The Eagle: Trinity College Law Gazette Volume 8, Issue 1

TABLE OF CONTENTS Letter from the Editor by Matthew O’Shea [Page 4] Volume 8 Issue 1 Foreword by Dr Caoimhín MacMaoláin [Page 6] A Crisis of Legitimacy: The Failed Effort to Westernise Afghanistan’s Legal System by Antóin Fletcher [Page 9] Drivers Wanted: The UK’s HGV Crisis by Kate Flood [Page 12] Constitutional Carry: The Danger of Tennessee’s Recent Gun Law by Samantha Tancredi [Page 16] Restoring Agency to Clinicians over Transgender Healthcare Treatments in Bell v Tavistock by Thomas Heron [Page 20] The Eagle x DU Law Society Essay Competition Winner - The Courts and Covid: Justice over Zoom by Ámhra Carey [Page 23] World Heritage in Jeopardy: Analysing the UNESCO Decision on the Great Barrier Reef by Katharina Neumann [Page 28] The 1982 Law of the Sea Convention: Fit for Purpose to Comprehensively Address Modern Day Marine Pollution? by Luke Gibbons Jr. [Page 31] Analysing the Climate Action Bill: Progressive Agenda or Greenwashed Illustion? by Eoin Jackson [Page 34] The Eagle Interviews Ivana Bacik TD by Jacob Hudson [Page 39] Finding the ‘Right’ Balance: Privacy Rights and Biometric Data Rentention in Northern Ireland by Sophie Treacy [Page 44] German Hate Speech Laws: Balancing Freedom of Expression and the Fight Against the Incitement of Hatred by Catherine Forristal [Page 46] Capitalism Breeds Obsolescence by Ellen Hyland [Page 50] (USB-C) Port in a Storm for EU Consumers by Matthew O’Shea [Page 52]

Photo courtesy of Matthew O’Shea, SS Law and Business

The Eagle staff strives to practice ethical journalism and to promote integrity in its work. The editors and staff reserve the right to publish only those articles which they consider accurate and not injurious. All articles must meet these criteria in their inception and execution. The opinion articles do not necesssarily represent the views of the entire staff, faculty, students or administration of Trinity College Dublin.

Editor in Chief Matthew O’Shea

Deputy Editor Public Relations Officer Katharina Neumann Zoe Timmons

Copy Editor Ellen Hyland

Editorial Board

Antóin Fletcher, Catherine Forristal, Doireann Minford, Emma Bowie, Jacob Hudson, Julia Bochenek, Liam Ó Lionáin, Mark McGrane, Muireann McHugh, Ted Halligan, Thomas Heron

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The Eagle wants to be inclusive of the entire Trinity College Dublin community, and we welcome submissions from students, faculty and alums. If you would like to contribute, please contact us at our email. We do not guarantee that every article will be published. Every article submitted is subject to be edited for contant and for size.

All of the opinions expressed are those of the author and not of The Eagle.

Design and Layout

by Matthew O’Shea Cover Image

by Matthew O’Shea

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Letter

Letter from the Editor A Chairde,

It seems that lately, with each passing day, we are coming closer and closer to our return to ‘normal’. The first few weeks since returning to Trinity have been a blur in many ways - for The Eagle it has been no different.

I am delighted to launch Volume 8 of The Eagle with our first Issue. I remember writing the foreword for our last issue in Volume 7, and reflecting on how great things are done by a series of smaller things put together.

Now, a few months after taking over from last year’s wonderful team, I can see this statement is truer than ever. Our weekly blog has returned with great success, and we look forward to our themed issues later this year - all with thanks to the many small things brought together by our editorial team.

The Eagle is a powerful tool for us to use in expanding our horizons. In a period of our lives where there is such polarisation and divide between us, there is a lot to be said for a forum which welcomes voices from all sides of these issues. For me, it’s so exciting to see so many different perspectives come together in this publication. I have already learned so much from my peers, and as the world continues to change at such a pace, I look forward to learning much more.

Our mission of giving students a platform to express their views in a conversational manner remains at the core of what we do. Legal and political writing does not need to be intimidating. It does not need to be so inaccessible that students feel they cannot share their views. At The Eagle, we hope to change the common misconceptions about what legal and political writing is about. We want to bring it to you.

For anyone who is interested in seeing their name in an issue like this, or likewise on our weekly blog, I cannot encourage you enough to give writing a go. We welcome submissions on a wide variety of topics, and are always more than happy to discuss any of your ideas with you. It is through writing articles like those you can read in this Issue that I have learned some of the most lasting lessons in my college journey so far.

I am incredibly grateful to the Maples Group for their continued support of The Eagle. Their generous sponsorship and guidance helps us to make the Gazette what it is. To our authors, I am thankful for your considered and thought-provoking pieces. To our editors, I am so grateful for your diligence and care, which have helped to craft each piece from first draft to final form. Finally, to my family and friends, thank you for your ongoing support, without which I know I would not be where I am today.

Here’s to you, the reader, for this our 8th Volume. I sincerely hope that you enjoy it, and I am so excited to show you what we have to bring this year.

Le gach dea-ghuí, Matthew O’Shea Editor in Chief The Eagle: Trinity College Law Gazette

Photo courtesy of Matthew O’Shea, SS Law and Business

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Foreword

Volume 8, Issue 1 Foreword

By Dr Caomhín MacMaoláin, Head of the Law School, Trinity College Dublin Welcome back! Two words that have been a long time coming. It is great that you are back. And it is set to get even better!

I know that there was much disappointment at the overall quantity of personal teaching initially delivered.

There were a number of good reasons behind this. TCD took the decision shortly before the semester commenced, that it would put the health of students and staff above all other considerations. Social distancing of one metre would have to be maintained as a key feature of this policy. I believe that it has worked as well as could be expected in the circumstances.

Our Fresh year students have suffered most heavily as the result of this decision. Classrooms and lecture theatres are simply not large enough to accommodate everybody, taking account of social distancing. We have provided extra lectures where we can. Seminars will continue to be run face to face.

This is not the ideal University experience, a fact that we all appreciate. We will continue to do everything that we can in the management of the Law School and College to ensure that opportunities for the usual teaching and learning are maximised wherever possible.

As we all know, this Covid pandemic was, in general, unforeseen. It and its consequences were unpredicted.

As I write this foreword, the news media are reporting that positive cases and hospitalisations due to the virus remain stubbornly high. There is even talk of delaying the lifting of some restrictions until some time after October 22. And it is this date, in particular, that we as a Law School and a College community have had etched in our minds for the past few months. This was due to be the date on which most things could get back to their ’normal’, pre-pandemic state. Sadly, we can not put on a full schedule of face to face activities for this semester, even after this date. To do this would require that every school in College tear up their timetables and restart from scratch after reading week. All of the teaching rooms in College would have to be reallocated.

This isn’t possible, but we will do everything that we can within these limitations. We do sincerely hope that all teaching will be in-person and in-full for the second semester of this academic year and a near-full sense of normality, learning and enjoyment of College life can be properly resumed.

Compensating somewhat for this, is the fact that the student law societies have some fantastic plans for events throughout this coming year. I can not disclose what these are, but their initial planning and ambition demonstrate that there will be many opportunities for all law students to have great experiences, despite the restrictions of the pandemic. The Law School is also pressing ahead with the Student Colloquium, valedictory evening, graduations and a host of other (usual and new) events to be announced throughout the year. Again, these will become more commonplace during the second semester and, to a lesser extent, during the second half of the first semester, assuming that public health progress continues.

Having recently taken up my new position as Head of the Law School, I am eager for the dust to settle on these outstanding covid-related issues, so that we can together create the space to implement any changes that our Law School may need. I have sought out the opinions of students on what we could do differently and I have received some very progressive, ingenious and readily-implementable suggestions. I hope that we see many

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of these come to fruition.

The past eighteen months have been fraught with sadness, inconvenience, loneliness and constraint. With hope, we can enter this new academic year with the promise of better days, ready to move on to face down the other significant personal and Global challenges of this era. As lawyers, we are well placed to make positive contributions to our student body and to the college as a whole. If we do so, the credit in large part will go to you, our students, the life-blood of the university.

Photo courtesy of Matthew O’Shea, SS Law and Business

Photo courtesy of Lucy Shuyao Lü, JS Law and French

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A Crisis of Legitimacy: The Failed Effort to Westernise Afghanistan’s Legal System

By Antóin Fletcher, SF Law

Reflecting on two decades of US intervention in Afghanistan, the latest report from the Special Inspector General for Afghanistan Reconstruction (SIGAR) tells a story of how US ignorance of the religious and cultural factors influencing the legal framework of that country significantly undermined efforts to establish a unitary and centralised legal system: “[T]he United States misjudged what would constitute an acceptable justice system from the perspective of many Afghans, which ultimately created an opportunity for the Taliban to exert influence at the local level.”

Independent researcher and humanitarian worker Yoshinobu Nagamin has characterised Afghanistan as “a strong society but a weak state.” From a legal perspective, Afghanistan has traditionally been fragmented and decentralised. Customary justice, favouring arbitration over litigation, has long been an integral element of Afghanistan’s legal culture. Ultimately, reforming the Afghan legal system to maximise its compatibility with Western conceptions of the rule of law proved to be short sighted.

Afghanistan is a distinctive study, deserving unique observations and conclusions on legitimising forces. That is not to dismiss the validity of Afghan political values or to imply they are primitive in any comparative sense, but to point out an essential distinction, one tragically overlooked by western politicians, militaries and commentators alike. Furthermore, this article does not attempt to offer a definitive or comprehensive overview of the collapse of the western-backed Afghan administration; it is simply a broad outline.

The centrality of legitimacy A contributory factor in Kabul’s (For clarity, Kabul here refers to the Afghan State from 2004 to 2021) failure to establish a functional legal system was a lack of legitimacy. Indeed, legitimacy is an essential attribute for effective governance. In his book, Regime Change in Afghanistan: Foreign Intervention and the Politics of Legitimacy, Asia-Pacific affairs scholar Maley asserts that legitimacy is the “most usual basis for a regime’s coercive capacity” and attributes the rapid decline of former empires to a lack of “organised domination.”

Among other administrative and coercive methods, the Taliban employed its legal system as a means of building political power and legitimacy on foundations of competent statecraft. In much of Afghanistan, this feat was beyond the central government.

I will draw here on the recent work of Dr Niels Terpstra, Assistant Professor of Law, Economics and Government at the University of Utrecht, to discuss legitimacy in both a pragmatic and moral sense. Dr Terpstra briefly defines these terms: “Pragmatic legitimacy is based on the provision of services, protection, or even a willingness to share power, while moral legitimacy is based on ‘narratives of goodness, compatibility with existing norms and moral codes…”

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Pragmatically, the Taliban attained legitimacy from its ability to restore law and order, albeit in often ruthless terms, in vast swathes of rural Afghanistan where the Kabul administration could not govern. In this effort, the Taliban also developed a sophisticated network of courts to administer justice efficiently and accessibly.

Restoring order to a country scarred by civil war and chaos was a priority of the Taliban during its first period in government, and after 2001, this legitimising tactic became relevant once again. In 2013, the Asia Foundation cited insecurity as the greatest problem faced by Afghans. The World Justice Project Rule of Law in Afghanistan Report for 2019 found that while a majority of Afghans felt the conventional legal system could bring criminals to justice, just over half felt that the punishments employed were appropriate.

Additionally, as conflict studies scholars Jackson and Weigand observe, while Kabul’s courts were noted for their general dysfunctionality, the equivalent Taliban system was perceived as fair, efficient and accessible.

This procedural efficiency, while sometimes yielding substantively or procedurally unjust decisions, was popular with many rural Afghans. For example, Nagamine, in his work The Legitimization Strategy of the Taliban’s Code of Conduct, relays an instructive story of a citizen of Kabul who, relying on conventional courts and despite paying a significant bribe, could still not access plots of land he had purchased due to what the author calls “administrative hassle.”

Accessibility further bolstered the reputation of the Taliban as the legitimate legal arbiters in much of Afghanistan. Outside urban centres, the central government had neither the infrastructure nor the security to operate coherently.

Afghans seeking a remedy in the conventional courts were required to undertake long and expensive treks to a provincial capital. Owing to the Kabul Government’s lack of administrative or military control in vast areas of the country, there was no guarantee a court ruling would be enforced. By contrast, the active reach of the Taliban courts was extensive.

Individuals residing in government-run districts could still resort to the Taliban courts even if one did not operate locally. Crucially, the Taliban had the territorial control and coercive ability required to enforce their judgements.

Whereas the state courts caused confusion for a citizenry unaccustomed to western legal norms, the Taliban courts administered law on more familiar grounds, explaining judgements to litigants and, as Jackson and Weigand note, assisting in the drafting of causes of action. This traditional means of adjudication was popular in Afghanistan where, as SIGAR reports, 80 to 90 per cent of all disputes have historically been resolved by informal, community-based means. Middle Eastern and Islamic law expert Professor Martin Lau reaffirms this observation, holding that, in Afghanistan, “non-state fora for the settlement of disputes … have always played an important role in the legal system…”

For the Taliban, moral legitimacy was also essential. After insecurity, the Asia Foundation cited corruption as the second greatest area of concern for Afghans in 2013. The United Nations Office on Drugs and Crime’s 2010 report, Corruption in Afghanistan, found that half the Afghan population felt international organisations and NGOs were corrupt. Nagamine has attributed this perception, often well founded, of external interests in Afghanistan as inherently corrupt with the rise of Islam as an attractive and honest alternative.

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In sharp contrast with the Kabul legal infrastructure, the Taliban, according to Jackson and Weigand, does not accept bribes with the same regularity. The bribe culture upon which much of the centralised administration of justice was based irreparably tarnished the reputation of the conventional judiciary, thereby calling into question the impartiality of the law. In their 2019 report on Afghanistan’s legal system, the World Justice Project found that bribe culture was pervasive. Obtaining official documents like birth certificates, permits or government IDs came with a supplementary cost. The same report found that 59 per cent of Afghans perceived their judiciary as corrupt.

This offer of a moral and functional alternative, one influenced by a strict Islamic code, bestowed on the Taliban courts a significant degree of legitimacy in a country plagued by inefficiency, corruption and suspicion of external political entities. While the Kabul government cited Islamic texts as a source of national law, the relative rigidity and perceived faithfulness with which the Taliban interpreted, and applied Sharia delegitimised the efforts of Kabul. I stress here “perceived faithfulness,” as the Taliban’s own interpretation of Sharia is most certainly not exclusive or arguably even faithful.

Translating Administrative Legitimacy into Political Power Frank Ledwidge, Fellow of the University of Portsmouth and a former British military officer, has stated that “there is no more effective weapon in the Taliban’s armoury than an effective court.” Regardless of whether a legal dispute concerned land, the family, commerce or otherwise, the Taliban issued remedies consistent with its own ethical code. This, in turn, regulated the moral standards of the wider community. Furthermore, the relative support for the Taliban’s shadow courts equates to a degree of political validation. On this point there is a crucial caveat; it is not immediately clear if this support was based on genuine satisfaction with the Taliban’s legal process, or motivated instead by the threat of violent retribution from the insurgency for conveying dissatisfaction.

The ability to derive legitimacy by exercising effective and relatively popular governance, and efficiently utilising this legitimacy to consolidate control across regions was critical in the Taliban’s rise to power.

“The Taliban’s strategy,” as outlined by Jackson and Weigand, “is to gradually increase their control over society. They use their parallel governance system to keep people at least marginally satisfied and boost perceptions of their legitimacy. This, in combination with their coercive power, secures the population.” The same authors discuss the Taliban’s ability not simply to coexist with the central and customary legal systems, but to gradually replace them as competitors.

Indeed, this lesson of collapse in Afghanistan highlights the danger and futility of attempting to compensate for a lack of legitimacy by force alone. It is a lesson that, if grasped in the early days of the Taliban’s downfall two decades ago, may well have led to a sustainable, democratic and just authority in Afghanistan, one enjoying popular support. It is a lesson that, if grasped now, may avert comparable geopolitical disasters tomorrow.

The United States chose to ignore entrenched cultural and historical norms that had existed in Afghan society for centuries, advocating instead for what was politically expedient at the time. As the 2021 SIGAR Report notes, “U.S. officials chose to pursue a vision for Afghanistan’s justice system that reflected American values and preferences, without sufficient regard for what was practical or possible.

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Politics

Drivers Wanted: The UK’s HGV Crisis

By Kate Flood, SS Law and Business

In recent weeks, thousands of petrol stations across the United Kingdom were forced to close after being overwhelmed by widespread panic-buying and stockpiling of fuel. Many attest that the UK is in the midst of an oil crisis, but yet, it seems there is no shortage of fuel. It appears to be a case of oil, oil everywhere and not a drop to be had, as there are ample supplies of fuel in refineries and terminals up and down the country. So what is the issue? Rather than being exclusively an oil-related crisis, this perceived issue in supply is symptomatic of a dilemma with which UK companies have long been grappling, namely a chronic shortage in Heavy Goods Vehicle (‘HGV’) drivers. However, after resisting the calls of retailers to take action, the UK Government is finally stepping in, implementing a temporary visa scheme. This is merely a short-term fix, aimed at ensuring that the Christmas season is impacted as little as possible by the shortage. Even so, what should the Government do after Christmas? What will a long-term solution look like? Before contemplating this, it is imperative that the issues spurring this crisis are carefully considered and understood by the British Government and indeed by other States.

Covid-19 and the HGV crisis Perhaps unsurprisingly, many are citing Covid-19 as a factor behind the crisis. Indeed, the UK Government and Transport Secretary, Grant Shapps, has deemed it the “main reason” for the shortage. Certainly, Covid-19 is part of the problem. With the onslaught of the pandemic, large parts of the economy effectively shut down, and travel became increasingly restricted. Consequently, many HGV drivers returned home to the European Union or further afield. Evidence suggests that most of them have not come back. Furthermore, some 40,000 HGV driver tests were cancelled as a result of UK lockdown restrictions. So, not only did Covid-19 lead to a mass exodus from the industry, it also inhibited the provision of new entrants.

The possible impact of Brexit It must be acknowledged that this labour shortage is not unique to the UK, indeed countries across the EU are also facing driver shortages. Even so, the problem is far more acute in the UK, leading to assertions that Brexit is a contributing factor. Many drivers who left at the start of the pandemic are now unable to regain entry into the UK due to Brexit. The UK is perhaps a less attractive destination for EU workers by virtue of increased bureaucracy due to their loss of EU worker status in Britain, and the devaluation of the pound relative to the euro since Brexit. Some point to the speed with which Johnson’s ‘hard’ Brexit was enacted, which meant that there was no time to train British drivers to fill the gaps. The UK's HGV industry has long relied on drivers from the EU, so it is perhaps unsurprising that it is struggling in a post-Brexit labour market.

The nature of the work itself The UK Government is keen that the impact of Brexit not be overstated, and indeed it would be remiss to present Brexit as the primary driver of the shortage. Similarly, Covid-19 cannot be advanced as the sole culprit.

There was an issue with the supply of drivers long before the pandemic. So, is there something else; a more fundamental issue which the Government’s quick-fix scheme fails to address, much less acknowledge? Is the basic issue not just that the job of an HGV driver is unappealing? The job demands gruelling hours spent on the road without adequate time to eat or wash properly, let alone spend time with family and friends. Carrying valuable cargo such as fuel also presents potential security issues for drivers as they put themselves at risk of becoming the target of theft. Many within the industry say that they just need to tap into previously neglected demographics such as women and young people to increase the number of drivers. It is true that the area is

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male-dominated to an extent that simply would not be tolerated in other spheres of employment - it is likely only tolerated in this instance because of the unattractive nature of the task at hand. Furthermore, it is an industry with an ageing workforce, with the BBC reporting that the average age of a driver is 55.

However, with such appalling working conditions, and with existing drivers eager to exit the industry, why would anyone want to sign up as a recruit?

Emerging from the crisis The recent hysteria over fuel in the UK is just the latest instalment in the longstanding supply-chain saga with which the UK and others have been wrestling. It is beyond doubt that Covid-19 has contributed to the shortage in no small way. Furthermore, it is true that the issue, as played out in the UK, has been exacerbated by the impacts of Brexit. Both phenomena have led to drivers leaving the industry to return home, with many choosing not to, or being unable to return. If these were the only factors leading to the shortage, the granting of visas would be a clear and workable route out of the crisis, and could potentially see the UK through to Christmas and beyond. However, the largest, and most fundamental issue at play is that the nature of the work makes the job unattractive to the majority. In order to remedy this, governments will need to do a lot more than just hand out visas. Rather, the conditions under which drivers are expected to work will need to be improved in order to make the HGV industry a more appealing occupation. Therefore, as a quick fix solution, the issuing of visas may be a logical step, but going forward, the fundamental underlying issues need to be addressed.

Photo courtesy of Lucy Shuyao Lü, JS Law and French

Photo courtesy of Samantha Tancredi, SS Law and Political Science

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Rights

Constitutional Carry: The Danger of Tennessee’s Recent Gun Law

By Samantha Tancredi, SS Law and Political Science, Former Editor in Chief Editor’s Note: This article discusses gun violence, which some readers may find distressing This summer I had the humbling opportunity to intern for the Shelby County District Attorney’s Office in Memphis, Tennessee, where I learned directly from exceptional attorneys about the function of a prosecutorial role. Given the intense political climate in the United States with regard to the police force, I felt confident that taking a job that consistently interacts with this agency would be informative and would help me in shaping a more holistic view of law enforcement. When interacting with the police officers during orientation, as well as discussing Memphis news and politics amongst the interns, one salient conversation in particular constantly resurfaced: the constitutional carry laws that recently came into force in the state of Tennessee on July 1, 2021.

This made Tennessee the 19th state in the US to adopt this law.

Constitutional carry laws (also coined ‘permit-less carry’) allow individuals aged 21 and over to carry handguns openly without a permit; this also applies to members of the military aged 18 to 20. Tennessee Governor Bill Lee touted this legislation on the basis of the Second Amendment to the United States Constitution.

Though widely popularized, it is worth including a brief synopsis of the Second Amendment to ensure clarity of the difference between the new law and the constitutional provisions. The Second Amendment reads: “A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” The intention behind the language used is to vest power in the people who have the right to an ultimate check on government power and avoid tyranny. Thus, to marry the constitutional carry legislation to the Second Amendment is not blindly inaccurate; there is no requirement in the Constitution for a permit in order to own a firearm. However, safety and public policy concerns clearly pose an imposition to this type of legislation going ahead without criticism and hesitation.

The immediate response to this legislation is to support or oppose it; no one sits idly in the middle on this issue.

On one side, gun activists critique the law for not going far enough to grant further rights to citizens; they note that the new law does not apply to long guns, and they argue that non-military members aged 18 to 20 should be allowed to avail of the permit-less carry permissions. The latter point is driven by the fact that Tennessee’s law increases punishments for certain gun crimes, which may apply to 18 to 20 year olds, who are notably excluded from the new permit-less carry law; thus, the critics argue that this age group should not be exempt from what the legislation itself provides.

However, the contrary opinion focuses far more on concern for the public, one that this article finds far more compelling. This is first rooted in the objective statistics from this past year that inform the need to protect communities from violent crime, which would logically not entail providing easier access to handguns. According to the New York Times, “although major crimes were down overall, there were an additional 4,901

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homicides in 2020 compared with the year before, the largest leap since national records started in 1960.”

While the Covid-19 pandemic prompted the opportunity for increased crime, whether this was from burdens from unemployment, mental strain from isolation, or other related reasons, these statistics will only worsen by the provision of permitless carry laws. Last year, several cities, like Albuquerque, Des Moines, Indianapolis, Memphis, Milwaukee and Syracuse, recorded their highest homicide numbers ever; the F.B.I. figures for Memphis show a record 289 murders in 2020, up from 190 a year earlier. Moreover, comparing figures from this month last year to present day, Memphis’s homicide statistics have already exceeded those from this same time last year. Thus, there is a clear concern for Governor Bill Lee’s decision to allow this legislation to move ahead.

This article argues that Governor Bill Lee’s Permit-less Carry Legislation is a perfect example of irresponsible and ignorant use of government power. On February 27, 2020, the governor proposed this legislation with claims that “[t]he Second Amendment is clear and concise and secures the freedoms of law-abiding citizens to keep and bear arms.” Governor Lee continued, “I am pleased to announce constitutional carry legislation that will protect the Second Amendment rights of Tennesseans, while also stiffening penalties on criminals who steal or illegally possess firearms.” After being brought to the House of Representatives by the 44th district Tennessee Representative William Lamberth (R-TN) it was en route to pass into law, which eventually occurred on July 1, 2021. The arguably ignorant juxtaposition occurs as the legislation directly opposes the safety craved, and demanded, by the citizens it seeks to serve; justifying this legislation’s passing by relying upon the Constitution also provides murky waters.

There is no document in the U.S with more authority, severity, or importance than the Constitution, yet its interpretations vary. Despite the brevity of the following descriptions, a clear distinction between the originalist and modernist perspectives of interpretation will be obvious. Originalism is a term that means that the Constitution should be viewed in its most original form; it is often associated with “original intent,” which means that the constitution is viewed with the perspective the Founding Fathers intended. It is argued that the framers of the Constitution held a solid vision for how the country was to develop, and drifting from that original purpose is to drift from our nation’s very design. If there is ever a constitutional question, originalists turn to those who wrote the very document in question to provide interpretation. Opposing this is the modernist perspective, which is often associated with the Constitution being a “living” document. This means that the Constitution may be interpreted as if it were being written today—applying its principles to the now. Modernists argue the Constitution becomes irrelevant if viewed the way Originalists intend, since we have developed as a nation in the past 250 years very differently from how the Founding Fathers lived when developing the Constitution.

When critiquing the originalist view, modernists suggest that there is little validity in using a homogenous group of wealthy white men to holistically dictate the future of the world’s arguably most diverse nation by strictly adhering to its words.

These interpretations make the most sense in light of American constitutional history. Passing the new Constitution of the Free World was no easy feat given the great division in America at the time-the Anti-Federalists versus the Federalists. The Anti-Federalists worried that the tyrannical form of Government that they had worked tirelessly to escape in Britain would resurface without a safeguard to prevent it. They feared a new government could resort to old ways-that they would fall victim to an overpowering government once again, and this fear drove their value system against tyrannical government. The Federalists did not see it this way, arguing that a democracy would inherently prevent such an occurrence with the people electing members of Congress. They recommended people make the assumption that all rights are protected, not listing out specific ones, thereby allowing for people to violate the unlisted rights. In the end, Federalists promised to enact a Bill of Rights as their first duty once Congress was elected. This compromise led to the birth of the Second Amendment, as was previously discussed.

It is clear then that Governor Lee is an originalist, clinging to the Founders’ words as written in the Second Amendment. He views the Amendment in its original text: to prevent tyranny and protect our nation. I would

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take no issue with this interpretation, or his view. It has its validity and its merits as a genuine string of political thought adheres to a small-government, large-autonomy structure with checks against the government. Within this concept, gun ownership is justified in the people’s vested right to overthrow a dominating government.

However, Governor Lee works for the State of Tennessee, not the Founding Fathers of the Constitution, and the originalist tendencies he maintains become irrelevant as he threatens the safety of the state. Within this passed legislation, there is no indication that the Second Amendment informs further legislation to exist at the expense of human lives; the role of the right to bear arms was actually to protect, not to harm, and the constitutional carry laws mock this intention by their very existence.

The Tennessean published an article that details the reactions of Tennessee citizens to this proposal, and the findings are unsurprising. As authors Anita Wadhwani and Jamie McGee describe, “To buy a firearm, a person must submit to a background check by the Tennessee Bureau of Investigation. To obtain a handgun carry permit, individuals must pass a fingerprint background check by the Tennessee Department of Safety and Homeland Security and complete a Tennessee handgun safety course. A law that went into effect January 1, 2020, now allows Tennesseans to take the 90-minute course online.”

The new legislation means that people will legally be entitled to own and carry a firearm regardless of those permits, causing a public reaction of fear and alarm.

Other Tennessee officials have spoken out against this Bill. Namely, Shelby County District Attorney Amy Weirich, who represents Shelby County, which sees the highest homicide rate in the State; General Weirich spoke in support of “greater penalties for gun crimes,” but remarked “Lee’s permit proposal would create incredible challenges for law enforcement.” To the Governor, General Weirich posits the question:, “Is it really asking too much for someone to get a permit to carry a deadly weapon on our streets?” Nashville District Attorney Glenn Funk held a similar argument: “Encouraging Tennesseans to arm themselves in public, without even requiring gun safety classes, will result in a more dangerous environment for Tennessee families.”

Gun ownership comes with a massive sense of responsibility, and a massive undertaking by its owner: weapons are to be respected, not abused.

This legislation makes it so much easier for abuse to occur and puts citizens, police, and the Governor himself at a greater risk for no apparent reason other than a massive expansion of the Second Amendment that arguably does not represent its intentions.

The Governor is entitled to any interpretation of the Constitution as he pleases. But is he entitled to threaten the safety of those who live in Tennessee? Who would, and more importantly, who could feel comfortable knowing that people now may access firearms with no background tests? How many more school shootings must the USA suffer before politicians such as Governor Bill Lee learn? Background checks and the most basic safety institutions which are already in place, such as that of retrieving a permit, have failed already.Take those away, the risk only increases.

Analogously, a similar line of questions apply in considering traffic safety. Should we take away the need to practice before we allow people to get behind the wheel of a car? Is the requirement of a license to do so a symbol of the government infringing on someone’s right to drive? Should we as a society require all to be the age of 21 before driving without a license?

In many’s defense of the legislation, they turn to the increased penalties for firearm-related crime to promote

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public safety, which include:

“Increasing the penalty for theft of a firearm to a felony; Providing a sentencing enhancement for theft of a firearm in a car; Increasing the minimum sentence for theft of a firearm from 30 days to 180 days; Increasing the sentences for unlawful possession of a firearm by violent felons and felony drug of- fenders, possession of a handgun by a felon, and unlawfully providing a handgun to a juvenile or allowing a juvenile to possess a handgun.”

By this bill, after the people wrongfully possess a firearm, punishment follows, despite having the means and opportunity to work to prevent that in the first place. Though law often finds itself in a reactive seat, this is a situation where the law may actually be proactive, but the Governor is restraining its ability to do so by taking restitutionary measures seriously, but not preventative ones.

Ultimately, the constitutional carry law passed in Tennessee is another example of a political misuse of power.

Though statistically it is too soon to tell the effects of this legislation, it is not promising; the harm seems to greatly outweigh the good. While prominent city leaders who deal with homicide and crime daily directly opposed the passage of this legislation, warning Governor Lee of its harmful effects, it still passed. Now, the citizens of Tennessee join the 19 other States with this law in having to defend its communities from the potential horrors now granted by law. In the end, gun laws in the US have the opportunity to be proactive; instead, this constitutional carry permission forces law into the backseat and remains reactive. With human lives on the line, can we really afford this?

Photo courtesy of Matthew O’Shea, SS Law and Business

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Restoring Agency to Clinicians over Transgender Healthcare Treatments in Bell v Tavistock

By Thomas Heron, SS Law On September 17th 2021, the Court of Appeal of England and Wales reversed the highly controversial judgment of the High Court in R (on the application of Quincy Bell and A) v Tavistock and Portman NHS Trust and others (Tavistock). The Court of Appeal found that the lower court had erred in issuing guidance to the effect that it was “highly unlikely” that children under the age of 16 would be competent to understand and appreciate the long-term consequences of “experimental” treatments for gender dysphoria in children.

The Court of Appeal further found that puberty-blocking hormonal treatment bore no characteristics which differentiated it from other standard medical treatments so as to warrant the “guidance” the High Court issued to supplement the standard test for children’s medical consent in Gillick v West Norfolk and Wisbech Area Health Authority (Gillick).

The appellate decision has been welcomed by advocates of transgender healthcare rights for its acknowledgement that evaluation of transgender children’s competence to consent to hormonal treatments for gender dysphoria is the role of clinicians and not the courts. In the context of stagnant reform of the legal position of transgender people in the United Kingdom, this validation from the courts of the legitimacy of standard treatments has an important role to play in legitimising transgender issues.

Background The Tavistock clinic is a part of the United Kingdom’s Gender Identity Development Service, referring transgender patients experiencing gender dysphoria for treatment through the NHS. If consent is obtained from the patient (and their parents where appropriate), treatment courses normally involving Puberty Blockers (“PBs”) and subsequent Cross-Sex Hormonal Replacement Therapy (“CSH”) are prescribed to treat gender dysphoria.

The main claimant in the case is a woman who previously identified as a transgender male prior to the proceedings and sought and obtained a referral for puberty blockers from the Tavistock clinic. Following a number of years on preliminary puberty-blocking treatment and subsequent hormone replacement therapy and surgery, she identified differently and regretted the changes that she felt her referral and treatment had wrongly enabled. On foot of this, she applied for judicial review of the legality of puberty-blocking treatment to children under the age of 18, whom she asserted could not consent based on the “misleading” advice given by the Tavistock clinic. This was heard in the first instance in the High Court.

High Court judgment Firstly, the High Court ruled that there was nothing unlawful about the Tavistock advice on foot of which consent was obtained for PB treatment through the National Health Service. This was a central issue and, as the Court of Appeal would later remark, it is difficult to understand why the case was not dismissed here. How-

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ever, from this point the Court embarked on a lengthy discussion of evidence about PBs and CSH, concluding that both are ‘experimental treatments’ with ‘life-changing’ consequences for transgender children.

The High Court gave consideration to the principle enunciated in Gillick. The Gillick test permits children under 16 to consent to medical treatment without parental permission if they have “sufficient maturity and intelligence to understand that nature and implications of the proposed treatment” in the view of their clinician.

Once this test is passed the individual is referred to be Gillick competent.

However, the Court sought to distinguish PB and CSH treatments on the grounds that the “profound” impacts carried “unclear” benefits and “long-term consequences to a material degree unknown [such that] Gillick competence cannot be achieved, however much information and supportive discussion is undertaken.” This was also justified by the Court’s conclusion that the PB/CSH treatments were conjunctive in the sense that a patient starting on PB almost always progressed onto CSH, a conclusion which the Court of Appeal would later contest. On this basis the Court appeared to advise clinicians that court order would always be appropriate for children under 16 to obtain access to PB and CSH. The Court’s concluding remarks pronounced that it was “highly unlikely” that a child under 13 and “doubtful” that a child under 15 could understand the treatment’s long-term effects on sexual function and fertility.

It is unclear why, if the Court was genuinely concerned that the impugned treatments were so profoundly unique so as to warrant distinction, they did not adapt the criteria laid down by Fraser LJ in Gillick for contraceptive treatment to PB and CSH treatment.

For example:

“the young person will understand the professional’s advice; cannot be persuaded to inform their parents; is likely to continue experiencing gender dysphoria with or without PB/CSH treatment; unless the young person receives PB/CSH treatment, their physical or mental health, or both, are likely to suffer; the young person’s best interests require them to receive PB/CSH treatment with or without parental consent.”

Court of Appeal On appeal, the logical leaps and inappropriate medical conclusions drawn by the High Court were heavily criticised. The Court of Appeal first rejected the idea that PB/CSH treatments were “experimental”. It then clarified that there was nothing about the impugned treatments which differentiated it from Gillick so as to warrant supplemental guidance from the Court. Further, the Court reaffirmed that the purpose of Gillick competence is to instruct clinicians, not courts, on how best to evaluate a child’s ability to give consent, and reprimanded the Court for attempting to do so by issuing its guidance. The Court noted with approval the thorough procedure for obtaining consent carried out by Tavistock, noting further that the operators of the clinic were subject to NHS standards of procedure. The Court also noted the difficult position that the High Court decision had caused with respect to the provision of the NHS GIDS, and presumably had in mind to alleviate this as one of its aims when overturning the decision.

It is unclear at this point whether the claimants will appeal this case to the Supreme Court.

The consequences of the Appeal judgment The Court of Appeal’s decision to overturn this decision was welcomed on a number of grounds.

The test of Gillick is now clearly addressed to doctors and clinicians. The Court of Appeal’s disapproval of judges making generalised pronouncements about what children are likely or unlikely to be able to appreciate at different ages was stark throughout the judgment. In rejecting these largely baseless conclusions, it firmly redrew the boundaries of expertise in this area of law, directing that only clinicians are in a position to carry out the test enunciated in Gillick. In many ways, this properly squares transgender healthcare for children as a

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medical issue, not a legal debate.

Further, the decision of the Court of Appeal restores agency to transgender children with respect to their health and transition. The High Court had clearly misunderstood the underlying rationale of the Gillick competence test; The purpose of Gillick is to reflect the differences in maturity, intellectual capacity and precocity among children of the same age. The test permits clinicians to obtain consent from a child with respect to that individual child’s ability, and the Court of Appeal found no grounds to distinguish transgender healthcare treatments from this.

Suggesting without evidence, as the High Court did, that taking puberty-blockers puts children on a “virtually inexorable” path towards further treatment of an “entirely different territory” only served to contribute to the moral panic surrounding standard transgender healthcare. The High Court was clearly very influenced by the claimant’s experience and used it as a justification to universally restrict access to PBs and CSH for gender dysphoria, despite also hearing evidence from transgender people that the same treatments had been life- saving for them.

This case exemplifies the danger of courts usurping the role of clinical experts and imposing their own views of strongly politicised topics.

In the immediate aftermath of the High Court judgment, it was reported that the Tavistock cancelled appointments in its service and that the NHS ceased accepting referrals.

Conclusion The sceptical tone underlying the entire High Court judgment can unfortunately be seen as demonstrative of wider attitudes to transgender issues in the United Kingdom. The European Commission has reported that the intrusive medical requirements still imposed by the UK Gender Recognition Act 2004 place it among the worst in the EU. Despite support for amendment, following a public consultation on the Act the government elected not to put forward any changes. Considering the already significant paucity of clinics like Tavistock, it is hoped that the appeal judgment in the Bell case provides an impetus for change in attitudes among the judiciary and the government in the United Kingdom.

Judicial review aims to review the decision-making process as opposed to the decision, at least in practice.

However, the Bell case shows the difficulties still experienced by the senior courts in mapping the relationship between clinical expertise and legal rules.

Author’s Note: Anyone interested in the topic of transgender rights and equality in the United Kingdom and generally is encouraged to read The Transgender Issue by Shon Faye

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The Eagle x DU Law Society: Article Competition Winner The Courts and COVID: Justice over Zoom By Ámhra Carey, SF Law The US Conference of Chief Justices has written that, “the pandemic is not the disruption the courts wanted, but it is the disruption that courts needed.” The COVID crisis has forced their hand and in doing so has also forced their uncomfortable position in the modern world into stark reality: the integral principles of open justice and access to justice have been pushed to breaking point in the face of this disruption and in the hands of a judiciary unfamiliar with the digital world. However, COVID has also presented the courts with an opportunity to definitively step into the modern world, while preserving and enriching their principles.

Feeling among Judges and Lawyers In May 2020, the Law Society Gazette reported that Irish judges were apprehensive about the move to digital platforms for court hearings, fearing that “not every matter can be dealt with remotely.” This was understandable, as the scheme was being implemented in an emergency without “detailed engagement and testing.”

However, one year on the Court Service has declared the introduction of virtual courts a success, reporting that there have been over 5,000 virtual court sessions, and that there is popular support from the legal profession for a ‘hybrid model’, with 92 per cent of survey respondents being in favour of continued use of virtual courts for minor procedural hearings. The Bar of Ireland has also published its opposition to ‘widespread’ remote hearings, although it supports the “use of remote hearings to deal with short or uncontroversial procedural business.” It is worth noting that the figure of 5,000 virtual court sessions is not so impressive when compared with other jurisdictions, such as Texas, which held 1.1 million online court hearings in the same period. Lawyers’ enthusiasm for online hearings has been explained by Sir Geoffrey Vos Mr in the following terms, “To be blunt, remote hearings can boost their earnings potential.” These are still encouraging signs that demonstrate the success and support of the move to virtual courts.

Access to Justice The principle of access to justice is enshrined in Article 6 of the ECHR, and is defined as a principle of the rule of law by the UN. The British Courts have held that “it is a principle of our law that every citizen has a right to unimpeded access to a court,”and it has been protected as an “elementary right under the [Irish] Constitution” under the unenumerated rights doctrine. Considering this strong protection, the move to online court hearings has rightfully brought up the issue of the inability of some to access a necessary device and internet connection. The Irish government could and should have taken steps to allow those without the necessary facilities to access the courts in a safe manner throughout the pandemic, such as keeping libraries open. However, there is evidence that the shift to online hearings has generally improved access to justice internationally: In Michigan the rate of defendants showing up for court has increased from roughly 11 per cent to nearly 100 per cent. The Irish Courts Service has also reported that: The attendance by participants at remote hearings before the Examiner has exceeded what would have been

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the situation when physical hearings were the norm. This can be attributed to the ease of access to remote hearings, and an increasing acceptance generally of this mode of conducting business.

In this regard the pandemic has forced the courts to improve their accessibility. This unexpected improvement has been put down to a narrowing of the ‘digital divide.’ While this is the case for a majority, there still exists a subsection of society - older individuals and those who lack the financial means to acquire a device and reliable internet connection - which cannot be overlooked. Going forward, if a hybrid approach is taken, the courts must accommodate this invisible minority by either providing the choice to attend physically, or the provision of free access to the internet: this is necessary to uphold the integrity of the principle of access to justice. If it is not done the courts risk alienating an already vulnerable minority further.

It would also be an oversight to overlook the ‘elephant in the room,’ or more precisely the ‘cat in the Zoom’ when it comes to online hearings: technical difficulties. Many judges and lawyers are not technologically proficient, and this has led to numerous issues, sometimes humorous, nonetheless, these issues can seriously derogate access to courts. Another more serious example of the limitations of remote technology regarding access to the courts was highlighted in a viral video of a US court in which an abuser was found to be in the same house as his victim while they both attended a remote court hearing.

Public Justice In common law, the principle that “Justice must not only be done, but must also be seen to be done,” pre-dates the Magna Carta, it is also protected by Article 6 of the ECHR and is enshrined in Article 34 of the Irish constitution, which states that “Justice… save in such special and limited cases as may be prescribed by law, shall be administered in public.” The Supreme Court confirmed that this “fundamental principle in the administration of justice was made part of the fundamental law of the State by Article 34 of the Constitution in 1937.”

This constitutional provision does have an in-built limitation that the Oireachtas can legislate to curtail public justice, however, this ability is routinely misused.

Cases involving ‘gagging orders’ have caused controversy in recent months. In one case, Birmingham P found that a mother who killed her child could not be named under Section 252 of the Children Act. The act was designed to curtail public justice to protect child victims, however, it was arguably protecting perpetrators. In another high-profile case, an order made by a judge in respect of the Rape Act 1981 prevented Aisling Vickers from identifying herself, her rapist, or telling her story. These cases show that the judiciary is prone to unjust infringement of the principle of open justice, so we should not be giving them the ‘benefit of the doubt’ regarding the pandemic.

As courts moved online last year, physical observation of trials became impossible, therefore a means to preserve open justice was needed to maintain constitutionality. In response the courts created a protocol to “allow for bona fide members of the press to remotely link into such hearings as observers - acting as the eyes and ears of the public.” This is an eloquent way of saying that the public cannot observe trials without press credentials.

Essentially, the courts have decided that the constitutional requirement can be met by proxy, through journalists. Crucially, there is no legislative backing for this derogation of open justice, which is required under Article 34. The crux of the issue is that this weak form of constitutional compliance will not truly be tested as the very courts that are implementing the policy are the arbiters of constitutionality.

Hamilton CJ’s expression of the importance of open justice is useful in understanding the utility of the constitutional protection: Justice is best served in an open court where the judicial process can be scrutinised. In a democratic society, justice must not only be done, but be seen to be done. Only in this way, can we respect the rule of law and public confidence in the administration of justice, so essential to the workings of a democratic state, be mainPhoto courtesy of Matthew O’Shea, SS Law and Business

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tained.

It is submitted that for these reasons, ‘live streaming’ court hearings would strengthen public confidence in our courts. Other jurisdictions, such as Michigan, have complied with the principle more robustly and have live streamed court sessions, allowing the public to watch online. This approach fulfils constitutional requirements and amplifies the principle’s strength, increasing the capacity of the court to operate in ‘public’ as thousands can observe court online.

This principle must, of course, be balanced with privacy concerns: the Chief Justice of Michigan has stated that “very private embarrassing moments can be preserved forever” if court sessions are streamed. However, it is submitted that there has been no attempt at balance on the part of the Irish courts. There is no system wherein certain cases can be selected for livestream while sensitive cases are kept private, the courts have discarded the spirit of the principle of open justice in favour of overprotecting privacy.

Conclusion COVID has forced the judiciary to make great changes, and it is a testament to the diligence of the courts that justice has continued to be administered in these circumstances, with a positive reception from lawyers. However, the approach taken by the Irish courts has not been without fault and the important principles of access to justice and open justice have been weakened by moving online. It is submitted that modern technology could allow for these principles to be strengthened if the correct approach is taken by the courts, specifically through the provision of free internet access for court attendees and through the live streaming of at least some court hearings.

Photo courtesy of Matthew O’Shea, SS Law and Business

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World Heritage in Jeopardy: Analysing the UNESCO Decision on the Great Barrier Reef

By Katharina Neumann, Deputy Editor, SS Law and Political Science Shimmering schools of fish, vibrant, colourful corals, and peacefully floating turtles – I remember my first time snorkelling at the Great Barrier Reef as if it was yesterday. Sadly, a few kilometres south of this underwater wonderland, a very different picture transpired. There were no turtles, only single fish, and most disturbingly, the corals which gave the other spot its sense of magic were bleached and lifeless. - This was my experience in 2018.

Today, three years later, more than half of the Great Barrier Reef looks like the latter described wasteland.

With rising sea temperatures and increased levels of ocean acidification, climate change has left its mark on the vibrant underwater paradise, as evidenced by the increased incidence of mass coral bleaching. As the rate of global warming is forecasted to increase, conservationists fear that the Reef’s condition will reach an irreversible tipping point after which its biodiversity will fail to recover from the mass mortality of corals.

Considering these developments, the recent United Nations Educational, Scientific and Cultural Organisation (UNESCO) decision to not classify the Great Barrier Reef as an endangered World Heritage Site is regrettable.

Unfortunately, it is an illustration of the persistent ineffectiveness of the UNESCO World Heritage Convention as an international legal tool, which leaves our world’s cultural and natural heritage with little legal protection.

The World Heritage Convention 1972, a treaty ratified by 194 countries, is regarded as one of the most significant international legal tools supporting the conservation of the world’s cultural and natural heritage. It connects in a single document the concepts of nature conservation and the preservation of cultural properties, recognising the fundamental need to protect the balance between the two. The Convention was drafted to encourage the identification and preservation of areas with cultural and natural heritage around the world which are of outstanding value to humanity. State Parties pledge to identify potential sites and to protect and preserve their national heritage, expressing a shared commitment to preserve the world’s natural and cultural legacy for future generations. The Convention also empowers the World Heritage Committee, which is composed of 21 State Parties, to inscribe a World Heritage Property on the List of World Heritage in Danger. The condition of such a property must correspond with at least one of the criteria set out in paragraphs 179 and 180 of the World Heritage Convention Operational Guidelines, which include among others “a severe deterioration of the natural beauty.” Overall, the List of World Heritage in Danger is designed to inform the international community of the conditions which threaten the very characteristics for which a property was included in the World Heritage List, and to encourage corrective action.

In the most recent controversy concerning the Great Barrier Reef, the Committee notified Australia that due to its deteriorating composition, it sought to classify the Reef as endangered. Most importantly, UNESCO accused Australia of failing to meet key water quality and land management targets, while also criticising the country’s conservative government for its poor climate efforts. UNESCO’s warning was based on a report

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submitted by the UNESCO World Heritage Centre, which urgently recommended the inscription of the Reef to the list of World Heritage in Danger, which includes Everglades National Park, the Historic Centre of Vienna and fifty-one other properties. However, rather than relying on the rigorous scientific document by the UNESCO World Heritage Centre with inputs from Australia’s own Great Barrier Reef Marine Park Authority and official government reports on water quality, the Australian government protested that the decision was flawed and a result of China’s current chairmanship of the Committee. To prevent the inscription, which would most certainly weaken post-pandemic tourism and limit the $6.4 billion which the Reef contributes to the Australian economy per year, Australia’s government engaged in several concerted lobbying efforts, including a trip of Environment Minister Sussan Ley to Paris to personally convince the UNESCO committee and an invitation which was extended to twelve foreign ambassadors to the Reef for a snorkelling trip. Eventually, despite climate-change-spurred damage to the ecosystem, UNESCO did not downgrade the Great Barrier Reef in its recent World Heritage Committee session in Fuzhou.

This decision showcases several foundational problems of UNESCO which are indicative of its ineffectiveness. First, it is evident that the organisation is becoming progressively more politicised. In the late 1980s, sites such as the Ngorongoro Conservation Area in the United Republic of Tanzania, which was listed as endangered due to the overall deterioration attributable to a general lack of management, could be removed from the List of World Heritage in Danger as a result of continuous monitoring and technical cooperation projects. However, such collective efforts are almost unimaginable in the current political climate, as State Party interests have recently become more fragmented and adversarial. This makes the process of identifying and protecting valuable sites a political decision, thereby undermining the aims of the Convention. The underlying issue is that UNESCO is a technical agency, and not a funding organisation such as the UN Development Programme. Rather, UNESCO’s funding is dependent on contributions from State Parties. As a result, sensitive political issues may lead states to withhold their funding or trigger a withdrawal from the organisation, as illustrated by the US withdrawal following a string of UNESCO decisions that the US perceived to be biased against Israel. This increasing politicisation is also evident from the Great Barrier Reef case: instead of heeding the scientific consensus underlying the Committee decision, it is evident that Australia manipulated the process to play power politics with China. Overall, it is evident that the focus of State Parties has shifted from adhering to the Convention’s vision, towards lobbying and promoting their own interests.

Furthermore, the organisational structure of UNESCO brings into question the effectiveness of the Convention. The Committee has significant decision-making power and as a result, the possibility to challenge its independence or authority is limited. This increases the likelihood that the Committee will favour some projects over others for ideological, political, or economic reasons.

The language of the Conventions, while noble, is insufficiently exact, thus allowing for the proliferation of greed and power-hungry politics.

For example, the Committee has made ambiguous choices regarding the World Heritage in Danger List in the past. The removal of the Dresden Elbe Valley in Germany from the programme serves as an excellent example. The Committee tried to stop the construction of a bridge across a part of the valley as it would damage its integrity. However, Germany continued to build the bridge, arguing that it was necessary to alleviate traffic congestion, which eventually led to the removal of the site. As the only other site ever removed from the World Heritage Register at this point was the Arabian Oryx Sanctuary, the decision in Germany was highly criticised as it essentially equated the building of a bridge with Oman’s decision to reduce the wildlife sanctuary by 90 per cent after oil had been found at the site, resulting in a steep decline of the population of Arabian oryx.

Many argued that the decision regarding the Elbe Valley was thus disproportionate.

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Ultimately, the decision on the Great Barrier Reef is merely an example of the organisational deficiencies of UNESCO. Essentially, the goals embedded in the text of the World Heritage Convention cannot be realised in the current political climate, due to the inadequacy of the organisation. This indicates an urgent need for reform which must provide UNESCO with mechanisms to affect real change when governments do not comply with the basic premises of preservation. The status of the organisation is regrettable especially in light of climate change, and UNESCO’s mandate to pay special attention to new global threats that may affect the natural and cultural heritage is of crucial importance. Global warming will be, and in many parts of the world already is, a threat to both the cultural and natural treasures of our planet. If we want to save the Great Barrier Reef and many other extraordinary sites, we need to ensure that UNESCO lives up to its mandate.

Photo courtesy of Katharina Neumann, SS Law and Political Science

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The 1982 Law of the Sea Convention: Fit for Purpose to Comprehensively Address Modern Day Marine Pollution?

By Luke Gibbons Jr., LL.B (Dub.) (aur.num.), BCL (Oxon) (Dist.) (Hon. Sch.), PhD Candidate (Dub.)

At the time of drafting, the United Nations Convention on the Law of the Sea 1982 (hereinafter, UNCLOS) established for the first time a comprehensive framework for the protection of the marine environment. This was perceived as ground-breaking in contrast to previous attempts at codification in the Geneva Conventions of 1958 which contained only a handful of undeveloped provisions on environmental matters. This is attributable to the fact that UNCLOS was greatly informed by the increasing degree of environmental consciousness pertinent at the time subsequent to the UN Conference on the Human Environment at Stockholm in 1972. While it is true that UNCLOS may have been ground-breaking, in some respects UNCLOS has been outpaced by both practical developments in the severity of environmental challenges as evidenced by ever updated science and also normatively by modern environmental legal developments since its conclusion. Thus, this article will explore two things: firstly, the evident absence of modern environmental legal principles under the pollution provisions of UNCLOS. Secondly, the failure of UNCLOS to comprehensively address one of the most prevalent contemporary environmental issues facing the oceans of land based sources of marine pollution.

Marine Pollution – Asking Questions of Comprehensiveness At the time of drafting, UNCLOS was innovative in that it was the first unilateral treaty to address marine pollution on a broad scale. While UNCLOS PART XII on Marine Pollution has far more provisions than any other marine environmental issue, some of the provisions under PART XII ought to be questioned in light of modern developments both with regards to actual environmental problems and contemporary environmental law. (a) The Definition of Pollution – An Implicit Precautionary Principle?

No discussion of the comprehensiveness of the marine pollution provisions of UNCLOS would be complete without questioning the modernity of the definition of pollution in Article 1(1)(4). As an aside, from a textual perspective the fact the wording uses the gendered term “man” like many areas in UNCLOS is outmoded with modern non-gendered legal language and is reflective of 1980’s cognition. However, in contrast the definition arguably embodies the ‘living instrument’ thesis of UNCLOS and is thus malleable to modern day conceptions of marine pollution. This is posited as due to the definition’s “likely to” cause pollution language, it is contestably open to dynamic interpretation. Although the precautionary principle is not mentioned anywhere in UNCLOS as the first instruments referring to this principle did not appear until after UNCLOS, this “likely to” language could be construed as an embryonic pronouncement of the precautionary principle as bolstered by the mention of the principle in the South China Sea Arbitration when interpreting the Treaty.

The possibility that the “likely to” language may have some equivalence to the precautionary principle is exceptionally important in responding to questions posed on the comprehensiveness of UNCLOS today. This is argued as new forms of pollution have arisen not envisioned in 1982 such as sonar and noise pollution. The somewhat flexible nature of the definition has allowed a convincing argument to be mooted that noise is in-

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cluded under the definition in the form of “energy”. Moreover, the “likely to cause” language being somewhat akin to the precautionary principle may allow for causation of the deleterious effects of these more novel forms of pollution to be established more readily. Thus, the definition in Article 1(1)(4) while outdated with no explicit mention of the precautionary principle, is arguably flexible enough to be regarded as still broadly comprehensive in response to contemporary issues. (b) The Presence and Absence of Modern Environmental Law Principles In contrast to the definition, the iteration of Article 194 (1) that “States shall ….prevent, reduce and control pollution” is wholly a relic of the cognition surrounding maritime pollution in the 1980’s. It is distinctly absent of the now well versed “eliminate” language as outlined in the London Protocol for example. This encapsulates both the level of ambition, but also the level of urgency in the 1980’s with regards to the necessity to eliminate pollution from the oceans as compared to now.

Furthermore, the above phrase in Article 194 (1) is nowhere defined and the scope of the obligation is neither very clear having to resort to interpretations of the same phrase by the International Law Commission in its draft articles to derive a clear meaning. However, one must not forget that UNCLOS, by virtue of Article 197, is framework in character and thus does not profess to give minute detail on each provision. Nevertheless, this lack of clarity of a key obligation which is now also arguably outdated is not conducive to describing UNCLOS as comprehensive. However, this outdated critique of Article 194 (1) should also be balanced against the fact that the Article was rather foreboding in its early pronouncement of a form of the ‘common but differentiated responsibilities’ principle through the “in accordance with their capabilities” language. This language shows that while UNCLOS may have been out-paced by the “eliminate” development, it was very much at the forefront of enunciating a principle that has become a key tenant of international environmental law as outlined in the Paris Agreement for instance.

Moreover, the ‘polluter pays principle’ is unsurprisingly not mentioned in UNCLOS, as such only garnered support in 1992 and this may again be mooted as an example where legal developments invite the critique that UNCLOS is no longer comprehensive. In contrast, it ought to be noted that Article 206 outlines the principle of an environmental impact assessment (hereinafter, EIA) in all but name. While this EIA formulation is more limited than subsequent developments in that the assessment is only required “as far as practicable.” It is posited that this EIA conceptualization is actually comprehensive in that it also applies to activities which do not have a transboundary impact. This sole transboundary focus is often mooted as a gap in modern international environmental law. Nevertheless, the lack of explicit content of the EIA provided in Article 206 has led to States relying on more detailed instruments as to what is required as occurred in the Nord Stream Pipeline Project case in which the Espoo Convention was relied on instead. However, it would be naïve to moot this as a critique of the comprehensiveness of UNCLOS in contrast to how environmental laws have developed as that would arguably be confusing the framework character of the UNCLOS and comprehensiveness.

In an ideal world it may be advantageous to have an UNCLOS which outlines everything in minute detail. Not only would this get stuck in time more so than the current formulation as technology and law develops, but furthermore garnering States’ consensus to such a formulation would be an insurmountable task. In this sense the framework elements of UNCLOS are akin to the intentional ambiguities in the Paris Agreement for example. (c) Pollution from Land Based Sources In Specie – An Illuminating Void?

As noted, the absence of modern environmental principles can lead to arguments for and against UNCLOS being regarded as contemporarily comprehensive. However, one area where UNCLOS is wholly outdated is that of the regulation of land based sources of pollution. If one compares Article 207 (1) on the obligation of states to “take into account internationally agreed rules…” in relation to land-based sources, with that of Article 210 (6) “no less effective” on dumping and Article 211 (2) of “at least the same effect” on pollution from vessels, it is immediately apparent that State’s obligations to regulate land based sources are comparatively substantively weaker.

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This represents a perplexing inverse relationship between the actual percentage contribution to marine pollution as between vessels and land based sources. Putting sovereignty concerns aside, this weak obligation in relation to land based sources compared to the much stronger obligation with regards to vessels is again a symptom of the cognition of the 1980’s in which provocative vessel based pollution more readily captured public discourse than the more pervasive land based pollution. As there is a disjunct between the reality of pollution and the legal standard this questions the comprehensiveness of UNCLOS, in that modern discourse is much more cognisant of the reality of land based sources. This can be conceptualized as not a modern day illustration of the classic ‘land dominates the sea’ principle, but an instance of the land dominating the scope and comprehensiveness of the law of the sea.

Conclusion – Comprehensiveness is Relative There are elements of UNCLOS which are outdated and thus not comprehensive as a result of the transition of time from the 1980s to the present day.

However, one must be cognisant that equally there are areas where UNCLOS as a framework convention and living treaty may be interpreted in light of modernity. This framework character should not be confused with non-comprehensiveness.

Nevertheless, there are elements in relation to land based sources of marine pollution and modern day environmental principles which should be addressed.

Photo courtesy of Katharina Neumann, SS Law and Political Science

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Analysing the Climate Action Bill: Progressive Agenda or Greenwashed Illusion?

By Eoin Jackson, SS Law

On the 23rd July 2021, President Higgins signed the Climate Action and Low Carbon Development (Amendment) Bill 2021 into law (hereinafter the 2021 Bill). The 2021 Bill commits Ireland to become carbon neutral by 2050, while it aims to achieve a 51 per cent reduction in 2018 carbon emissions by 2030. This article seeks to analyse the 2021 Bill and consider whether it contains sufficient provisions to ensure that Ireland becomes a sustainable carbon neutral economy by 2050.

The Climate Change Advisory Council and Carbon Budgets: Two Steps Forward, One Step Back One of the central functions of the 2021 Bill is to enhance the role of the Climate Change Advisory Council (hereinafter the Council). According to Section 6A of the 2021 Bill, the role of the Council is to “prepare a carbon budget, consistent with furthering the achievement of the national climate objective” for a 5-year period. These budgets are then renewed every 5 years until the end goal of carbon neutrality by 2050 is achieved.

The Council can also be consulted by the Minister to assess what the best strategies are to achieve carbon neutrality. The Council itself consists of experts in fields such as, “Climate science, energy policy and economics,” among other relevant fields, as per Section 4. It is therefore designed to add a layer of expertise to the government’s attempts to transition towards a sustainable economy.

While the 2021 Bill is progressive in terms of codifying the role of the Council, it is disappointing that the proposed carbon budgets can still be subject to amendment by the relevant Minister. This means that, where the Minister disagrees with any section of the carbon budget, they can amend the targets provided that, as per Section 6B(5), they set out reasons for doing so. There is no guidance provided as to what reasons would be considered justifiable where the carbon budget is being reduced, which pose problems should a Minister be lobbied by polluting sectors (e.g the agricultural sector), to amend in a manner that is not conducive to carbon neutrality. This takes away some of the Council’s power, as it appears that a Minister can veto a section of the budget as they see fit.

Further, Section 6(11) reduces the Council’s capacity to create effective budgets. This section renders the government responsible for “determining how the removal of greenhouse gas emissions may be taken into account, and in particular the method of calculating and accounting for such removals, including the base year to be applied to such removals, when complying with a carbon budget and a sectoral emissions ceiling.”

The Council is bound to comply with these regulations, meaning they can only create a carbon budget in accordance with the government’s determination of how a greenhouse gas is to be calculated. This is dangerous as it allows governments to manipulate figures and adjust greenhouse gas emission figures in a manner that may be more favourable to the ruling party of the day. By setting out preliminary barriers to the calculation

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of emissions, the Council is forced to operate within the government’s parameters. Consequently, the setting out of accurate and enforceable carbon budgets is subject to the good faith of the government as opposed to a legally binding target.

Barriers to Legal Action: Limitations on Litigation Post the Friends of the Irish Environment Case In light of the success of Friends of the Irish Environment v Government of Ireland (2020), which triggered the need for a new Climate Action Bill, there is evidence that the government is now seeking to ensure further public interest litigation of this kind will experience legal barriers. This can be seen in Section 2A of the Bill, which states; “for the avoidance of doubt no remedy or relief by way of damages or compensation is available with respect to or arising out of any failure, of whatever kind, to comply with any provision of this Act or any obligation or duty created thereunder.”

The limitation on liability is perhaps grounded in a fear of the floodgates opening were private actors able to challenge every failure to reach carbon emission reduction targets. However, it also waters down the enforceability of the 2021 Bill, particularly when considered in light of the aforementioned limitations on the enforceability of carbon budgets. The impact of this limitation remains uncertain, particularly in light of Friends of the Irish Environment, which has established a capacity for the Courts to intervene where climate change targets are not being met. For the moment, it symbolises a reluctance for the government to be held to account where they fail to deliver on much needed reductions.

Climate Justice: The Forgotten Necessity A particularly disappointing aspect of the 2021 Bill is the lack of discussion and enforcement of climate justice when pursuing carbon neutrality. The United Nations Development Program defines climate justice as “legal transformations aimed at curbing abuses of power that result in the poor and vulnerable suffering disproportionate impacts of pollution and lacking equal opportunity to access and benefit from natural resources.”

If this were to be embedded into legislation, it would oblige the government to ensure that any solution to the climate crisis intersects with broader ideas of social justice to ensure that the most vulnerable are not left behind.

While Section 8 of the 2021 Bill does state that the Minister “shall have regard” to climate justice, this is not expanded upon to clarify to what extent the Minister is obliged to take account of the needs of the marginalised. Similarly, the 2021 Bill makes reference to a “just transition,” but does not offer a method of recourse if this is not achieved. At the same time, the language is better than the previous version of the bill released in January 2020, that included no mention of either term. Thus, while not perfect, there may be some scope for litigation if there is an evident failure of a Minister to take account of these factors.

Conclusion The 2021 Bill passed in July with a large majority and much media coverage. While it represents a progressive step by the Irish government, there are substantial limitations in its power and enforceability, which begs the question - is the 2021 Bill a form of legislative greenwashing? This question cannot be answered until there are further developments on both a political and legal level to ascertain the extent to which the government intends to comply with its climate obligations. In the meantime, there is hope that the 2021 Bill will create a sustainable future, notwithstanding its discussed flaws.

Photo courtesy of Matthew O’Shea, SS Law and Business

Ivana Bacik, TD

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The Eagle Interviews Ivana Bacik TD: Renters’ Rights, SPUC v Grogan and More

By Jacob Hudson, SF Law and Political Science

It was a pleasure to interview Deputy Ivana Bacik for this edition of The Eagle. Having won the recent Dublin Bay South by-election with a convincing 30.2 per cent of the vote, the Reid Professor of Criminal Law, Criminology and Penology at Trinity College is now Leinster House’s newest TD. As a former President of the Trinity Student Union, Bacik was threatened with prison in the infamous SPUC v Grogan case in the Supreme Court. Since then, the Labour TD has become an active and vocal civil rights campaigner and indeed, a leading figure in the campaign to repeal the Eighth Amendment. From 2007 until her election to the Dáil, Bacik sat on the Trinity panel of the Seanad, serving as the Upper House’s Deputy Leader in the coalition government of 2011-2016. During this time, she has introduced many pieces of legislation on areas including workers rights, LGBTQ equality and climate action.

Ivana, yourself and Senator Rebecca Moynihan have recently introduced the Residential Tenancies (Tenants’ Right) Bill 2021, or the “Renters Rights Bill” to the Dáil, unopposed by the Government. Can you talk us through the substance of the Bill?

I was delighted the Government did not oppose the Renters’ Rights Bill that Rebecca Moynihan and I had brought forward. It has now passed the second stage of the Dáil, which is great! We’ll certainly be pushing for further progress on it. So, essentially what the Bill would do if it became law would be three things: First, it provides for greater security of tenure. So, it provides for tenancy of indefinite duration. In other words, people cannot be evicted easily. That there are restrictions on the reasons which a landlord must give for bringing a tenancy to an end. So, that’s the first thing.

The second thing is that it would ensure that rents are more affordable - rents and deposits - as it would place caps on deposits, and as part of our programme, we are proposing a three year rent freeze as well.

And then, finally, and perhaps, just as importantly, the Bill would provide for a better quality of life for renters.

So, in other words, give people the right to rent an unfurnished apartment or home, if they wish, which is absolutely the norm in other European countries but isn’t perhaps in Ireland. This is one of the reasons why people often find it difficult to put down roots or make a permanent or long-term home in rented accommodation, because they have to live with the furniture the landlord has left there. So, it’s that sort of thing - the right to keep pets and air dry clothes. These are all the sort of provisions that we have included in the Bill.

You have been in the Dáil now for just a few months, but have you noticed any major differences between being a member of the Dáil and Seanad?

Yes, well, I have only been here, in the Dáil, less than three months so it’s certainly all very new! I’m learning all the new procedures as I go and of course, the bells are ringing now for the Dáil business [a reference to the

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Interview

bells that ring throughout Leinster House before the Dáil is about to sit, calling TDs to the chamber]. But, it’s certainly a very different, sort of, environment.

The Seanad has a more, dare I say it, courteous environment! In the Seanad, we had 40 per cent women; 40 per cent of Senators are women and in the Dáil, unfortunately only 23 per cent of TDs are women. So it does make for a much more male-dominated environment in the Dáil. It feels more adversarial, partly to do with the nature of it. Government ministers are drawn from TDs and so on. Certainly the debate style is very different and the approach to debating is different.

That has taken a bit of getting used to. But, I am really enjoying representing my local constituency, my community and doing all the really interesting events and meetings and representations from local groups and individuals. So that has been a real pleasure!

You have been a lecturer at Trinity for a long time, and indeed a student here before then.

Being in the Dáil now, what do you miss most about Trinity?

I really miss the students actually! Trinity has been very good and I am on a career break now for the duration of this Dáil term, which obviously gives me a lot more time to engage in political representation and advocacy.

But I do really miss the engagement with the students. I absolutely love teaching and particularly love teaching subjects that I really enjoyed as a student myself, like criminology, criminal law, and then, I had the pleasure of teaching small groups in feminist criminology in recent years. These were all brilliant students and brilliant subjects! I miss that and I hope someday to get back to it but of course, I am still actively researching so that doesn’t stop!

Was there any moment in your time at Trinity that particularly motivated you to go into politics? The Student Union or SPUC v Grogan, for example?

I was lucky enough to be in the Law School in the late 80s as a student when we had a very political faculty. We had Mary Robinson and Mary McAleese. We had Kader Asmal, who went on to become the first post-apartheid Minister for Water Affairs and then Education in South Africa. We had a superb faculty and they were really engaged.

I was, I suppose, very political myself, involved in the Student Union and the Labour Society and Women’s groups and then, I was elected President [of Trinity College Dublin Students’ Union]. And then, as you say Jacob, the SPUC v Grogan case hit, we were taken to court and threatened with prison for giving information on abortion to women in crisis pregnancy and that was certainly, absolutely a pivotal experience for me. I will never forget the harrowing - absolutely harrowing - experiences of what so many women and girls had gone through when they came to contact us in the Students’ Union to ask for a phone number that they couldn’t get anywhere else. Women in desperate circumstances. So that certainly has been the driving force for me in remaining politically active in the decades since. And it was such a relief when we finally repealed the Eighth Amendment in 2018, so that we can now provide women with reproductive healthcare and abortion services here in Ireland.

A poll last term conducted by Trinity News, around the period of the TCDSU Elections, showed the Labour Party polling poorly amongst the student body, with just 4.6 per cent of the vote. The Social Democrats, indeed, topped the poll with 24 per cent. Why do you think this is? And, what would you say to an undecided young voter considering their options at the ballot box?

Well, I would say that Labour is the party of the Trade Union movement. It is the oldest political party in the

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State and it has a proud track record of actually implementing and bringing about change on a range of economic and social issues.

I am a strong advocate for students to get politically engaged in whatever capacity, and indeed, in whatever party they believe in. That is the main thing.

But, I do think that Labour has the best track record on equality, on solidarity, on fairness. These are the pivotal values of Labour. These are the key values that remain our founding values of the political party and indeed, as a political movement. So, I have no doubt in my mind that Labour will grow again. I think we are in a period of regrowth. There is a tradition that smaller parties tend to be punished for going into government but I think Labour, unlike many other small parties, are actually keen to see change happen and to effectively implement the change that we believe in. So, to do that, parties need to go into government and that is the reality. I think Labour is building and the by-election result over the summer which I am so thrilled with, I think that was a sign of the rebuilding of the party.

Photo courtesy of Matthew O’Shea, SS Law and Business

Photo courtesy of Matthew O’Shea, SS Law and Business

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Technology

Finding the ‘Right’ Balance: Privacy Rights and Biometric Data Retention in Northern Ireland

By Sophie Treacy, SS Law In a world characterised by rapid scientific and technological development, it is no surprise that biometric technology, which enables police forces to identify individuals from DNA and fingerprint samples, has gained increasing currency in the field of crime prevention since the turn of the century. It is a fundamental principle of the criminal justice system to enhance the police force’s ability to effectively combat drug trafficking, corruption, and terrorism, which is in all of our interest. Nonetheless, other concerns weigh against this objective of equipping the police force with the most effective means of crime prevention possible. For instance, in the case of S and Marper v United Kingdom [2008], the Grand Chamber of the European Court of Human Rights (ECtHR) in Strasbourg ruled that the United Kingdom’s biometric data retention regime amounted to an infringement of privacy rights under Article 8 of the European Convention on Human Rights (ECHR).

The applicants successfully challenged the indefinite retention of their DNA samples by the United Kingdom police force, after they had been acquitted on the grounds that it was an unjust infringement of their right to privacy. Whilst this decision heralded change to the biometric data retention practices followed by police forces in England and Wales, Northern Ireland is still in the process of responding to the Strasbourg Court. The concern underpinning the heel-dragging of the Police Service of Northern Ireland (PSNI) when it comes to conforming to ECtHR standards of biometric data retention is that it would undermine ongoing investigations by the Historical Investigations Unit (HIU) into deaths related to the Troubles in Northern Ireland. Herein, the tension between individual privacy rights on one hand, and effective criminal justice administration on the other, is particularly stark.

What one considers to be the right approach to balancing individual privacy rights against optimal police investigation practices turns on how utilitarian one is willing to be. In other words, the extent to which one thinks individual privacy rights should be limited in order to maximise the effectiveness of police investigations.

Those who place a high value on individual rights freedoms, and are deeply suspect of utilitarian political theory, will consider the United Kingdom’s old regime of biometric data retention for indefinite periods of time to be a disproportionate and illegitimate interference with individual privacy rights.

The other, more utilitarian, school of thought is that innocent citizens should have “nothing to fear” in having their biometric data stored indefinitely on a police database and accurate and efficient law enforcement, is in the interest of all, outweighs any infringement on individual privacy rights.

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As an institution formed with the core objective of protecting individual rights against oppressive states, it is no surprise that the ECtHR arrived unanimously at the former position. In the unique case of Northern Ireland, however, with countless unresolved deaths in the aftermath of the Troubles, the latter position certainly seems at least somewhat reasonable. Indeed, Schedule 2 of the Criminal Justice Act (Northern Ireland) 2013, which has yet to be brought into operation, would render a huge amount of PSNI-held biometric data eligible for deletion. Sandra Peake, CEO of WAVE Trauma Centre in Northern Ireland, has flagged concerns that this Act would result in less than optimum conditions for HIU investigations. As with most issues of public policy that infringe individual rights, it comes down to a question of balance.

As proposed by former Northern Irish Minister for Justice, David Ford, one way to reconcile these competing interests could be to copy relevant biometric material currently held by the PSNI and transfer it to the Historical Investigations Unit (HIU) exclusively for investigative purposes and to delete it from regular PSNI databases. Indeed, this would go to resolve the issue of data deletion undermining the essential work of the HIU and bring the practice of the PSNI into line with Strasbourg case law and with the rest of the United Kingdom.

This approach seems to satisfy the exigencies of privacy rights under Article 8 of the ECHR whilst remaining cognisant of other pressing public issues. In September of 2020, the Northern Irish Minister for Justice, Naomi Long, convened a public consultation on the reform of this Act where this proposal was raised. However, how this area will play out in Northern Ireland is yet to be seen.

In the wake of S and Marper v. UK, the case for sweeping police biometric databases in Europe has suffered a significant casualty at the hands of the Strasbourg Court. The net result, however, is a legislative regime in England and Wales that is holistic as opposed to overly utilitarian in its approach to retaining biometric data.

Whilst the implementation of the ECtHR ruling in Northern Ireland is complicated by the PSNI potentially holding data of unconvicted persons involved in crimes committed during the Troubles, it is hoped that the current ongoing consultations will yield a solution that finds the right balance between affording full respect to privacy rights enshrined under Article 8, but equally does not undermine the ongoing investigation of the HIU in Northern Ireland.

Photo courtesy of Matthew O’Shea, SS Law and Business

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Technology

German Hate Speech Laws: Balancing Freedom of Expression and the Fight Against the Incitement of Hatred

By Catherine Forristal, JS Law Due to the influence of World War Two and the devastation of the Holocaust, Germany has developed some of the strictest laws in the world on hate speech in order to protect human dignity, enshrined in Article 1 of Germany’s Basic Law, the country’s Constitution. Hate speech is defined by Robert Mark Simpson as, “a term of art in legal and political theory that is used to refer to verbal conduct - and other symbolic, communicative action - which wilfully ‘expresses intense antipathy towards some group or towards an individual on the basis of membership in some group’, where the groups in question are usually those distinguished by ethnicity, religion, or sexuality.”

In an era where communication and the rapid spread of ideas has never been easier, legislators across the globe are grappling with the challenge of adapting relevant laws to a 21st century context. In an effort to combat the growing threat that online hate speech posed and its incitement of physical manifestations of violence, Germany enacted the Network Enforcement Act (“Netzwerkdurchsetzungsgesetz,” - referenced herein as NetzDG) in 2017. This controversial legislation required social media giants such as Facebook, Twitter, and Youtube to take down comments, pictures or videos that were deemed “hateful” within 24 hours of them being flagged, or to risk fines up to €50 million.

Many proponents have praised this legislation for creating oversight of international tech companies. However, critics - including journalists and activists from both the left and right - have noted the dangerous precedent this may set for government censorship of the internet, as well as the delegation of responsibility for the moderation of hateful or illegal content online to private entities.

Konstantin von Notz, a Green Party member of the German parliament, describes the difficulty of creating legislation that effectively deals with hate speech and the incitement of hatred, while also respecting the right to freedom of expression:

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“We’re walking a tightrope, having to balance the fight against disinformation, incitement and slander on one side with the right to free speech on the other, which is of paramount importance in democracies.”

He added, “[t]o come up with a law that is both balanced and effective is far from a trivial task.”

The German Criminal Code (“Strafgesetzbuch,” hereinafter StGB) forbids all incitement to hatred, in a “manner capable of disturbing the public peace.” At the same time, the scope of protection of freedom of expression is very broad and Article 5(1) Basic Law strictly prohibits censorship by the State. While many online platforms originate from countries such as the United States, conceptions of free speech are varied. In contrast, the German legal system emphasises fundamental human rights and the “common good,” in contrast to the concept of an individualised marketplace of ideas that many platforms and international legal systems operate on.

In this article, a number of common criticisms of NetzDG will be explored, alongside proposed reform and alternative perspectives.

Data Obligations & Criticisms All social media platforms that have over two million users in Germany are obliged to comply with NetzDG, which involves the implementation of an accessible complaint procedure and the removal of “manifestly unlawful” content, such as incitement of hatred, defamation, and libel, within 24 hours of the content being flagged.

In 2020, German legislators amended NetzDG, requiring Facebook, Twitter and YouTube to empower the police to receive data on users posting content that German law would consider illegal. The Justice Ministry was also given enhanced powers to enforce this, leading to the imposition of considerable fines. These changes were a result of numerous terrorist attacks by far-right extremists in 2019 and early 2020: Firstly, the assassination of the pro-refugee politician Walter Lübcke, a shooting at a synagogue in the town of Halle on Yom Kippur, and a mass shooting in Hanau. In the latter two, it was confirmed that the terrorists had been radicalised primarily by the internet.

However, Sabine Frank, YouTube’s regional head of public policy warns that this “massive intervention in the rights of our users stands, in our view, not only in conflict with data protection but also with the German constitution and European law.”

Critics have also warned that the creation of databases with reported “manifestly illegal” content creates major issues of data security. Facebook and Google have filed a legal challenge to block the new rules, arguing that informing police of users’ personal information violates their right to privacy: A spokesperson for Google states: “Network providers such as YouTube are now required to automatically transfer user data en masse and in bulk to law enforcement agencies without any legal order, without knowledge of the user, only based on the suspicion of a criminal offence [...] This undermines fundamental rights, we have therefore decided to have the relevant provisions of the NetzDG judicially reviewed by the competent administrative court in Cologne.”

Furthermore, the reliance of the state on private hosts of public discourse to report “manifestly unlawful Photo courtesy of Grace Given, SS Law and German

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content” could be deemed problematic, as legal clarity and precision have not been given by the State to the meaning of “manifestly illegal.” According to Amélie Heldt, a researcher in media law and internet policy, The State’s delegation of power to private bodies also confers the power of evaluation and interpretation, which harms the very notion of the application of the law.

As a result, critics of this legislation argue that social media platforms, for fear of prosecution, are removing all possible content that could be construed as hate speech, which could lead to an infringement of the right to freedom of expression.

Freedom of Expression In a report referencing original proposals for the implementation of NetzDG, United Nations Special Rapporteur to the High Commissioner for Human Rights, David Kaye, stated that “the law raises serious concerns about freedom of expression and the right to privacy online.” As previously mentioned, Kaye criticised the short deadlines and ambiguous criteria for removal for the potential for unwarranted censorship: “The short deadlines, coupled with the afore-mentioned severe penalties, could lead social networks to over-regulate expression — in particular, to delete legitimate expression, not susceptible to restriction under human rights law, as a precaution to avoid penalties.”

Furthermore, critics argue that limited judicial oversight has placed enormous responsibilities on private companies to remove content. According to a United Nations Freedom of Expression Report in 2011, any legislation restricting the right to freedom of expression and the right to privacy “must be applied by a body independent of any political, commercial, or unwarranted influences in a manner that is neither arbitrary nor discriminatory.” Subsequently, the liability placed upon private companies to remove third party content in the absence of judicial oversight is not compatible with the UN Convention on Human Rights.

Press freedom activists such as Reporters without Borders have warned that this law also creates a precedent for autocratic countries to censor marginalised groups and opposition parties. Since the ratification of NetzDG into law in 2017, Russia, Venezuela, Malaysia and the Philippines have approved similar hate speech bills, explicitly referring to German law. Most notably, Turkish legislators passed what has been called “the worst version of Germany’s NetzDG yet” by the non-profit Electronic Frontier Foundation in 2020. In a country with the second-highest number of imprisoned/incarcerated journalists in the world, this legislation has further encroached on the right to free speech in Turkey.

Christine Lambrecht, Minister for Justice in Germany, has denied the accusations that Germany has set a dangerous precedent for authoritarian countries. She stated that NetzDG only compels platforms to take down content violating German law specifically, which is “the fundamental difference to the situation in authoritarian countries and regimes that don’t respect the rule of law.”

Conclusion According to Jack M. Balkin, “the vision of free expression that characterized much of the twentieth century is inadequate to protect free expression today.” Developments in technology have meant that digital life is now

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integral to reality and day-to-day life.

Amélie Heldt suggests that states must become more active “in regulating cyberspace directly or indirectly. Intermediaries have to keep up with different regulatory frameworks and tend toward one-size-fits-all solutions that can collectively be more restrictive than single national regulations.”

Scholars such as Robert Mark Simpson have described the difficulty of the status of hate speech, particularly in liberal and democratic states: “On one hand, liberals believe that speech must be specially protected against government interference… But liberals also typically want to use the disciplinary function of the law to combat and reform identity-based social hierarchies. The twin liberal commitments to free speech and social equality thus seem to come into a conflict where hate speech is at issue.”

The European Union is currently drafting the Digital Services Act, which is expected to require online platforms to do more to address misinformation and illegal content on their sites. Many critics of Germany’s NetzDG have underlined the key issues that they want to see addressed within the proposed EU law reforms.

Undoubtedly, lawmakers must take consideration of freedom of speech concerns, while also enforcing proper oversight of international social media platforms.

Photo courtesy of Matthew O’Shea, SS Law and Business

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Technology

Capitalism Breeds Obsolescence

By Ellen Hyland, Copy Editor, SS Law and Political Science Young adults growing up in the early 2000s have had the unique experience of watching their gadgets develop just as they did. Those lucky enough may have been gifted the iPod Mini one Christmas, the iPod Nano the next, and eventually bestowed with cream of the crop; the iPod Touch. Of course, this device is now a relic of the past, hunted to near extinction by the advent of streaming services and the increased storage capacity of our increasingly-buttonless mobile devices.

Nowadays there is an almost complete lack of product differentiation. So why upgrade to a device that looks, feels, and works in almost the exact same way as our last? Naturally, the answer partly lies in marketing tactics such as Apple’s minimalist advertising style – new technology will always have a cult following for this reason. The rest is arguably down to a practice most notably associated with mobile phones: planned obsolescence.

From Lightbulbs to Smartphones Economist Jeremy Bulow defines planned obsolescence as “the production of goods with uneconomically short useful lives so that customers will have to make repeat purchases.” The practice is thought to have started in 1924, when lightbulb manufacturers around the world came together to form the ‘Phoebus Cartel’. They agreed to limit the lifespan of their products to 1000 hours (the average before was 1500 to 2000 hours). This meant that consumers would have to replace their lightbulbs more often, and since all manufacturers were on board it also meant that no competitor would benefit from the less-effective product.

In modern times, Apple is the brand most often associated with planned obsolescence. It has been in trouble in numerous countries for allegedly slowing down phones when they reach a certain age in order to encourage consumers to buy a newer product. The accusation of planned obsolescence is naturally one that Apple denies – it has posited that the reason for slowing down the phones is to allow their batteries to last longer. This does not stop its name becoming synonymous with the practice, however.

The market for mobile phones can clearly be defined as an oligopoly, a market where a small number of firms dominate. In the United States, Apple and Samsung made up 82 per cent of the market share of smartphones in the first quarter of 2021. Samsung has also been accused of planned obsolescence. In 2018, it was fined 5 million euro after an investigation by the Italian authorities that concluded software updates caused the Galaxy Note 4 to significantly decline in performance. With a stranglehold on the market, it is arguable that Apple and Samsung are heavily incentivised in the world of capitalism to have a ‘lightbulb moment’ for themselves.

It is therefore clear that planned obsolescence is not a phenomenon left behind in the 20th century. What is clear from the plethora of court cases brought against smartphone companies alone, however, is that there is a growing wave of opposition against these practices.

A Right to Repair?

The notion of a ‘right to repair’ is relatively recent. It states that electronics manufacturers should by law make their products easily repairable for a specified amount of time in order to protect consumer interests and reduce electronic waste. This is done through wider provision of spare parts and less allowable restrictions on who can repair devices by companies. The right counteracts the effects of planned obsolescence by forcing companies to give the consumer the option to keep their device for longer instead of having to replace it. The

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incentive for obsolescence becomes in itself obsolete.

In March 2021, the European Parliament passed legislation that would force the electronics industry to make their products repairable for a decade. This was mainly passed in order to “rethink [the EU’s] manufacturing system and move towards truly sustainable products.” A report precipitating the legislation pointed out that “80 % of a [smartphone’s] carbon footprint is generated during its manufacture.”

By facilitating easily repairable devices, consumers are less likely to replace their electronics as often, leading to less pollution from the manufacturing process. This is good news for consumers outside of the European Union as well.

The United Kingdom for example is also forced to implement these laws as a result of the Brussels effect. This refers to the premise that multinational corporations do not want to lose their EU consumer base and therefore manufacture their products in line with EU regulations.

The right to repair movement has not been unopposed, however, as US lawmakers struggle to enshrine the right through legislation. Although many states have attempted to bring about right-to-repair legislation, only Massachusetts has enacted the right, and even then, only for vehicles made after 2015. The issue mainly stems from the alleged breach of intellectual property rights. Some industry lobbyists maintain that allowing third-party access to the ins and outs of how to repair and replace parts in their products would, among other things, give away trade secrets and violate patents for parts that would have to become more commercially available in order to repair their products.

In spite of the concerns voiced by manufacturers, President Biden signed an expansive executive order at the beginning of July 2021 which, among other things, directed the Federal Trade Commission to establish rules on the right to repair. Biden critiqued the emergence of monopolies and oligopolies in American markets, claiming that “capitalism without competition isn’t capitalism, it’s exploitation.” Whether or not this executive order will make a difference is yet to be determined, however it is arguably a step in the right direction.

The right to repair is not a ‘planktonian’ movement designed to steal any secret formula. It is a way of allowing consumers to avail of the developments in technology to research, farm, and have a better quality of life, without feeling like they are being exploited by their dependence on technology. It also helps the planet if we move away from technology that rots in a landfill after a year to technology that endures.

Conclusion Planned obsolescence is a natural side-effect of capitalism, but that does not mean it is inevitable. When archaeologists dig up the remnants of our civilisation, what do we want them to find? A treasure trove of tatty tech caused by the promise of riches? Or evidence of enduring and innovative technology? If right-to-repair legislation was enacted worldwide, no more so in the mecca of capitalism that is the United States, together we can work towards a more sustainable society that creates technology for the purpose of innovation rather than obsolescence.

Photo courtesy of Pat Gannon, Class of 2020, Film and English Literature

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(USB-C) Port in a Storm for EU Consumers

By Matthew O’Shea, Editor in Chief, SS Law and Business

This autumn, it has been widely reported that EU legislators are to standardise charging ports for consumer electronics devices such as smartphones, tablets, cameras, and headphones. On September 23 2021, the European Commission announced the proposal which, once adopted, will see the EU make USB-C the universal charging port for consumer electronics. The Commission has noted that “[t]his will make it easier for consumers to see if their existing chargers meet the requirements of their new device or help them to select a compatible charger.”

The proposal, a revised Radio Equipment Directive, will also “unbundle the sale of chargers from the sale of electronic devices.” This means that there will no longer be a requirement that a charger be included in the box with new devices.

Benefits of Standardisation: Convenience and Environmental Impact This proposal has several potential advantages. From an environmental perspective, fewer unique ports mean that consumers will no longer require drawers full of cables, each slightly different from the last. For this author, who required four different ports to power their devices to write this piece, there is a clear benefit to this.

Further, the reduction of e-waste generated by unbundling chargers from boxes has already shown genuine ecological benefits. This may be illustrated by Apple’s decision to remove chargers and headphones from iPhone 12 boxes in 2020. The company has cited this decision as allowing for 70 per cent more product to be fit into shipping containers, thus reducing pollution associated with transit, as well as reducing the requirement to produce such a large quantity of products that may never end up being used. Noted technology commentator, Marques Brownlee, has made the point that people who are buying iPhones in 2020/21 will already own a charger and other accessories. These consumers will also know where to buy additional accessories if they require them, and so do not need to receive new ones each time they purchase a smartphone.

Further, Apple VP of Environment, Policy and Social Initiatives, Lisa Jackson, has stated that Apple is acutely aware of the over “700 million pairs” of headphones and approximately “2 billion power adapters” that are used by consumers around the world - without even mentioning the amount generated by third-party suppliers.

The International Telecommunications Union estimates that “one million tons of external power supplies are manufactured each year.” While it is accepted that these global figures do not directly reflect the EU’s provision of power supplies, Apple’s near 30 per cent smartphone market share in our market of over 500 million people highlights how this remains a problem.

For the EU, and potentially further afield due to the Brussels effect, broad standardisation of ports for consumer electronics brings about a significant opportunity for the tech industry to reduce its carbon footprint.

No longer will consumers have to purchase a collection of unique charging cables for each device. The convenience of this development will undoubtedly be felt on a personal level by each consumer afflicted with a growing collection of devices. This should also go to serve businesses by reducing the amount of specialisation required in office spaces. If all devices are running off the same ports, this should simplify processes and thereby increase efficiency for service professionals across the EU.

Technology

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Drawbacks: IP and Adding to the Problem?

Some companies - most notably Apple - have raised concerns about the proposal, largely citing an infringement of intellectual property rights by mandating a specific type of charger. Apple has argued that this move “stifles innovation rather than [encourages] it, which in turn will harm consumers in Europe and around the world.” A cynic may argue that this comes from a point of view solely focused on profit-making, with Apple’s specialised Lighting and Thunderbolt ports to make way for USB-C, which can reliably be acquired on the open market. This represents a distinct challenge to Apple’s current positioning, whereby the most reliable and efficient chargers tend to be those produced natively by Apple, and priced at a premium from any Apple retailer, or else certified by Apple’s Made for iPhone/iPad/iPod quality mark.

The proposal, therefore, may indicate an authoritative step on the part of the EU, which encroaches on companies’ ability to design their products freely. However, this argument does not hold up very strongly. Not only does it amount to a step towards greater consumer protection, but it also involves a piece of technology that arguably does not involve a huge amount of specialisation on the part of developers. It is suggested that changing the charging port on devices is a relatively minor change which, while involving some level of cost, should not altogether go to impact upon companies’ bottom lines, and may not be such a drastic change as to impact significantly on intellectual property rights of developers.

For some, mandating USB-C also represents an obligation to purchase new chargers. Many smartphone users will have adapted to using the same lighting cables or micro-USBs for many years, and will now have to seek out new ports to charge their devices. One may argue that this will bring about a significant amount of waste - between 2019 and 2020 alone it has been reported by Counterpoint Research that Apple sold approximately 32 million iPhones, none of which will accept a USB-C port. The above argument, however, may be refuted by acknowledging that the change to USB-C will, for most consumers, represent a one-time change, after which the rate of consumption of chargers for consumer elections will theoretically drop almost entirely, as consumers may use and reuse their chargers as they change devices.

Conclusion The proposed change to USB-C is one that will likely have an impact on all consumers across the EU.

What may initially seem like a headache, however, is likely a positive step for EU citizens, not only from the perspective that it reduces cable-based difficulties by standardising our electronic needs, but, more importantly, it marks a genuine step in the right direction in our ongoing efforts to reduce the impact of climate change.

For this author, any negatives to be associated with the switch to USB-C are outweighed by the convenience and benefits to be associated with a ‘one-size-fits-all’ approach to charging our consumer electronics. In our increasingly smart world, where there is a device for everything, there is a lot to be said for only needing one charger.

Photo courtesy of Matthew O’Shea, SS Law and Business

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