2013 Summer School Programmes at the Irish Centre for Human Rights

Summer School on Human Rights, Migration and Globalization
8 to 12 July 2013, NUI, Galway

The Irish Centre for Human Rights will host its inaugural Summer School on Human Rights, Migration and Globalization from 8 to 12 July 2013. The inaugural year’s subtopic is Defining and Promoting Human Rights of Migrants in an Era of Globalization. The five days of intensive sessions will be led by leading specialists including Professor Francois Crépeau, the UN Special Rapporteur on the Human Rights of Migrants. The Summer School will familiarise participants with the sources of migrants’ rights and the available protection mechanisms. It will also provide participants with an understanding of the major tensions underlying the issue of the protection of migrants’rights and of how globalization shapes these tensions. The programme will include social activities that will allow participants to network with each other and the panel in a relaxed environment. The Summer School is open to anyone interested in the contemporary challenges of migration and human rights protection. Participants will have an opportunity to propose their research ideas for discussion.

For more information, please visit:http://www.nuigalway.ie/human_rights.
Please address any additional queries to: hrandmigrationsummerschool@gmail.com.
Follow us on Facebook at: https://www.facebook.com/HumanRightsMigrationAndGlobalizationSummerSchool.
The closing date for applications is 31 May 2013.

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The International Criminal Court Summer School 2013
17-21 June 2013, NUI Galway, Ireland
The annual International Criminal Court summer school at the Irish Centre for Human Rights is the premiere summer school specializing on the International Criminal Court. The summer school allows participants the opportunity to attend a series of intensive lectures over five days. The lectures are given by leading academics on the subject and by legal professionals working at the International Criminal Court. The summer school is attended by legal professionals, academics, postgraduate students and NGOs. Participants are provided with a detailed working knowledge of the establishment of the Court, its structures and operations, and the applicable law. Participants are also given the opportunity to network with the speakers throughout the week. Lectures also speak to related issues in international criminal law, including: genocide, war crimes, crimes against humanity, the crime of aggression, universal jurisdiction, immunities, and the role of victims.
For more information and to register please visit our website at http://conference.ie/Conferences/index.asp?Conference=199or email iccsummerschool@gmail.com.

The closing date for applications is 31 May 2013. Limited scholarships now available!

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Summer School in Cinema, Human Rights and Advocacy
27th June to 6th July 2013, NUI Galway, Ireland

Following the success of the last seven years in Venice and Galway, this is the fourth year that this summer school is hosted in Galway jointly by the Irish Centre for Human Rights and the Huston School of Film& Digital Media, NUIG. Elements of the summer school include information on the fundamentals of human rights, how to raise awareness of human rights on camera, the development of ideas and how these ideas should be pitched. This year’s programme will feature the Human Rights Cinema Event on 5th and 6th July, organized in collaboration with Amnesty International, Ireland and Galway One World Centre, in order to give participants the chance to assist human rights films which forms a basis for critical discussion.

The closing date for applications is 8 June 2013. Limited scholarships available!

For faculty and speakers, this year’s program, and more information please visit www.chra.ie or email to info@chra.ie. All events associated with the summer school could be followed from our Face Book page, http://www.facebook.com/pages/Summer-School-in-Cinema-Human-Rights-and-Advocacy/128962737217375.

When we look at memoranda of understanding and the design of funding programmes we often see the province of the economist, the market and international relations. Certainly for economists, the application of human rights law to current macro-economic predicaments is descried as pie in the sky. Yet, before we unveil the new era of technocracy and hand the keys over to the economists, we must test the institutions’ actions against public law values. It is important to note that ‘agreements’ and ‘memorandum of understandings’ often fail to satisfy basic rule of law values, such as clarity, predictability and congruence with the actual terms. At the basic level, a citizens’ (whether national or European) right to reconstruct the decision-making process is conspicuously absent, and often conducted through unprofessional newspaper interviews. If we look at the flow of information over the past number of years we see the communication of policy through leaks, attention grabbing ECB members, German newspaper op-eds. Even more galling, we see past IMF mission members often challenging the process and implementation of austerity in Ireland, underlining the contestability of many actions. So, what do the European institutions, in particular, owe us when acting under instruments like the European Stability Mechanism Treaty and the Fiscal Stability Treaty? I want to give a hat tip to  other blogs who have been considering this issue before starting out.

The Pringle Judgment and the Charter of Fundamental Rights 

The judgment of the European Court of Justice in the Pringle case, struck a blow against the Charter of Fundamental Rights by holding that the European Stability Mechanism (ESM) was not subject to the Charter’s provisions. This is because the ESM itself was made up of the Member States, acting independently of European Union law (I’m simplifying some legalese here particularly the key phrase of ‘specific competence’). The most important part of the Charter was Article 51(1):

‘The provisions of the Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law.’

European Institutions (Especially the Commission) Acting under non-EU Treaties

Yet for Ireland, the Pringle judgment ultimately begs the question: are the European institutions such as the Commission, the Council and the ECB bound by the Charter when acting under non-EU intergovernmental Treaties? Both the ESM Treaty and the Stability Treaty operationally ‘piggy back’ on EU institutions and norms, with their obligations linked to supervision under pre-existing EU legislation (the so-called six pack and two pack regulations, for example). There is a clear echo chamber effect set up between established European regulations, council decisions and the intergovernmental treaty frameworks. It would be bizarre indeed if European institutions could free themselves from the Charter obligations simply by claiming they are acting under a framework separate from the European Union Treaties. The drafting of Article 51(1) would seem to give only the Member States the possible out of claiming that they were not implementing Union law. It was unfortunate that the ECJ did not clarify this point in Pringle (though Advocate General Jacobs appears to have implicitly taken a pro-charter view at paragraph 176 of her view).

Regardless, I’d encourage any Irish politician or lawyer to ask the question straight out, and demand the Commission to define its responsibilities under the Charter when deliberating regarding fiscal adjustments, for example.

Identifying Potential Breaches of the Charter

I’m more incrementalist (or conservative!) when it comes to economic and social rights than many others in the field – I tend to view things through the procedural lens of administrative law. But it strikes me, that rather than going for an ambitious (if principled) challenge regarding the substantive decisions (e.g. right to property versus a proposed cut), I would launch a dialogue off Article 41 of the Charter of Fundamental Rights:

Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union.

One of the reasons I would stress this provision, is that the loan arrangements and memorandum of understandings often create a division of labour whereby the substantive measures are implemented through national government action. This leaves national courts with the dilemma of attacking the executive’s action in an emergency context. Isolating the international element can be difficult in the case work (though I would underline the applicability of standard public international law rules on joint responsibility).

At a minimum approaching the actions of the Commission or other institutions through the principles of sound administration and a concomittant duty of care, should lead to discrete obligations regarding justification, hearing and information. Diversity of views and factual accuracy must underline all decisions made by EU institutions. At the most basic level it must include the factual pre-requisite for a proportionality analysis: the impact assessment. It also dovetails with the TFEU Article 11(2) and (3):

The institutions shall maintain an open, transparent and regular dialogue with representative associations and civil society

The European Commission shall carry out broad consultations with parties concerned in order to ensure that the Union’s actions are coherent and transparent

I was particularly grabbed by the publication last month of five decisions on Greek pension reforms by the European Committee on Social Rights of the Council of Europe. While these actions had to be taken against Greece, parts address the actions of the Troika. In one decision (at paragraph 32) the Committee quoted a report by a Mission from the International Labour Organisation that:

In response to a question from the High Level Mission, the [Greek] Government indicated that data from ELSTAT showed that approximately 20 per cent of the population was facing the risk of poverty but that it did not have the opportunity, in meetings with the Troika, to discuss the impact of the social security reforms on the spread of poverty, particularly for persons of small means and the social security. It also did not have the opportunity to discuss the impact that policies in the areas of taxation, wages and employment would have on the sustainability of the social security system

In my view, if this claim is factually accurate, the participating EU institutions acted illegally. I choose to emphasise the procedural aspects such as information and consultation because it underlines the wholly dismissive attitude of the institutions to human rights norms. This is not about taking away their right to make economic judgement calls or to take tough decisions: this is about the most basic entitlements of democratic populations. There are, of course, broader and more substantive human rights principles that can be applied, as the Social Rights Committee did in concluding so strongly that ‘the adopted measures risk bringing about a large scale paupersiation of a significant section of the population’.

The Law and Economics of Bailouts 

Since this crisis began, I have always thought that members of the public and the media should be casting a weary eye on any statements claiming that “the Troika require it”. The multi-level landscape of Treaties, soft law and memoranda etc might muddy our identification of what’s politics, what’s economics and what’s obligation. In an area where legal obligation is very woolly, and the prospect of enforcement practically unlikely, there is scope for Ireland to be aggressive in reclaiming relative autonomy even before we return fully to self-sustaining finances. Law can also be used to press the edges of our relationship with the Troika. The legal underpinnings of so many actions occurring are unsteady and ad hoc. The legal debate regarding the Charter is interesting for those of us who view Europe from below. Certainly sending a burst of static back up through Union structures to reconnect certain institutions with the basics of democratic legitimation would be satisfying.

Full particulars of this internship opportunity are available here.

• The philosophical and historical development of human rights (Dr Graham Finlay);
• The foundations of international human rights law (John O’Dowd);
• Human rights enforcment mechanisms (Suzanne Egan);
• The politics of human rights (Professor Dan Thomas);
• Economic, social and cultural rights (Dr Liam Thornton);
• Business and human rights (Dr Eleanor O’Higgins);
• Equality and human rights (Judy Walsh);
• Human rights and conflict (Dr Melanie Hoewer);
• Responsibility to protect (Professor Joe McMahon);
• The European Convention on Human Rights (Dr Marie-Luce Paris);
• Religion and Human Rights (Dr Eoin Daly).

The UCD Human Right’s Network’s Inaugural Summer School will focus on the intersections between law and politics that come into play in the field of international human rights.  Over the course of two days, participants will explore the fundamentals of international human rights law and policy, including focused seminars on the philosophical and historical development of human rights, the scope and content of international human rights law, its enforcement mechanisms, the politics of and contemporary challenges to the enjoyment and protection of human rights.

The seminar will be facilitated by a wide range of UCD academics in the Schools of Law, Politics and International Relations and Social Justice.  The school will be of interest to a wide audience including law and policy makers, NGOs, practitioners, journalists and students. Full prices and booking information can be accessed here.

For information on UCD Human Rights Network conference: The ECHR and Ireland: 60 Years and Beyond, see here.

The aim of this Conference will be to examine Ireland’s engagement with the European Convention on Human Rights as a party to the Convention for the past 60 years and through the incorporation of the Convention into Irish domestic law through the ECHR Act 2003.  A sub-theme will be to project the likely implications of current Strasbourg case law on Irish domestic law.  Hosted by the Human Rights Network at UCD, the conference will feature presentations by a wide range of national and international academic experts, practitioners and advocates in the human rights field on the effect of the ECHR in Ireland in respect of numerous themes including poverty, asylum and immigration, criminal justice, marginalised groups and the private sphere.  The full conference programme and booking information is available here. The Conference will be of interest to academics, practitioners, policy-makers, NGOs and students.

For information on UCD Human Rights Network Inaugural Summer School on International Human Rights, see here.

Law by Frederick Dielman

We are delighted to welcome this guest post by Dr Edward Kanterian, who is a lecturer in philosophy at the University of Kent. This post is cross-posted with Verfassungsblog.

Hungary’s political development under the Orbán government is by now a familiar topic. In April Barroso confirmed the European Commission’s concern that Hungary’s new constitution infringe EU legislation and the rule of law. Indeed, some commentators speak of ‘the corrosion of constitutional democracy’ or even a possible dictatorship in the EU. Romania is another problematic case. Its slide towards authoritarianism has not been (yet) enshrined in a new constitution. But its 2012 political crisis has been seen by some as a coup d’état, during which Ponta’s government aimed at removing all checks and balances on its power to impeach President Băsescu.

These developments raise fundamental questions. What is the future of democracy in the EU? Can authoritarianism be kept at bay, especially during crises? Who is the true sovereign and by what right? Who is the guardian of the constitution? What is the role of a constitutional court (CC)? These questions recall the Weimar crisis in the 1930s. Ellen Kennedy writes: ‘in the new democracies of Eastern Europe … the major fault lines of Weimar liberalism have reappeared: emergency powers, the courts as “defenders of the constitution”, mobilization of antiliberal politics, ethnic identity politics, illiberal culture, and contested legitimacy’.

David Dyzenhaus’s Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar (1999) analysed the Weimar crisis with an eye to offering solutions to today’s crisis of liberalism. Actually, we can speak of two crises: the crisis of Western pluralism, tolerating social groups whose anti-pluralistic world-views reject the dominant order, and the crisis of legitimacy new democracies face. His book touches more explicitly on the former crisis. But he encourages the application of his analysis to other regions. So, after conversations with Iulia Motoc, judge on the CC of Romania, we decided to organize the workshop “Legality and Legitimacy: From Weimar 1932 to Bucharest 2012?”, looking at parallels between Weimar and Hungary/Romania. The interdisciplinary event, hosted by the Brussels campus of the University of Kent, was attended by legal and political theorists, philosophers, historians and EU officials, following Dyzenhaus’s model of ‘Integrative Jurisprudence’ combining politics, morality and history. I will reflect on overall findings.

Eleanor Curran (Kent Law School) introduced the main philosophical issues by focusing on Hobbes’s account of legality and legitimacy, discussed by Dyzenhaus in his chapter on Carl Schmitt. She argued that Schmitt and Dyzenhaus are too quick to view Hobbes’s account of law as an uncompromising absolutism involving a positivist command theory. Hobbes isn’t arguing that the sovereign has unrestricted powers and his subjects must obey unconditionally. His theory also contains elements of natural law reasoning: ‘The Law of Nature, and the Civill law, contain each other, and are of equal extent’ (Leviathan, ch. 26). This entails the sovereign’s duty to make moral laws, discerned by reason.

The same goes for Hobbes’s theory of rights: some rights are inalienable, e.g. the right of resistance to the sovereign or the right to seek protection elsewhere. The final arbiter of legitimacy is the individual, conscientious citizen. He is the guardian of the constitution. So Hobbes’s theory is less a precursor of Schmitt’s decisionism or Kelsen’s positivism, and more akin to the social republicanism of Heller (Dyzenhaus’s hero), whose ideal is near total political participation. I think it’s obvious that most democracies fall short of this ideal, but especially those with recent totalitarian histories, like Romania and Hungary. My colleague at Nottingham, Cosmin S. Cercel, advocated more attention to these histories, and especially to conceptions of legality in anti-democratic ideologies. It is too often forgotten that Eastern Europe has a recent totalitarian experience – Communism.

The discussion then turned to Dyzenhaus’s main topic, the Weimar crisis and Schmitt’s and Kelsen’s responses to it. In July 1932 Chancellor von Papen organised a coup d’état against Prussia (Preußenschlag) on the basis of emergency powers granted to the Reich’s President by Art. 48 of Weimar’s constitution. This abolished the autonomy of Prussia, a stronghold of republicanism, and prepared the path for Hitler. As Harm Schepel (BSIS) suggested, the problem was not Weimar’s constitution, which was among the most progressive of its time, but its adoption by a country with a deficient understanding of liberalism. Similarly, East European political systems today have good constitutions, but make bad use of them.

Prussia appealed to the Reichsgericht, claiming that the emergency decree was unconstitutional. The Court dismissed the Reich’s claim that the Prussian government was neglecting its duties, but endorsed the subjugation of Prussia, since the Reich was on the verge of civil war. Following Dyzenhaus, I noted that Carl Schmitt’s position on Prussia vs. Reich was faulty. Prussia had protested to the Court that the President had violated his impartiality, intervening on behalf of an alliance between von Papen and the Nazis. Schmitt argued that von Papen had full legitimacy, since his mandate was given by the President, the guardian of the constitution. I argued that this was a sophism: neither von Papen nor Hindenburg had been independent of party politics. Schmitt’s worry that a government with a parliamentary mandate is part of the problem, since it stands under the control of party politics, was hypocritical. Schmitt would deny that the Nazis were an ordinary party, since they had the support of the Volk, the true sovereign. Not true: the Communist party had strong support too.

Schmitt generally believed that liberalism is unable to draw the friend-enemy distinction without contradiction, because it grants equal rights to power to its opponent. Hence, pluralism is less preferable than a homogeneous society, in which the internal enemy has been eradicated. As workshop participants pointed out, this rejection of negotiation and compromise is reminiscent of the sharp polarisation of the political landscape in Hungary and Romania. Orbán’s tendency to blame all criticism on inner and outer enemies is one example. Also, Schmitt’s argument does not work against value-based conceptions of liberalism. Today’s German constitution exemplifies a ‘fortified democracy’, whose immutable core of values (fdGO) can’t be changed even by majority vote. Anybody acting or intending to act against it will be a prosecutable enemy of the constitution. It seems to me that like Schmitt the new authoritarians of Eastern Europe confuse legitimate political opponents with enemies of the nation or people.

Schmitt also denied that the Reichsgericht had jurisdiction over the constitutional problems involved in Prussia vs. Reich. The Court, in his view, guarded the constitution only in legal matters, but the deposition of the Prussian government had been a political issue, and here the guardian of the constitution was the President. Schmitt favoured the primacy of the political over law; genuine political power shouldn’t be constrained by legal statutes. ‘Sovereign is he who decides on the state of the exception’ (Political Theology, 1922). This is ambiguous, as Dyzenhaus shows. It can mean ‘Whoever factually decides, by sheer force, is the sovereign’, but also ‘Whoever is invested with the power to decide, is the sovereign’. The latter reading allows for political power to be constrained by a CC, as envisaged by Kelsen in “Wesen und Entwicklung der Staatsgerichtsbarkeit” (1929). Schmitt’s rejection of constitutional review is unfounded.

Workshop participants pointed out that the political classes of both Romania and Hungary are inclined to a more ‘Schmittian’ than ‘Kelsean’ view of the relation between politics and law, as visible from the attacks both CCs suffered in recent years. Orbán’s curtailing of the powers of the Hungarian Court are well known. The powers of the Romanian Court were curtailed by the Ponta government during the 2012 crisis, and individual judges, such as Aspazia Cojocaru and Iulia Motoc, were threatened with dismissal, attacked in USL-friendly media and even had their livesthreatened. As Motoc later explained, such attacks against constitutional judges are without precedent in Europe. They did not occur even in Weimar.

Cristina Arion (European Parliament) explained that the Romanian CC tried to assume its function as the guardian of the constitution as best as it could, defending its own powers to rule on the constitutionality of decisions adopted by the Parliament. Being placed under tremendous pressure, however, the Court was polarized and its decisions ultimately lacked coherence. For instance, the Court upheld the removal from office of the speakers of both houses of the Parliament, despite procedural irregularities, and refused to take a stance on the constitutional conflict between Parliament and President. Arion also pointed out that it should give cause for concern that Ponta’s government attempted to reach its goals mainly by emergency decree, especially in the light of the Weimar crisis.

Several points emerged repeatedly during the discussion. One concerned the role the EU ought to take towards the erosion of constitutionalism in Eastern Europe. The consensus was that the EU does not only have the right, but the duty to intervene against nefarious political developments. In the 20^th century, Europe witnessed two world wars, the worst genocide in history and was wrecked by two totalitarian ideologies. The EU was created with these events in mind, and it is therefore the guardian of European democracy and stability. It needs to understand itself as a ‘fortified democracy’. Whether new institutions need to be invented, is anopen question. Since Hungary and Romania are recipients of EU funds, the EU can exercise financial pressure. Such countries also care about their external image, so ‘soft power’ is another a tool. At the time of its accession Romania (and Bulgaria) was subjected to the CVM, a further mechanism instrumental in safeguarding the rule of law. I think it is fair to conclude, with Israel Butler, that governments ‘with serious rule of law problems are unlikely to respond to quiet diplomacy or even naming and shaming, unless this is supported by the threat of sanction.’

Another debated point was the crisis of legitimacy the EU itself faces. Here opinions were divided. Some participants, like Sebastian Payne (Kent Law School), argued that the EU may be doomed to fail, because it was founded on the basis of unrealistic economic expectations. Others were more optimistic. There are remarkable similarities between Weimar’s failure and the current crisis. But there are dissimilarities as well, which give rise to hope. Unlike the situation in the interwar period, pace Carl Schmitt’s martial cravings and Orbán’s rejection of institutionalists as ‘lazy’, we don’t have a culture of war and decisionism, but of peace, negotiation and legalism in Europe today. This makes the spectre of a (military) dictatorship unlikely, I believe. Ultimately, the difference between Weimar and today’s Europe is Weimar’s own failure. We know today all too well what might happen if constitutional democracy fails. The Damoclean sword of history urges us to save the European project.

(Thanks to Cristina Arion, Cosmin S. Cercel, Eleanor Curran, Anna Dimitrijevics, James Fowler and Michael Inwood for advice in writing this report.)

The appellant, W, is a post-operative transsexual woman who wishes to marry her male partner. However the Registrar of Marriages (Registrar) declined to confirm that the appellant was permitted to marry her partner. The appellant commenced judicial review proceedings against the Registrar on the ground that the Registrar misinterpreted ss 21 and 40 of the Marriage Ordinance (Cap 181). This raised the issue of construction of whether a post-operative male-to-female transsexual was a woman or female for the purposes of the Marriage Ordinance. The same issue also arose in respect of s 20(1)(d) of the Matrimonial Causes Ordinance (Cap 179). The appellant sought an order quashing the Registrar’s decision and a declaration that the decision was unlawful on the basis that the Registrar misdirected himself in law by misinterpreting ss 21 and 40 of the Marriage Ordinance. The appellant’s alternative case, in the event it was held that the Registrar had not misinterpreted the statutory provisions in question, was that ss 21 and 40 of the Marriage Ordinance, in failing to recognise her as a woman or female, were unconstitutional in that they were inconsistent with Article 37 of the Basic Law  and/or Articles 14 and 19(2) of the Hong Kong Bill of Rights and/or Articles 17 and 23(2) of the International Covenant on Civil and Political Rights. These constitutional provisions concerned the right to marry and the right to privacy. On that basis, the appellant sought declaratory relief that ss 21 and 40 of the Marriage Ordinance were unconstitutional insofar as they did not recognise a post-operative male-to-female transsexual as a woman or female.

Cheung J  [2010] 6 HKC 359 dismissed the case at first instance and the Appellant also lost her appeal in front of the Court of Appeal in November 2011 [2012] 1 HKC 88.  One issue that was intentionally not raised by the appellant in her appeal was the question of the legality of same sex marriages. There was no contest that, in Hong Kong, marriage was heterosexual and she sought to marry her male partner as a transsexual woman in her post-operative gender. Nor was there any challenge by the appellant to the fact that she was correctly registered at birth as a male. The question for the Court was therefore whether the Registrar had misconstrued the Ordinance in coming to his conclusion precluding the appellant from marrying her partner.  And if not, whether the Ordinance so construed is compatible with the right to marry guaranteed by the Basic Law and the Bill of Rights or with the right to privacy guaranteed by the Bill of Rights.

While Sex Reassignment Surgery (SRS) is publicly funded in Hong Kong and a person can be issued with a replacement identity card and passport reflecting his or her gender, the practice has been to refuse to alter the sex recorded in birth certificates on the basis that the document states historical fact which cannot be altered on the basis of a surgical sex reassignment.  And, as occurred in the present case, a post-operative transsexual person was regarded as ineligible to marry someone of the gender opposite to his or her acquired gender.

The appellant placed reliance on Thorpe LJ’s strong dissenting judgment in Bellinger in the Court of Appeal where he noted (at §128) that the concept of marriage has changed since the time of Lord Penzance’s definition:

… We live in a multi-racial, multi-faith society. The intervening 130 years have seen huge social and scientific changes. Adults live longer, infant mortality has been largely conquered, effective contraception is available to men and women as is sterilisation for men and women within marriage. Illegitimacy with its stigma has been legislated away: gone is any social condemnation of cohabitation in advance of or in place of marriage. Then marriage was terminated by death: for the vast majority of the population divorce was not an option. For those within whose reach it lay, it carried a considerable social stigma that did not evaporate until relatively recent times. Now more marriages are terminated by divorce than death. … Marriage has become a state into which and from which people choose to enter and exit. Thus I would now redefine marriage as a contract for which the parties elect but which is regulated by the state, both in its formation and in its termination by divorce, because it affects status upon which depend a variety of entitlements, benefits and obligations.

In its judgment, on addressing the question whether a post-operative transsexual like the Appellant is a woman so as to be entitled to marry a man, the Court held that it is contrary to principle to focus merely on biological features fixed at the time of birth and regarded as immutable. The Court found that it should consider all circumstances relevant to assessing a person’s sexual identity at the time of the proposed marriage, including biological, psychological and social elements and whether any SRS has occurred. Article 37 of the Basic Law and Article 19(2) of the Bill of Rights protect the right to marry. While the institution of marriage is necessarily subject to legal regulation, such legal rules must not be inconsistent with and operate so as to impair the very essence of that right. The Court stated that “whether a consensus regarding a transsexual’s right to marry exists among the people of Hong Kong is not a relevant consideration”, because reliance on the absence of a majority consensus as a reason for rejecting a minority’s claim is “inimical in principle to fundamental rights”. In a co-written judgment by Chief Justice Ma Tao-li and Ribeiro PJ. the Court stated that “We think it would be quite wrong to exclude such a transsexual person from the right to marry in her acquired gender by characterising her as a pseudo-type of woman”. As such, the Court held that the provisions of the Matrimonial Causes Ordinance and Marriage Ordinance are unconstitutional and found it unnecessary to consider whether W’s right to privacy under Article 14 of the Bill of Rights

The Court recognised that legislative intervention would be highly beneficial in various respects and that it would be preferable for the legislature to introduce legislation similar to the United Kingdom’s Gender Recognition Act 2004. This judgment challenges the social meaning and construction of gender in Hong Kong but it must be noted that a disproportionate section of the judgment does focus on genitalia and gender reassignment surgery. However the Court has left open the question whether transsexual persons who have undergone less extensive treatment than SRS might also qualify. For the moment the Court has proposed to suspend the operation of the orders for 12 months from today to enable consideration to be given to possible legislation.

The Irish Society of Comparative Law was established in June 2008 and is recognised by the International Academy of Comparative Law. The ISCL is open to those interested in Irish and comparative law. Its purpose is to encourage the comparative study of law and legal systems and to seek affiliation with individuals and organisations with complementary aims.

The School of Law, NUI Galway has a long and distinguished tradition of teaching law and legal scholarship since 1849. The School of Law is comprised of full-time professors and lecturers who are academics producing research across a number of fields including human rights law, international and comparative disability law and policy, legal theory, criminal law, commercial law, maritime law and media law. Large national and international research projects, international conferences and guest lectures are organised under the auspices of the School of Law and its research centres, the Irish Centre for Human Rights and the Centre for Disability Law and Policy. The School of Law is home to a thriving Ph.D programme and offers a number of taught LL.M programmes including a dynamic LL.M in Public Law.

For more information on the 2013 conference including online registration please see here.

The use of informers has been criticised by the Garda Síochána Ombudsman Commission (GSOC) recently. The GSOC is investigating claims that some members of the Gardai permitted the continuation of serious criminality  in exchange for information on other criminal actors. As I’ve written before, the use of undercover police officers and informers is fraught with problems, in terms of the scope of their permitted behaviour and the possible incitement of further offences.

Covert policing and the use of informers allow for the penetration of criminal groups and enterprises, and the communication of information about their structure and actions to the authorities. Much organised crime may not involve a victim as such, or victims may be reluctant to testify, or the evidence gathered may be incomplete or unconvincing. So, the infiltration of criminal enterprises is regarded as crucial for effective policing and investigation of organised crime, whether for intelligence purposes, or to gather evidence for criminal proceedings, or both.

In Ireland there is no legislation governing the use of covert human information sources (CHIS) or informers; instead,  guidelines are in place. In contrast, in the UK the use of CHIS has become more regulated and strictly scrutinised. Although there CHIS need not be authorised under the Regulation of Investigatory Powers Act 2000 and its Scottish equivalent, so doing ensures that the operation has lawful approval. In addition, Codes of Practice have been issued, and each police force has its own policy and operating procedure.

The Covert Human Intelligence Source System and Code of Practice become organisational policy for the Garda Síochána in 2006 following judicial criticism of the handling of informers in the Morris tribunal report. The Code of Practice covers authorisation, registration, risk assessment and record keeping; for example, the recruitment, handling and management of CHIS may be given by the Assistant Commissioner at the Crime and Security Branch of An Garda Síochána only. This is more limited than the scheme in the UK where authorisation of CHIS may come from  various officers such as a superintendent in a police force, HM Revenue & Customs or a Senior Manager in the Serious Organised Crime Agency (SOCA). In neither jurisdiction is judicial approval of the use of CHIS or informers required.

In addition, the Code of Practice in Ireland states that CHIS Handlers and Controllers will be trained to ‘approved standards’, and the use of CHIS will be subject to ‘appropriate reviews’. These opaque terms are not defined in publicly available documents.

While the Code of Practice is claimed to be ‘in line with best international practice’ the lack of legislation is worrying from a due process perspective and is unlikely to be compliant with the ECHR. McDermott has noted that this non-statutory, executive action is not ‘dissimilar’ to the regime which operated in the UK prior to Malone v UK where the European Court of Human Rights found that phone tapping was not in accordance with law and that it breached Art 8 due to the fact that the relevant domestic law was obscure and could be interpreted in different ways. Therefore, procedures in Ireland appear to contravene Art 8 given that the expression ‘in accordance with the law’ in Art 8(2) requires that the measure has ‘some basis in domestic law’ and ‘refers to the quality of this law, demanding that it should be accessible to the person concerned, who must moreover be able to foresee its consequences for him or her, and compatible with the rule of law’ Malone v UK [67].

The very nature of covert policing entails police officers skirting close to the limits of legality, and may, as in the case currently under investigation, involve reliance on parties with dubious records and motivations. Moreover, oversight of sources is difficult, and this is not necessarily remedied by a legal framework: as I’ve commented on before, in the UK a number of legal actions and inquiries are underway regarding inappropriate behaviour and relationships cultivated by undercover agents.  Having said that, this does not excuse the absence of legislation in this respect.

Regardless of the findings of the GSOC’s investigation, it is critical that legislation is drawn up to guide and limit the powers of the Gardai in this respect. This will ensure the legitimacy of Garda operations, and will bring practice in line with the ECHR. Ultimately, both a precise legal framework and an ethical culture of policing is required to ensure that due process norms and liberties remain safeguarded in the use of this crime control technique.

Associate Protection Officer (NOB/P2 equivalent)

Under the supervision of the Head of Office and in close co-operation with other members of the team, the incumbent will perform the following duties:

• Promote international law and standards relevant to the protection of refugees, asylum seekers and stateless persons and foster their consistent interpretation and application
• Facilitate the participation of persons of concern in the work of the Office

• Advise on developments in national jurisprudence and legislation

• Design and deliver training, advice and other supports to the national authorities and key stakeholders
• Oversee and manage individual cases including those relating to SGBV and child protection
• Promote and contribute to measures to identify, prevent and reduce statelessness
• Maintain and develop networks with key partners in Ireland and with protection colleagues under the UNHCR Regional Representation for Western Europe
• Stay abreast of relevant political, social, economic and cultural developments
• Undertake international travel on mission as required
• Perform other duties as required

This is a National Professional Officer Post. Candidates must be Irish Nationals.

Essential minimum qualifications and professional experience required:

• University degree in law, international law, political sciences or related field
• Minimum 4 years (2 years with advanced university degree) relevant professional experience
• Excellent knowledge of English and working knowledge of another UN language
• Very good knowledge of local institutions

Remuneration: EUR 73,378 Gross per annum (approximately)

Interested candidates should send a cover letter and a completed P 11 form to: Mr Said Hadjami, Admin/Finance Associate by email to hadjami@unhcr.org

P 11 form available to download at www.unhcr.ie/how-to-help/careers-and-recruitment

Deadline for receipt of applications: 5pm, 22 May 2013

Interviews will be held during week of 27 May 2013

Due to the volume of applications typically received, only those candidates short-listed for interview will be notified. No telephone enquiries please