforceable in the country where the domestic work is to be carried out (Article 8). Article 9 provides that domestic workers are free to agree whether or not to reside in the home of their employer.

The rights of domestic workers are now on the international agenda. States can no longer ignore their responsibilities to domestic workers including migrant domestic workers. In 2005, Ireland adopted the Code of Practice Protecting Persons Employed in Other People’s Homes. Much remains to be done, however.  Unions have urged early ratification which they believe will build on the Code of Practice and extend to domestic workers their full working rights.  The MRCI while welcoming developments including the decision of the National Employment Rights Authority (NERA) to inspect private homes, continue to have concerns a number of areas including the lack of legal immigration channels for migrant domestic workers and situation of those working in diplomatic households and  are campaigning to ensure that national legislation reflects the provisions set out in the Convention.  The Government has not yet however given any indication of when ratification may take place only to confirm that it will be considered in the context of the State’s standard approach to the ratification of international treaties including whether any changes may need to be made to existing legislation.

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The old adage that a week is a long time in politics is one that is readily accepted in liberal polities, though it reflects more the rapid changes of personal power due to scandals and party shifts than the glacial progress of modern politics. It may explain the rather exaggerated expectations of what can be achieved in the space of a year in societies with a far weaker state apparatus. Yesterday marked the one year anniversary of the beginning of the Egyptian revolution and has attracted tens of thousands of people gathered in Tahrir Square to mark the event that led to the toppling of former President Hosni Mubarak. Despite a significant decrease in the quantity of human rights abuses and the very significant fact that last week Egypt inaugurated its newly elected parliament in which Islamists of various colours took 73% of the vote, the progress is Egypt has been treated with a large degree of scepticism among the western media media and NGOs. The primary reason for this is of course the apparent endurance of repressive rule by the army which has continued some of the practices of the prior regime. The military junta (Supreme Council of the Armed Forces, or SCAF), headed by effective head of state Mohamed Hussein Tantawi, announced on 13 February that the constitution would be suspended, both houses of parliament dissolved, and that the military would rule for six months until elections could be held.. Although Mubarak resigned, the protests have continued amid concerns about how long the military junta will last in Egypt; there is a widespread fear in Europe and the United States that military will rule the country indefinitely, despite a paucity of evidence to suggest this is intended. While the junta, like all juntas, is depersonalised and opaque to the degree that its intentions cannot easily be ascertained, the process in Egypt bears affinities with the successful gradual removal of the Argentine junta, the Pinochet presidency and the process by which the Eastern Bloc’s Communist parties toppled their leaderships, retained power for a period before ceding that power. These historical precedents (democratise in haste, repent at leisure) may be contrasted with the relatively superficial view of how political transition from authoritarianism we see in the media which largely condition our view of what is occurring.

A notable example of the profound scepticism is the Guardian, where the preference for anything “bottom-up” and participatory trumps anything so bourgeois and recherché as a parliament and political parties, was entirely predictable, portraying the thousands in the square as utterly betrayed by the Supreme Council of the Armed Forces. Treatment of the transition has also been hostile in the Telegraph, Irish Times and Independent, all of whom show scepticism over SCAF’s intentions and contrast the liberal protesters with the Islamists that people actually voted for.  (One of the curiosities of the processes has been the disparity in the coverage of one Islamist party who resist a brutal regime, namely Hamas, with that of another, the Muslim Brotherhood, who have not attracted anywhere near as many garlands). Others are more sanguine.

In reality, the Egyptian revolution is progressing little slower than transitions in Eastern Europe and Latin America twenty years ago. When one compares the comparative lack of democratic history and institutions there, the modest progress has been more than might have been expected last January. SCAF has of course breached their promise to lift the emergency laws and hand over power to civilian rule within six months, but the emergency laws have been lifted recently and progress towards civilian rule has been relatively brisk. To further appease democracy activists who want the country’s Supreme Council of the Armed Forces to cede power to a civilian government, the military pardoned and released this week nearly 2000 prisoners arrested and tried in military courts since Mubarak was swept from power. The foot-dragging by SCAF reflects less an intention to impose military rule, but rather a bid to secure the military’s enormous economic perquisites enjoyed since Nasser and Sadat. This of course in not commendable and far from edifying, but hardly represents a long-term commitment to retaining political monopoly and is not what the assembled protestors primarily object to. Far from demonstrating the failure of transition, the protests are better understood not as a rejection of the last twelve months but as part of a useful process of pressurising reform. At yesterday’s protests, Ahmed Saif al-Islam, one of Egypt’s best-known human rights lawyers, who was detained during the revolution, said the speed with which the army agreed to hand over power to civilian rule would depend on how many people turned out and how much pressure it felt under as a result.

The more impatient response we see in the western media and NGOs reflects a lack of understanding of how transitions from authoritarianism typically work. As Heine, Carothers and other have argued, pacted transitions driven by the decline of authoritarian power typically have three phases – the abertura (opening) where some liberalisation is forced by pressure from below (civil society and the twitterati) and abroad, followed by the actual process of transition defined politically by pacts, agreements, elections, referenda, constitutions, and peace treaties, and finally consolidation where danger of revanchism recedes and institutions of democracy take root. The process often takes years, but progress is apparent. A less jaundiced narrative of what is occurring is provided by Wael Ghonim, the formerly anonymous administrator of an influential Egyptian Facebook page, We Are All Khaled Said, who was forcibly disappeared a year ago. As he puts it: “I’ve learned in the past few months that the revolution is a process and not an event. But I’m quite optimistic despite all the challenges and issues we’ve got to deal with. Egyptian youth are empowered and no longer scared to talk and express their views. Egyptians for the first time in almost 60 years have voted in free and democratic elections. And politics is no longer exclusive to the dictator and his followers. What we’ve achieved today would have been impossible without the sacrifice of the great Egyptians who took to the streets and put their lives at risk for a better Egypt. This is a country recovering from 30 years of corruption and more than 60 years of military rule, so of course there will be challenges. I see positive signs in the direction of democracy but am still awaiting the most critical point of the new phase—the transfer of governance from the army to the elected president and parliament.”

Transition is not something that should be rushed, as even the most cursory glance south at the Sahara or east towards Iraq would demonstrate. There is as yet a lack of significant evidence to suggest the military will not hand over power, but much to suggest the cleavages in Egyptian society between a vocal and active liberal minority behind the revolution and the more conservative and organised Islamic groups make a slow, deliberative processes a necessity. It is worth pointing out that there were no police or troops posted at Tahrir Square over concerns that their presence would provoke violence. While no major clashes were reported, there were clashes between Muslim Brotherhood and anti-military protesters ran competing soundstages. In such a divided society, a slow, deliberative transition may yield better results than a rapid liberalisation. Tantawi et al would not be the first human rights abusers to midwife a successful process of political change. The junta are deeply unappealing, but revolutions can only be made against enemies, not friends.

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Balthazar Garzon, the Spanish judge who served on Spain’s central criminal court and the  Juzgado Central de Instrucción No. 5, which investigates the most important criminal cases in Spain, including terrorism, organised crime and money laundering, yesterday went on trial over accusations that he had abused his powers to investigate atrocities committed during the Spanish Civil War. (For a brief bio of Garzon, see here, for coverage of the case see here, here and here). Garzon will be familiar to many for his role in ordering the extradition of Chile’s former dictator Augusto Pinochet from Britain to face charges of human rights abuses. He has also pursued members of the former dictatorship in Argentina, indicted Osama bin Laden and probed abuses at the US prison for terrorism suspects at Guantánamo Bay in Cuba. Domestically, he spearheaded Spain’s fight against political corruption and against terrorism by ETA. The phrase “crusading judge” are thrown about quite lightly but it is clear that he meets the criteria.

At the root of controversy is the investigation that Mr Garzon began in 2008 into the disappearance of 114,000 people during Spain’s 1936-39 civil war and Franco’s subsequent dictatorship. It  was the first to look into crimes under international law during the Spanish Civil War and the early years of Franco’s rule. In May 2010, Spain’s General Judicial Committee suspended Garzón after the Supreme Court accused him of wilfully breaking a 1977 amnesty law. The high-profile 56-year-old is charged with exceeding his powers on the grounds that the alleged crimes were covered by an amnesty agreed in 1977 as Spain moved towards democracy two years after Franco’s death. It is understood that if convicted, he would not go to prison but could be suspended from the legal profession for up to 20 years, putting an end to his career. Garzon argues the acts were crimes against humanity and therefore not subject to the amnesty which was agreed to by Spain’s main political parties. A number of human rights organisations, including Amnesty International and Human Rights Watch, have criticised the trial.  Amnesty International has called the proceeding against the judge “a threat to human rights and judicial independence.”

The outrage on the part of the INGO community is predictable given their persistent reluctance to distinguish between democratic amnesties in the likes of Uruguay and Spain and those built around limited criminal sanctions or truth commissions, on the one hand, and self-amnesty by the likes of Pinochet on the other. In 1977, the first democratic government elected after Franco’s death passed the Law 46/1977, of amnesty, which exempted of responsibility to everyone who committed any offence for political reasons prior to this date. This law allowed not just the commutation of sentences of those accused to attack the dictatorship, it secured that those crimes committed during the Francoism would not be prosecuted. The amnesty was widely welcomed at the time as a means of securing the transition. The risk from revanchist forces was made apparent with Antonio Tejero’s attempted coup on 23 February 1981. While Pedro Nikken of the IJC argues Garzón had been right to ignore Spain’s own 1977 amnesty law when investigating Francoist repression on the basis that “[i]nternational human rights law comes into play when national laws do not provide enough protection”, this present-day interpretation of the law is somewhat anachronistic – the amnesty law was passed to ensure there would be no more victims of human rights abuses in Spain, not to deliberately short-change those already present.

There is widespread dispute as to whether amnesty was permissible for crimes against humanity in 1977, but even assuming it was, the Garzon case illustrates the tension between ‘hard’ international law obligations to prosecute certain crimes, and the utility of amnesty to ‘political objectives of national reconciliation. Thirty five years later, many of the rationales for criminal punishment which once can employ to counter the national interest in stability have diminished. Retribution is surely impossible given the deaths of the most senior figures in the Franco regime have died. Social pedagogy and expressivism have diminished given the obvious national commitment to human rights and democracy, while the move is hardly calculated to promote reconciliation. Deterrence must be discounted as a justification (all it may deter are other leaders who wish to trade a comfortable retirement for the dismantling of abusive state structures), while it is hard to make a compelling argument about the utility of revealing the truth about the past when historians are amply suited to do so. What Garzon is left with are purely positivistic arguments with an unsteady basis in customary international law and a natural law argument on the intolerability of such abuses. In between is the realm of sober, democratic judgment where a more nuanced position might suggest the wisdom of letting sleeping dogs lie.

The matter is somewhat complicated by the fact that two other separate cases against Garzon for judicial misconduct are underway, one heard last week at the Supreme Court over illegal wiretapping in a corruption case and another over allegations that he shelved a tax lawsuit against Spain’s biggest bank Santander after receiving indirect payments from it for seminars he delivered in New York. It is to be hoped on the balance that Garzon succeeds in the trial, but the uniform hostility to negotiated transitions is dismaying. Many Syrians or Burmese in the present would gladly settle for Spain’s 1977 law – vigorous attempts to undo these admittedly sorded bargains from the safety of the future or a foreign country will do little to hasten the end authoritarian regimes.  Garzon may yet get to put Francoism on trial – more than a dozen victims of Franco’s repression, or relatives of those who were killed, will give evidence.

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As part of its continuing development, the School of Law and Government at Dublin City University intends to appoint a Professor in Law. The appointment, for a fixed term of ten years, will commence on 1 September 2012. This is a new appointment and is an indication of a firm commitment by the university to the development of law at DCU.

Applications are welcome from candidates with a demonstrated track record of publications in high impact academic journals and who are committed to the development of teaching and research in law. The successful candidates will be expected to play a major role in providing leadership and strategic direction to law in DCU. They will make a substantial contribution to the development and delivery of the School’s existing taught programmes, in particular the BCL(Law and Society) and also in the planning and delivery of future developments in law. They should have a track record in leading research teams and a commitment to the generation of external research funding for the school.

Successful candidates will possess a PhD and will have experience of teaching and research in law in a university environment. They will also have a firm commitment to excellence in teaching and learning. We welcome applicants with research interests in any area of law, but the school has a particular interest in the development of teaching and research to complement the focus of our BCL degree – on the interaction between society and the law – and in the area of socio-legal studies.

The school hosts two research centers, the Socio-Legal Research Centre and the Centre for International Studies (which has a stream of work on international law). Successful candidates will be expected to make a significant contribution to the research profile of the School. They will be personally committed to world-class research and publication in well-regarded, international academic peer-reviewed journals and will also be expected to play a role in leading collective research teams and in attracting externally funded research projects. The university is committed to high quality research and supports its staff in such work.

More information on the School, including specific areas of research expertise and details of taught programmes, may be found here, here and here.

Appointment may be on a contract basis of up to 10 years in duration.

Starting Date: 1 September 2012

Salary Scale: €113,604 – -€145,952

€102,244 – €131,357*

*Applies to new entrants to the public sector after 01 January 2011

Appointment will be commensurate with qualifications and experience.

Closing Date: 24th February 2012

Informal Enquiries to: Prof. Robert Elgie, Acting Head of School of Law & Government

E-mail: robert.elgie@dcu.ie

Tel: +353 (0)1 700 7720

Application forms are available here and from Human Resources Department, Dublin City University, Dublin 9. Tel: (01) 700 5149; Fax: (01) 700 5500 Email: hr.applications@dcu.ie

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Last Sunday Adrian Weckler had a piece in the Sunday Business Post reporting a conversation with Minister for State, Séan Sherlock (left), about his intention to introduce legislation that would provide for extensive ISP blocking in Ireland (summary on TJ McIntyre’s blog). Detail is somewhat light, although unsurprisingly so really as the provisions are to be contained in a Statutory Instrument and therefore will not be susceptible to open parliamentary debate and contestation. Minister Sherlock is engaging extensively on this matter on his twitter page, and argues that the SI simply clarifies the law in light of the decision in EMI v UPC, the difficulty seems to be in terms of clarity and scope. In essence, the idea is to allow for websites that carry copyrighted material to be blocked, which on the face of it seems to be a laudable enough objective. After all, the holder of intellectual property does require protection from piracy, and it is quite legitimate for the state to undertake steps to prevent illegal copyright infringement. The core difficulty from a human rights perspective is the potential scope of this power.

As my colleague TJ McIntyre noted in his three posts on the proposals (to be found here, here and here) it is quite conceivable that a broadly worded power of this nature would permit of the blocking of sites where there is incidental copyright infringement but whose primary purpose is not the facilitation of such infringement. Examples certainly include Facebook, YouTube and Twitter, but there are undoubtedly more. These sites may carry copyrighted material as a result of user activity, but that is incidental to their purpose and they have such significant capacity for information sharing, the mobilisation of the populace, and the progressive realisation of rights (especially against repressive regimes, laws and proposals) that to block them for such incidental infringement would seem prima facie disproportionate.

This may well result in a violation of individual rights, which the European Court of Justice addressed in respect of filtering processes in Sabam v Scarlet:

the protection of the fundamental right to property, which includes the rights linked to intellectual property, must be balanced against the protection of other fundamental rights…in the context of measures adopted to protect copyright holders, national authorities and courts must strike a fair balance between the protection of copyright and the protection of the fundamental rights of individuals who are affected by such measures.

It is quite legitimate for the state to attempt to introduce a mechanism that would fairly balance the intellectual property rights of copyright holders and the freedom of expression and right to receive information of internet users in Ireland. Progressing this process through under-deliberated statutory instrument is an inappropriate approach. Fully debated legislation with extensive consultation and a full rights-related impact assessment would be preferable. The Minister seems inclined to introduce this Statutory Instrument and attendant power by the end of January or, at the very least, quickly thereafter. The idiom “more haste, less speed” comes to mind. It is of course possible that an SI would be applied and interpreted in a manner that ensures proportionality, and we know from experience that full parliamentary consideration is no guarantee of a rights-proofed piece of law, but I think it’s fair to suggest that a fuller and–crucially–slower deliberative process is relatively more likely to generate better law.

A website with information and a petition has been established: stopsopaireland.com

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Earlier this month, the Minister for Justice issued a statement which offered an insight into the effect that the recession has had on the immigration and asylum system in Ireland. While reflecting on measures that were implemented in 2011, the statement also outlined law and policy changes in the area of immigration and asylum for the coming year. What is clear is that such areas continue to be matters of concern for the government, despite the fact that there has been a significant drop in the number of those actually entering Ireland, particularly in the case of asylum seekers. The statement also indicates that the government is intending to introduce a number of changes to the manner in which citizenship is acquired in Ireland, signalling a sudden renewed interest in issues related to integration what is now expected of those who wish to become Irish by naturalisation.

In the statement, the Minister revealed that he aims to finally introduce in to law the Immigration Residence and Protection Bill, which has been under discussion for close to a decade . One of the provisions of the IRP Bill was the establishment of a language test for the acquisition of permanent residence status. In his recent statement, the Minister has expressed that he intends to introduce both a language and civics test as requirements for attaining citizenship in Ireland. The Minister however did not indicate as to whether a similar test would apply for the acquisition of permanent residence status as provided for in the IRP Bill.

Apart from the introduction of the citizenship ceremony over the summer for naturalised Irish citizens, it has been some time since the government has made explicit reference to issues relating to the process of integration for new members of the population in Ireland. The last official statement on integration was Migration Nation, published in 2008, setting out the government’s commitment to the goal of integrating new communities in Ireland. The integration statement emphasised the importance of all sectors of society, including the state, in supporting immigrants and refugees in integrating in to Irish society. At about the same time the statement was released however, major cutbacks in language classes for immigrants and refugees were implemented. While the government had officially expressed an intention to foster the integration of new communities in Ireland, in reality, the necessary support was not being mobilised.

The proposal by the Minister to introduce a language and civics test for those applying for citizenship in Ireland simply highlights the gap that currently exists between the political rhetoric relating to integration and the actual support that is provided for the members of Ireland’s new population. While there is no denying that a good grasp of English will improve an individual’s ability to successfully integrate in to Irish society, it is unfair to preclude an individual from gaining citizenship on the basis of language competency if the state makes it increasingly difficult for such persons to access suitable classes.

The cost of a citizenship application in Ireland currently stands at €175 for all applications. On receipt of the certificate of naturalisation, a charge of €200 is payable by those who have made an application on behalf of a minor, or an application made by a widow or widower of an Irish citizen. The fee is waived for refugees and stateless persons, however a fee of €950 applies to all other recipients of the certificate of naturalisation. For these individuals, the overall cost of naturalisation is over €1,000. Therefore, anyone in the latter category who decides to apply for citizenship in Ireland does not do so lightly. The financial requirement alone already represents a major barrier to acquiring citizenship in the state.

When there was a spike in immigration in Ireland, the state struggled to come to terms with the idea of new communities establishing themselves as part of the population. What is more, it never seemed to be fully accepted that such people would remain in Ireland on a permanent basis. Now, even after the economic crisis, there are people without Irish citizenship living in the state who envision that they will remain in the country for the foreseeable future. This however appears to have only recently become apparent to the government.

As mentioned, in 2008, the government expressed its commitment to the integration of refugees and immigrants as something that needed to be fostered in many sectors of society. By introducing legislation which regulates the acquisition of citizenship through language and civics tests without any indication that language classes will be made more available or that existing classes will be funded to deal with the increase in demand, the government has essentially distanced itself from the practical issues associated with the integration process. By avoiding any engagement with such issues, the government has placed the onus firmly on the individual who is making an effort to naturalise.

The fact remains that introducing tests for naturalisation does not actually deal with problems that immigrants and refugees in Ireland face as new members of our population. Requiring applicants to complete language and civics tests seems needlessly symbolic when so many immigrant and refugee children are not receiving the necessary language support to bring them up to speed with their peers, and how the economic downturn has significantly affected the ability of immigrants and refugees living in Ireland to gain access to employment. Like many integration policy documents published in other states at the time, Ireland’s Migration Nation defined integration as a “two-way process”. It would however appear that the government still fails to live up to its own definition.

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We are delighted to welcome this guest post from Verona Ní Dhrisceoil. Verona is currently completing a PhD in the area of law and language rights in University College Cork, under the supervision of Professor Siobhan Mullally. Her PhD has been funded by the Higher Education Authority.  Verona has worked as a legal researcher for the Law Reform Commission of Ireland and the Irish Penal Reform Trust, and in 2010, was awarded a Fulbright Scholarship.

Recent government announcements proposing a Review of the Official Languages Act 2003 and a merging of the Office of the Language Commissioner with the Office of the Ombudsman have brought Irish language rights issues to the forefront of public and academic debate. The two separate but related proposals arise as part of the government’s National Plan for Recovery.

In March 2011, the government published an economic recovery plan titled Towards Recovery: Programme for National Government 2011-2016. In it, seven pledges were made to the Irish language under the An Ghaeilge agus An Ghaeltacht section. With specific reference to legislative protection, the Programme stated that a review of the Official Languages Act 2003 (OLA) will be carried out “to ensure expenditure on the language is best targeted towards the development of the language and that obligations are imposed appropriately in response to demand from citizens.” On this basis, the Department of Arts, Heritage and the Gaeltacht, launched A Review of the Official Languages Act, in November 2011. As part of the review process, the Department has invited submissions evaluating the implementation of the Act, from interested parties. Submissions are to be made to the Department on or before the 31 January 2012. As part of the consultative process, the Department has also published a bilingual survey on its website to afford respondents the opportunity to indicate their views on the provision of public services in the Irish language.

The proposal to merge the Office of the Language Commissioner with the Office of the Ombudsman arises as part of the Public Service Reform Plan, also published in November 2011. In it, the Government announced that up to 50 state bodies will be abolished or amalgamated in 2012. At this stage it is not clear how an amalgamation of the Office of the Language Commissioner with the Office of the Ombudsman would work in practice. The announcement has been criticised by many Irish language organisations and leading academics in the field. Conradh na Gaeilge, for example, suggest that the proposal to merge the two offices is “the most backward decision on the Irish language for many years”.

This post suggests that there are pros and cons to the recent reform proposals. There have been many difficulties with the implementation of the OLA and therefore a review is welcomed. The proposal to merge the Office of the Language Commissioner with the Office of the Ombudsman, however, is considered to be a retrograde step in Irish language rights policy. There is no logical basis to merge the two offices, particularly when there is a strong possibility that an amalgamation could in fact, add costs rather than reduce costs thus defeating the primary purpose of the programme for recovery. (Seanad Éireann Debates, 24 November 2011, Vol.211, No.12). It is hoped, that during the review of the OLA, the government will see sense and abandon this proposal.

The Official Languages Act 2003 was signed into law on the 14^th June 2003. It emanates from a constitutional base, from decisions of the superior courts, and from demands from Irish language communities, that their language rights be clearly confirmed in law. Recognised as the first, formally articulated, language policy document since the establishment of the Free State, the Act outlines the obligations and duties on the state to provide public services in the Irish language. The Act imposes duties on public bodies to enable people to communicate with the state in either the Irish or English language. It also demands the publication of certain core documents in both Irish and English. The Act provides for the appointment of a Language Commissioner and the Office of the Language Commissioner, to supervise and monitor the implementation of the Act. Within annual reports, the Language Commissioner can publish adverse findings on the implementation of the Act. Finally, the Act ensures the unrestricted right to use the Irish language in court proceedings and in the Oireachtas.

The primary objective of the OLA is to ensure better availability and a higher standard of public services being made available in the Irish language. This objective is achieved or at least hoped to be achieved, by placing a statutory obligation on Departments of State and Public Bodies to make specific provision for the delivery of services in the Irish language in a coherent and agreed fashion through a statutory planning framework, known as a language scheme.

Elements of the Act that are working effectively include the regulations regarding the use of the Irish language in the stationary and signage of state organisations. The Irish language is also more prominent on road signs, with the Act providing a legislative framework for the State’s official placenames. However, Annual Reports from the Office of the Language Commissioner, as well as a recent Report from the Office of the Language Commissioner reviewing the Act highlights that there are a number of weaknesses in the application of the Act and thus the need for reform.

Some of the weaknesses include the delay in the implementation of language schemes by public bodies and the lack of staff in the public service competent in the Irish language. It is suggested here, that the second factor in particular needs to take priority in the review process. The requirement to have Irish language competency to work in the Civil Service was scrapped in 1974 and since then the level of Irish within the public service has been extremely low.

A return to a compulsory Irish language requirement is not advocated but it makes perfect sense that in order for an office to deliver Irish language services in the public service, Irish language competency is necessary. The objective of the OLA is to improve and increase the provision of Irish language services in the public sector. How can this happen without a sufficient number of staff being competent in the language? Detractors may argue that reform to recruitment within the public service on the basis of Irish language competency would bring financial burden on the state. I disagree. In the long run, it will save on government finances.

In the review by the Department of Arts, Heritage and Gaeltacht, which will begin in February, the issue of Irish language competency should be prioritised. Without addressing this issue, the Official Languages amounts to nothing more than a symbolic gesture to the Irish language, with Irish language speakers finding themselves paralysed by the double bind of legislative rhetoric and reality.

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We are very pleased to feature this guest contribution from Dug Cubie, a PhD student in UCC.

Mary Robinson, President of the Mary Robinson Foundation – Climate Justice (MRFCJ), delivered a lecture at UCC’s Centre for Global Development titled ‘Climate Justice Post Durban’ on 18 January 2012. Dr. Robinson explored the outcomes of the most recent UN climate change conference, COP17, which took place in Durban, South Africa, in December 2011, from a climate justice perspective and the extent to which it addressed the needs of those most vulnerable to the impacts of climate change.  COP17, she said, was concerned with “what I believe to be the most critical issue we all face – the future of our planet. In these times of economic crisis, amid worries about our own and the European and international economies, it is not surprising that attention focuses on our immediate problems. But, make no mistake about it, we ignore the threat posed by climate change at our peril.”

Dr Robinson explained the three priorities for the MRFCJ at COP17; the legal form of a future climate agreement; food security and agriculture; and women’s leadership and the gender dimensions of climate change.

Speaking about the outcome of COP17, known as the Durban Platform for Enhanced Action, she said: “The door is open for a new international and inclusive legally binding agreement to solve the climate change problem. We have a start date, January 2012, a deadline December 2015, and a lot of work to do, barriers to breakdown and agreement to reach before then.

“Central to this will be overcoming the divide between developed and developing countries in the climate negotiations. The alliance formed between the EU, the Least Developed Countries and the Small Island Developing States at COP17 started to challenge this divide. It is a move in the right direction that will need to be nurtured and strengthened in the coming years to facilitate an ambitious new agreement.”

“We made progress on issues of importance to climate justice including gender equality and food security. Both of these reflect the Principles of Climate Justice which underpin the work of MRFCJ and help to communicate the human impacts of climate change and demonstrate the need for solutions which are informed by human rights.”

“This work is far from complete and we will continue to work on these themes inside and outside the Climate Change Convention as core elements of our work on climate justice.”

The lecture was part of the UCC Centre for Global Development’s Global Challenges Lecture Series.

Interested readers might also see the Full text of lecture and the Irish Times report, Climate issues crucial, says Robinson

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Article 2(4) of the UN Charter as supplemented by Article 51 provides strict limits on the state’s right to use force. However, it is unclear whether Article 2(4) also prohibits transnational armed groups from using force. Therefore, the question whether violent acts by transnational armed groups can be categorised as armed attacks within the meaning of the UN Charter has implications for how states are permitted to respond to violent acts by transnational armed groups and for the extent to which International Humanitarian Law regulates these acts. This post will examine whether violent acts by transnational armed groups can be classified as an armed attack under the UN Charter and thereby prohibited under International Law.

Article 2(4) affirms the fundamental principle of the U.N. Charter that disputes between states must be resolved by peaceful means:

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

There is no ambiguity in Article 2(4) as it clearly provides that the threat or use of force by one state against another state is in direct contravention of the fundamental principle of international peace and security underlying the UN Charter. Therefore, the provision suggests that war can only be waged by a state against another state and not by a non-state armed actor against a state.

The principle that armed conflict could only be conducted by states against states and not by private individuals was not firmly established until the 18^th century. In particular, Jean-Jacques Rousseau argued that:

[w]ar is … not a relationship between men, but a relationship between states, in which private individuals are only enemies accidentally, neither as men nor as citizens, but as soldiers … Each state can only have as enemies other states not men.

The principle that armed conflict can only be waged by states against states has prevailed in international legal discourse ever since and as a result, has incessantly been regarded as one of the central tenets of international law. With regard to Article 2(4) of the UN Charter, it is clear that the provision is state-centric as it does not make any reference to the right of non-state actors to use force against states or other non-state actors. In addition, the provision does not make reference to the right of states to use force against non-state actors who by their violent acts threaten international peace and security. It is argued that the reason for this reticence in Article 2(4) is that at the time the UN Charter was adopted, the potential threat posed by non-state actors such as transnational armed groups was not realised or fully understood. However, it is argued that if the drafters of the UN Charter had realised that non-state actors could be as threatening as states they would most likely have expressly condemned the use of force by and against non-state actors in order to fulfil the principal aim of the law of nations which is to eradicate the use of armed force in international relations. Therefore, despite the state-centric wording of Article 2(4), a compelling argument can be made that the provision should be extended to prohibit the use of force by non-state actors.

Article 31 of the Vienna Convention on the Law of Treaties 1969 (VCLT) would appear to support this argument. Article 31 in particular states that “[a] treaty shall be interpreted in … accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” Although it is clear that Article 2(4) is only applicable to states, it is argued that the prohibition on the use of force as specified in the provision should be extended to include violent acts by transnational armed groups. It is contended that this would be in keeping with the declared aim of the UN Charter which is “to save succeeding generations from the scourge of war,” “to ensure … armed force shall not be used” and “to maintain international peace and security” through “the removal of threats to the peace.”

Moreover, Article 51 of the UN Charter, which supplements Article 2(4), supports this argument even further by laying down an exception to the prohibition on the use of force:

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

In particular, Article 51 makes reference to armed attacks against UN member states but does not disclose whether the actor carrying out that attack must be a state. Therefore, the contention can be made that the exercise of the right to self-defence as laid down in Article 51 is not contingent upon the armed attack being carried out by a state as the phrase “if an armed attack occurs” illustrates. Indeed, Article 51 originally included the phrase “attack by another state” but this phrasing was later abandoned. The issue of whether or not the drafters of the UN Charter dropped the phrase “attack by another state” in order to facilitate self-defence operations against non-state actors is insignificant. However, what is important to note is that no state opposed the new wording of Article 51 which did not prohibit self-defence operations in response to armed attacks by non-state actors such as transnational armed groups. Therefore, it would seem that Article 2(4) as supplemented by Article 51 of the UN Charter can be understood as prohibiting the use of force by both states and non-state actors such as transnational armed groups.

A broad interpretation of Article 51 to include violent acts by transnational armed groups would therefore be in line with the fundamental purpose of the UN Charter which is to prevent international violence in all its forms. In Resolution 1368, for example, the UN Security Council supporting a broad interpretation of Article 51, acknowledged “the inherent right of individual or collective self-defence in accordance with the Charter” in relation to international terrorism. As a result, the UN Security Council legitimised the United States’ response to the violent acts by Al-Qaeda on September 11, 2001 in its territory. However, the Council went even further in Resolution 1373 by implementing measures to combat international terrorism under Chapter VII of the UN Charter and recognised that armed attacks by entities such as transnational armed groups are a threat to international peace and security. Although these two UN Security Council resolutions do not specifically refer to Article 51 of the UN Charter, they subliminally concede that a state has a right to self-defence under International Law in the aftermath of an attack by a transnational armed group.

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