The Eagle: Trinity College Law Gazette Volume 8, Issue 3

TABLE OF CONTENTS Letter from the Editor

by Matthew O’Shea [Page 4] 13 Reasons Why (Not) – The Disappointing Right to Request Remote Work Bill 2022

by Daniel Mooney [Page 8] The Potential Problems of Constitutionalising Socio-Economic Rights

by Mark McGrane [Page 10] Employment Equality (Amendment) Bill 2021: The Role of NDAs in 2022

by Mark Ramsay [Page 12] Bottom of the Class: Ireland and the Impact of Single-Sex Schools on Gender-Based Violence

by Eoin Ryan [Page 15] Intervening where Climate Diplomacy has Failed: The Potential of an Advisory Opinion on Climate Change

by Katharina Neumann [Page 19] The WTO Appellate Body Crisis: FTAs and the Enforceability of World Trade Law

by Ursala McDonnell [Page 22] A Mediator Should Never Offer Evaluations? Some Legal-Psychological Perspectives

by Luke Gibbons Jr [Page 25] Book Banning: The Dystopia in our Reality

by Kate Flood [Page 30] A New Era of Democracy in Chile

by Sophie Treacy [Page 34] The Future of Asylum Law in Ireland

by Grace Given & Eoin Jackson [Page 36] Australia Open? The Fate of Asylum Seekers Down Under

by Ellen Hyland [Page 38] Gallery from our Issue 2 Launch Event, in collaboration with Trinity FLAC [Page 40]

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

Aisling Corcoran, Antóin Fletcher, Catherine Forristal, Chloé Asconi-Feldman, Doireann Minford, Emma Bowie, Jacob Hudson, Julia Bochenek, Liam Ó Lionáin, Mark McGrane, Mira Bedi Muireann McHugh, Ted Halligan, Thomas Heron

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 content and for size.

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We are particularly interested in photos of Trinity College Dublin, nature phototography and pictures of Dublin City.

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All of the opinions expressed are those of the author and not necessarily 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, As the time has come to launch yet another issue of The Eagle, I am filled with excitement about what has come before, and optimism about what we are yet to achieve. Already this year, we have seen this magazine soar to new heights, with our first ever Irish language features, our return to print after 3 long years, and what was a wonderfully successful launch event for our second issue, in collaboration with Trinity FLAC. This, however, comes at a time of such unrest and uncertainty in the world, where so many people face genuine dangers and struggles with each passing day. At The Eagle, we aim to highlight and platform the discussion of these issues, and hope that we can continue to serve as a beneficial source of information to our readers. We acknowledge that our role is small in the grand scheme of things, but hope that by platforming the discussion and contemplation of these issues, we may serve as an education tool for some, who may then go on to spur the many.

This semester, we aim to build upon the great work already done, and see the publication reach yet another level in its continued upward trajectory. That is not without the immense support we have received from our sponsors, our editors, our authors, and - most importantly - you, the readers. I hope that with each article, interview or blog post, we can continue to provide an opportunity for learning and for thought. I often remind myself of our mission - making legal writing and political journalism more accessible, both for those writing and those reading - I am encouraged by the continued support we receive in this endeavour, and I am excited by what is yet to come.

When reading this issue, I encourage you to keep an open mind, to consider these articles and their subject matter. I am always inspired by the wide variety of pieces we are able to publish, and this issue is no different.

I sincerely hope you enjoy it as much as I did.

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

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

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Ireland

13 Reasons Why (Not) - The Disappointing Right to Request Remote Work Bill 2022

By Daniel Mooney, LL.M. (Intellectual Property and Information Technology) On the 25th of January 2022, Tánaiste Leo Varadkar announced that the much-anticipated Right to Request Remote Work Bill 2022 had been passed by the Cabinet. The Bill, which follows on from the previous Remote Work Strategy from January 2021, was adopted after two years of predominantly mandated remote work for many of the country’s workers. While the proposal has been long-awaited, unfortunately it falls short in a number of ways. This article aims to briefly analyse the Bill’s provisions, showcase its shortcomings, and consider the missed opportunity for meaningful reform of the employment environment in Ireland.

The overall aim of the Bill is to introduce the right to remote work in Ireland. While the Bill’s aim is ambitious, its proposed scheme unfortunately falls short. In attempting to achieve that goal, the Bill allows all workers, who have served at least twenty-six months of continuous service, the right to request remote work.

Employers are required to create a remote work policy that sets out the process for requests, the timeframe for decisions, and conditions that apply to the organisation’s remote working.

The Bill provides thirteen reasons why a request may be rejected, including “potential negative impact on quality of business product,” “concerns for the internet connectivity of the proposed remote working location,” and “potential negative impact on performance of employee or other employees”. Clearly, these grounds grant wide discretion to employers, some of which are difficult to define. In particular, the possibility for rejection on “potential” negative impact grounds is vague and overly broad. Alan Eustace, writing in The Irish Times, has further pointed out that these thirteen reasons are not exhaustive. Rather, they are a baseline for rejection, while employers can also reject a request for not being suitable on “business grounds,” which is again broad and vague. The expansive nature of the employer’s right to reject a request critically weakens the right to remote work. These grounds in essence give complete discretion to the employer as to whether workers can avail of the right at all. This arguably renders the right to remote work illusory. Although the Bill prohibits an absolute voidance of the right, the practical effect of the Bill creates such a scenario for workers in reality.

While workers can challenge refusals at the Workplace Relations Commission, this too is laden with practical problems that hamstring workers’ rights. Foremost is the fact that many workers will be daunted by the prospect of challenging their employer in a formal setting, especially given the broad grounds for refusal, which will in effect confine challenges to only the most egregious denials. This will, in particular, impact younger or less experienced workers, who may be less likely to formally challenge an employer’s unfair refusal for fear of jeopardising their careers. Further, challenges are limited only to procedural issues, indicating that once the process is followed and a business ground provided, workers cannot succeed in a challenge. The twentysix-months-of-service requirement would also seem to favour long-term workers seeking long-term remote arrangements, again to the disadvantage of those on shorter or contract-based work.

Another issue is that the onus lies on workers to provide a written request setting out a number of different criteria, including a self-assessment on data protection, confidentiality, minimum levels of internet connectivity, ergonomic suitability of proposed workspace and any equipment or furniture requirements. While one would imagine workers will need to provide some form of information on these matters, arguably the standard is overly detailed and onerous, having the effect of discouraging applications in general. Considerations for

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safe working arrangements and good ergonomics are important, but the legislation, unfortunately, offers no guidance as to how a worker can adequately demonstrate that their proposed workspace is suitable, again leaving employers with discretion. Furthermore, while employers are given a generous twelve weeks to consider applications, workers must wait a full year before submitting another request after a rejection. The Bill is exacting on employers too, opting for meticulous procedural requirements over flexibility.

While it is accepted with alacrity that remote working might raise problems, the last two years have shown that it certainly can be done. Indeed, many workers and businesses have seen the benefits of such working arrangements. According to the Second National Remote Working Survey, 95 per cent of workers favoured some kind of remote work while a mere 4.5 per cent wanted a full-time return to the office.

The evidence is clear that many workers have preferred some element of remote working and have felt noticeable improvements in their lives.

While some raise the spectre of lower productivity as an argument against remote work, this is not a compelling case. Numerous surveys have shown that productivity remained the same or improved with only a minority reporting any decrease. Indeed, even 47 per cent of managers reported that there was no difference in managing a team completely remotely. Taking all of this into consideration, it is therefore somewhat surprising that policy-makers have essentially called time on remote working in favour of a return to long commutes and less family time.

Embracing remote working would also allow for an ambitious strategy to tackle depopulation in rural Ireland and in Gaeltacht communities. Coupled with a commitment to an effective broadband strategy, the Government could have promoted a stronger shift to remote working, allowing workers to live in more rural areas while working at home, or indeed in remote work hubs, advantaging small businesses in towns across Ireland.

Allowing people the meaningful choice to work from home would allow them to relocate to communities where such employment prospects would otherwise be impossible, with the resulting spin-off benefits for communities. Again, it is baffling that with all of these benefits the priority has been on a return to an unpopular and damaging trend of hyper-centralisation.

Some of the stated concerns included issues about the State interfering in private employment contracts.

However, this seems like a rather weak argument. Arguably, all workers’ rights constitute some form of interference with the right to contract, and these are considered necessary to protect workers. There are many alternatives to the flawed model proposed. For instance, Alan Eustace and Niamh Egleston have suggested utilising a system modelled on annual leave, with each worker having a bank of remote workdays that can be taken in the same way as annual leave. Another proposal would be to make remote working a general right, permitting only a specified number of grounds for refusal without offering employers near-total discretion.

Unfortunately, the author is of the view that this Bill represents another clear example of the Government’s lack of creativity and ambition when it comes to imagining a new Ireland. Yet again, efforts have focused on benefiting employers and commercial landlords over families, workers, and their communities. While we all can look forward to a return to normal following this pandemic, the bill seems to represent somewhat of a missed opportunity to really change the way work is conducted in Ireland.

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

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The Potential Problems of Constitutionalising Socio-Economic Rights

By Mark McGrane, SF Law The addition of socio-economic rights, such as a right to housing, to the Irish Constitution seems to be an increasingly likely prospect, more and more often being touted as an imminent political reality. Doubtless, this stems from the repeated failure by the Irish Government to effectively cope with increasing strains on the housing market and health service. Also adding to calls for constitutionalisation are the admirable notions of many commentators that such an addition would affirm values that the Irish people hold dear. Yet these ideas, like all great shifts in the operation of public policy, would not be without cost. Thus, a full examination of these costs is a necessary element of the debate around the proper place of socio-economic rights.

The first step in this examination is to outline exactly why we give constitutional protection to a certain issue: we add elements such as rights and freedoms to the Constitution to protect against unwarranted intrusion from the political branches of the State. When we enshrine something in our Constitution; some right, some freedom, we do so because we believe that our approach to that subject will remain sufficiently fixed, so as to necessitate little or no alteration (and certainly no overhauling by the legislature). We add it to protect that matter from mutable policy concerns. We add rights in order to allow them to endure, raise them to a level of permanence not generally afforded to the purely political. Why then, might this be inappropriate for socio-economic rights?

The first reason is the fundamental mutability of socio-economic issues. The best, most proper distribution of the State’s resources at any given point in time is determined by innumerable, shifting factors. Projections of growth or recession, estimates of supply and demand, expectations of the likely tax intake of the State, of population growth, of immigration and emigration: all in some way impact how the Government will approach its expenditure on social issues. This is right and necessary, fundamental to how a state must organise its policies.

But it makes constraints on how we approach these issues intensely unhelpful. None of this is to suggest that constitutionalisation would render the legislature and executive entirely constrained in how they approach these issues. However, it does suggest that constitutionalisation would be a flawed process in its application to, say, housing. In times of good economic fortune, the Courts may set constraints on the Government, which in times of economic hardship, may do far more harm than good, forbidding what may be necessary financial rectitude.

The second reason, one not entirely separate from the first, is best understood through a term introduced by Professor Lon Fuller: polycentricity. This term describes issues that require the balancing of many different claims and interests, an understanding of the perspectives of many different parties. In this instance it refers to the apportioning of scarce resources between competing needs. Thus, it involves consideration of consequences and policy concerns of which Courts cannot have a proper overview. Furthermore, the predictive powers of any body taking on a policymaking role (which the courts would likely have to do) are sufficiently limited to make one-off court decisions inappropriate. Far more appropriate bodies for decisions in these areas are ones subject to democratic accountability, such as the Dáil, or administrative oversight, such as the civil service.

Courts are also inappropriate for considerations involving the interests of many parties given the fact that not all of these parties will be represented in the cases which affect their interests.

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Of course, many see democratically elected bodies as having become the problem, having allowed themselves to become neglectful and overly stultified; perhaps this is so. But the mechanisms of democratic change already exist for failures of policy. Constitutional change cannot become our first recourse when the parties in power fail. Proponents of greater expenditure on social housing must achieve this through the political branches of the state.

When proposing any alteration to the Constitution, it is worth examining how such an amendment would interact with the other foundational facts of the Irish constitutional landscape. One such fact is the conception of the separation of powers, currently enforced by the Irish judiciary. This conception is based on the 1988 case of O’Reilly v Limerick Corporation, in which Mr Justice Costello drew a distinction between “commutative” and “distributive” justice. Distributive justice essentially encompasses issues pertaining to how a polity distributes its resources, which in Costello’s view, “can only be made by reference to the common good and by those charged with furthering the common good (the Government).” In this case, later followed in cases such as TD and Sinnott, he goes on to say that such decisions are best made by those in Leinster House, not the Four Courts. In Costello J’s view, judges should concern themselves solely with the kind of commutative or corrective justice that the adversarial system is designed to facilitate.

It is not to be suggested that the precedent is absolute, and that this conception cannot one day be revised or rejected. But Costello J’s arguments remain both powerful and widely accepted, if not entirely by Ireland’s legal academics, then by Ireland’s judges, evidenced by the majority judgments in cases such as Sinnott v.

Minister for Education and TD v. Minister for Education. This is all the more salient given that they are likely the group who would be tasked with teasing out what the exact effect of the constitutionalisation of socio-economic rights would be.

Next, it is worth responding to a rhetorical strategy often undertaken by those seeking to advocate for addition to the Constitution. Namely, a de-emphasis of the legal effects that constitutionalisation would have, often done while inviting the listener to focus on the symbolic value of such rights. Apart from leading us to wonder what would make the suggested additions to the Constitution so valuable, this kind of rhetoric is a mere distraction.

When we add a right to the Constitution, we cannot do so under the presumption that it is being added as some vague yearning.

In the words of the late Justice Hardiman, we must not enshrine a right “...unless one is prepared to see it used against some person or body of persons to force them to do something or to abstain from doing it.” None of this is to deny the importance of symbolic value but it is to emphasise that the Constitution is, first and foremost, a legal document with legal effects and it is these effects that principally demand our collective attention.

In conclusion, while there are many problems with how our political system approaches social issues, and there is a legitimate debate to be had around the role the Constitution might play in ailing these ills, the constitutionalisation of socio-economic rights is an insufficient attempt to do so and may even be injurious to our efforts. A full examination of socio-economic rights and what their effects might be is far beyond the scope of this article. But in this article, I have attempted to lay out the concerns that would have to be kept in mind if the constitutionalisation of socio-economic rights reached the referendum stage, something which is looking increasingly likely, given the increased focus on housing insecurity in this country.

Photo courtesy of Grace Given, SS Law and German

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Ireland

Employment Equality (Amendment) Bill 2021: The Role of NDAs in 2022

By Mark Ramsay, SF Law Editors’ Note: This article makes brief reference to sexual assault, which some readers may find distressing.

On 14 June 2021, the Employment Equality (Amendment) (Non-Disclosure Agreements) Bill 2021 was thoroughly debated in the Seanad. This Bill was intended to deal with a form of agreement that, presently, is entirely unregulated in Ireland, seeking to resolve issues with the recent practice of non-disclosure agreements (NDAs) being used to prevent victims from discussing their experiences of harassment or discrimination.

However, the Bill’s progress has been halted as a review into the operation of the Equality Acts is undertaken, a review which also aims to analyse the Bill. Regardless of the outcome of this review, this Bill should be enacted to resolve the issues it deals with, and arguably should be expanded beyond its current scope.

Non-Disclosure Agreements Prior to analysing the Bill, it is important to define what an NDA is. Section 1 of the Bill defines an NDA as: “An agreement … between an employer and an employee whereby the latter agrees not to disclose any material information about the circumstances of a dispute between them concerning allegations of sexual harassment or discrimination.”

Whilst this specific definition is clearly tailored towards the scope of the Bill, it sets out the fundamental elements of an NDA. It is an agreement between two parties, where they agree to avoid discussing certain information with third parties. Traditionally, NDAs were used as a method to protect the trade secrets of companies. For example, if a company sought an outside opinion on a new product it was developing, an NDA would be used to prevent disclosure of the company’s idea. However, more recently, a practice has developed of employers using NDAs in an attempt to cover up unlawful acts committed by companies themselves, or by one of their employees.

Current Abuses of Non-Disclosure Agreements Recently, several high-profile examples of such uses of NDAs have emerged. One such example is the alleged widespread use of NDAs in Irish universities, as was stated by Senator Ruane whilst speaking on this Bill. She revealed that a number of academics working within the same university had approached her, informing her of an NDA they had to sign in relation to the behaviour of one individual, “who was moved around the college, and eventually on to another school.” This NDA prevented these academics from discussing the individual.

Policies Underpinning the Bill The 2021 Bill attempts to address situations such as those revealed by Senator Ruane. This Bill aims to combat the power imbalance in these cases between employers and individual employees. As was noted in the Seanad debate on the Bill, this power imbalance is exacerbated where an employee has experienced “weeks, months, years of bullying, sexual harassment or gender-based harassment.” In this vulnerable state, employees may sign these NDAs, as they simply want an end to the abuse by any means necessary.

This Bill also aims to go further in its protection of vulnerable employees. Senator Ruane, one of the main forces behind this Bill, cites a practice referred to as “passing the trash.” This is a situation in which an employer, aware of an offending employee’s unlawful actions, refuses to reprimand them, instead opting to write a glowing reference to pass the employee on to another employer. This practice not only fails victims by its

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inability to hold perpetrators accountable for their actions, but it also exposes innocent third parties to potential harm in the future. In this instance, the Bill’s provisions would not only help victims recover, but would also prevent possible future incidents.

Operation of the Bill These issues are amongst those that the proposed Bill attempts to address. The Bill would insert a new Section 14B into the Employment Equality Act 1998. Sections 14B(1) and 14B(2) would prevent the creation of NDAs that attempt to conceal acts of discrimination or sexual harassment perpetrated against an employee.

The only exception to this rule would be NDAs created to protect the employee’s confidentiality, at the employee’s request.

Furthermore, Section 14B(3) sets out numerous protections for employees in the creation of such agreements.

An employee must be granted independent legal advice at the expense of their employer. An employer must not engage in attempts of duress or undue influence. The agreement must not affect the public interest or the health and safety of future third parties. The employee must have a right to waive their confidentiality voluntarily if they so wish, and the agreement must only be for a set and limited period of time. In addition, Section 14B(8) creates an exemption for certain people, whom the employee may discuss their experience, without violating the NDA. Those covered by this exemption include family members, members of An Garda Síochána, and legal, medical and mental health professionals.

Clearly, the provisions of this Bill propose to deal with many issues in relation to the use of NDAs by certain employers. These provisions would end the practice of “passing the trash,” by preventing NDAs that would endanger the future health and safety of third parties. The aforementioned power imbalance is also addressed in multiple manners. The prevention of duress, and the requirement of independent legal advice are crucial steps in ensuring an employee is not rushed into entering an agreement they will later regret, a common complaint of those who were rushed into such NDAs, as was noted by Senator Ruane.

Additionally, even if an employee was to later regret such an agreement, there is a limited time period set for the NDA’s operation, and they may waive their confidentiality.

Scope for Expansion However, one potentially problematic aspect of the Bill is the limitation of its scope. The Bill limits its application to agreements made between employers and employees. Whilst a cautious approach to the creation of legislation is appropriate, it is clear that NDAs are not limited to an employment relationship. There have been many examples of the use of NDAs, in a manner similar to those allegedly used by Irish universities, where the parties were not engaged in an employment relationship. Even if this Bill was enacted, NDAs concealing abuse and harassment made outside of an employee-employer relationship would remain legally enforceable.

An example of this would be the NDA that was agreed upon between Cristiano Ronaldo and Kathryn Mayorga. Ms Mayorga alleges that, in June 2009, she was raped by Cristiano Ronaldo. However, this story was not revealed until 2017 by a third party, with Ms Mayorga not identifying herself until 2018. This was due to an NDA that Ms Mayorga had signed, which prevented her from discussing the allegations publicly. The effect of this NDA was to allow Ronaldo to avoid public scrutiny, whilst Ms Mayorga was left unable to heal from, or even discuss, the trauma the incident caused her. As outlined above, even if this Bill was enacted, agreements made in relation to situations such as Ms Mayorga’s would remain legally enforceable in Ireland.

Instances such as this highlight the scope for NDAs to be devised outside of employment relationships. This legislation may have been restricted as these NDAs are most commonly used by employers or the thinking that

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a reduced scope may increase its chances of being enacted. However, these possible reasons are not sufficient to justify limiting the scope of this legislation.

Therefore, whilst NDAs are perhaps most commonly implemented within employment relationships, a wider scope for this Bill would prevent harm to victims regardless of the circumstances of their individual case.

Ultimately, the lack of progress on this Bill is disappointing, as it would be a welcome legislative change.

The use of NDAs in the instances noted above is both unethical and unjust, and action is required to end the protection of abusers in the workplace. This Bill would allow victims to recover from their experience, whilst preventing their abusers from avoiding accountability. Additionally, the enactment of this Bill could serve as a starting point for more comprehensive legal protections against abuse and harassment. Whilst this Bill is limited to the relationship between employers and employees, it could be viewed as a stepping stone to wider protections, protections that encompass all victims, regardless of the circumstances of their individual case.

Time and time again, we are reminded of the need for such protections, a need which can be satisfied in part by this Bill’s enactment.

Photo courtesy of Grace Given, SS Law and German

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Bottom of the Class: Ireland and the Impact of Single-Sex Schools on Gender-Based Violence

By Eoin Ryan, SF Law and Political Science Editors’ Note: This piece deals with gender-based violence, which some readers may find distressing.

The tragic murder of Ashling Murphy in Tullamore, Co. Offaly reignited an important and overdue conversation about how we deal with the endemic level of gender-based violence in our society. The statistics are alarming and disgraceful: a 2014 study by the European Union Fundamental Rights Agency found that in Ireland, 1 in 4 women (26 per cent) have experienced physical and/or sexual violence since the age of 15. The perpetrators of these crimes are overwhelmingly male, with 2020 data from the Central Statistics Office (CSO) revealing that 98 per cent of suspected offenders of detected sexual violence crimes reported were male.

Education is a key preventive measure against the misogynistic attitudes and values pervasive in society that cause and enable gender-based violence. Speaking in the wake of Ashling Murphy’s death, Director of the National Women’s Council, Orla O’Connor, submits that “what we need is real, systemic change through the education system” if we are to tackle this issue head on. While a progressive and comprehensive Relationships and Sexuality Education curriculum is a core aspect of any new educational approach, this article will seek to examine the impact of sex-segregated education in Ireland.

Single-Sex Schooling in Ireland When it comes to the number of single-sex schools, Ireland is a outlier when compared to the international norm. According to the Global Education Monitoring Report, Malta is the only other country in Europe that has a higher concentration of single-sex schools than Ireland. The same report found that over one third of Irish second level schools are single-sex, significantly higher than all other Western countries. The unusually high proportion of single-sex schools can be attributed to the dominance and control of the Catholic Church over the Irish education system.

Since the founding of the State, the Church has played a prominent and outsized role in Irish schools, with nearly half of second-level institutions continuing under its patronage.

The religious practice of sex-segregated education is based on antiquated notions that girls and boys are intrinsically different and thus, should be taught separately. The Church-controlled education system can be traced back to 1831, which precipitated the decline of hedge schools and the establishment of a national system of education that the Catholic Bishops managed to successfully monopolise. This allowed the promotion of Catholic doctrine which espoused many stereotypical views in regards to sex such as the conceptualisation of women as “homekeepers” and men as “breadwinners.”

Effects of Sex-Segregated Education Studies reveal that sex-segregated education leads to the reinforcement of gender roles which can manifest itself in different forms. Professor Chris Hickey of Deakin University, Melbourne argues that single-sex boys’ schools can facilitate and incubate hypermasculine and misogynistic cultures. Drawing on research from

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2008-2017, Professor Hickey showed that while such attitudes are not solely found in single-sex schools, “there is a higher propensity for it when you have boys en masse who are left unchecked.” A vast array of academic literature has shown that all-boys schools are more likely to cultivate cultural norms that allow for sexist attitudes to be expressed, the marginilastion of women, and a tolerance of sexual abuse.

It has also been argued that single-sex schools can lead to sexist attitudes and behaviours among students.

Speaking at the 2016 Congress of the American Psychological Association, former President Professor Diane Halpern affirmed that sex-segregation causes young people who attended single-sex schools to form strong stereotypes, in-group bias, and legitimise institutional sexism. Professor Halpern also highlighted how education is one of the only areas of public life which is segregated on the basis of sex and that single-sex schools consequently fail to adequately prepare their students for the diverse world in which they will have to live and develop relationships. “After graduation, virtually everyone will work for and with females and males – students need to learn mutual respect and the social skills of interacting.”

Sexist attitudes and gender stereotypes develop at a much higher rate in single-sex schooling than in their coeducational counterparts. A 2014 study comparing the two institutional arrangements showed that all-male environments produced a higher level of gender-based violence. It is submitted, that it is these sexist ideas and values that induce and enable a culture of violence against women. When misogyny has been legitimised by institutions, aside from the actual perpetration of the crime, men fail to call out inappropriate acts and instead are complicit in the facilitation of abusive behaviour.

It is often argued by proponents of single-sex schools that international research shows that academic outcomes are better for both boys and girls in sex-segregated education. However, a 2010 Economic and Social Research Institute (ESRI) study by Professor Emer Smyth found that there was “very little consensus” on whether single-sex education leads to better academic outcomes for either sex. Single-sex schools are more likely to contain students from more affluent backgrounds, and when studies were adjusted for social class there was no significant difference in academic outcomes between coeducational and single-sex schools. Professor Smyth described the idea that girls perform better in single-sex schools as a “folk myth.” Similarly, a 2014 meta-analysis of 184 international studies, representing the testing of 1.6 million students, by Janet Hyde of the University of Wisconsin–Madison failed to find any advantages of single-sex education.

Private Members Bill Aodhán Ó Ríordáin, a Dublin TD and Labour Party Spokesperson on Education, has recently published a Private Members’ Bill that would seek to eliminate se discrimination in school admissions policies. The draft Bill proposes a 15-year period in which second-level institutions would phase out single-sex admissions, after which the State would cease funding any remaining single-sex schools. Deputy Ó Ríordáin argued that in order to properly deal with issues of consent, toxic masculinity, and gender equality it made more sense for boys and girls to be educated together as opposed to the current “outdated” system. The TD has also emphasised the necessity of adopting an education system that is “more reflective of every other European country.” In fact, coeducational schooling already represents de facto policy for the Department of Education, as the Department “hasn’t given recognition to a new single-sex school since 1998.”

While there may exist a preference within the Department for coeducational schools, former Minister for Education Richard Bruton has observed that the Catholic Church remains a “structural barrier in the system.”

The decision to transition a school from a single-sex system to coeducational remains within the power of the school’s patron, and given the high level of Catholic patronage for schools within Ireland, this has hampered any significant change.

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Conclusion Ultimately, reform of the education system and the potential abolition of single-sex schools will only form part of the larger reforms needed to combat gender-based violence. It is submitted that the prevailing orthodoxy must be challenged, the misogyny that sex-segregated education fosters should be considered unacceptable in contemporary Irish society, and a move to a fully coeducational model should be regarded as essential.

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

Photo courtesy of Katharina Neumann, SS Law and Political Science

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Environment

Environment

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Intervening where Climate Diplomacy has Failed - The Potential of an Advisory Opinion on Climate Change

By Katharina Neumann, Deputy Editor, SS Law and Political Science The last Conference of the Parties, the supreme decision-making body of the United Nations Framework Convention on Climate Change (UNFCCC), serves as a distressing example of the insufficient political and diplomatic efforts to combat climate change. In light of this, those at the frontline of climate change are reverting to measures outside of established international frameworks to combat the crisis. Litigation, for example, has recently become an increasingly successful tool to hold governments and businesses accountable. This is illustrated by the famous Urgenda decision (Urgenda Foundation v State of the Netherlands), a Dutch Supreme Court case that established a duty of care on behalf of the Government towards its citizens in climate change matters; or the Shell ruling, (Milieudefensie et al v Royal Dutch Shell plc) which required the company to reduce its global emissions by 45 per cent by 2030. Encouraged by these outcomes in national courts, the Pacific Island nation of Vanuatu recently announced that it will take international initiative by seeking an advisory opinion from the International Court of Justice (ICJ) on climate change.

Vanuatu is an island state in the Pacific with a population of 307,000 people living on 83 different islands.

Island states such as Vanuatu are on the frontline of the effects of climate change, facing rising sea levels and more regular storms that are progressively derailing their economies and will over time threaten their very existence as a country. Vanuatu is therefore a standing example that current efforts to reduce climate change, particularly action taken for disproportionately-affected developing countries within current multilateral mechanisms such as the Paris Agreement, are insufficient. By seeking an advisory opinion from the ICJ, Vanuatu has a justified intent to re-establish and clarify the current and future legal obligations of all countries, with a goal of preventing and redressing the adverse effects of climate change and establishing clear standards for climate action. A secondary goal of this submission is the rectification of the clear failings of international climate change negotiations over the past 30 years, as Vanuatu’s position becomes increasingly precarious as a direct result. Vanuatu will rely on Article 96(1) of the UN Charter, which gives the General Assembly (UNGA) the authority to request advisory opinions from the ICJ. This would have to be supported by the majority of UN member states. It is a tactical gamble by the small island state, as this decision increases the legitimacy and profile of the request but will also make it more difficult to achieve when it is required to be approved by the General Assembly.

Issuing advisory opinions is one of the ICJ’s three major functions. Under Article 65(1) of the ICJ Statute, the Court may give an advisory opinion on “any legal question” at the request of a body authorised to make such a request. While advisory opinions are non-binding, they are still influential in the development of international law and identification of its status, as they express the view of the foremost authority of international law on a particular issue. The purpose of advisory opinions is not to settle a legal dispute, but to assist the requesting organ in its efforts to deal with the contested issue. Thus, one crucial characteristic of advisory opinions is that they do not demand the consent usually required from a state whose actions may be the object of the Court’s attention.

An advisory opinion on climate change may serve as a catalyst to accelerate progress in the fight against the

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Environment

climate crisis. Although the lack of effective enforcement mechanisms might lead to countries not paying heed to the ICJ’s opinion, the court has produced advisory opinions that have been instrumental in establishing essential doctrines of international law. For example, in its 1951 advisory opinion on the Genocide Convention, the ICJ sought to invent a new, flexible approach to treaty reservations, which remains foundational to the application of international law today. In the 2010 Kosovo advisory opinion, the court established that declarations of independence are illegal when associated with the unlawful use of force. This has since played an important role in developing international law on secession. Considering these precedents, it can be inferred that an advisory opinion on climate change could be a foundational step in incentivising formal international legal obligations on states to reduce emissions and to redress harm associated with climate change impacts by involving fundamental international legal principles such as state responsibility for harms associated with the impacts of climate change (the no-harm principle), and related due diligence obligations. International environmental lawyer Daniel Bodansky argues that an opinion could set the terms of the debate, provide evaluative standards, and establish a framework of principles to develop more specific norms. In time, this may ultimately shape public consciousness and define normative expectations. An ICJ advisory opinion could thus clarify and progress political and diplomatic efforts.

Setting a common legal language for climate change has several advantages. First, it appropriately and proportionately bolsters the position of climate-vulnerable states such as Vanuatu in international climate negotiations, as it may enable clear recognition of the physical and economic loss faced due to climate change and establish ways to rectify this in the future. Further, an opinion might bring cohesion to states’ fragmented international obligations in this area. This could be especially helpful in light of increasing national climate litigation as it establishes a common language that national courts might use in order to strengthen judicial climate activism, and can affect states’ positions in multilateral negotiations. Lastly, an advisory opinion can also help to establish an interpretive framework for existing climate treaties such as the Paris Agreement.

It could be argued that due to the complexity of climate change the factual issues would not be suitable for an advisory opinion.

However, the complexity of the question does not represent a significant challenge as the Court is supplied with abundant information to form a substantiated opinion.

Further, the ICJ must be credited to have contributed significantly to international environmental law before, including in the Corfu Channel case (United Kingdom of Great Britain and Northern Ireland v Albania), the Nuclear Test case (Australia v France) and the Gabcikovo-Nagymaros Project case (Hungary/Slovakia).

Ultimately, an advisory opinion on climate change could address the shortcomings of climate diplomatic efforts. Concrete advice from the World Court may lead to a more structured, legally enforceable response to the climate crisis. Although non-binding, an advisory opinion may act as a legal bedrock for intentional climate law and future climate action of the UNGA. Initiating a request for this opinion is a necessary and important step not just for Vanuatu, but all frontline nations experiencing the effects of climate change. The ICJ’s approach to advising on this complex yet legally-undefined international threat is eagerly anticipated.

Photo courtesy of Grace Given, SS Law and German

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Trade

The WTO Appellate Body Crisis: FTAs and the Enforceability of World Trade Law

By Ursala McDonnell, JS Law and Political Science The World Trade Organisation (WTO) has been the champion of world trade law enforcement since its inception in 1995. The WTO’s dispute settlement mechanism (DSM) has prevented harmful cycles of tariffs and retaliation by facilitating arbitration between its Members. Today, the WTO-DSM function is in jeopardy of collapsing, the consequences of which may be disastrous for the enforceability of world trade law.

World trade law refers to the branch of public international law which governs the regulation of the international flow of goods and services. World trade law is an outlier amongst typically fragmented and decentralised public international law enforcement mechanisms. This can be attributed to its concrete mechanisms which have, until recently, been effective in ensuring that relevant parties implement obligations contained in international trade treaties.

World trade law is primarily enforced by the World Trade Organisation. The WTO was formed during the Uruguay Round of the General Agreement on Tariffs and Trade in response to a general belief amongst world leaders that the global community was missing a multilateral organisation to effectively oversee and enforce complex interstate trade relations. It was ratified by the Marrakesh Agreement and began to facilitate a common organisational structure for the management of trading ties between Members on 1 January 1995. The establishment of the WTO essentially solidified the law governing world trade and has been viewed by many as one of the most important advances in multilateralism.

The Marrakesh Agreement created an exclusive, centralised, and integrated DSM for WTO Members to settle disputes. The mechanism is supported by the WTO Dispute Settlement Understanding, which specifies that its judicial scope extends to resolving disputes emerging from violations of WTO covered agreements, i.e. all the multilateral WTO agreements.

Previously proclaimed the ‘jewel in the crown’ of the WTO, the WTO-DSM was once extremely productive.

Its sophisticated organisational structure and accessible procedural phases were very active, with 610 disputes being submitted since its inception. Its extensive application reflects the confidence that Members once had in its ability to resolve disputes and maintain Members’ rights under the covered agreements. Today however, the WTO-DSM is a system in crisis.

As more complex disputes have entered the WTO-DSM, Members are increasingly critical of the inadequacy of WTO rules to resolve them.

The most vociferous of critics has been the United States. In particular, the US takes issue with the judicial organ of the WTO-DSM, the Appellate Body (AB).

The AB is a standing international body of seven independent jurists authorised to hear and decide appeals of panel judgments. Jurists are appointed for a four-year term by consensus of Members. Since 2017, the US

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has blocked any opportunity to fill vacancies on the AB by preventing the appointment of jurists. They have specified their condemnation on substantive, jurisdictional, and procedural aspects of the AB’s practice and jurisprudence, namely complaints about judicial activism and apprehension about detrimental effects on US sovereignty. Any attempt to reform the WTO-DSM following US pressure has been ineffective. In December 2019, the number of jurists on the AB fell to below the minimum of three required for it to hear appeals. The AB is paralysed by this in the sense that it has been unable to complete any pending disputes and cases are appealed ‘into the void.’

Such an impasse has detrimental ramifications on the enforcement of world trade law. With the demobilisation of the WTO-DSM there is no overarching institution responsible for the supervision and regulation of world trade law. This has created huge uncertainty and insecurity in the international trade community. Many countries’ economic prosperity depends on international trade. Developing countries participating in international trade also rely on special rules that foster global economic equality.

Hence, world trade must be regulated or the stimulating effects of international trade will be squandered.

In response to the deadlock, states are looking for alternative dispute mechanisms to resolve disputes. Many are beginning to consider free trade agreements (FTAs) to maintain the enforcement of world trade law.

An FTA is an agreement in which signatories offer concessions to other members. It establishes a preferential trading system between participants, usually in the form of affording fellow members more favourable treatment in issues of trade than they afford to members of the WTO. The WTO allows for their creation under Article XXIV of the GATT to provide room for preferential arrangements between states in trade.

Given the current nature of the AB crisis, it would be premature to fully assess the strengthening capacity of FTAs in relation to the enforcement of world trade law. However, even before the AB crisis, the signing of FTAs had already functioned as a complementary supervisor of the enforcement of world trade law. FTAs govern the realms of world trade law that the WTO cannot or are not designed to, essentially filling in any gaps they have left. Indeed, FTAs provide their own DSMs to carry out this aim that are very similar in nature to that of WTO-DSM. Hence, states may find that FTAs are well-equipped to fulfil the enforcement role that the WTO has not been able to.

FTAs may strengthen world trade law compliance by promoting global governance. Taking an institutionalist approach, it is possible that states will agree to cooperate and comply with the rules of FTAs when it is in their interests. Indeed, FTAs are very flexible. Their regionalist and discriminatory nature enables states to achieve free trade in spheres where the WTO is ineffective. Thus, FTAs can more effectively achieve partial liberalisation in situations where the WTO cannot achieve any liberalisation for Members. When FTA members benefit from these conditions, they are more likely to cooperate and comply with FTA-DSM judgments. Hence, if complied with, FTAs may facilitate compliance with world trade law while the AB is frozen.

It is important to note that in a scenario where the AB is restored and FTAs are more prevalent in international trade, issues may arise where disputes occur in sectors covered by both WTO and FTA agreements. Known as the ‘spaghetti bowl’ effect, the existence of individual DSMs creates major confusion and unpredictability in the enforcement of world trade law. This problem has plagued world trade law enforcement even before the paralysis. Crucially, increased dependence on FTAs may further aggravate the issue if the AB is defrosted.

Hence, as states begin to consider relying on FTAs, the possibility of ensuing jurisdictional conflict should be taken into account.

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Trade

Overall, there is no indication that the US will lift the impasse in the near future. In assessing life without the WTO AB, given that they are sufficiently resourced to facilitate dispute settlement proceedings, FTAs may facilitate the enforcement of complex state-to-state trade relations. This is dependent on whether signatories will actually comply with FTAs. Nevertheless, replacing the AB with such an alternative is an extremely complicated task and is marred by the ‘spaghetti bowl’ effect. Due to the developing nature of the AB crisis, it seems that the task of ensuring that world trade law is continuing to be enforced will be an uphill battle for the international business community.

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

Mediation

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A Mediator Should Never Offer Evaluations? Some LegalPsychological Perspectives

By Luke Gibbons Jr., LL.B (Dub.) (aur.num.), BCL (Oxon) (Dist.) (Hon. Sch.), PhD Candidate (Dub.) Introduction – ‘Never Say Never’ There are many accepted key principles of mediation such as mediator neutrality, impartiality, party self-determination, and autonomy. One could argue that theoretically a mediator offering substantive evaluations to the parties would contravene these general principles. However, as Frank Sander, Professor of Law at Harvard outlines, there is no overarching “mediation” that fits as a “forum to the fuss” in every dispute. Although pure mediation advocates argue that mediation should be wholly facilitative to avoid these key principles being undermined, others proclaim that evaluative mediation may be favoured. This article argues that this dichotomy is not only unhelpful but also inaccurate. This is grounded in the argument in Leonard Riskin’s seminal paper that these forms of mediation are not mutually exclusive in that both approaches exist on a “spectrum.” Thus, while offering evaluations comes with dangers and should be generally cautioned, this article argues that a mediator should offer evaluations when a case so requires.

What Is a Mediator’s Evaluation?

Before discussing the merits and dangers of a mediator offering evaluations, it is prudent to outline what form an evaluation may take. In basic terms, a substantive evaluation is the mediator offering some form of opinion on each party’s case. As Zena Zumeta observes, a mediator’s evaluations may include pointing out strengths and weaknesses of each party’s argument and giving an opinion on what a court may decide if the parties litigated the dispute. This usually occurs in what has been termed “shuttle diplomacy,” where the mediator meets in separate rooms with each party. However, as shall be discussed, evaluations come with both dangers and benefits in assisting the parties to come to an integrative agreement and should only be used as a case so requires within the facilitative regime.

Dangers of Evaluations (a) Mediator’s Neutrality and Impartiality at Risk The maintenance of mediator neutrality and impartiality is important. This neutrality encourages parties to articulate interests accurately and facilitates creative problem solving. This is because parties do not perceive a mediator as competitively biassed unlike their counterparties. It is arguable that the effectiveness of this is due to the trust vested in the mediator by virtue of these attributes.

However, if a mediator evaluates, this trust and thus the facilitative role of the mediator may be undermined.

This is submitted as an evaluation in actuality will probably favour one party over another. Further, even if it does not, due to bounded rationality and self-serving bias, an evaluation will likely be perceived as favouring one’s counterpart anyhow. This is made even more likely, as pursuant to Schulz von Thun’s model there are four sides to every message, so the mediator may intend an evaluation on one frequency, but this may be interpreted on a different frequency. For instance, applying Horst Eidenmueller’s “Problem, People, Process Model” (PPP Model), a mediator may intend a wholly objective evaluation on the problem level as to factual

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Mediation

information, but this may be interpreted as a subjective judgement on the people level and the relationship between the parties.

This possible perception of bias and favouritism as opposed to impartiality can erode the parties’ trust in the mediator and can stifle open information flow. Thus, the chance of a mediator successfully facilitating a mutually beneficial, value creating, integrative agreement is diminished. Moreover, this may escalate conflict akin to Glasl’s stairs as communication may break down in response to loss of trust and a possible “win-win” negotiation may metamorphose into a “lose-lose” scenario. The end result of this scenario is a non-agreement in that as Lela Love argues evaluations may lead to parties withdrawing entirely. (b) Undermining Self – Determination + Creating an Adversarial Frame Mediation’s popularity is attributable to its focus on party autonomy in reaching an agreement as opposed to imposed judgement by the courts. Thus, anything that impinges upon party self – determination may be argued as potentially undermining the merits of mediation as opposed to adversarial proceedings.

By offering evaluations a mediator could potentially impede upon this benefit by, as Lela Love outlines, “perpetuating …an adversarial climate.” This may lead to parties becoming positioned and focusing on rights as opposed to an interest-based discussion which mediation seeks to facilitate. If parties realise they are subject to evaluation, they will most probably become competitively biassed and seek to illustrate their “case” to reflect its strengths. This may accumulate in parties hiding potentially valuable information from a mediator which could have facilitated creative integrative concessions. This would be unfortunate as parties tend to honour agreements that are their own creation as opposed to another’s suggestion.

Furthermore, in potentially creating this adversarial environment a mediator may ironically entrench the negotiator’s dilemma in that by hardening their positions, conflict escalation may not only ensue, but parties may adopt value claiming strategies making an integrative agreement less likely. (c) Creating an Unhelpful Reference Point From the literature it is apparent that the timing of evaluations is imperative for such to be successful. If an evaluation is given too early and bias is perceived by the parties, evaluations may erode trust in the mediator from the outset and create a further barrier to settlement. However, if given towards the end with the consent of the parties or at their request, an evaluation may be more effective as trust has previously been secured.

Adding to this literature, this author argues that if evaluations are given too early, they may create an early reference point between the parties which may impede the bargaining process. What is meant by this is, as Dan Ariely explains in his book Predictably Irrational, people make choices in relative terms with simple comparisons preferred due to this cognition requiring less effort. This is termed System 1 thinking. Therefore, an early substantive evaluation from the mediator may act as a reference point from which all subsequent offers and possible agreements between the parties are adjudged.

This is akin to the anchoring effect of a first offer by a party to a negotiation. The anchoring effect of the first offer grounds as a reference point from which all counteroffers are adjudged. There is evidenced success of the anchoring effect in the literature even when employed by a counterpart in the face of perceived competitive bias. Thus, it is argued that as a mediator is perceived as less competitively biassed due to neutrality, the comparative reference point and induced System 1 thinking of a mediator’s evaluation is even more likely to occur. However, if counteroffers are less favourable than the initial evaluation, negotiations between the

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parties will likely break down as both will feel like losers in the win–lose frame this creates. Conversely, if the counteroffers are more favourable than an initial evaluation an integrative agreement may be made more likely as both parties may feel like winners. Thus, offering early evaluations may act as a favourable and unfavourable reference point depending on how the mediation proceeds.

Justifications of Evaluations (a) Addressing Selective Perception Parties often overestimate their chance of success in court as their BATNA (Best Alternative to a Negotiated Agreement). As Max Bazerman in his book Negotiation Genius outlines, this can be attributed to selective perception as people form perceptions quickly and ignore information that contradicts their views. This can impact the chances of reaching an agreement that would potentially be more rational than litigation.

By providing evaluations of the BATNA of successful litigation, a mediator may address these misjudgments.

As the mediator is seen as neutral, this may cause the party to re-evaluate their position and engage collaboratively as the benefits of a mediated agreement as opposed to litigation may become apparent. However, as people are not hyper-rational, a party may be so entrenched in their views that they see this as an attempt at manipulation in favour of the other party. Thus, the success of providing such an evaluation is both fact specific and dependent on the mediator having the requisite legal knowledge to demonstrate their case. (b) Satisfying Other Psychological Needs Evaluations may also satisfy a party’s psychological need for the experience of a day in court, in presenting a case before a neutral. This may provide the necessary phycological cover to eventually settle. Furthermore, an evaluation may provide those accountable to superiors a basis for agreeing to settle. This is argued as a justification for settling is readily ascertainable through being able to point to a neutral evaluation. For instance, a junior associate accountable to a partner at a firm might be resistant to settle on non-favourable terms. However, if they can defer to an experienced mediator’s assessment that outlined litigation would be less successful, consideration of the settlement may be more likely. This takes advantage of heuristics, in that as Dan Ariely outlines, people prefer readily justifiable choices. This is a phycological short that is often accentuated by the need for justification to a superior. Thus, in contrast to the above discussion on reference points, taking advantage of this heuristic may actually encourage settlement. (c) Neutrality Not Always Undermined Some evaluations not only do not impact neutrality or the perception thereof, but may also be a necessity even in facilitative mediations. This is argued as a mediator almost invariably offers implicit evaluations as a process manager by outlining the order of issues to be covered and how much time to devote to each. In so doing a mediator even in a purely facilitative role implicitly offers some evaluations on issue importance without tainting the parties’ perception of neutrality through framing the discussion around key areas.

Moreover, a valid argument may be made that evaluative mediation may be perceived as more neutral as through dealing with the issues in an open manner parties may have more confidence that a mediator is fair.

However, for this argument to hold, not only would a mediator have to offer evaluations in plenary sessions which is contrary to practice, but furthermore the evaluations would need to be inherently balanced to avoid perceptions of bias.

However, a mediator’s task whether in a facilitative or evaluative meditation is to encourage parties to re-evaluate their BATNAs. In so doing providing additional evaluative information may be key. This is argued as if the parties had access to this objective assessment prior to mediation, the mediation itself would most probably not be necessary.

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Mediation

(d) Parties are Polarised at the Outset As outlined, a reservation of evaluations is that they may create an adversarial environment. However, at the outset of a mediation parties are generally polarised. This is simply by reason of needing a mediator. Therefore, suggesting settlement possibilities may assist the making of an agreement as evaluations appear better coming from a neutral third party as opposed to a counterpart where reactive devaluation may occur.

Although this argument has some weight, it is premised on the assumption that parties will act rationally in realising that a mediator as a neutral has nothing to gain from being biassed as mediation is voluntary and parties can walk away. A biassed reputation would impact the mediator’s credibility which is to be avoided as the free market provides checks here. However, parties are not hyper-rational and may not realise the mediator has much to lose from bias. Thus, any evaluation may be perceived as biassed and may provide a reference point from which a mediator’s neutrality is adjudged, impacting trust and thus the facilitation of information flow.

A Combined Approach As outlined, there are many positives and negatives to evaluations. However, mediators always offer some implicit evaluations as process managers.

Therefore, to say a mediator should never evaluate is something of an oxymoron as implicit evaluations are inherent in the role.

Although these implicit evaluations occur, the response in relation to express substantive evaluations requires more nuance. While positives exist to offering express evaluations, broadly the dangers outweigh these possible positives. However, this is not to say that a hard dichotomy should exist between facilitative and evaluative mediation. In contrast, evaluations should be given within the facilitative framework as necessary. In other words, evaluations can act as tools when needed, as mediation is a flexible process that should adapt to parties’ needs.

For instance, an evaluation from a mediator may be less subject to reactive devaluation and the perception of competitive bias than an offer coming from a counterpart. Thus, going back to Schulz von Thun’s four-sided message, a party may perceive the same proposal differently than if it came from the counterpart, making a rational response and potential agreement more likely. Further, in reality most commercial actors expect evaluations and if a mediator refuses to engage the effectiveness of the mediation may be lost.

Notwithstanding the flexibility of mediation and the fact specific argument of evaluations herein adopted. This author argues that four broad principles on giving successful evaluations should invariably be upheld: 1.

Evaluations should be kept to a minimum, 2.

Both parties must consent to the giving of evaluations, 3.

Evaluations should almost always be avoided at the expositional stages of mediation, 4.

Some evaluations may require expertise and mediators are advised to only evaluate in areas of requisite knowledge.

Conclusion – ‘Never Say Never As outlined, there are many dangers as well as justifications of giving evaluations from a psychological and legal perspective. The title questioned that mediators should never offer evaluations. This author has argued that this never language is too broad as mediation is a flexible process with party self-determination at its core.

Instead of taking a hard dichotomy between evaluative and facilitative mediation, this article has submitted that evaluations should be used as a tool within the facilitative regime as a case so requires, albeit in cognizance of some proposed general guidelines.

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

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Censorship

Book Banning: The Dystopia in Our Reality

By Kate Flood, SS Law and Business Book banning evokes images of oppressive dictatorial regimes and harrowing dystopian novels, such as Ray Bradbury’s Fahrenheit 451. And yet, recent events in America come as a sobering reminder that censorship is omnipresent; a persistent dystopian stain on modern, democratic society. Over recent months there has been a flurry of book bans across many US states, as a plethora of books have been removed from schools and libraries alike. The American Library Association reported an “unprecedented” increase in book ban requests during Autumn 2021, as 330 books were challenged, compared to just 156 challenges in the entirety of 2020. This form of censorship has become so prevalent that Vanity Fair reported conservatives as “just openly endorsing book burning now,” a sentiment that has been vindicated in light of the fiery scenes seen in Tennessee in early February 2022. With this surge in the banning of books, it is important to consider how, or indeed if, these practices can be justified and the potential for their success.

Explaining away Book Banning Many attempts have been made to justify the removal of books from library shelves and the banning of books from schools. Perhaps the most far-reaching book banning regime has been seen in Texas, where some 850 books have been removed from schools. The main instigator of the regime, Rep. Matt Krause, maintained that the offending books were removed so as not to make students feel “discomfort, guilt anguish, or any other form of psychological distress because of their race or sex or convey that a student, by virtue of their race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.” Some have contended that the protection of students from discomfort is an admirable motivation and one that ought to be accepted and respected. However, it has been suggested that it is an unconvincing excuse and one that goes against the very aim of education. Passing judgement in the case of Island Trees Union Free School District v Pico by Pico, the US Supreme Court maintained that accessing diverse ideas “prepares students for active and effective participation in the pluralistic, often contentious society in which they will soon be adult members.” The purpose of the education system aside, as Timothy Snyder notes, “[d]iscomfort is part of growing up … teachers in high schools cannot exclude the possibility that the history of slavery, lynching and voter suppression will make some non-black students uncomfortable.” Whether one is convinced by the ‘discomfort’ argument or not, when one considers the content of the banned book list, it becomes clear that while discomfort is perhaps the front of the issue, the real driving force of the regime is likely something quite different.

Censorship is a practice which, according to Richard L. Darling, “must be as old as recorded literature, perhaps older.”

While it would be nice to think that we have evolved considerably with the passage of time, the reality is that the motives for banning books have remained constant.

Stalin banned Doctor Zhivago by virtue of its unbecoming portrayal of the Russian revolution. Mickey Mouse comics were forbidden by communists in East Germany, as the cartoon character was perceived as being an anti-red rebel. It was feared that Lady Chatterley’s Lover would lead to the breakdown of social divides in 1920s Britain. Each of these examples show pieces being banned out of fear; a fear of disrupting the social order. The recent book bans in America target works concerning race theory, sexuality, and upsetting historical

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fact. It is contended that the fervour with which book banning is being pursued in the US, perhaps speaks to the fragility of the American social order, and a Republican desire to avoid, or at the very least limit, social dissent. So, while those inciting censorship advance seemingly laudable justifications, they are most likely being motivated by a fear of marginalised views seeping into the mainstream and becoming dominant.

The Potential Success of Book Banning By virtue of the internet, book banning – or the more dramatic burning of books – cannot hope to have the same impact as in 1930s Nazi Germany. Now, removing books from library shelves will not block access to new ideas, historical facts, or expressions of human sexuality. So what purpose can book banning serve in today’s world? The ongoing Republican agenda appears to be aimed at retaining and galvanising party power by appealing to the fears and preferences of conservative groups, such as ‘Moms for Liberty.’ The support of such bodies can be leveraged in elections, as was seen in the case of Matt Krause in Texas, and Glenn Youngkin in Virginia. It is interesting to note that censorship was similarly employed by the Vatican in 1633, in an attempt to ban the work of Galileo Galilei, and to harness the power and sanctity of Catholic teachings.

History has shown us that censorship is often ineffective, particularly where people are willing to fight against it.

With regard to the ongoing censorship programme in many parts of the US, history has repeated itself and rebellion has taken place. For example, librarians in Texas have launched the #Freadom initiative, which is itself reminiscent of the words of Dwight Eisenhower, who, in 1952, encouraged a graduating class to “[g]o in your local library and read every book.” Similarly, in September 2021, Pennsylvanian students protested against the removal of books from library shelves, wearing black t-shirts to class, reading excerpts from banned books on Instagram, and staging protests every morning at 7.15. Their efforts were rewarded as they succeeded in securing the temporary removal of certain book bans.

Conclusion The Republican agenda in the US with regard to censorship is an affront to the educational system and to freedom of expression generally. It has been marketed as a protective measure, as a means of saving students from feelings of discomfort. However, censorship of this variety is nothing, in the words of Toni Morrison, but an elementary attempt “to appease adults rather than educate children.” It, like all book banning, is inspired by a fear of change. However, the endeavours described above inspire hope, and add credence to the sentiments of Dennis Aftergut, who maintained that “[w]ith enough opposition to book banning, it never succeeds, at least not in the long run.”

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

Photo courtesy of Grace Given, SS Law and German

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International

A New Era of Democracy in Chile

By Sophie Treacy, SS Law The end of 2021 signalled a new beginning for progressive democracy in Chile. The latest Chilean general election took place last December against the backdrop of great civil and political unrest across the nation.

Mass demonstrations had been taking place in Chile since October 2019, when a group of students took to the streets to protest fare hikes across public transport services. Their actions quickly led to a surge of civil protests in Santiago, the Chilean capital, as countless civilians demanded change within the neoliberal free market economy, which many view as the legacy of the Pinochet military dictatorship. Over the past two years, more than two million Chileans have gathered to protest against many issues, including Chile’s strict abortion laws, inadequate access to health care, great wealth inequality, and the unequal provision of basic civil needs such as state pensions and education.

In the wake of the mass civil unrest, Chileans were faced with a choice between two Presidential candidates. In what was a deeply polarising and divisive election, José Antonio Kast, known for his far-right policies and endorsement of the previous military dictatorship regime, ran against former student protest leader and left-wing activist, Gabriel Boric. Widely regarded as a surprise result, Boric was elected by a narrow margin to become Chile’s youngest ever President, indicating the beginning of the kind of change that had been demanded on the streets of Santiago two years previously.

President-elect Boric’s election campaign was characterised by his feminist and egalitarian platform. In the lead up to the election, Boric focused on the importance of rebuilding a “feminist economy” in Chile and challenging the sexist norms inherent in the education system. Indeed, Chile has historically been regarded as one of the most conservative countries in Latin America, with women only gaining the right to vote in 1949.

By contrast, Boric’s campaign placed great weight on the importance of tackling women’s rights issues such as the gender pay gap, access to reproductive healthcare, and female participation in the workforce. Boric also ran on the basis of other socially inclusive policies, vowing to include members of the LGBTQ+ community and Indigenous Chileans as equal “protagonists of his government.” He also promised to implement a new welfare state in Chile, the country that is credited with inventing the neoliberal economic model.

While Boric is yet to be formally inaugurated, it seems that he is already delivering on some of the radical change that was promised. Last month, he appointed fourteen women to his twenty-four-member Cabinet, by far the highest proportion of female Cabinet members in Chilean history. Women now hold key positions of influence, including Minister of Foreign Affairs, Minister of Justice and Human Rights, and Minister of National Defence. For the first time, the Minister of Women and Gender Equity, who is tasked with creating policies to combat gender discrimination in Chile, will make up part of Boric’s “political team,” an inner Cabinet made up of the President’s most trusted advisors. Boric’s appointment of a diverse and representative Cabinet certainly sets the tone for the highly anticipated paradigmatic shift in Chilean politics.

The election of Gabriel Boric is not the only factor contributing to the current political flux in Chile. The country is currently in the midst of drafting a new constitution to replace the existing one that emerged during the Pinochet dictatorship. This current constitution lays the foundation for a neoliberal, market-driven economy that has been widely criticised for giving rise to great wealth disparity, curtailing access to abortion services, and inadequately providing for public education and healthcare. In the creation of a new constitution, a constituent assembly has formed, composed equally of men and women, to draft a document that paves the way for a new era of democracy in Chile.

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Women’s rights activists across the country have lauded the introduction of a new constitution as a “game-changing moment” in the fight for gender equality in Chile.

It is hoped that the new Constitution will spur on a new leftist paradigm in Chilean politics, symbolising that the legacy of the Pinochet dictatorship has come to an end once and for all.

Between the recent election of a young, left-wing President and the drafting of a new Constitution, the political future of Chile seems bright. Beginning with a relatively small student protest in October 2019, a new generation of activist leaders in Chile have emerged, completely revolutionising Chilean politics and providing an inspirational example for the rest of the world.

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

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Asylum

The Future of Asylum Law in Ireland

By Grace Given, SS Law and German & Eoin Jackson, SS Law The Direct Provision system of reception for asylum seekers has been one of the most controversial aspects of Ireland’s asylum law and policy framework. The system was alleged, by NGOs such as Amnesty International, to be in breach of numerous human rights obligations, both at an EU and international level. In 2021, the Government committed to ending the use of Direct Provision centres by 2024. This article will analyse the Government’s plan to transition from Direct Provision to a new reception and integration system, and will make recommendations as to what policies should be put in place to avoid future human rights violations.

Ending Direct Provision Under the Government’s White Paper on ending Direct Provision, a two-stage integration process will be adopted to end the use of Direct Provision centres. In the first stage, an asylum seeker will be accommodated for a maximum period of 4 months in a state-owned ‘Reception and Integration Centre.’ During this period, a resident will be entitled to receive an allowance, open a bank account, and apply for a driving licence. In the second stage, applicants will be offered a range of accommodation options depending on their family status.

Applicants will also be entitled to seek employment during this stage.

While these movements may seem positive, it leaves a number of gaps in the system, particularly once the transition to this new model is completed.

For example, the Government is currently in breach of the EU Directive 2013/33/EU (the “Reception Conditions Directive”) for failing to carry out vulnerability assessments on asylum seekers within 30 days of a person communicating their intention to seek asylum. Such assessments are necessary to identify whether an asylum seeker has particular vulnerabilities that may require additional support. While the White Paper commits to these assessments being carried out, the Irish Human Rights and Equality Commission (IHREC) has identified that these continue to be performed at far too slow a rate to comply with the Directive. According to the IHREC, only 151 out of 886 applications were completed in 2021 and many were not completed within the required time frame. The White Paper does not address how the Government intends to expedite this process in order to comply with its human rights obligations. A commitment to funding additional resources to ensure vulnerability assessments can be carried out in an appropriate manner once the transition from Direct Provision has been completed is also notably absent.

While the Government has committed to a system post-2024 that is “grounded in the principles of human rights, respect for diversity and respect for privacy and family,” it is unclear what this will mean in practice.

It is submitted that the system outlined above is merely a stop-gap measure that does not address procedural delay. Any proposed model would need a greater degree of specificity if it is to align with the Government’s objectives. The lofty goals outlined in the Government’s plans must be considered in light of the existing failures to divert resources that would clear the backlog of asylum applications. It is therefore pertinent to examine what a transformed reception and integration system could look like in Ireland.

Accommodation Distribution According to the White Paper, new types of ​​accommodation for asylum seekers will be located in all counties.

The location and number of applicants to be accommodated in each county will be determined according to a ‘national settlement pattern’ that will be developed by the County and City Management Association in cooperation with the Department of Children, Equality, Disability, Integration and Youth. This settlement pattern

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should take account of applicant’s needs, population density, housing needs and the availability of relevant public services in each county. This is a welcome move on the part of the Irish Government to address the current indiscriminate and inconsistent location of Direct Provision Centres with the large majority being unfit for purpose. However, what remains unclear is how exactly this national settlement pattern will function in the current inequitable housing market, and which parameters will be prioritised in the drawing up of such a plan.

Germany, known for its record number of asylum applications, has a rather interesting approach to their version of a national settlement pattern. According to figures from the Federal Office for Migration and Refugees, Germany accepted around 190,800 asylum applications in 2021. Data compiled by Eurostat, the EU statistics agency, indicated that this represents 28.4 percent of all asylum claims made in the EU. The Königsteiner Schlüssel is the system by which the Bundesländer (federal states) participate in joint financing. For over twenty years, the system has also served as a method by which the German Government can ensure a proportionate distribution of asylum seekers throughout the country. The Königsteiner Schlüssel ensures that poorer federal states do not receive the same number of asylum seekers as the equally populous but comparatively richer states, leading to better integration of the asylum seekers into local communities and a higher standard of amenities for applicants. The Königsteiner Schlüssel prescribes a quota of asylum seekers which is calculated based on the tax revenue and population of each state. The tax revenue is given a weighting of two thirds, while the population accounts for the remaining third. The quotas are calculated annually in order to account for changes in the aforementioned statistics. It may seem rather dispassionate that the distribution of asylum seekers is regulated in accordance with a system originally invented to deal with financial matters, but it appears to function relatively well in preventing asylum seekers from posing an insurmountable fiscal burden on any one state. In addition, a survey carried out by the Allensbach Institute for Public Opinion Research suggests that 55 percent of Germans have contributed to the integration of refugees either financially, or through their own involvement in supportive actions such as organising language classes or practical skill workshops. Refugee representation in institutes of higher education is also impressively high, with the number of refugees in German universities increasing ten-fold over the past few years from 1,100 in 2016 to around 10,000 in 2019 according to the Rector’s Conference.

Once the German state has been assigned a quota of asylum seekers, they can choose the method by which they assign asylum seeker accommodation within their borders. The State of Nordrhein Westfalen, for example, takes into account the number of refugees and asylum seekers already living in each area in order to prevent certain areas from having disproportionately high percentages of international protection applicants.

The system, however, is not without its faults and can place exceptionally high burdens on larger cities with high population densities like Hamburg. This leads to problems regarding the affordability of housing and establishment of housing projects. Asylum seekers are also afforded no choice in terms of their accommodation location. They may apply to be allocated to a specific town or district, but such applications are only successful in extraordinary circumstances.

Despite these faults, it is worth investigating whether the German system could provide a basis from which the Irish Government could construct their own national settlement pattern.

A similar system, modified to include criteria like the availability of housing and applicant preference, will be vital in preventing the unjust isolation of asylum seekers and ultimately promoting the integration of refugees into Irish society.

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Conclusion Asylum law in Ireland is at a crossroads between ignoring systemic flaws and reforming the system in accordance with obligations under international law. While the German system is not perfect, it provides a valuable illustration of how to take account of refugees’ needs in a practical and human rights-oriented manner. It is recommended that Ireland look to countries such as Germany when implementing reforms of the Direct Provision system. This should ensure a fairer system for those seeking asylum while mitigating the most egregious human rights violations caused by Direct Provision.

Australia Open? The Fate of Asylum Seekers Down Under

By Ellen Hyland, Copy Editor, SS Law and Political Science International attention turned to Australia’s immigration policy in January 2022 after Serbian tennis star Novak Djokovic attempted to enter the country without proof of vaccination to compete in the Australian Open tennis tournament. Within a matter of days, Djokovic was refused entry, detained, and deported from Australia after providing questionable proof-of-recovery documents and causing the Government to worry that his presence in the country “could stir anti-vaccination sentiments.” It was clear that the Government wanted to send a message to the international community that wealth is not a shield against Australian border control; Prime Minister Scott Morrison went so far as to Tweet that “Rules are rules, especially when it comes to our borders.

No one is above these rules.”

This is a questionable stance to take, given the arguably inequitable approach taken by the Government to one particular class of people entering into Australia. An aspect of the 11-day Djokovic saga that has been glossed over is where Djokovic was detained while awaiting deportation. The same building where the athlete waited for his expensive lawyers to argue his case also housed several asylum seekers, many of whom had been there for years.

Rules are Rules, Unless on Christmas Island Australia’s border policy is notoriously strict – one need only remember documentary series from the early 2000s such as Nothing to Declare which displayed the country’s stringent border practices. Their refugee policy is also incredibly uncompromising. In the 2010 case of Plaintiff M61/2010E v Commonwealth, for example, it was found for the first time that asylum seekers who arrived at so-called “excised offshore places” could apply for a visa. Under the Migration Act 1958, “excised offshore places” are areas under Australian control that are not subject to usual immigration and asylum law, and include Christmas Island, Ashmore and Cartier Islands, Cocos Islands, and other territories such as sea or resources installations.

If applying for asylum in one of these places, potential asylum seekers were subject to a two-stage process.

The Department of Immigration and Citizenship would first carry out an assessment, and if that failed, there was an ‘Independent Merits Review’ carried out by people hired by the same Department. Many applicants throughout the years complained of the unfair procedural process they were subjected to, but it was not until Plaintiff M61/2010E that the courts found that this procedure was unjust as it did not allow the asylum seeker to properly argue his case in the same manner as a person who sought refuge on Australia’s mainland.

After an amendment to the Migration Act following this case, the process for people who arrive at “excised offshore places” is still not as straightforward as those on the mainland – asylum seekers are only allowed to

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apply for a visa if the Minister explicitly allows it through a process called “lifting the bar.” It is submitted that the law around excised offshore places is indicative of Australia’s reaction to their obligations under the Convention Relating to the Status of Refugees 1951 – the Government has never been above attempting to creatively exploit loopholes in the Convention or create obstacles in the way of asylum seekers reaching Australia’s shores and seeking refuge. As well as this, Plaintiff M61/2010E uncovered the clear double standard that exists for asylum seekers detained in areas like Christmas Island – rules, it seems, are only rules when applied to people on the mainland.

Unhygienic, Overcrowded, and Primitive Outside of the hotel where Djokovic resided, people protested with placards reading “Free the Refugees,” and “Novak, speak out for your fellow prisoners.” These sentiments may strike a chord with those who object to the Direct Provision system in Ireland. There, asylum seekers are forced to remain for years in a centre in legal limbo, and their basic human rights are drip-fed to them through rarely-seen court decisions – the right to work (N.H.V v Minister for Justice & Equality) and the right to a driver’s licence (Landsberg & Breetzke v NDLS & Others) being two that come to mind. Indeed, Australia’s treatment of asylum seekers who are awaiting refugee status is similar to Ireland’s treatment of those in Direct Provision. The process is lengthy, the conditions are grim, and there is little political motivation to enact change.

Nevertheless, the conditions seem to be the worst in Australia’s controversial offshore detention centres, to which asylum seekers apprehended in Australia’s waters are sent. These centres once existed in both Papua New Guinea and Nauru, but since 2016 when Papua New Guinea’s Supreme Court found the practice unconstitutional, they only operate in Nauru. In 2020, a prosecutor for the International Criminal Court (ICC) wrote to independent Australian MP Andrew Wilkie on the conditions in these detention centres. The prosecutor wrote that the centres constituted cruel, inhuman, or degrading treatment, but declined to open a preliminary examination into the practice.

Notably, the conditions in the letter were described as “unhygienic, overcrowded and primitive,” and the letter also mentions reports of asylum seekers being subjected to physical and sexual violence.

The conditions in Djokovic’s immigration hotel were not particularly savoury either, with asylum seeker Mohammad Joy Miah telling the press, “I have not had any fresh light or fresh air from outside,” and that he had been served maggots in his food.

These issues are compounded by the length of time asylum seekers remain in these conditions. All asylum seekers must stay in detention until their claim for refugee status has been finalised, which can take years. In September 2021, the average number of days asylum seekers spent in Australian detention centres was 689 days, compared to 115 days in September 2013. As per the Migration Act 1958, there is no time limit on the number of days an asylum seeker can spend in mandatory detention, nor does the law discriminate between adults and children. Detainees therefore sit in dismal conditions for years, watching the world go on without them. Djokovic waited 5 days in detention before he was deported. Some of his roommates had been there for 9 years.

Discussion The procedures and conditions that asylum seekers are subject to are unsettling from an international human rights point of view. Australia ratified the Optional Protocol to the Convention Against Torture (OPCAT), which requires, among other things, regular visits to places of detention, and stipulates that cruel, inhuman, or degrading treatment “constitute serious violations of human rights.” It is also important to stress that Australia

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voluntarily signed the Convention Relating to the Status of Refugees 1951 – they imposed the principle of non-refoulement (the non-return of asylum seekers to their home country) upon themselves. Why – if Australia is so determined at every stage to undermine the process of asylum and place those fleeing persecution in appalling conditions – would they commit to human rights obligations they clearly do not want to fulfil?

Australia’s refugee policy is not scrutinised enough in the international media – it is only when a high-profile case is decided, or, in this case, a high-profile tennis player spends five days among asylum seekers – that proper light is shone on the procedure. Exposing Australia’s refugee policy on the world stage is entirely up to us – should we decide that everybody - regardless of nationality or immigration status - is worthy of fair procedures and being treated humanely? Or should we treat asylum seekers, as Australia’s Government has done on many occasions, as someone else’s problem? Those demonstrating outside of Djokovic’s immigration hotel firmly believed in the former, and begged the world to listen this time. One protestor summed the situation up in 12 simple words on his placard: “Will you remember our friends when Djokovic leaves on his private jet?”

Gallery

Please enjoy some photos from our January Launch Event of Issue 2, themed on Access to Justice, in collaboration with Trinity FLAC.

Below: Frequent Contributor, Eoin Jackson

Photographs courtesy of Jacob Hudson, SF Law and Political Science

Gallery

Above (L-R): Síofra Carlin, Chairperson of Trinity FLAC, Matthew O’Shea, Editor in Chief of The Eagle, Katharina Neumann, Deputy Editor of The Eagle

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