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Abstract:
Since the inception of the 'War on Terrorism' the absolute prohibition on refoulement under Article 3 of the European Convention on Human Rights has been the subject of intense criticism by some European states. The United Kingdom, in particular, has argued that the principle of non-refoulement under Article 3 (i.e. that a state may not transfer an individual (regardless of the danger they may pose) to any state where there is a "real risk" of subjection to torture, inhuman or degrading treatment or punishment) is inappropriate when applied to suspected terrorists considered to pose a dangerous threat to the safety and welfare of the community as a whole. In addition, numerous European states have begun to deport individuals suspected of terrorist involvement to states with notorious reputations for ill-treatment on the basis of Diplomatic Assurances.

In Saadi v Italy - the case considered in this short note - the European Court of Human Rights firmly reasserted the absolute nature of Article 3 and held that the pre-2001 test of no-refoulement was not subject to alteration or 'balancing' on the basis of the perceived dangerousness of the individual concerned.

This case note, forthcoming in final form in the American Journal of International Law, outlines the Article 3 decision in the case and contrasts the rigour of the Strasbourg jurisprudence on this matter with the US Supreme Court's decision regarding transfer to the Iraqi government in Munaf v Geren (2008), considering whether this disparity might result in any operational difficulties in circumstances - such as Iraq and Afghanistan - where United States and United Kingdom forces are collaborating in military operations.

terrorism, war on terrorism, torture, non-refoulement, Saadi v Italy, Munaf v Geren

Abstract:
This article outlines the international legal prohibition on extraordinary rendition and considers whether, if Shannon Airport is being used for the purposes of extraordinary rendition, Ireland might incur liability under international human rights law under the principles governing diplomatic assurances. It concludes that, although it might be said that the Irish government is not doing enough to prevent extraordinary rendition through Shannon Airport, it appears that Ireland is fulfilling its positive obligations under international law.

Ireland, Human rights, Terrorism, War on terrorism, Torture, Extraordinary rendition, Diplomatic assurances

Abstract:
The concern in this article is with the role that domestic courts and judges can play in enforcing the rule of international law in dualist states. The underlying purpose of the article is to consider whether there is something inherently anti-internationalist about dualist legal systems: do domestic courts and judges in dualist systems shun international law in favour of domestic law and, if so, is that a product of the dualist legal system? The paper argues that in fact there is nothing about dualism per se that precludes reference to and reliance on international legal norms and undertakes a short cross-jurisdictional survey in an attempt to sketch out an emerging spectrum of internationalism across dualist states. The purpose is not to present a conclusive picture of the position of international law in every dualist state but rather to argue that dualism alone can not explain the varying degrees of internationalism we see among superior courts in dualist jurisdictions. Rather, as I argue in the final part of the paper, degrees of internationalism should be understood as matters of legal culture. I attempt, in the final section, to unpack some elements of legal culture that are likely to impact on internationalism and, by so doing, to identify areas of possible development for the purpose of increased internationalism.

international law, judges, dualism, comparative constitutional law

Abstract:
In the course of the 'War on Terrorism' the United States has been permitted to use Shannon Airport, Ireland and Irish airspace for the purposes of refuelling, stop over, and fly over. Suspicion abounds that the United States has exercised these rights in relation to planes involved in 'extraordinary rendition' and, as a result, that Ireland is in breach of its obligation of non-refoulement under Article 3 of the European Convention on Human Rights. The Irish Government claims that it has received comprehensive and unequivocal Diplomatic Assurances from the United States that no persons have been, are being, or will be 'rendered' through Irish airspace and Shannon Airport and that these Assurances are sufficient to fulfill Ireland's Article 3 obligations, should they arise.

This essay, forthcoming in the Irish Yearbook of International Law, examines two fundamental questions that arise in relation to this issue: (1) is Ireland's jurisdiction engaged as a 'transit state' under Article 1 of the ECHR, and (2) if jurisdiction is engaged, could the Diplomatic Assurances provided be sufficient for Article 3 purposes. Thus, this essay approaches the question of transit states' liability for 'rendition' from a doctrinal perspective that has, thus far, largely been under-explored.

extraordinary rendition, diplomatic assurances

Abstract:
In December 2007 the US Supreme Court heard oral arguments in its latest Guantánamo Bay cases, Boumediene vs. Bush and Al Odah vs. United States. Interestingly, the argumentation offered in this litigation was almost exclusively domestic - international human rights law did not feature in spite of its capacity to add significantly to the weight and persuasiveness of the arguments of the petitioners. In respect of both the geographic scope and the content of constitutional standards, international human rights law has a well-developed body of jurisprudence that, this article argues, ought to have been advanced by counsel for the petitioners. This article both exposes the potentially significant international human rights law arguments that could have been advanced and explores some possible reasons for the marginalisation of this body of law. The article concludes that this strategic decision on the part of counsel for the petitioners robbed the US Supreme Court of an opportunity to assert the relevance of human rights law to the "War on Terrorism" and to expand on the relationship between international and domestic constitutional standards and, for those reasons, is to be lamented.

War on Terrorism, habeas corpus, Guantanamo Bay, Boumediene, Al Odah, international human rights law, terrorism

Abstract:
Jus cogens can be defined as law that imports notions of universally applicable norms into the international legal process (Charlesworth & Chinkin, p. 118). Although it is clear from the Vienna Convention on the Law of Treaties that any treaty provision that contravenes jus cogens is invalid, and despite the universal acceptance that jus cogens standards may never be breached, substantial difficulty continues to surround this area of international law. In particular, questions relating to the `why' of jus cogens are tricky to answer. Why should these particular rules and rights have a higher status in international law than others? Why should states have to comply with these rules regardless of the surrounding circumstances and their security (and political) exigencies? Why should this category of law exist at all?

The push towards torture in recent years has exposed the theoretical vulnerability of jus cogens. In a state of global uni-polarity the United States of America, joined by its partners in the Coalition of the Willing, has launched a so-called "War on Terror" in which international norms have all too often appeared to be low on the list of priority. United States' state practice (and that of other states) in the area of torture, in particular, has clearly shown the need to create a viable theoretical framework around the imposition of absolute rules of jus cogens on states, even in times when abidance by those rules might seem to jeopardise the immediate security imperatives of the state.

This paper considers one way in which such a theoretical framework might be developed. The challenge is approached by means of a series of ideas. The first idea is simply that jus cogens exists and includes within it certain rights. The second claim is twofold. First that religion matters to people, and second that rights matter to people. The third idea is that jus cogens is essentially religious embodying, as it does, the basic protections that represent a consensus between different religions about the basics of human dignity. The fourth idea is that jus cogens is in danger and that, if we care for it and its capacity to ensure the basic circumstances for individual security and flourishing despite the surrounding conditions, we must do something about this threat. The final idea is that recognising the religiosity of jus cogens could be the means by which we find a different way of thinking about the obligation to comply.

I should stress that this chapter is designed to operate as a question, or series of questions, as opposed to a solution. As a result of the tense relationship between rights and religion many of us, me included, are reluctant to put our faith in a connection between the two. However the words of another discomforted writer considering similar questions, Jeffrie Murphy, are equally applicable to this author. Murphy remarks that it is, for him, very difficult - perhaps impossible - to embrace religious convictions - [but] - the liberal theory of rights requires a doctrine of human dignity, preciousness and sacredness that cannot be utterly detached from a belief in God or at least from a world view that would be properly called religious in some metaphysically profound sense (Afterward: Constitutionalism, Moral Skepticism and Religious Belief, in A. S. Rosenbaum, Constitutionalism: The Philosophical Dimension, (Greenwood Press, 1988), p. 248).

jus cogens, torture, religion, religiosity, War on Terror, torture evidence

Abstract:
This discussion paper, presented in response to an address to the Centre for Criminal Justice and Human Rights (University College Cork) by Dean John D. Hutson, aims to highlight the role that law and lawyers play in bolstering the U.S. Administration's desired legal interpretations, which in turn legitimate their desired actions even in clear contravention of international law (including jus cogens). The very short discussion document considers this in relation to three categories of lawyering - government lawyering, academic lawyering, and court-based practice.

This discussion paper was presented at a seminar in the Centre for Criminal Justice and Human Rights, Faculty & Department of Law, University College Cork, Ireland on 23 April 2008.

war on terrorism, torture, lawyers, legal interpretation

Abstract:
This paper offers a guide, predominantly to Irish practitioners, on how to research and use international human rights law in domestic proceedings.

Ireland, Human Rights, Research, Methodology

Abstract:
This paper investigates the use of genocidal sexual violence from the perspective of trying to understand the reasons why women, in particular, are targeted in this specific way in genocide. I use the word 'explore' in substitution for the word 'explain' in my paper title, because to explain is almost to legitimise or to rationalise, whereas the aim of this paper is to identify the scenarios or relations in society that give rise to this kind of violence and, by so doing, identify targets for societal reconstruction thereby, hopefully, reducing the potential for the use of genocidal sexual violence.

Genocide, Women, Human Rights, Intersectionality

Abstract:
Security Council Resolutions 1503 (2003) and 1534 (2004) provide that the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) are to complete their proceedings by the end of 2010. These Tribunals, established by the Security Council acting under Chapter VII of the Charter of the United Nations, were the first international criminal tribunals since the Nuremberg Tribunal and International Military Tribunal for the Far East established at the end of World War II and ushered in a new phase in international criminal law in which such ad hoc tribunals are increasingly being seen as viable options for post-conflict societies. Thus, we now have ad hoc tribunals that are either hybrid or completely international for Cambodia, Sierra Leone, Lebanon and Timor Leste as well as the permanent International Criminal Court. The age of international criminal accountability has, it might be said, arrived. To what extent, however, are these tribunals making individuals accountable for the widespread sexual violence that often (if not always) occurs in times of armed conflict and genocide? This paper explores the extent to which these tribunals making individuals accountable for the widespread sexual violence against women and girls that often (if not always) occurs in times of armed conflict and genocide. In particular, the paper tries to asses the extent to which feminist hopes for justice for women victims of sexual violence have been met by the Tribunals.

In this task, the paper takes a distinctly critical approach and focuses not only on the doctrinal advances made by the Tribunals (which have been vast) but also on the operationalization of those advances (which has been less impressive). This commitment to look not only at positive law but also at law in practice and to critically appraise the dissonances that appear has long been an important part of feminist legal methodology. In the analysis that follows it becomes clear that many of the difficulties that have arisen in relation to the prosecution of sexual violence before these tribunals are familiar to feminist legal theorists as they tend to have also arisen in adversarial domestic criminal justice systems. This calls into question the extent to which we should be celebrating these tribunals when seen through a feminist lens. In particular, it ought to cause us to question the extent to which a healthy norm transfer is occurring between the domestic and the international: to what extent are feminist lessons learned domestically transferred to the international sphere, and what kinds of lessons about prosecuting sexual violence will be transferred from the international proceedings to the reconstituted justice systems in post-conflict jurisdictions?

sexual violence, feminist legal theory, international criminal law, rape, genocide

Abstract:
This is a briefing paper prepared for the Irish Council for Civil Liberties and distributed at consultations relating top family diversity in Ireland. This process culminated in the co-authored report Equality for All Families (www.iccl.ie). The briefing paper outlines the law as it stood in November 2004 and proposals for reform that had been mooted by a number of organisations at that stage.

Ireland, Human Rights, Equality, Gay, LGBT

Abstract:
This paper explores particular difficulties within the Irish legal system and proposes means for effective research. It is targetted at practitioners and students

Ireland, Research, Methodology

Abstract:
The well-established pattern of Executive expansionism and limited oversight of Executive action in times of terrorism is problematic from the civil libertarian point of view. How to limit such action has been the subject of much scholarship, a large amount of which focuses on perceptions of institutional competence rather than effectiveness. For the authors the effective control of security-focused state action is to be judged by the extent to which it comprises only of action that is necessary and proportionate and thereby strikes an appropriate balance between security exigencies and individual rights. This article, written and structured in dialectic form, presents competing perspectives on effective oversight mechanisms: on the one hand an extra-constitutionalism perspective, proposing a limited role for the judiciary and emphasising the need for legislative and democratic controls; and on the other an argument for judicial muscularity. The purpose of this article is not in any way to reach agreement between these two positions but to present the arguments regarding the efficacy of each one in turn.

Abstract:
This paper, delivered as part of the Scrymgeour Lecture series of Dundee Law School, addresses the phenomenon of the use of private entities (airline companies and air traffic logistics companies) in the transportation of suspected terrorists for interrogation and torture (‘extraordinary rendition’). In addressing this phenomenon from the perspective of international human rights law, the paper makes both normative and practical arguments. Normatively it is claimed that the use of private entities for the purposes of concealment of activity and in the attempt to minimise liability in the event of suit reveal a position termed ‘ontological acceptance: intentional breach’ by the United States towards the absolute prohibition of torture in international law. It is argued that the normative core of the prohibition is sound, but that the gap between norm and enforcement is exacerbated by the use of private entities. The final part of the paper argues for an approach to enforcement that addresses both the public and the private through law and regulatory mechanisms.

extraordinary rendition, torture, pirvate companies and human rights obligations

Abstract:
Judgment mortgages are important mechanisms of debt enforcement, allowing creditors to realise debts owed to them from property owned by the debtor. As important financial transactions judgment mortgages are frequently used, but the law of judgment mortgages continues to be marred by an unacceptable degree of uncertainty. This is particularly the case in relation to the requirements for the creation of the judgment mortgage. This controversy relates to whether or not an affidavit on which a judgment mortgage is grounded must comply strictly and completely with the requirements of s. 6 of the Judgment Mortgage (Ireland) Act 1850. Early Irish jurisprudence predominantly held that absolute compliance with s. 6 was required and that, in the absence thereof, the judgment mortgage would be invalid. This position is what is referred to in this article as the 'technical defence' to judgment mortgages. Relatively recent Irish case law has noted the incompatibility of the technical defence with the apparent legislative purpose of s. 6 while failing to lay down a clear standard for judgment mortgage affidavits.

This short article argues for a 'commonsense approach' to the requirements of s. 6 and for the complete abolition of the technical defence from the law of judgment mortgages. Part I of the article outlines the role of the judgment mortgage affidavit; Part II considers the evolution and quasi-demise in Irish law of the technical defence; and Part III considers the current proposals for reform of the requirements for judgment mortgages in Ireland. In essence this article argues for the abolition of a technical defence to judgment mortgages on the basis that such a defence undermines and frustrates the purpose of s. 6, which is designed, this writer argues, not to trip up creditors but to ensure that sufficient information is provided to identify the relevant land and parties with certainty.

property, judgment mortgages, Irish law, debt enforcement

Abstract:
This paper considers the experiences of women within genocidal conflict and, in particular, the effect of women's position on the intersection between ethnicities, races, nationalities and religions on their experience of genocide, and considers the capacity of current legal structures to provide an effective remedy. In particular I consider the potential effect of recognising the intersectional nature of women's experiences, concluding that an acceptance of women's position on the intersection is the only means by which their experiential narrative can be expressed and appreciated; the only means by which an effective remedy can be provided.

Genocide, International Law, Gender, Women, Sexual Violence

Abstract:
In light of the 1996 recommendations of the Irish Law Reform Commission that a "just deserts" or retributive model of sentencing be adopted, this investigates the compatibility of the guilty plea discount with such a model. Consideration is given to both the justifications and criticisms of the discount; inconsistencies between the theory of the discount and the actuality of its application are also considered. These considerations lead to the conclusion that not only is the guilty plea discount inconsistent with a retributive model of sentencing, but also that it is a patently unjust element of the criminal justice system.

sentencing, Ireland, rights of the accused, due process, plea bargaining, guilty pleas, guilty plea discount

Abstract:
Ireland is currently experiencing a concerted campaign for the recognition of diverse family forms in law. As Irish law only affords Constitutional protection to the family based on marriage much of this effort has concerned attempts to extend marriage to include same-sex couples. This article considers the legal context in which this striving towards 'gay marriage' is being undertaken, the relative merits of extending marriage to same-sex couples and the need for a more diverse and option-based way of recognising family life in Irish law. Compatibility with EU law and the European Convention on Human Rights is also considered, as is the impact of the Belfast Agreement (Good Friday Agreement) on this debate and the recent government reports on same-sex based families in Irish law.

LGBT, Gay Rights, Marriage, Family, Gay Marriage, Human Rights, Equality, ECHR, Ireland, Constitutional Law

Abstract:
This article outlines the US Supreme Court's approach to the habeas corpus entitlements of suspected terrorists detained in Guantánamo Bay and argues for the extension of constitutional habeas corpus rights to them. The article considers two ways in which the Supreme Court might carry out this task: first, the 'territorial approach' (based on domestic legal principles of 'unincorporated territories' and principles of leasehold), and secondly, the 'extraterritorial approach' (based on international purposive approaches to the reach of human rights treaties exemplified by the European Court of Human Rights' Article 1 jurisprudence). For reasons of effectiveness of protection, the Article expresses a clear preference for the latter. The House of Lords decision in R (Al-Skeini) v Secretary of State for Defence (2007) is proposed as a template for such a development. Finally the article refutes arguments rejecting such a development based on the trade-off thesis and perceptions of judicial competence.

Abstract:
The attacks on the World Trade Centre and the Pentagon on 11th September 2001 ushered in the War on Terrorism ; a hotly contested security paradigm in which the United States, in particular, has adopted controversial techniques in order to counter terrorism-related violence. One such technique is the protracted detention of suspected terrorists and governmental assertions that these detainees have no attendant rights to challenge the lawfulness of their detention by means of habeas corpus or adequate alternative. At every step, the United States Executive and Congress have designed laws by reference to perceived capacities in domestic law, and without reference to the deeply entrenched international standards on the right to challenge the lawfulness of detention. This article outlines and considers those international standards and argues that these standards, as applied by international law in a time of emergency or other strain, would be an appropriate and effective framework on which to build a detention policy that furthered security without unnecessarily and disproportionately violating individual rights.