The Eagle: Trinity College Law Gazette Volume 9, Issue 2

Volume 9 Issue 2 February 2023

Table of Contents Foreword by Professor Michael A. Becker............................................................................................. 3 Letter from DU Amnesty Chairperson by Sheenagh Rowland ........................................................... 4 Letter from the Editor by Emma Bowie ............................................................................................... 5

Articles

The Uyghurs in China: Has the UN Human Rights Council Failed? by Laoise Murray ..................................................................................................................................................... 7 Religious Minority Rights in the Middle East and South Asia by Sam Foley ........................ 9 Intellectually Disabled Defendants and the Death Penalty: A Void Between Law and Psychology by Beth Hamill ....................................................................................................... 12 Weaponising Hunger: Food Insecurity in Yemen by Cecilia Cronin ..................................... 15 Reporting into the Void: What's Next for Human Rights in Tigray? by Sam Walsh ..................................................................................................................................................... 17 The Human Rights Implications of Sri Lanka's Economic Crisis by Arielle Hillock ................................................................................................................................................... 19 Gendered Warming: Why Women Bear the Brunt of Climate Change by Chloé Asconi-Feldman ................................................................................................................................... 21 On Thin Ice: Who has Rights to the Arctic? by Amy Cox ....................................................... 23 The Climate Crisis from a Humanitarian Perspective: Will the Global North ever COP on? by Jenny Salmon ....................................................................................................... 25 Failing to Make the Grade: A Report-card for Women’s Access to Education by Eoin Ryan ............................................................................................................................................. 27 A Critical Examination of European Jurisprudence on the Wearing of Religious Clothing by Julia von Kimakowitz .................................................................................................. 29 Strip Searching: Human Rights Violations behind Closed Doors by Doireann Minford ................................................................................................................................................. 33 Myanmar and The End of History by Mark McGrane ................................................................ 35 Political Rights, Development, and the Internet by Fadilah Salawu ...................................... 37 Human Trafficking: A Global Perspective by Sarah Murnane ................................................. 39

Interviews Interview with Peter Sheekey, CEO of Intercultural Language Service Dublin by Emma Bowie ..................................................................................................................... 42 Interview with Colm O'Cinnéide, Professor of Human Rights Law by Ciara Hogan .................................................................................................................................................... 45

Law School Life State Responses to Historical Child Protection Concerns: Has Ireland owned its Past?: A Presentation by Professor Conor O’Mahony by Síofra O'Donoghue ..................... 51 Karen Kenny Intervarsity Moot 2022: Housing, Locus Standi, and Advocacy

by Hugh Gallagher ............................................................................................................................... 53 1 | The Eagle Volume 9 Issue 2

Letter from the Editor

Photo courtesy of Matthew O'Shea, LLM International and European Law

Senior Editorial Board Editor in Chief: Emma Bowie Deputy Editor: Mark McGrane Copy Editor: Doireann Minford Public Relations Officer: Eoin Ryan

Junior Editorial Board Rose Cole Aoife Doheny Chloé Asconi-Feldman Beth Hamill Arielle Hillock Ciara Hogan Jacob Hudson Muireann McHugh Caoimhe Molloy Laoise Murray Síofra O'Donoghue Mark Ramsay Jennifer Salmon Simon Sun

Connect with Us The Eagle: Trinity Law Gazette tcdeagle tcdeagle The Eagle: Trinity College Law Gazette https://eaglegazette.wordpress.com The Eagle staff endeavour to practice ethical journalism and promote integrity in its work. The Senior Editorial Board reserves the right to publish only those articles that they regard as accurate and not injurious. We cannot guarantee that every article submitted to our publication will be published. All opinions expressed are those of the author and do not necessarily represent the views of the staff, fstudents, or administration of Trinity College Dublin.

Design, layout and cover image: Emma Bowie

The Eagle Volume 9 Issue 2 | 2

Foreword

Foreword

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by Michael A Becker, Assistant Professor of International Human Rights Law

e are surrounded by conflicts and controversies relating to international human rights. Questions abound about the nature and scope of human rights, whether specific human rights are fulfilled or violated, and above all, how to implement and enforce international human rights obligations at the state level. These questions are central to our political discourse, whether or not their ‘international’ aspect is recognized. Debates within Ireland about how to address the housing crisis, the need to improve upon Ireland’s direct provision system for asylum-seekers, and proper redress for Mother and Baby Homes survivors are each informed by a broader international human rights framework - a framework in which Ireland is an active and enthusiastic participant.

Ireland’s performance during its recent two-year term on the UN Security Council (2021-22), as well as its turn at the Presidency of the Committee of Ministers of the Council of Europe (May - November 2022) during a period of unprecedented crisis brought about

by Russia’s aggression against Ukraine, is a testament to Ireland’s steadfast commitment to promoting a human rights-orientated vision of international relations.

In the face of innumerable human rights challenges at home and abroad, there is no more appropriate time for The Eagle to dedicate an issue to examining situations from across the world that illustrate the struggle to achieve a world order constructed around human rights and rule of law. Articles in the current issue examine the ongoing humanitarian crisis in Yemen, atrocities committed during the recent armed conflict in the Tigray region of Ethiopia, and the human rights fallout from Sri Lanka’s economic crisis. Further articles consider the marginalization of religious minorities in Egypt and Pakistan, the gendered impact of climate change, and the response (of lack thereof) by the UN Human Rights Council to the situation of the Uyghur minority in China. This collection of articles provides an important glimpse into the broad array of situations that demonstrate the persistent (or widening) gap between the aspirations of the international human rights movement and onthe-ground realities.

3 | The Eagle Volume 9 Issue 2

For all of the ways that international human rights law has contributed to advancing human rights and a shared notion of human dignity since the adoption of the Universal Declaration of Human Rights in December 1948 (nearly 75 years ago), there is a long way to go. Any number of additional topics could also have been examined here. How should accountability for Russia’s aggression and gross human rights violations in Ukraine be pursued? What is the most appropriate response to democratic backsliding and resurgent autocracy, in Europe and beyond?

The dire human rights situations in Afghanistan, Iran, Myanmar, and Syria (to name a few) also demand attention, as does the continuing failure by European policymakers to address the Mediterranean migration crisis in a manner compatible with the human rights obligations of EU member states.

[I]nternational human rights law provides a vocabulary and an institutional framework to address deep-seated problems not through any magic formula hidden away somewhere in a desk drawer in Geneva or The Hague - but by offering up a set of tools that help to put human rights at the core of our political discourse.

At its core, international human rights law can be an inspiring and compelling—as well as frustrating and troubling—topic of study. International human rights work requires a sort of ‘pragmatic optimism’ because it so often means confronting a chasm between aspiration and reality. Engaging with human rights involves grappling with starkly different conceptions of core values (dignity, freedom, equality, democracy, and so on) and running up against serious obstacles and trade-offs.

Foreword

But for all of its shortcomings, international human rights law provides a vocabulary and an institutional framework to address deep-seated problems - not through any magic formula hidden away somewhere in a desk drawer in Geneva or The Hague - but by offering up a set of tools that help to put human rights at the core of our political discourse. International human rights law is not a fixed set of rules and guidelines or something that happens ‘somewhere else’. It is more helpfully understood as a dynamic process that links international and domestic law and politics together. Ultimately, international human rights can be what we make of them, but this requires study, reflection, and engagement.

I am therefore very pleased that the contributors to this issue of The Eagle are making an active contribution to that crucial endeavor—and that academics and students at Trinity enjoy the freedom to do so. The promotion, protection, and fulfilment of international human rights relies upon a commitment to free speech, academic freedom, respect for expertise, and the right to criticize the state or other powerful institutions without fear of reprisal. There is no shortage of places where such freedoms are precarious or non-existent. This issue of The Eagle is a reminder of the opportunity and responsibility that academic freedom affords us at Trinity when it comes to engaging in the politics of human rights, in Ireland and beyond.

Letter from DU Amnesty Chairperson

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by Sheenagh Rowland, SF European Studies

eventy-five years after the proclamation of the Universal Declaration of Human Rights, it seems that its contents have become the fantasy of many nationstates rather than their fundamental reality. Amnesty International works to investigate and expose the abuses that happen in the gap that exists between aspiration and enactment by holding governments and companies accountable and ensuring that they respect international law.

Amnesty International was founded in 1961 following the publication of an article written by British lawyer Peter Beneson, in which he condemned the jailing of two Portuguese students who had been arrested for raising a toast to freedom. His call to action sparked the idea that people everywhere could unite in solidarity for justice and freedom. DU Amnesty aims to further this message by unifying a diverse student body through educating and raising awareness about human rights abuses worldwide. In the current Irish political climate, only a few human rights concerns make it onto the political agenda. We aim to keep students up to date on the matters at the forefront of this agenda, while also maintaining a rigid informative structure for matters that are less welldocumented by the Irish government, such as the criminalisation of sex work and the pervasive issue of

domestic abuse. This issue of The Eagle serves to fulfil our purpose of awareness-raising, and for this reason we are very proud to be a part of this publication.

The breadth of topics investigated by Amnesty International serve to strengthen its purpose and fulfil its primary goal: the actualisation of a world where human rights are enjoyed by all. The span of topics covered in this issue of The Eagle support that same goal, whilst also furthering our desire to include an increasingly diverse student body in our activism. DU Amnesty would like to thank The Eagle editorial team as well as the contributors to this issue for their efforts in raising awareness for human rights abuses through their legal research.

Warm regards, Sheenagh Rowland Chairperson DU Amnesty In collaboration with DU Amnesty The Eagle Volume 9 Issue 2 | 4

Letter from the Editor

A chairde,

Letter from the Editor

A picture of Arnaldo Pomodoro’s Sphere Within Sphere provides a fitting cover image for The Eagle’s international human rights-themed issue. Gifted to Trinity in the 1980s, the piece is part of a series of sculptures displayed in selected locations across the world, from the United Nations Headquarters in New York to the Tehran Museum of Contemporary Art. The sculpture, which depicts a cracked bronze globe revealing an intricate interior sphere, was intended by Pomodoro to symbolise the fragility and complexity of the modern world order, while also representing “the promise for the rebirth of a less troubled and destructive world.”

administration has ended the university studies of thousands of women. In Ireland, some 24,000 existing survivors of mother and baby institutions are excluded from the State’s planned redress scheme, reminding us that universal human rights often begin, in the words of Eleanor Roosevelt, “in small places, close to home.” The articles and interviews in this issue have sought to highlight these significant human rights challenges and more, examining incidents where a firmer response from international human rights bodies is required, and examples where existing frameworks will need to be adapted to accommodate novel challenges, such as climate change.

As Professor Becker and Sheenagh Rowland have noted in their own forewords, the international human rights movement often exists in the space between these two spheres; in the gap between aspiration and reality, between the pragmatic difficulties of achieving political consensus on questions of fundamental values, resource allocation, and permissible rights limitations, and the promise of Pomodoro’s “less destructive world.” Rather than being deterred by the breadth of this persistent chasm, international human rights law equips us with an institutional framework to confront it head-on – to not only respond to an unjust past by remedying individual wrongs, but to shape a more just future by providing systemic remedies to prevent future violations.

I would like to thank our authors for taking the time out of a busy college term to craft these illuminating and thoughtprovoking pieces. To our Editorial Board, thank you for your careful and diligent edits that have helped to unearth each article’s fullest potential. I am, as ever, immensely grateful for the Senior Editorial Board members - Mark, Doireann, and Eoin - who have worked tirelessly to maintain the running of our blog, promote our articles online, and organise our first issue launch of the academic year. To Sheenagh Rowland and the DU Amnesty Committee, it has been a pleasure to collaborate with you on this issue, and I am so grateful for your assistance in organising its launch. I would also like to thank Michael Becker, who was recently appointed assistant professor of international human rights law, for his thoughtful and perceptive foreword. Finally, I would like to express my sincere gratitude to our title sponsors, Maples and Calder (Ireland) LLP, for their generous financial support, without which this issue would not be possible.

The timing of this issue’s release is particularly pertinent in the context of our current political climate and the notable human rights violations that have made headlines in recent weeks. In Dnipro, missile strikes devastate the homes and lives of hundreds of Ukrainian civilians. In Lesbos, 24 humanitarian aid workers who participated in migrant rescue operations face criminal charges. In Kabul, the Taliban-run

Mark McGrane Deputy Editor

It is my hope that the pieces in this issue not only inspire and engage and inform, but spur you to take action - to attend a ‘Write for Rights’ workshop organised by our friends at DU Amnesty, or promote migrants’ “right to be heard” by volunteering at the International Language School in Dublin (p.51). Together, we can work towards the practical realisation of a “less troubled and destructive world.”

Le gach dea-ghuí,

Doireann Minford Copy Editor

Emma Bowie Editor-in-Chief

Eoin Ryan Public Relations Officer

5 | The Eagle Volume 9 Issue 1

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Minority Rights

Winner of The Eagle and Trinity FLAC Article Competition 2022: Minority Rights and Marginalised Interests in the International Context

The Uyghurs in China: Has the UN Human Rights Council failed?

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by Laoise Murray, SS Law

n the isolated Chinese territory of Xinjiang, an injustice is occurring. The rolling plains of desert and rugged hills through which carts once trundled along the ancient Silk Road has become a site of human failure. Over the past decade, the indigenous population of Uyghurs in Xinjiang have been subjected to “cruel and degrading treatment” by the government in Beijing, in retaliation for the group’s attempts at protecting their cultural, social and economic identity. A report published in August 2022

by Michelle Bachelet, the UN High Commissioner for Human Rights, contained damning first-hand accounts of enforced disappearances and arbitrary detentions of ethnic minorities. Western states reacted, China rounded up support, yet somehow, nothing has changed.

Who are the Uyghurs?

The Uyghurs are a Turkic-speaking ethnic group mainly constituted of Muslims and recognised as native to the Xinjiang Uyghur Autonomous Region in Northwest China. Their population amounts to roughly twelve million, which is less than one per cent of the total 1.42 billion people in the Chinese Republic. Many Uyghurs are agrarian villagers and have been resistant to the attempts of the Chinese government over the past seventy years to increase the non-indigenous Han population in the region. In 1953, the Sunni-Muslim Uyghurs constituted over seventy-five per cent of the total population in the region, with seven per cent of the population being ethnic Han Chinese. Recent data shows that the Uyghur population now constitutes only forty-five per cent of the total population, whereas Han Chinese have grown to account for forty-two per cent.

Although Uyghurs are not particularly unitary in their political organisation, they recognised the need to protest against the orchestrated dilution of their ethnic population. The growing economic disparity between 7 | The Eagle Volume 9 Issue 2

hem and the new Han residents further exacerbated tensions. They initially used peaceful means to voice their upset, but soon things became violent. In 2009, there was an outbreak of violence in the region’s capital city, Ürümqi, with a reported 200 killed and 1,700 injured. This event prompted more brutal attacks and caught the attention of the Chinese authorities who considered these riots to be acts of terrorism and religious extremism.

The government ramped up their so-called “Strike Hard” campaign in 2017, and authorities began a widespread crackdown on the region's dissident and separatist Uyghur movements. Under the premise of maintaining public security, the authorities conducted police patrols, surveillance, shootings, mass arrests, and the highly controversial detention of around one million Uyghurs in “political training centres” for indefinite periods. These prison-like buildings bring to mind the re-education camps in communist China, used by the Mao Zedong government to silence and reform political antagonists. The government has heralded their strong-handed approach as a success due to the absence of terrorist incidents in Xinjiang in the past seven years.

It became glaringly obvious to the wider world that ethnic minorities in China were being discriminated against and excluded from politics that their ethnic identity was gradually being eroded.

The 2022 Report Allegations of enforced and involuntary disappearances of Uyghurs and other ethnic minorities in Xinjiang began arriving in the Office of the UN High Commissioner for Human Rights in

Minority Rights

2017. Research and reports from the UN and other human rights organisations have “alleged arbitrary detention on a broad scale in so-called “camps”, as well as claims of torture and other ill-treatment, including sexual violence, and forced labour, among others.” It became glaringly obvious to the wider world that ethnic minorities in China were being discriminated against and excluded from politics that their ethnic identity was gradually being eroded.

The Chinese government maintains that these “Vocational Education and Training Centres” (VETC) are an element of its counter-extremism and terrorism strategy, and aid in the economic development of the region through the provision of skills and employment. They claim that the facilities are reserved for those who have committed minor offences and are a means to de-radicalise and rehabilitate offenders with compassion, leniency, and education. The definition of “a minor offence” has not been made clear. The UN report has noted with concern that under the state law, “each intervening authority at every stage of the process (be it police, prosecutor, judge, or enforcement official), whether in the criminal or administrative track, can make the determination that ‘education’ is deemed warranted and can direct the transfer of an individual to a VETC facility.”

Given the vague and highly discretionary administrative system of justice established under these auspices, the 2022 UN report voices significant concerns as to its adherence to international human rights law and minority rights obligations in particular. They characterise the legal framework by which VETC facilities operate as “vulnerable to arbitrary and discriminatory application, [in that it] unjustifiably limits the exercise of legitimate rights, potentially subjects individuals to arbitrary detention, and fails to provide adequate safeguards to protect against abuse.”

The Human Rights System The potential that “crimes against humanity” were being committed by the Chinese authorities has led to action from several states in the UN Human Rights Council. On the 6th October 2022, the US, UK, Germany and western allies proposed holding a debate on the subject, but this motion was blocked by

a narrow margin of nineteen votes against, with seventeen in support and eleven abstentions. As such, China has made a narrow escape from closer international scrutiny. The US ambassador to the Council, Michèle Taylor, expressed disappointment in the result, stating aptly, “[n]o country should be immune from a discussion.” Amnesty International described the voting outcome as a failure by the Council to “uphold its core mission.” Chinese authorities, however, characterised the report and ensuing vote as a politically motivated “anti-China event.”

Promoting respect for the human rights of minorities is one of the core purposes of the United Nations, as per Article 1 and Article 55 of the UN Charter. The international human rights system is a complex, multi-institutional framework which seeks to embed human rights norms in state processes and procedures. With no global human rights court holding all states to account, it instead operates on the basis of peer respect, drawing attention to poorly performing states and inspiring action for the betterment of people everywhere.

The UN Human Rights Council was established in 2006 as a specialised organ of the General Assembly, with state representatives (rather than independent experts) elected as members of the Council according to regional distribution. Thus, the system is inherently political. Unfortunately, it is not an unusual occurrence to see human rights being treated as political leverage and can be reduced frequently to an East vs West or North vs South dynamic. This particular instance appears no different. The UN Human Rights Council motion was a western-led initiative to impose a responsibility on the Chinese government to fully implement all of the UN report’s recommendations. The voting results draw an arguably clear line between states such as Qatar, Indonesia, the United Arab Emirates and Pakistan who fear retaliation if they were to alienate China, and those backing the position of the US and the UK. Minority rights are given special attention within the UN human rights system, with Article 27 of the International Covenant on Civil and Political Rights providing that, “in those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the

The Eagle Volume 9 Issue 2 | 8 Photo courtesy of Matthew O'Shea, LLM International and European Law

Minority Rights

right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.” The 1992 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities further emphasises states' duties to protect minorities in the exercise of their fundamental rights and freedoms. As a group falling within the definition of a minority, the Uyghurs should, in theory, be able to invoke these rights against the Chinese government as a means to protect their ethnic identity and existence from interference.

Unfortunately, China continues to refuse to recognise its international obligations.

Conclusion It goes without saying that the human rights system is an integral part of our international legal order. The

ambition of a human rights approach in building a world with fewer cases of abuse remains alive.Yet the gaps in accountability and implementation appear glaringly obvious at times when the system is most needed, for example in relation to the treatment of Uyghurs in China. The repeated pattern of state failure to protect minorities and an absence of international political will to fix it is wearying. It is important to recognise that protections for human rights are hard-won; we must continue fighting for them both individually and collectively. Indeed, reforming international institutions like the Human Rights Council to cope better with instances where political motivation is lacking would go some way to reducing the exposure of minority groups such as the Uyghurs to the whims of powerful political actors.

Runner Up of The Eagle and Trinity FLAC Article Competition 2022

Religious Minority Rights in the Middle East and South Asia

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by Sam Foley, SS Law

he human rights of religious minorities in the contemporary Middle East and South Asia are a source of contention and disparity. Human rights violations occur for diverse and distinct communities, including the Ahmadis in Pakistan and the Christian Copts in Egypt. Analysis of these two particular groups demonstrates that such violations are not confined to a singular aspect of human rights in all Muslim-majority countries, but are prevalent in the infringement of various civil, political, economic, social, and cultural rights. This article will contend that while formal legal recognition of minority rights exists in Egypt and Pakistan, this fails to afford protection for real, on-the-ground discrimination.

The Plight of Ahmadis in Pakistan The Ahmadis are a religious group that would view themselves as a Muslim sect, differing from Islam on the grounds of the finality of prophethood. As a 9 | The Eagle Volume 9 Issue 2

group that came to inception in the late 19th century, they have suffered from an era of marginalization, presenting a struggle in which the Ahmadis view themselves as Muslim, but the majority of Muslims would refuse to associate them as such. During the 1980s, the Pakistan Penal Code (PPC) underwent Islamisation, resulting in many provisions restricting “derogatory” behaviour under sections 298A, 298B and 298C. While section 295 of the PPC criminalizes the destruction, damage or defilement of any place of worship or emblem of faith when the action is carried out with the intention of insulting the religion of any class of persons, the singling out of Ahmadis in two of the new PPC provisions was an obvious attempt by the government to isolate the community and entrench a feeling of inferiority. Through this ostracization, a plethora of human rights violations have arisen with disproportionate outcomes. Under such blasphemy laws, the government may justify the

Minority Rights

persecution of this religious minority for identifying as Muslim, as issues may arise associated with public order and civility. This severely restricts freedom of religion and expression and the right to life, exemplified by the prescription of a death sentence and fine to three Ahmadi men in 2017 for displaying a poster and banners at their place of worship which were considered “offensive.” These represent violations of the International Covenant on Civil and Political Rights which has been ratified by Pakistan.

Thus, the PPC has acted as a springboard for violating the rights of Ahmadi minorities, facilitating the continued plight of their community.

Outwardly, the Egyptian human rights framework appears to promote equality under Article 53 of the Constitution, but under the surface, violations of the Christian-Copts’ rights persist.

Masked Inequality of the Christian-Copts in Egypt The Copts in Egypt are the largest group of Christians in the Arabic world, constituted of a peasant and labour majority with a minority of middle and upperclass professionals. The Copts are a thousand-yearold group that has been integrated into Islamic rule in Egypt through society, culture, and economics. The group also has representatives in many institutions of the state and political parties. However, religious divides remain and are enforced by the Egyptian courts, shaping aspects of the law such as divorce in Egypt. Outwardly, the Egyptian human rights framework appears to promote equality under Article 53 of the Constitution, but under the surface, violations of the Christian-Copts’ rights persist.

A fundamental violation is their right to security and safety. Christian-Copts have suffered random attacks on their churches, including St Mark’s Cathedral in 2016, and places of work. In 2017, eleven were killed in attacks on a Coptic Orthodox church and Christianowned shop near Cairo. The Egyptian Initiative for Personal Rights (EIPR), an independent Egyptian human rights group, has documented at least 36 cases of violence against Coptic Christian communities between 2016 and 2019. Many of the incidents of

violence are sparked by disagreements over the construction or renovation of Christian places of worship. Due to this violence, Egyptian ChristianCopts live in a constant state of unease. The traditional system of dhimmi status, which afforded protections to non-Muslims who were “People of the Book” but imposed restrictions on aspects of their lives such as work and habitation, manifests through these attacks and is reminiscent of a hierarchical ideology of the past. This has long-term impacts on future generations who may struggle to escape this lower status. Nazila Ghanea, an associate professor of international human rights law at the University of Oxford, has argued that if a minority is subjected continuously to a status of inferiority, they may embody this status, and it will manifest as a selfimposed limit. The freedom of Coptic Christians to practice their religion and have the same standard of living as Muslims is contingent on better state protection from these unwarranted attacks.

Response of International Human Rights Bodies and Organisations In its initial report of Pakistan on its implementation of the provisions of the International Covenant on Civil and Political Rights in 2017, the Human Rights Committee expressed its concern that blasphemy laws in the PPC that carry severe penalties, including the mandatory death penalty had a discriminatory effect on Ahmadi persons, in addition to the very high number of blasphemy cases based on false accusations against those accused of blasphemy. In Pakistan’s response to the Committee’s recommendations in 2019, the state averred that its blasphemy laws are non-discriminatory, and that “discrimination on the basis of ethnic diversification is not a prevalent phenomenon in the Pakistani society,” as affirmed by Article 36 of the Constitution, which provides that the State shall safeguard the legitimate rights and interests of minorities, and Article 33, which forbids any sort of discrimination among citizens on racial, parochial, tribal or sectarian grounds. Despite these formal legal protections, discrimination persists, as evidenced by the Pakistan Telecommunications Authority’s attempt (PTA) to shut down the website of the Ahmadis’ USbased community in December 2020. Amnesty International reports that the PTA stated that the site was in violation of Pakistan’s Constitution, and warned that its administrators could be charged with The Eagle Volume 9 Issue 2 | 10

Minority Rights

blasphemy – a charge potentially carrying the death penalty – for referring to themselves as Muslims. As stated by Brad Adams, Asia Director for Human Rights Watch, it is imperative that Pakistan complies with its obligations under the ICCPR and “end its policing of Ahmadi speech outside the country, and focus on providing an enabling environment for free speech, expression, and freedom of religion inside Pakistan.”

Amnesty International has also persistently condemned the Egyptian authorities for failing to protect Coptic Christians from repeated sectarian attacks against their communities, and bring those responsible for such violence to justice. The organisation has observed that while Law No. 80/2016 on Building and Repairing Churches is presented as an advancement of the rights of Christians in Egypt, in practice the law is often used to prevent Christians from worshipping by restricting their right to build or repair churches, including those damaged in sectarian attacks. Indeed, according to EIPR, less than 40% of requests to build or repair churches have been conditionally approved since the law came into effect, while only 20% of applicants were granted final approvals. In January 2022, Egyptian security forces arrested nine Coptic Christians in Ezbet Farag Allah village in el-Minya governorate and detained them on protest-related charges. The he group had been involved in a peace-

fun protest against the authorities’ refusal to rebuild the church, which was the only place of worship in the village for Coptic Christians. Amnesty has strongly condemned the arrest of the peaceful protesters and called for their immediate release, with Amnesty International’s Middle East and North Africa Research and Advocacy Director Philip Luther stating that in the Egyptian authorities’ shameful efforts to silence the Copts’ calls for a place of worship, “they are arbitrarily detaining villagers, criminalizing peaceful protests, and slapping ludicrous charges on those who dare to speak out.”

Conclusion The threat of random attacks suffered by the Ahmadis in Pakistan and Christian Copts in Egypt serves as an aide-memoire that Islam is the status-quo and that their beliefs are not fully accepted. In both of these countries, there is a notable disparity between formal legal protection of religious minorities in state constitutions, and on-the-ground practice of discrimination and persecution. Egypt and Pakistan must answer the calls of the UN Human Rights Committee and international human rights organisations such as Amnesty International to provide real and practical protection for the Ahmadis and Copts, and fulfil their obligations under the ICCPR.

Photo courtesy of Matthew O'Shea, LLM International and European Law

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Minority Rights

Intellectually Disabled Defendants and the Death Penalty: A Void Between Law and Psychology

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by Beth Hamill, SS Law

here is a general consensus in the fields of law and psychology, as well as on a wider societal level, that intellectually disabled individuals should be exempt from the death penalty. The justifications for protecting the intellectually disabled from execution have been cogent enough to convince the United States Supreme Court to recognise intellectual disability as one of the two categorical exemptions to the death penalty in Atkins v Virginia. Despite this categorical exemption, there are very recent instances of intellectually disabled defendants being executed in the United States. This is a result of the current disconnect between the understanding of intellectual disability in psychology and law. The law’s attempt to shoehorn imprecise clinical testing methods into bright-line evidentiary burdens is a reflection of the incompatible interface between law and psychology an interface which has detrimental impacts on those with disabilities who fall through the cracks of the legal system.

Defining Intellectual Disability By definition, an intellectual disability is a disorder marked by below-average intellectual functioning and a lack of skills necessary for independent daily living.

Clinical psychology has developed to understand new causes which were not previously recognised, even at the time that the categorical exemption was created in the 2002 Atkins case. Studies reveal that intellectually disabled people, especially those with mild intellectual disability, can mask their deficits, meaning intellectual disability can often be far from obvious to the non-professional. The following analysis from experts in this area reflects a deep concern that psychology has a more nuanced understanding of intellectual disability that is incompatible with legality: “A fair determination of intellectual disability, grounded in current scientific knowledge, does not lend itself to absolutes. There is no set of simple rules for a clinically based diagnosis of intellectual disability.* *Haydt, Greenspan & Agharkar, ‘Advantages of DSM-5 in the Diagnosis of Intellectual Disability: Reduced Reliance on IQ Ceilings in Atkins (Death Penalty) Cases’ (2014) 82 University of Missouri-Kansas City Law Review 388.

However, the nuanced understanding of intellectual disability which exists in the field of psychology has not been translated into the field of law. The idea behind bright-line rules in law, such as categorical exemptions, is to provide objectivity and resolve issues in a straightforward, predictable manner.

Therefore, courts and state legislatures have attempted to formulate precise rules for determining whether an individual is intellectually disabled or not.

Atkins v Virginia The Supreme Court in Atkins carved out a categorical exemption against the execution of intellectually disabled defendants, instead requiring that these sentences be reduced to life imprisonment. The Court acknowledged that many states had already banned the execution of intellectually disabled persons and laid out a three-prong test for proving intellectual disability. Firstly, the individual must have subaverage intellectual functioning (usually an IQ score of below 70). Secondly, the individual must have deficits in adaptive functioning.

Thirdly, manifestation of this intellectual disability must have occurred during the developmental period (defined as below the age of 18).

Problems with the Atkins v Virginia Problematically, the US Supreme Court in Atkins left it to individual states to develop appropriate ways of enforcing the constitutional restriction, rather than requiring a national standard. Some states sought to circumvent this ruling by adopting narrow definitions of intellectual disability that permitted the execution.

Another problematic feature of the Atkins case is the Supreme Court’s reference to intellectual disability as ‘mental retardation.’ The fact that this outdated term was used by the Supreme Court in 2002 and that Atkins remains the standard for intellectual disability claims is reflective of the deep stigmatisation of intellectual disability.

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Minority Rights

Most defendants claiming intellectual disability fall at the first prong of the Atkins test. IQ testing has been the clinical standard for assessing intellectual functioning for many years. However, problems with the imprecision and unreliability of the numeric test results have caused significant controversy in the context of applying the death penalty. There have been continued attempts by lawmakers to impose strict thresholds in this area, despite psychologists asserting that such thresholds have no basis and fail to protect a wide number of defendants who should be protected under the Atkins categorical exemption.

Prong two of the Atkins test requires a defendant to display deficits in adaptive functioning. Adaptive behaviour has been defined by the American Association on Intellectual and Developmental Disabilities as “the collection of conceptual, social, and practical skills that have been learned by people to function in their everyday lives.” The legal understanding of adaptive functioning deficits is clouded with misconceptions about how intellectually disabled people should look and act. In many cases, courts have found that a claimant did not have deficits in adaptive behaviour so as to satisfy the second prong because he could read/write, had friends, was able to maintain personal hygiene, drove a car, was a hard worker and maintained relationships with women. However, psychology does not conceive any of these skills or abilities to be inconsistent with a diagnosis of intellectual disability.

Disparities of Race and Ethnicity The adverse impacts on Black, Hispanic and immigrant caused by the death penalty is a topic in its own right and has been the source of much scholarly research in the fields of psychology and law.

However, in this area of intellectual disability, these problems are compounded. Hispanic claimants are almost always unsuccessful in Atkins claims regardless of the evidence. The reason for this is that prosecutors are able to find ‘experts’ who are willing to engage in clinically unsound upward adjustment IQ scores based on a defendant’s race or ethnicity. In the case Maldonado v Thanler, the State’s expert made upward adjustments to the obtained IQ score based on “cultural and educational factors” because the defendant was Hispanic. Additionally, there have been repeated problems with upward adjustment of IQ scores when the defendant is black. This is often 13 | The Eagle Volume 9 Issue 2

justified by the assertion that the black defendant in question scored lowly on the IQ test because of educational, social or cultural deprivation rather than intellectual disability.

The Ernest Lee Johnson Case The recent execution of Ernest Lee Johnson in Missouri exemplifies the issues with the Atkins threeprong test. Johnson was arrested and found guilty of murdering three shop workers. In February 1994, Johnson shot and killed three convenience store employees during an attempted robbery in Missouri.

Johnson stored the bodies in the store’s bathroom and cooler before fleeing the scene.

The State argued that this crime was punishable by death. An Atkins claim was brought on behalf of Johnson, with evidence of IQ scores ranging between 70 and 75. He struggled in school and was placed in special education classes. He has also been diagnosed with Foetal Alcohol Syndrome, which is associated with impaired intellectual functioning, and suffered two serious head injuries as a child. Johnson was able to bring evidence which satisfied all three prongs of the Atkins test. However, the State expert argued that Johnson was malingering and pointed to the concealment of the victim’s bodies as evidence of his culpability and deception. It seems to be this crucial fact of the case that led the jury to convict Johnson, and his later appeals to fail. Johnson was executed on 5th October 2021 in Missouri. The execution of an intellectually disabled man was highly criticised.

Johnson was also African American, and whilst there is no specific evidence in his case that suggested his race affected the understanding of his intellectual disability, the fact that his low IQ scores were set aside, and his execution sentence was maintained, leaves room for concern that race may have impacted this decision.

It is submitted that the US Supreme Court in the Atkins case developed a problematic test for assessing the appropriation of the death penalty for individuals with an intellectual disability. Defendants making an Atkins claim not only have to fulfil the three criteria, but also have to surmount additional barriers that may affect their claim, such as race. Thus, there is a very uneasy interface between law and psychology and this area of intellectual disability demonstrates the difficulties with reconciling these two disciplines.

The Eagle Volume 9 Issue 2 | 14 Photo courtesy of Emma Bowie, SS Law

Humanitarian Crises & Conflicts

Weaponising Hunger: Food Insecurity in Yemen

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by Cecilia Cronin, JS Middle Eastern Jewish and Islamic Civilizations and Religion

he United Nations Humanitarian Affairs Office considers the current situation in Yemen to be the “world's worst humanitarian crisis.” However, this crisis rarely makes headlines, and is neither fully understood nor sufficiently acknowledged by the international community. The war in Yemen does not serve the Yemeni people - they are the victims of a dispute between the Iranian-backed militant group, the Houthi rebels, and the Saudi Arabian-backed Yemen government. UNICEF reports that as a result of this war, 19 million people in Yemen are now in desperate need of food, 80 percent of children face threats to health and survival, and one-third of children under the age of five have acute malnutrition.

Food is a fundamental human right. This is outlined in Article 25 of the Universal Declaration of Human Rights, which states that "everyone has the right to a standard of living adequate for the health and wellbeing of him and his family.” Depriving the Yemeni people of food is a significant violation of their human rights. It is not something that we, in the international community, can sit by and watch any longer. Human rights groups must step in and protect the people of Yemen before malnutrition rates reach a point of no return.

Historical Background With over three-quarters of the population requiring humanitarian aid, Yemen is facing the worst famine of the century. This famine is a product of the Yemeni Civil War, resulting from over seven years of fighting between the Shia Houthi rebels, and the Saudi-led coalition, backing the country’s official government.

It is a war that is estimated by the United Nations Office for the Coordination of Humanitarian Affairs (OCHA) to have caused the deaths of a quarter of a million people, owing primarily to the lack of food in the country. The situation is only getting worse. In July 2022, 17.4 million people were in need of food;

15 | The Eagle Volume 9 Issue 2 Photo courtesy of Matthew O'Shea, LLM International and European Law

this number, as of December 2022, has risen to 19 million. Every day, more people are facing starvation, and less aid is available to help them. In a move considered to be a purely political effort to make the transition to Joe Biden’s administration, the Trump administration in the United States declared the Houthi rebels a terrorist organization in January 2021.

Though these actions were intended to hold the group accountable for terrorist actions, they further complicated efforts toward peace in the country and made aid distribution more difficult. This is one of many reasons that stability is nowhere in sight for the people of Yemen. Foreign interference has repeatedly proven to make life in Yemen worse, especially as the conflict is primarily between Iran and Saudi Arabia, and not the Yemeni people. However, they have reached a point as a country where it is necessary for the global community to do its part to help.

Food deprivation has been weaponized by both sides of the conflict. Blockades and the destruction of food industries such as farms, fishing vessels, and water facilities are a frequent occurrence Human Rights Violations: Forced starvation is a form of warfare, and food deprivation has been weaponized by both sides of the conflict. Blockades and the destruction of food industries such as farms, fishing vessels, and water facilities are a frequent occurrence, and Houthi rebels consistently deny food aid to the country. These actions are all violations of the human rights of the starving Yemenis. Though many human rights con-

Humanitarian Crises & Conflicts

ventions support this, the Geneva Convention relative to the Protection of Civilian Persons in Time of War 1949 puts a particular focus on the issues. The Convention outlines explicitly in Article 55 that occupying powers during times of armed conflict are to provide sufficient food and medical supplies for the entire population and maintain medical and public health facilities. Both leading groups in the country have failed to fulfill this article. Article 23 of the Geneva Convention prohibits these barricades. It calls for the "free passage of all consignments of essential foodstuffs, clothing, and tonics intended for children under fifteen, expectant mothers, and maternity cases.” However, with 2.2 million children and 1.3 million pregnant or nursing mothers acutely malnourished, women and children bear the brunt of food insecurity. Ultimately, it is submitted that there is little point to having these human rights conventions if the international community refuses to act to preserve these rights. As Yemen is a part of the Geneva Convention, they must be held accountable.

Conclusion The humanitarian crisis in Yemen is ongoing and continues to have a devastating impact on food security in the region. The conflict in the region shows no sign of ending soon. Humanitarian aid has never been adequate to meet the needs of this crisis, yet efforts are continuously depleting. Only a handful of countries are supporting the effort. It is reported that three-quarters of the aid generated by the United Nations came from the United States, Saudi Arabia, the United Kingdom, United Arab Emirates, Germany, and the European Commission. Their aid might have been enough to help Yemen if the forces in the country did not work hard to prevent the entry of supplies. If other forces in the international community do not step up soon to either help broker peace or supply the country with more aid, the most vulnerable in Yemen will be faced with complete disaster.

[W]ith 2.2 million children and 1.3 million pregnant or nursing mothers acutely malnourished, women and children bear the brunt of food insecurity in Yemen As the war in Ukraine dominates the international stage, the crisis in Yemen should not be forgotten.

Supplies and other resources are being sent to other regions, and Yemen is receiving less humanitarian aid, which it still desperately needs. David Beasley, who is the Director of the United Nations World Food Program (WFP), stated early in 2022 that unless they "receive substantial new funding immediately, mass starvation and famine will follow. But if we act now, there is still a chance to avert imminent disaster and save millions." While the WFP is busy preaching a need to increase aid in the country, they are forced to reduce the rations they provide. At the start of 2022, food rations were reduced for eight million people in Yemen by the WFP, for example.

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Humanitarian Crises & Conflicts

Reporting into the Void: What's Next for Human Rights in Tigray?

by Samuel Walsh, JS Law and French

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n 6th April 2022, Human Rights Watch (HRW) and Amnesty International (AI) released a report documenting their findings of human rights violations in the Tigray region of Ethiopia. The report, entitled “We Will Erase You from This Land: Crimes Against Humanity and Ethnic Cleansing in Ethiopia’s Western Tigray Zone” covers the actions of both the federal government and the Tigrayan People’s Liberation Front (TPLF) since 2018. The document is 221 pages long, 164 of which are largely devoted to witness testimony, describing the atrocities committed by the two sides during this incomprehensibly bloody civil war. On 2nd November 2022, the Federal Government of Ethiopia and Tigrayan military leaders reached a ceasefire deal following negotiations chaired by the African Union.

However, despite this welcome and hopefully decisive end to the conflict, Tigray remains in a dire situation: according to the World Food Programme as of November 2022, 5.4 million people in the region were in need of food assistance as a direct result of the conflict.

which this article will seek to answer, is this: what is to become of the mammoth report released by HRW and AI in April? Now that the Civil War appears to have concluded in favor of the Ethiopian government, will anything come of the report’s legal and practical recommendations?

[W]hat is in store for the Tigrayan people? With a ceasefire declared, will they continue to live under an oppressive regime in which obtaining the basic necessities for survival is contingent on political maneuvering and a supply of external aid?

Thus, perhaps the more significant recommendations made by the report are those addressed to international organisations such as the African Union and the United Nations. The report calls for international actors to “press all parties to the conflict to immediately facilitate…unhindered access to humanitarian assistance in conflict affected areas.”

This remains a highly relevant and necessary goal.

However, it must be recognised that this report is not a detailed policy paper designed to identify those in need of aid or determine how best to supply it to them. Rather, it is first and foremost a document containing a retrospective description of events that have already occurred. It provides an illumination of violations already committed rather than a creative attempt to present viable ways to prevent those in progress. Thus, in this regard, the recommendations made by the report and its form and content are somewhat dissonant.

The most pressing question now, of course, is what is in store for the Tigrayan people? With a ceasefire declared, will they continue to live under an oppressive regime in which obtaining the basic necessities for survival is contingent on political maneuvering and a supply of external aid? However, another potentially revealing question, and the one 17 | The Eagle Volume 9 Issue 2

The Report’s Recommendations The report’s recommendations and the parties it seeks to address are similar to those of many human rights reports documenting situations analogous to that unfolding in Tigray. First and foremost, it calls on both sides to publicly order security forces to “end all violations of international human rights and humanitarian law.” It must be admitted that while this is, of course, a valid demand, it is also a highly unrealistic one. It is not likely that a now victorious Ethiopian government (which has already been found by the United Nations to have used starvation as a tool of war against Tigray’s civilians) will practice restraint in reasserting its control over the region based purely on the ‘calls’ of NGOs.

Humanitarian Crises & Conflicts

This dissonance brings us to the third type of recommendation made by the report: a recommendation for further investigation. The report calls on “human rights experts” to investigate the events which have taken place in Tigray in order to identify the individuals responsible and to “make recommendations on how perpetrators can be held accountable." While a laudable goal, it must be conceded that the success of further investigations and attempts to hold individuals accountable, be it through national or international judicial bodies, seems highly doubtful. It could be perceived as wishful thinking to expect a government that appears content to allow the narratives of violence and abuse in this war to focus almost exclusively on acts committed by the TPLF, to launch any sort of investigation into its own army’s conduct during the conflict. It appears equally doubtful that they will be willing to throw open their doors to international investigators, who seek to elucidate reports of atrocities committed by both sides.

Report, Recommend, Repeat The unlikelihood of the report having any effect on the implementation of its recommendations leads one to conclude that its most significant outcome will probably be, quite simply, another report. It should be noted that this is not in and of itself a bad thing. The need for independent bodies to report violations of human rights in conflict zones will always exist, independent of the practical effects of such investigations. The archival, therapeutic and educative value of these reports can not be disregarded. However, the likely lack of any more concrete restitutionary outcomes is also something which should not be ignored. It is important to consider whether the scale of reports is justified by their therapeutic and educative value, especially since their reach can be extremely limited due to both their target audience and the manner in which they are disseminated.

This reality evokes some of the chief criticisms leveled at the international human rights project as a whole and at human rights reporting more specifically. It appears to affirm the concern raised by international human rights scholar David Kennedy that the furthering of the human rights movement itself, as opposed to the concrete practical changes it brings about, is often the ultimate goal in activities

such as monitoring and report writing. He points out that human rights work leads more often to further conferences, documents and legal analysis, than it does to an actual decrease in violence, poverty, mass slaughter or hunger. As a result, more concerted political action is potentially sacrificed in favor of producing declarative documents and unified messages. Considering everything that has been discussed above, it is reasonable to fear that this will play out once more in the context of the HRW report into violations in Tigray. It is unsettling to think that the proliferation of investigations and reports could be as circular and perpetual as the violence itself.

[The report] appears to affirm the concern raised by international human rights scholar David Kennedy that the furthering of the human rights movement itself, as opposed to the concrete practical changes it brings about, is often the ultimate goal in activities such as monitoring and report writing Universalisation and Banalisation A perhaps even more concerning result of this perpetuation is the potential banalisation of the atrocities which the report documents. In writing reports like these, AI states that it aims to translate knowledge into action by mobilizing both “outrage” and “hope” in those that read them. However, it can be argued that a 221 page document providing descriptions of human rights violations in what can only be described as excruciating volume is more likely to have the opposite effect: namely, the propagation of apathy and despair. This is compounded by the way in which witness testimony is presented in the report itself. Within the report, victim statements are pared down into a series of sparse narratives consisting of short sentences with as little embellishment as possible. Tales of extreme terror become abstract phrases: They started to beat us. The militia were shooting at us. To the average reader, there is nothing which links these statements to the situation in Tigray. Indeed, these violations could have occurred in any part of the world experiencing a similar level of violence at any time The Eagle Volume 9 Issue 2 | 18

Humanitarian Crises & Conflicts

in history.

This however, is a feature rather than a bug of the process of human rights reporting. In order to achieve the universality which the human rights movement requires to justify itself, its literature must, by necessity, be dehistoricized, decontextualized and deindividualized. The effects of this on the reader are distinctly counterproductive: it could be argued that in reading over and over accounts of atrocities described in the same abstract way even the most compassionate reader becomes desensitized to the awful details of what they are reading. In the words of sociologist Claire Moon, this presentation results in the reader coming to the conclusion that “this has always gone on, that it will always go on” and ultimately that “nothing will change.” This kind of emotional fatigue is counterproductive to the goals of human rights monitoring and reporting: it places a premium on ignorance which many people are all too tempted to take advantage of.

Conclusion Ultimately, the question of what is next for human rights in Tigray is very different to the question of what is next for its people. For them, it seems almost inevitable that more hardship is on its way: there are already signs that the two sides' commitment to the truce reached in Pretoria in November is wavering.

The fate of the human rights movement in the region, meanwhile, seems similarly bleak. It appears likely that the cycle of investigation and recommendation will continue while the essential process of supplying aid to the region is carried out at a pace which, due to the relative apathy towards the war in the politics and public opinion of the developed world, can only be described as faltering. In other words, reality moves on while the human rights project continues to chase its tail. It is imperative that banalisation and desensitization do not continue to be the chief fruits borne by human rights reporters. The way in which NGOs and supranational organizations view and communicate human rights violations must be altered to prevent their descent into helpless impotence.

The Human Rights Implications of Sri Lanka's Economic Crisis

by Arielle Hillock, SF Philosophy

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n March 2022, Sri Lankans began protesting in response to the government’s handling of the country’s economic crisis which has left millions of Sri Lankans without basic provisions such as food, water, and education. While Sri Lankans have been suffering the effects of inflation rates of over 50 per cent and subsequent price increases, the government has not adequately addressed the situation. Instead, it has deceived its people in regard to what brought their country into crisis and silenced those who protest against the regime, stripping them of their right to free speech. Nearly 5.7 million Sri Lankans are in need of humanitarian aid and 22 per cent of the population is food insecure. While the government was in negotiations with foreign creditors to restructure their debts in May 2022, they have since continued to repress peaceful protests and neglected their citizens’ fundamental economic and social rights. This has only hindered foreign negotiations as the government struggles to prove to the Inter19 | The Eagle Volume 9 Issue 2

national Monetary Fund and high-income countries that it can manage its finances in the face of an unprecedented economic crisis.

Origins of Crisis The Sri Lankan government blames the pandemic for impeding its tourism industry, the country’s former primary income source. The current economic crisis has, in reality, resulted from over a decade of economic mismanagement. Following the end of the Sri Lankan Civil War in 2009, the country focused on producing and selling goods within its domestic market instead of trading with foreign nations to bolster its war-torn economy. Meanwhile, Sri Lanka depended heavily on costly foreign imports, but was not generating enough income from their exports to sustain the population’s needs. As a result, Sri Lanka has run out of foreign currency, importing over $3 billion more than it exports. Compounding the lack of currency was former President Rajapaksa’s tax cuts

Humanitarian Crises & Conflicts

in 2019, which caused a loss of $1.4 billion in government income annually. The government’s initial solution was to ban imports of chemical fertiliser to cut down on costs. However, this forced Sri Lankan farmers to rely on organically sourced fertiliser, which led to extensive crop failure. To sustain the people, the government was forced to import even more foreign food, causing further currency shortages. The country has faced presidential turnover and for the first time in its history, defaulted on its foreign debt in May 2022.

The country does not have the money for fuel for basic services like public transportation and has urged citizens to stay home to conserve energy, causing widespread job and education losses. The cost of the available fuel has risen, making it increasingly expensive for the country to transport goods within.

The Results Sri Lankans are finding food necessities impossible to obtain, with a limited domestic product available and the alternative being costly foreign imports. As of April 2022, a UNICEF food consumption survey reported that 70 per cent of families have had to reduce their food consumption. Many families are eating two or less meals a day and choosing to take out loans for necessary expenses like rent because the value of their income has dwindled. Some Sri Lankans suffer the additional burden of not being able to access critical medicines that were once publicly available, leaving Sri Lankans face an increased threat of health complications and disease as well as increased fatalities. Many schools closed during the Covid-19 pandemic and were never able to reopen due to lack of funding, stripping Sri Lankan children of their right to education. The government’s advice that classes be held online was ill-informed and ignorant as many families cannot afford internet access or electronic devices while having to sustain themselves on lower incomes. Children have been forced to drop out of school and enter the workforce because they cannot afford an education.

Suppressing the Right to Free Speech In late September 2022, Sri Lanka enacted the Prevention of Terrorism Act (PTA) as a restriction on protesting in Columbo, its capital city. The next day, eighty-four protestors were arrested and tear gas and water canons were employed to control peaceful crowds. The government gave police the right to ar-

rest anyone in “high security zones” that have been placed throughout most of the capital. In a time of great instability, the government has focused its limited resources on restricting rights instead of turning to financial allies and foreign creditors to end the widespread suffering. The Bar Association of Sri Lanka renounces the government speech restrictions, claiming that they “curtail the liberty of the citizen, without any reasonable or legal basis.” While the International Covenant on Civil and Political Rights allows free speech restrictions when necessary to achieve a legitimate government aim, there is an absence of evidence for the necessity of the Sri Lankan government’s current regulations. Although former Prime Minister Wickremesinghe pledged to repeal the law when he supported a consensus resolution of the United Nations Human Rights Council in 2015, the government continues to stall on repeated commitments to repeal the law.

Furthermore, in October 2022, the United Nations adopted a resolution expressing concern for the human rights situation in Sri Lanka and mandating enhanced UN monitoring, as well as renewing a mandate for the UN to collect evidence of past human rights violations, including attacks on Tamil civilians during the civil war, for use in future prosecutions.

Amnesty International’s Deputy Regional Director for South Asia Dinushika Dissanayake has however emphasised that more needs to be done by the Council to “respond to civil society demands for the establishment of an expert mechanism that could address the broad spectrum of human rights violations including those arising from the serious economic and political crisis that the country faces.”

Conclusion As it stands, the people of Sri Lanka are being deprived of basic necessities, such as food and water, and have been stripped of their rights due to economic mismanagement by the government. Instead of alleviating the country’s distress and proving itself to be financially credible, the government is restricting human rights by banning free speech, hoping to silence the suffering and conceal its incompetence from the public eye. Ultimately, the UN Human Rights Council should maintain its rigorous scrutiny of Sri Lanka’s worsening human rights situation and press for genuine improvements.

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Human Rights & The Environment

Gendered Warming: Why Women Bear the Brunt of Climate Change

by Chloé Asconi-Feldman, SF Law

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Editor's Note: This article discusses sexual exploitation and gender-based violence, which some readers may find distressing

he climate crisis is a fundamentally gendered issue. Systemically, women are often stuck in vulnerable positions and are at a greater risk of being exposed to the most devastating effects of climate change. Despite this - and the fact that many prominent environmental activists such as Greta Thunberg are women - they are still not adequately represented during climate discussions and conferences and bear the negative effects of environmental instability.

According to the UN Environment Programme, 80 percent of those displaced by climate change are women. The primary reasons for this are that women form the majority of the population that are living in poverty, and that their jobs tend to be negatively affected the most by climate. In many regions in the Global South, women are responsible for securing food and water for their community.

When communities face increasing droughts or erratic rainfalls, a direct result of climate change, it is often women as agricultural workers that suffer the burden.

Girls may have to leave school in order to help their mothers walk longer distances to get food or water safely, further exacerbating the issue of climateinduced insecurity faced by women. When climate change makes land-based work impossible, men can often turn to alternative work, whereas most of the time women cannot due to cultural norms or lack of education. According to international development charity ActionAid, nine out of every ten countries worldwide have laws restricting women from working in certain jobs, such as factory work, or working at night, or requiring them to seek permission from their husband or father to work. This makes it more difficult for women to remain financially independent when their primary form of work becomes impossible. More daughters are also sold into marriage because it is more difficult to source food and for parents to continue feeding their children.

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Another consequence of the climate crisis is the potential exposure to forms of gender-based violence.

When women are displaced by climate change, moving to new, and potentially unsafe, areas may make them more vulnerable to sexual assault. Given that women are in a more vulnerable position than their male counterparts in terms of sourcing food and work, food vendors, farmers, or landowners can take advantage of this and insist on trading sex for food or shelter. This is often referred to as 'survival sex,' which is a practice where those who are disadvantaged will trade sex for basic human needs.

The climate crisis also has consequences in terms of a woman’s safety in her family. According to Dr Anik Gevers, associate at the Sexual Violence Research Initiative and technical consultant for the United Nations Development Programme, as the women who are impacted the most are agricultural workers, the extra work that they are subjected to means they might become too fatigued for acts of sex, and some men respond to this with violence and aggression.

Despite the fact that women experience the worst consequences of the climate crisis, they are disproportionately represented in positions of power in the context of creating climate mitigation, adaptation and amelioration policies Furthermore, Dr Gevers notes that due to the relationship between climate-induced food insecurity and increased alcohol consumption, women are left vulnerable to adverse behaviour by men in the home.

With poor harvests or bad crops, men may also need to live in a location with better prospects to provide for the family. In these cases, women and children in

Human Rights & The Environment

homes where it is known that there are no men are more vulnerable to sexual exploitation. The climate crisis’ consequences exacerbate the existing issues that women face, catalysing gender-based violence and discrimination.

Despite the fact that women experience the worst consequences of the climate crisis, they are disproportionately represented in positions of power in the context of creating climate mitigation, adaptation and amelioration policies. There is a lack of women in positions of senior leadership in negotiations and Intergovernmental Panel on Climate Change (IPCC) authorship. During COP26, men constituted 10 out of the 12 UK leadership team positions. They did this after an open letter was sent to the UK Government calling for greater accountability for the male to female ratio on the COP26 leadership team, signed by influential figures such as Mary Robinson.

at the table.

Ultimately, the climate crisis disproportionately affects women because it exacerbates pre-existing gender inequalities. More women are being forced into displacement, forced to end their education early, and to travel longer journeys for work, all which cause them greater risk of gender-based violence.

Although particularly affected by climate-related issues, they are not at the forefront in making climate change decisions. This lack of representation in climate policy must be addressed to ensure effective protection for women’s rights. There needs to be a greater effort made to include women’s voices in climate negotiations, starting by quoting more women in work, having more women signing climate agreements, and more female representation at COP28.

At the COP27 summit in 2022, only 7 out of the 110 world leaders present were women. Given the low representation of women in higher ranking political positions, it is not a surprising fact that climate delegations are subject to gender imbalance. Despite this reality, there should be a greater effort for more women’s voices to be heard regarding climate agreements, particularly given that they are affected by its impacts the most. The 2021 Oxfam Report Missing in Action found that there are gender inequalities not only in the number of women holding leadership positions, but also the number of times that female experts were quoted. This demonstrates that even women who are highly qualified are not being acknowledged proportionally for their contributions to mitigating the climate crisis.

There have been efforts to include more women in climate talks and decisions. At COP27, one of the days of the conference was titled ‘Gender Day,’ which had the objective of promoting women’s roles in adapting to climate change. SHE Changes Climate, a non-profit organisation focused on women’s roles in climate negotiations, states that after COP27, women’s voices have been stronger than ever before, with a COP decision on the Gender Action Plan.

However, despite these efforts it is clear that we have not reached a point where climate agreements and negotiations are happening with equal representation

Photo courtesy of Matthew O'Shea, LLM International and European Law

Given the low representation of women in higher ranking political positions, it is not a surprising fact that climate delegations are subject to gender imbalance.

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Human Rights & The Environment

On Thin Ice: Who has Rights to the Arctic?

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by Amy Cox, JS Law and Political Science

he frozen North is becoming a truly hot topic in international politics. With the Arctic region warming at twice the global average, attention is turning to the vast amounts of undiscovered natural resources held there. Sea ice in this region is retreating due to these rising temperatures, creating more opportunities for shipping and trade and making it easier to exploit oil and gas contained in the continental shelf. With a race for resources underway, tensions are rising between the major players in the Arctic, aggravated by the recent hikes in fuel prices. It is unclear who should have a say in the future of the Arctic, with the EU, China, Japan, and Singapore all taking a keen interest alongside oil and gas companies, NGOs, environmentalist groups, and scientists. However, this competition comes at a price: concerns have been raised about the effects of exploitation on the delicate ecosystem of the Arctic, the livelihoods and dignity of indigenous people, and for the sovereignty of Arctic states. This article will examine some of the legal issues that come with the increasing exploration, commercialisation, and militarisation of the Arctic.

Natural resource exploitation Due to rising global temperatures, the Arctic summer is extending, and the period in which the region’s waters are free from sea ice is becoming longer each year. Offshore drilling for oil and gas is thus becoming increasingly viable: with the US Geological survey estimating that 30 per cent of the world’s undiscovered natural gas and 13 per cent of undiscovered oil is held in the Arctic region, states are keen to be the first to drill. Eight states have sovereign jurisdiction over Arctic land: Russia, Canada, the USA, Denmark, Sweden, Iceland, Finland, and Norway. According to the United Nations Convention on the Law of the Sea, the sovereign jurisdiction of an Arctic coastal state extends to its continental shelf, or an area of seabed off the coast that is submerged under shallow water, for a distance of up to 200 nautical miles from the

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baseline. Within this zone, Article 77 permits these states to exercise sovereign rights over their continental shelves for the purpose of exploiting natural resources, and Article 81 confers on them the exclusive right to authorise drilling on the seabed. For this reason, scientists are hastening to examine the continental shelves to determine their outer limits, so that states may put in claims for extended ownership.

Rights of Arctic people Increased commercial activity in the Arctic has impacted its population of approximately 4 million, 10 per cent of which are indigenous peoples who have lived on the land for thousands of years. Arctic indigenous people are diverse and comprise over 40 different ethnic groups such as the Sámi in Northern Finland, Sweden, Norway, and Russia; and the Inuit in Canada, Alaska, and Greenland. The presence and importance of these groups has yet to be legally recognised in all Arctic states. For instance, while the Russian Constitution recognises the right of indigenous peoples to maintain their way of life, only 40 out of over 160 groups are officially recognised under Russian law. In Finland, although Sámi people

[Economic] competition comes at a price: concerns have been raised about the effects of exploitation on the delicate ecosystem of the Arctic, the livelihoods and dignity of indigenous people, and for the sovereignty of Arctic states. have their own democratically elected parliament, the UN Human Rights Committee has criticised the country for curtailing the Sámi’s right to selfdetermination by adding persons to the electoral roll

Human Rights & The Environment

without Sámi Parliaments’ consent. Under the UN Declaration on the Rights of Indigenous Peoples, the Sámi should have the right to determine their own identity or membership in accordance with their customs and traditions, and to select membership of their institutions accordingly.

also permanent participants in the Arctic Council, an intergovernmental forum tasked with establishing rules and solving regional issues in the Arctic. These organisations play a key role in its decision-making process, elevating the concerns of indigenous people.

While the Arctic Council does not have the capacity to create binding international legislation, it can issue Indigenous people typically have a strong connection guidelines to assist national regulators and plays a key to the land they live on, and have maintained role in ‘knowledge generation, issue framing and traditional livelihoods such as reindeer herding, agenda setting’ for the Arctic. For example, the Arctic hunting and fishing which sustain their cultures and Offshore Oil and Gas Guidelines, while nonbinding, communities. Despite this connection, indigenous can be used effectively by indigenous activists to groups often struggle to gain legal recognition of their lobby businesses to adjust their policies. land rights under human rights regimes. The Arctic Human Development Report notes that this may be Arctic shipping routes because regional human rights systems such as the Due to shrinking sea ice, new waterways through the European Court of Human Rights are designed to Arctic have become navigable that are likely to protect individual rights over collective rights, and to transform the global shipping network. One of these protect settlers rather than indigenous interests. If new maritime routes is the Northeast Passage, which indigenous people are not protected under general connects Northeast Asia with Europe along the rights regimes, they should be able to rely on specific northern coasts of Russia and Norway. The main instruments such as the UN Declaration on the Rights stretch of the Northeast Passage, traversing the of Indigenous Peoples, which provides that they have Russian coast, is known as the Northern Sea Route the right to own, use, and control the lands they have (NSR), and is claimed by Russia as an internal traditionally owned or occupied. waterway, despite being outside of Russia’s 200 mile exclusive economic zone. Russian scholars argue that However, this declaration is not legally binding and historically, Russia has exercised control over the leaves these groups vulnerable to displacement, NSR, and that to divide it into separate zones with particularly by the oil and gas industries. After the differing legal statuses would be impossible. revocation of a Russian national law in 2015, local authorities no longer have the power to decide where Meanwhile, China has announced itself as a ‘near infrastructure associated with resource extraction Arctic state,' and legitimises its interest in the region would be placed, leaving local communities more on the grounds that the effect of Arctic warming on vulnerable to encroachment by the oil industry. In the environment and on available shipping routes will Finland, the National Parliament is obliged to consult impact nearby states. China has strong economic the Sámi Parliament whenever a policy could interest in the NSR, which presents a faster alternative negatively impact on the livelihoods of Sami people. to its customary shipping route through the Suez Yet Professor Elena Gladun argues that Sámi reindeer Canal, and in 2018 the global power expressed herders “feel a constant threat…from gradually interest in extending its “One Belt, One Road,” spreading industrial and infrastructure projects which Initiative to include this “Polar Silk Road”. In 2013, could destroy their livelihoods and culture." For China was admitted as a permanent observer to the instance, a number of plans have been proposed by Arctic Council, a privilege which the EU has been Finnish and Norwegian authorities to develop railway denied due to its import ban on seal products, which lines connecting Lapland to Norway and to the Canada deplores. Even small nations such as Northeast Passage in order to facilitate trade routes, Singapore, who’s status as an international shipping which is likely to disrupt reindeer herding. hub is threatened by the emergence of new Arctic shipping routes, are staking their claim for influence Six organisations representing indigenous people are

The Eagle Volume 9 Issue 2 | 24 Photo courtesy of Matthew O'Shea, LLM International and European Law

Human Rights & The Environment

in the region. Singapore is offering free educational opportunities to indigenous people in the Arctic as a means of projecting soft power and involving itself in the region’s governance.

Against this backdrop of clashing interests, the question of whether the NSR should be considered an international waterway, which would allow all states to use the passage to transport goods and passengers freely, or as an internal Russian waterway has become particularly pressing. Two criteria were laid out in the Corfu Channel case of 1949 that must be met in order to prove that a waterway is an international straight, namely that there must be an overlap of territorial waters in a passage between land adjoining two parts of the high seas, and secondly a functional criterion that the straight has to be a “useful route for international maritime traffic.” The dispute over the NSR mirrors that between the US and Canada over the Northwest Passage, in which the US argues that the passage constitutes international straits as it connects two parts of the high seas, the Atlantic Ocean and the Arctic Ocean, thus meeting the geographic criterion set out in Corfu. Applying Corfu to the dispute over the NRS, China and the US would

have difficulty proving this second element of the Corfu test due to the current underutilisation of the route for international shipping purposes. That said, Nolin argues that as climate change accelerates the melting of Arctic ice, Arctic straits will be used more frequently for freight and tourism in years to come.

While UNCLOS specifies that states have an obligation to settle disputes relating to the interpretation of the convention by peaceful means, Russia’s recent breach of international law in the form of the Ukrainian invasion suggests that a UN convention will not act as a sufficient deterrent against military action. Russia has long conducted military exercises in the Arctic, and in April 2022 NATO conducted its largest “Cold Response,” military training exercise in the Arctic, involving 35,000 soldiers and 27 countries, raising questions about future peaceful cooperation in the region. The Arctic Council, established to govern regional affairs only, is not equipped to manage large-scale conflicts, or to enforce its own guidelines, leaving the region vulnerable to power grabbing and military contestation for land and resources.

The Climate Crisis from a Humanitarian Perspective: Will the Global North ever COP on?

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by Jenny Salmon, JS Law

ast November, I had the privilege of attending COP27 in Egypt with Concern Worldwide, the incredible international humanitarian organisation, as their first ever youth climate ambassador. For the first time ever at a COP, an entire pavilion was dedicated to children and youth. Significantly, there was no branding or sponsorship in this pavilion; it was a place for young people to meet and discuss climate free from the capitalisation of COP (absent of free Coca Cola). It was in this pavilion that I began to understand the gravity of the climate crisis, and recognised that even the fact that I can refer to it as ‘the climate crisis’ and not as my reality was such an immense privilege. It was here that I realised that it is time for Irish young people to invoke our privilege 25 | The Eagle Volume 9 Issue 2

by taking a more active role in speaking out about climate. I have always had an interest in the environment and climate justice, but often felt that I could not speak on it because I myself am not ‘climate perfect.’ However at COP I realised quite how wrong I had been. Taking this complacent ‘What would I know?’ attitude is an unequivocal luxury that the world can no longer afford. This became clearest to me at the children and youth pavilion at COP when listening to youth climate activists from countries experiencing the worst effects of climate change right now. For those currently being affected, it was not a privilege to be at COP, it was a necessity to make their voices heard.

Human Rights & The Environment

One youth climate activist from the Philippines, Mitzi Jonelle Tan (@mitzijonelle), when talking about how she got involved in climate activism simply asked, “Who am I not to join the fight of climate defenders?”

This simple question struck a chord - as young people in Ireland, who are we not to join the fight to defend the climate? We are not yet experiencing climate catastrophes, and through social media have a platform that many who suffer the worst effects of climate change do not. Who are we not to use this platform? Who are we to not care simply because we ourselves are not being affected?

In terms of those who are being affected, there is severe and historic injustice and inequality. During Africa’s colonisation by the European superpowers, many of its countries saw their natural resources depleted by those countries during periods of industrialisation. Many of the net effects of this have only come to light in the last 50 years. Deforestation has turned many areas into “heat traps” for the sun (particularly around the equator), and desert areas have become more vulnerable to frequent floods as the terrain is not designed to absorb water. This has detrimental effects not only in terms of displacement, but also for hunger.

According to the 2022 Global Hunger Index, 37 out of 54 African countries have levels of hunger that are rated “serious” or higher. Four countries in Africa rank among the hungriest: Central African Republic, Chad, Democratic Republic of Congo, and Madagascar all rank at “alarming” levels of hunger in the 2022 GHI. (Countries with incomplete data for 2022 but assumed to be in the “alarming” range are Burundi, Somalia, and South Sudan. Last year, Somalia ranked as the world’s hungriest country with the only “extremely alarming” GHI ranking). While there are several factors that contribute to hunger such as conflict, forced displacement, and political instability, the primary cause of hunger in the Horn of Africa in 2022 was unequivocally climate changeinduced drought. There is no greater injustice than this, that those suffering the climate's consequences are the people least contributing to its deterioration.

The incredible Pakistani youth climate activist, Ayisha Siddiqa (@ayisha_sid), noted at a youth panel on resistance and power in the climate crisis, “Our ancestors’ blood is in the soil, earth is so linked to humans, when earth hurts, humans hurt.” In the Glo-

bal North, where urban, capitalist, fast-paced life has taken precedence over respect for the earth, sight has been lost of the intrinsic link between humans and the Earth.

Prior to COP, I would have dismissed this notion of reconnecting with Earth and thought it was for a certain archetype of ‘climate hippy,’ but something about looking into the eyes of someone telling you that they have been displaced and lost their home due to flooding, or that they can no longer feed their family due to droughts, makes Mitzi Jonelle’s question, “Who am I not to join the fight of climate defenders?” ring true. When reconnecting with the Earth, be that by swimming in the sea, going for a hike, or even just sitting in a park or your garden, it is imperative to think of those in the Global South who are suffering as a direct result our lifestyle and practices in the Global North, and think to yourself, ‘What am I going to do about this?’ This is not to reductively suggest that reconnecting with nature will impact the climate catastrophes happening right now, but rather to suggest that people who feel connected with the Earth and the people being most directly affected by climate change, are people who are more likely to change their habits because they care.

Caring about climate change is so vital to engendering meaningful global change. This year, for the first time at a COP, there was a historic decision to establish and operationalise a loss and damage fund. This means materialising compensation and funding for countries being affected by climate at present. At COP, a framework for loss and damage funding was established, but without strong public support, it may not be substantiated. It is imperative that we, the public, put the impetus on public representatives to bring loss and damage funding framework to fruition. We cannot have a repeat of COP26 where approximately 20 countries who signed up to more ambitious action on the climate emergency actually followed through with their promises. We need ambition in terms of climate change. We need that ambition accelerated. Living in the Global North, we need to “COP on” to climate.

Who am I not to join the fight of climate defenders?

The Eagle Volume 9 Issue 2 | 26

Women's Rights

Failing to Make the Grade: A Report-card for Women’s Access to Education

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by Eoin Ryan, JS Law and Political Science and Public Relations Officer

right to an education is one of the most fundamental and basic human rights to which a person is entitled, and this is reflected in a plethora of international conventions. Article 26 of the Universal Declaration of Human Rights protects and sets out the functioning of this key right. One of the core principles recognised in the Declaration, as well as in the International Covenant on Economic, Social and Cultural Rights, is the idea that education should be ‘equally accessible to all.” Despite these international commitments, educational inequality remains a salient and pressing global issue. According to the United Nations Educational, Scientific and Cultural Organization (UNESCO), an estimated 244 million children did not attend school in 2021. Further, Human Rights Watch reported in a 2019 study that over 600 million young people lacked basic numeracy and literacy skills.

Educational inequality is an inherently gendered issue. Girls and young women are at a greater risk than their male counterparts of being unable to access education. The UNESCO Institute for Statistics estimates that women account for more than twothirds of the global adult population who do not have any basic literacy skills. While there has been significant improvement in women’s educational attainment, the disparity between men and women’s access to education is impacted by a whole range of factors such as gender-related violence, gender discrimination, and child marriage.

Part of the difficulty in tackling this issue lies in the multifactorial nature of gender-based educational inequality. In addition to the barriers posed by traditional attitudes and discrimination, poverty is an acute aggravating factor that is especially prevalent in the developing world. Period poverty is an issue faced by women all over the globe and has particularly stark implications for women’s education. A 2014 report from UNESCO found that 1 out of every 10 menstr27 | The Eagle Volume 9 Issue 2

huating youths. miss school during their menstrual cycle due to a lack of access to menstrual products and resources. In addition to the lack of appropriate hygienic materials, women are often subjected to stigmatising behaviour that can foster feelings of deep shame which discourage them from attending school.

In Tanzania, period poverty has been identified as the single biggest barrier to girls’ access to education, with less than a third of Tanzanian girls in secondary schools managing to complete their education.

States rarely impose absolute legal prohibitions on women receiving education, but often due to particular cultural practices and traditional values young women are effectively barred from educational institutions. Child marriages are rooted in gender inequality and traditionally occur between an adult male and a female child. This practice remains widespread worldwide and is common in developing countries, particularly in parts of Asia and Africa.

While there has been significant improvement in women’s educational attainment, the disparity between men and women’s access to education is impacted by a whole range of factors such as gender-related violence, gender discrimination, and child marriage.

The UNICEF report Early Marriage: Child Spouses reveals that an early marriage will cause a young girl to drop out of school. A young girl will be forced by her adult husband to follow and adhere to set traditional practices and beliefs that require her to stay at home and take up household and child-care duties. Additionally, the husband may not wish to

Women's Rights

invest in the young girl’s education, as it is viewed as a waste of resources. As well as these cultural barriers, schools may have policies prohibiting married or pregnant girls, or girls with babies to return, as they are viewed as setting a bad example for other students. In Bangladesh, there is an established practice of parents withdrawing their daughters from school if a good marriage prospect arises.

While these socioeconomic and cultural factors have a significant impact on women’s access to education, state and educational institutions also engage in more direct and deleterious forms of discrimination that aim to completely prohibit women from receiving an education. In 2013, all member states of the African Union adopted Agenda 2063 which committed them to ‘[eliminate] gender disparities at all levels of education.’ Despite this commitment to gender equality, a 2018 investigation by Human Rights Watch found that the nations of Equatorial Guinea, Sierra Leone, and Tanzania all ‘expel pregnant girls from school and deny adolescent mothers the right to study in public schools.’ This practice impacts only girls and is not extended to a responsible boy if he is still participating in active education. Moreover, a further 21 countries ‘lack a re-entry policy or law to protect pregnant girls’ right to education,’ meaning that even where pregnant girls are not legally obliged to exit schooling, schools may exercise a discretionary policy of prohibition.

The actions of the Taliban government in Afghanistan represent perhaps the most direct and severe attack on women’s right to an education. The Taliban returned to power in Afghanistan in 2021, establishing a regime that reflected the harsh fundamentalist Islamic values that it previously had expressed when it governed for a period during the 1990s. The Taliban has been criticised by a myriad of human rights organisations for its notoriously misogynistic and violent policies. On the 20th of December, the Taliban government issued an edict banning women and girls in Afghanistan from all forms of secondary and tertiary levels of education. This complete ban is a continuation of a policy that originally prohibited girls from high school which came into effect in March 2021. Despite promising that this ban was temporary, the Taliban appear to be hellbent on achieving the complete exclusion of women from education in Afghanistan.

There are a number of teachers, clerics, and community elders who have opposed the ban and seek to continue teaching young girls in secret, but for the overwhelming majority of women the new policy effectively removes all prospects at an education.

Despite widespread international condemnation of the regressive policy, the regime has apparently sought to completely ban women in Afghanistan from all forms of education including primary education. As of yet, there has not been any official pronouncement of this complete ban but it appears nearly certain that when schools return in 2023 girls will not be allowed to attend. This policy is the most flagrant and brutal violation of a woman’s right to an education.

Across the globe women’s access to education can be characterised by the variance in the level of protection offered to girls and young women. ‘Must do better’ is how the situation could be described in many countries. However, as long as there are any barriers to women accessing what is a fundamental human right in any country, the global approach to women’s access to education must be considered a failure. We have a long way to go if we are to achieve the UN’s Sustainable Development Goal 4, which aims to ‘ensure inclusive and equitable quality education and promote lifelong learning opportunities for all’ by 2030.

Photo courtesy of Mark McGrane, JS Law

The Eagle Volume 9 Issue 2 | 28

Women's Rights

A Critical Examination of European Jurisprudence on the Wearing of Religious Clothing

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by Julia Von Kimakowitz, Visiting Student, University of Heidelberg

he current mass protests in Iran and their violent repression concerning the obligation to wear the headscarf has sent shockwaves through Europe. This mandatory enforcement of religious clothing is difficult to reconcile with the right to freedom of thought, conscience, and religion, as protected by Article 9(1) of the European Convention on Human Rights (ECHR). In several decisive European court rulings, the religious clothing has nonetheless been banned under certain circumstances and thus restricted the freedom of women in their decision to wear the headscarf.

The decision of the European Court of Human Rights (ECtHR) in Sahin v Turkey [2005] ECHR 819 and the House of Lords decision in Begum v Denbigh High School [2006] UKHL 15 both expatiate on the limits of religious freedom. In Sahin, the applicant was excluded from her university studies in Istanbul for failing to accept its headscarf ban. In Begum, Sabhina Begum insisted on wearing a jilbab,* which was permitted under her high school’s uniform rules that she had followed for two years. This article will critically compare the reasoning of the two decisions by contrasting, first, the assumption of interference with the religious rights under Article 9(1) of the ECHR and, second, the justification for such. The comparison leads to the criticism of an overly restrictive understanding of “interference” in Sahin, an unduly wide conception of the margin of appreciation in Begum, as well as a politically tainted view on Muslim headscarves in both cases.

Interference Article 9 ECHR is a qualified right with a twoparagraph structure, in which the first paragraph states the right and the second sets out the circum*A jilbab is a full-length outer garment, traditionally covering the head and hands, worn in public by some Muslim women.

29 | The Eagle Volume 9 Issue 2

stances in which interference with it may be justifiable. The second paragraph contains three requirements for an interference with the right to be justified: it must be “in accordance with law,” “pursue a legitimate aim” and “be necessary in a democratic society.” The scope of the second part of Article 9(1) ECHR includes the worship, teaching, practice, and observance of one’s religion to manifest their own beliefs. The ECtHR does not see itself in a position to judge the religious basis of behaviour, hence ‘there is no requirement (…) to establish that he or she acted in fulfilment of a duty mandated by the religion in question.’ In this way, the judges remove themselves from the responsibility of having to decide on a technical level whether there is a religious need for the girl’s view in the Muslim faith. Sahin’s statement that wearing a headscarf manifested her religious beliefs, therefore, was accepted by the Grand Chamber’s judgment without scrutiny.

In contrast, the law lords in Begum did not find that the school’s policy interfered with the applicant’s right to freedom of religion under Article 9(1), since Begum voluntarily placed herself in such a situation by choosing a school whose uniform policy conflicted with her religious beliefs. Their Lordships in the majority judgment referred to the ‘consistent body of authority’ set by the ECtHR in Jewish Liturgical Association v France, in which the ECtHR emphasised that ‘there would be interference (…) only if the [prohibition] made it impossible to [behave] in accordance with the religious prescription [one] considers applicable.’ This argumentation is supported by the idea that the limits of state responsibility lie in the guarantee of religious freedom, but not in an unconditional enforcement, as is pointed out by Hoopes in his 2006 article, The Leyla Sahin v Turkey case before the European Court of Human Rights.

Women's Rights

However, Baroness Hale in her criticism of the judgment retorts that Sabhina Begum made her choice of school two years before refusing the school’s uniform. To now refer to the fact that she voluntarily chose this situation would deny the girl the opportunity to develop her faith after deciding on a certain school. Moreover, Vakulenko notes in her article, Islamic Dress in Human Rights Jurisprudence: A Critique of Current Trends (2007), that the hurdle of an impossibility of manifestation seems overly restrictive in view of the disadvantages associated with changing schools. This would, consequently thought out, mean there would be no interference even if the school unilaterally changed the uniform regulation requiring the student to leave school. The ECtHR’s approach of assuming an interference in principle (which may be justified) deserves preference over the Lord’s approach, which takes a preserving, “unindividual” view of religious convictions.

Justification Interference can be justified under Article 9(2) if it is prescribed by law and necessary in a democratic society, for which it must follow a legitimate aim and be proportionate. As mentioned before, the first requirement for a justification is the legal foundation.

This prescription by law can be written or unwritten.

Both the ECHR and the House of Lords in their rulings assume a legal basis of the unwritten law.

While the headscarf ban was underpinned by the principle of secularism in the Turkish constitution and its interpretation by the Constitutional Court in Sahin, the law lords invoke the delegation of the decision to the local schools by the UK Parliament.

With regards to the legitimate aim, the ECtHR acknowledged the importance of secularisation in the democracy of Turkey and its role in ensuring gender equality. The law lords did not afford secularisation the same significance, but did stress the values of pluralism, gender equality, and the protection of the rights and freedoms of others, stating that several girls expressed their fear of being pressured into wearing a jilbab, should this be allowed to Sabhina Begum.

Against Turkey’s historical background, the principle of secularisation was found to be a valid objective

balanced against the freedom of religion.

Nevertheless, both ECtHR and law lords failed to explain why wearing a headscarf conflicted with principles of gender equality and pluralism, assuming one chooses freely to wear a headscarf.

Both judgments include short passages stating that it is difficult to reconcile gender equality with wearing a headscarf, the assumption being that wearing headscarves constitutes oppression in all circumstances. It is hard to understand why the judges see the headscarf as opposite to values of pluralism and gender equality without further explanation.

[B]oth the ECtHR and law lords failed to explain why wearing a headscarf conflicted with principles of gender equality and pluralism, assuming one chooses freely to wear a headscarf.

Baroness Hale commented on this paradox in her dissenting opinion, noting, “If a woman freely chooses to adopt a way of life for herself, it is not for others, including other women who have chosen differently, to criticise or prevent her… The sight of a woman in full purdah may offend some people, and especially those western feminists who believe that it is a symbol of her oppression, but that could not be a good reason for prohibiting her from wearing it.” The recent political protests in Iran make it clear that there are many women who protest compulsory veiling. It is to be assumed that the Court, out of the impossibility of making a case-by-case decision for every woman wearing a headscarf, decided that in cases of doubt it would be better to protect women from being forced to wear a headscarf than to leave them free to decide to do so voluntarily. Nevertheless, the veil itself hardly equals female oppression and the Court gives no legal argument for why it considers every headscarf worn to constitute a symbol of gender inequality.

Not providing a final assessment on the question of proportionality, both rulings eventually acquiesced to the margin of appreciation afforded to Turkey and the

The Eagle Volume 9 Issue 2 | 30 Photo courtesy of Ciara Hogan, JS Law and Political Science

Women's Rights

Denbigh High School. They justify this by emphasising that the local authorities were in a better position to recognize and weigh the conflicting principles. While administrative powers within the UK only influenced the design of a Muslim school uniform, Sahin is about the fundamental question of restricting religious freedom in favour of secularisation.

[T]he margin of appreciation afforded to the Turkey and the high school authorities respectively was unduly generous, while justifications pertaining to gender equality and secularism were unfounded.

The margin of appreciation is particularly broad for issues without a European consensus, yet at the time of the decision, no other Member State prohibited the headscarf in universities for reasons of secularisation - a point that was emphasised in the dissenting opinion of Judge Tulkens. Certainly, access to religion is valued differently in different European countries and so is secularisation. But especially in view of the uniform evaluation of headscarves in

European universities, a more progressive and proactive judgement would have been preferable to avoid disproportionate and absolute bans of a religious expression.

Conclusion Iran’s decision to enforce the wearing of headscarves is worthy of criticism. In contrast, European jurisprudence and politics tend to position themselves against the headscarf, when in doubt. Apart from the presented court decisions, there were similar tendencies against the headscarf in an ECtHR case from Dahlab v Switzerland and recently in December 2022, the Swedish parliament proposed a law banning headscarves for public employees. While many are condemning Iran for infringing the right to religious freedom, the ECtHR decision in Sahin and House of Lord's decision in Begum also merits examination and criticism. It is submitted that the margin of appreciation afforded to the Turkey and the high school authorities respectively was unduly generous, while justifications pertaining to gender equality and secularism were unfounded. In Europe as well as in Iran the aim should be to assure women the freedom to decide for or against religious clothing instead of preventing this decision by general prohibitions or obligations.

Photo courtesy of Emma Bowie, SS Law

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The Eagle Volume 9 Issue 2 | 32 Photo courtesy of Matthew O'Shea, LLM International and European Law

Women's Rights

Strip Searching: Human Rights Violations behind Closed Doors

by Doireann Minford, JS Law and Political Science and Copy Editor

U

Editor's Note: This article discusses sexual violence, which some readers may find distressing

nder Article 13 of the Geneva Convention III, prisoners of war must be humanely treated. Article 14 stipulates that “[p]risoners of war are entitled in all circumstances to respect for their persons and their honour.” Further, Article 116 of the Geneva Convention IV states that internees “shall be allowed to receive visitors, especially near relatives, at regular intervals and as frequently as possible.” The excessive use of violent and sexually inappropriate strip-searching by Israeli forces on Palestinian prisoners and their visitors is in direct contravention of Israel’s obligations to the Geneva Convention, which was ratified in 1951. This degrading form of punishment is not new and was also historically used during the Troubles in Northern Ireland, a conflict not covered under the Convention, yet still constituting an abuse of human rights under the Universal Declaration of Human Rights (UDHR). The type of strip-searching performed in these institutions appears inhumane and could be considered a tactic of war to both limit visitors to the facility and punish politicised men and women who were captured as prisoners during conflicts.

Sexual violence is not often discussed in the context of the conflict between Israel and Palestine. During the Nakba, or the destruction of the Palestinian homeland in 1948, rumours and threats of rape were employed, forcing 700,000 Palestinians from their homes as an element of fear. However, the common narrative is that sexual violence is committed by a few “bad apples” in the Israeli camp rather than employed as a strategy of war. As will be shown, this cannot be considered true when examining the reports of the treatment of Palestinian prisoners and their visitors in Israeli prisons. Under the Internment of Unlawful Combatants Law, Israeli forces can detain Palestinians for years in jails without a trial. Those interned are permitted visitors under the Geneva Convention, but each visitor is subject to a strip33 | The Eagle Volume 9 Issue 2

search upon arrival. In 2020, sociologist Ferdoos Abed Rabbo Al-Issa interviewed 20 Palestinian women who visited loved ones in Israeli prisons.

These interviews revealed that all but one visitor experienced sexually inappropriate strip searches “including verbal and nonverbal comments and gestures and physical touching and forced nudity.”

Sexual violence is now considered a necessary price to pay when visiting one’s loved ones.

The International Committee of the Red Cross is charged with facilitating prison visits. They reported that some cancelled visits with loved ones in order to protect themselves from strip-searching. After a complaint was filed regarding excessive stripsearching, Israeli prison authorities allowed a loosefitting garment to be worn by women during the strip search. This thin layer of cotton does not guarantee protection against the invasion of privacy and violence that can occur during a search. It is merely a thinly veiled attempt to disguise the continuance of sexual violence. It does not provide an incentive for those who were humiliated and traumatised by the practice to begin to visit their family members again and should still be considered as infringing upon the prisoner’s Convention right to welcome visitors while detained. Furthermore, it does nothing to address the issue of strip-searching prisoners. In 2014, an invasive strip search of four female prisoners was conducted by ten female and five male guards in HaSharon prison. The Director of Ahrar Centre reported that the search was carried out under a “flimsy pretext” and did not respect the privacy of the Palestinian female prisoners. The prisoners report they were stripped naked and searched in a humiliating manner, inducing panic in the women. As Palestine is a Muslim-majority country, and certain Islamic edicts forbid women from being touched by males who are not close blood relatives or their husbands, this adds a religious element to the humil-

Women's Rights

iation already sustained by Palestinian prisoners and their visitors. A 2019 report by the Public Defence Office found that strip searches are conducted by prison staff regularly without consent, despite this being a requirement. The prison service claims this issue among other abuses in Israeli prisons has been dealt with, but without publicly available evidence of reform, one can question this information. In the absence of this confirmation, Palestinian prisoners may continue to be treated in a manner that is incompatible with their human rights. They are humiliated by the searches of their loved ones and their family members are targeted in a manner that inhibits visits.

Equally, the Troubles in Northern Ireland were not considered a sexually violent conflict. It is worth noting, however, that this conflict was not considered a war and therefore the actions of the British forces were not constrained by the Geneva Convention. In a 2017 article, Dr Theresa O’Keefe argued that women who exerted political agency in republican communities at that time were “increasingly punished with a range of sexually abusive practices, including sexual assault, harassment and rape in the form of strip searches” by Unionist forces. While women were subject to sexual slurs and mocking on the streets and during raids in the home, the introduction of internment in 1972 marked a turning point when prisons became a “gendered site of struggle” for female prisoners. Here it is argued that human rights violations were justified by Union forces as constituting methods of counter-terrorism. Sexual violence was commonly used amongst other interrogation tactics. In 1982, strip-searching became commonplace as hostility increased between Republican and Unionistnionist forces in response to both the hunger strikes and no-wash protests. Women on remand attending court hearings were subject to strip searches, despite having no contact with the public and being accompanied by a guard at all times between prison and the court. Theoretically, a woman could be searched hundreds of times but not be convicted by the court. Clothes, women’s orifices, and even menstrual products were all inspected during these searches that were often accompanied, preceded or followed up with threats of sexual violence.

In March 1992, a forced mass strip search was cond-

ucted in Mourne House, the female wing of Maghaberry Prison. This was claimed to have been a necessary security measure by British forces to prevent the smuggling of contraband. From March 1983, the amount of strip searches was increased drastically by the administration. Guards were described as laughing with one another while making sexually inappropriate remarks and anti-Catholic comments during the searches. Testimonies collected by the anthropologist Begoña Aretxaga stated that one victim described strip-searching as “like a rape of some kind.” Once again, the practice limited the number of visitors to prisons in Northern Ireland as women began to refuse visits. Undoubtedly, the British Forces violated prisoners’ “inherent dignity” guaranteed by the Universal Declaration of Human Rights, ratified by the UK in 1951. More stringent protections for prisoners’ human rights were introduced after these events by the UN with the Nelson Mandela Rules in the 1990s. Further, the Bangkok Rules adopted by the UN General Assembly in 2010 regarding the treatment of women prisoners recognised the “harmful psychological and possible physical impact of invasive body searches” and recommended that alternative methods be used.

Under Rule 7, prisoners are guaranteed the ability to seek recourse from judicial authorities if they were a victim of sexual abuse while in detention. These rules did not exist during the Troubles, but the UDHR did – while it did not specifically refer to prisoners, their human rights still must be protected, even while incarcerated.

When the academic literature considers international human rights regarding conflict-related sexual violence, the treatment of prisoners during conflicts is often ignored. The atrocities that were perpetrated by US forces in Abu Ghraib are often cited due to their intensity. However, the behaviour of both Israeli and British forces in prisons also merits attention and criticism. Excessive and violent strip-searching is a traumatising practice often used against politicised women and men and their loved ones to restrict their rights and weaken their agency during detainment.

The Geneva Convention established the legal standard for humanitarian treatment during armed conflicts and the UDHR guarantees the protection of human dignity and rights and all times – these protections cannot be violated, even behind closed doors.

The Eagle Volume 9 Issue 2 | 34

Current

Myanmar and The End of History 1992

by Mark McGrane, JS Law and Deputy Editor

was a year that augured well for the idea that American hegemony would stretch unchallenged into the next century and beyond. Perhaps more importantly, it was a year in which many were starting to believe that the system of capitalist democracy which the US had championed in the Cold War would be irresistibly adopted by all the nations of the world. Fewer were bolder or more explicit in their adoption of this position than Francis Fukyama, whose book, The End of History and the Last Man, posited that mankind had reached the end of its ideological development and culminated in liberal democracy, a system of potency so unparalleled that its universalization was inevitable.

This is not to say Fukyama’s thesis was met with universal support and the reassertion of Russia and China of their place on the world stage, amongst other geopolitical developments, has further dented its staying power. Yet this article will argue that the essential tendency found within Fukyama’s work - the excessive faith in the survival of democracy even in the absence of certain social and political conditions which have, historically, proven vital to the maintenance of democratic government - has remained.

Fukuyama's book, The End of History and the Last Man, posited that mankind had reached the end of its ideological development and culminated in liberal democracy, a system so unparalleled that its universalization was inevitable.

Recent history furnishes us with a useful example: Myanmar. In 2011, a country that had long been seen as amongst the world’s most oppressive seemed to turn over a new leaf. Reforms that were projected to take years were achieved in months: pro-democracy activist Aung San Suu Kyi was released from house arrest along with hundreds of other political prisoners, 35 | The Eagle Volume 9 Issue 2

censorship of the press was lessened, and certain parts of the economy were rationalised and opened up.

Four years later, further celebration of the apparent reversal of Myanmar’s fortunes ensued as the National League for Democracy (NLD), the prodemocracy party of Aung San Suu Kyi, won large victories in both houses of the legislature. As a result, Aung San Suu Kyi took her place as the de facto leader of her nation, serving as State Counsellor. The following year, in view of the ‘substantial advances’ made by Myanmar, President Obama visited the country and lifted all economic sanctions on it in a move which many, such Sebastien Strango, a leading journalist on South-East Asia, saw as the defining achievement of his foreign policy record.

Eight years on from the NLD’s first election victory, all such optimism has been extinguished. After rising to power the NLD showed no sign of abandoning the ethnonationalist outlook of its predecessors, leading to repeated and profound mistreatment of, amongst others, the Rohingya population.This led many of Aung San Suu Kyi’s supporters to disavow their former approval for the activist-turned-leader. No effort was made, in the words of historian Thant Myint-U, to introduce the policies of ‘fight[ing] discrimination, such as creating a robust media, building inclusive state institutions, and setting up a welfare state,’ on which future progress was and is contingent. Further unravelling took place with the 2020 election which saw the Union Solidarity and Development Party, the pro-military party in parliament, suffering an embarrassing loss. The military’s response was to contest the legitimacy of the election, allege innumerable voting irregularities (which third-party observers have denied), and finally, to stage a coup d’état in February 2021.

The coup marked the onset of the conflict in which Myanmar still finds itself deeply embroiled. While the military junta has gone some way to consolidating its power, removing from competition some political rivals such as Aung San Suu Kyi through show trials, religious and ethnic tensions. remain. The country’s economy, already substantially weakened by the

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COVID-19 epidemic, has also gone into freefall.

So why was the West’s reaction to the early indications of democratisation in Myanmar so exuberant? I would argue that the flaws in the Western reaction to Myanmar are, as expressed earlier, much the same as the flaws displayed by Fukyama’s seminal work: time and time again, the power of markets and of liberal democracy is overestimated.

[T]he flaws in the Western reaction to Myanmar are, as expressed earlier, much the same as the flaws displayed by Fukyama’s seminal work: time and time again, the power of markets and of liberal democracy is overestimated.

Firstly, markets’ power to properly sustain themselves almost without support, either from without or within is overestimated. Secondly, the ability of markets and democracy, in and of themselves, to resolve problems of the greatest complexity, even in the face of repeat-

ed empirical evidence to the contrary is exaggerated.

It was such blinkered thinking that saw Western policymakers misjudge the consequences of China’s re-emergence as a major economic player so dramatically, with many presuming that economic growth would naturally be paired with political liberalisation in a way that would mirror Western development.

This End of History thinking seen in Myanmar and China leads to poor judgement and worse outcomes, as the West, and particularly the US, are convinced that democratic rule is afoot by meagre and tentative evidence of democratisation. Their resultant support, economic or political, is often not only ineffectual (leading to an opportunity cost, where those resources could have led to better human rights outcomes elsewhere) but can also be harmful, as flooding a nation with resources can lead to the ossification of power structures, benefiting undeserving elites whom the potential democratisation might, at least theoretically, displace. Unless this thinking is combated and reversed - unless efforts are made to appreciate how the influence of culture exerts itself on government - misjudgments will continue to be made. Misjudgments will lead to worse human rights outcomes.

Photo courtesy of Matthew O'Shea, LLM International and European Law

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Political Rights, Development, and the Internet

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by Fadilah Salawu, SS Law

he relevance of the internet and social media in the 21st century is far from understated, as are the social and political implications of online communication.

These phenomena continue to be seen as a by-product of the translation of our activities into the online world, and as ‘traditional’ methods of communication, political engagement, and service provision remain the default in many circumstances, legislation is slow to keep up with online activity.

Despite slow-moving regulatory responses to recognising the changing times, the internet has revolutionised the world as we know it, making medical and educational access, financial transaction services, and humanitarian aid efficient and widely accessible in rural and urban areas alike.

The nature of online activity calls into question the implications it will have on human rights.

Referencing the Universal Declaration on Human Rights, it is apparent that internet access intertwines greatly with a range of human rights, such as Article 12’s right to privacy, Article 18’s freedom of thought, Article 19’s freedom of expression and Article 21’s right to political participation.

Beyond communication and data, however, there is room for a more nuanced reading of the role the internet plays, particularly in sustainable global development.

Development Goals and the Internet Article 28 of the Declaration entitles all individuals to ‘a social and international order in which the rights and freedoms set forth in this Declaration can be fully realised,’ making it incumbent upon states and international bodies to remain dynamic in harnessing the potential of all resources, including the internet, for global development and preventing human rights infringements. The United Nations’ Sustainable Development Goals, the core interdisciplinary framework for all member states to achieve greater equality, has enumerated an aspiration to ‘significantly increase access to ICT and strive to provide universal and affordable access to the Internet in least developed countries’ as part of its 9th Goal to 37 | The Eagle Volume 9 Issue 2

‘build resilient infrastructure, promote inclusive and sustainable industrialization and foster innovation.’

The overarching final Goal is for global partnership for the achievement of all other sixteen goals. The internet’s significance becomes clear once again; indeed, knowledge sharing, collaboration and coordinating efforts and mutual support are crucial elements of development projects which are facilitated with much greater ease thanks to the internet, and link very closely with the United Nation’s emphasis on triangular cooperation.

The Internet and Political Freedoms What do a tampered election, a social media blackout, and hateful mobs have in common? Constituting infringements on the rights to access information, freedom of assembly and the right to safety, they are interferences with human rights made possible by the power of the internet. From August 2019 to January 2020, citizens of Kashmir - a region steeped in conflict on the Indian subcontinent - were subject to a ‘blackout’ that was authorised by the government of India. This tactic, increasingly used by authoritarian governments, involves disabling access to internet and communication services with the stated goal of repressing protests and political demonstrations by groups and parties deemed unfavourable by ruling powers. This measure resulted in significant losses of lives and livelihood. Also stemming from India, violence in Karnataka and as far as Leicester was widespread in 2022 as the result of government failure to monitor and curb the circulation of hate speech online. The Hindu nationalist propaganda online ultimately led to incitement of violence.

Russia’s online interference with the United State’s election cycle was a significant matter of international law. Russia’s actions constituted a breach of the law of non-interference and an infringement on state sovereignty. More importantly, the implications of a widespread compromise of confidence and trust in the process of election proved disastrous to social order and the guarantee of rights to information and political participation.

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Advantageous Uses of the the Internet On a positive note, individual usage of the internet has drawn attention to the conditions of people living under state oppression such as the Uyghurs in China and Palestinians under Israeli occupation, enhancing free journalistic expression. Further, climate change activism has benefited greatly from the ability to organise online and empower activists with tools to research global and local climate-related developments. The internet has allowed for meaningful partnerships to form, which has led to increased development projects between actors in different parts of the world. Efforts to curb the spread of misinformation during the pandemic are an indication of the effectiveness of methods that can be taken by governments where matters of public health information and the protection of citizens are concerned.

Within the European Union, measures are increasingly being taken to combat child abuse, sexual exploitation, radicalisation and hate speech that take place on social media. Despite this, there is still much to be desired in terms of harnessing the internet’s equalising potential and enhancing digital democracy. Examples include offering language translation services to integrate communities, the exciting potential uses of blockchain in the provision of services for displaced people, extending education access to rural children, emergency helplines, and many more examples that would enhance the enjoyment of rights and increase human dignity.

The right to privacy and freedom of internet access has also been protected by the European Union via the Open Internet Regulation, which aims to ensure “freedom to access and distribute information and content, use and provide applications and services of their choice.” The United Nations has developed the Internet Governance Forum, however, this body lacks a ‘negotiated outcome’ but advises policy makers worldwide. These are examples of the recognition of the permanence the internet has in our lives, but a failure to adequately respond to it. While the implications of restricting access to the internet are potentially associated with authoritative restrictions on personal freedoms – surveillance and malicious data collection – bodies who have already committed to discussing matters relating to the internet should focus on its regulation. Given that in traditional mat-

ters of law, there has historically been a ‘trade off’ between rights and responsibilities, the digital world should not be exempt from regulations that serve to protect the rights of all users – protecting them from hate speech, fraud, and unlawful data collection both by their fellow citizens and by their governments.

As well as this, states and international groups should consider the immense influence of industries and founders of online platforms. Some platforms manage their services with guiding principles of responsibility and stewardship, such as WhatsApp’s commitment to allow access to their services during internet blackouts, and YouTube maintaining policies on what content can be monetised as well as redirecting users to regulated sources of information about COVID-19.

This is not enough. Companies such as TikTok and Instagram have been repeatedly under scrutiny for their inadequate methods of regulating content and censorship of political expression. Without third-party sponsorship or state influence, it is rare to find social media platforms whose algorithms encourage educational content that promotes social responsibility. Ultimately, profit-driven corporations prioritise engagement, so leaving matters of public protection and commitments to human rights to activists alone will remain insufficient. Given the influence of international bodies, urgent steps to regulate and harness the internet’s potential for good should be taken advantage of as soon as possible.

Waiting for litigation, social unrest and further grave fallouts from failures to prevent infringements of human rights that stem from internet misuse is not the way forward.

Conclusion Harnessing the internet for human rights gains is an area that is ever-blossoming. While it is difficult to envision the right access to the internet becoming a codified universal right due to varying stages of development in different parts of the world, the time has definitely come for protections against forceful disconnection and repression of pre-existing rights.

Demonstrating a commitment to development requires concerted efforts to support citizens in their ability to access education, healthcare and other services online, in order to continue trends of radical empowerment and the support that comes with being interconnected members of a global community.

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Human Trafficking: A Global Perspective

by Sarah Murnane, JS History and Political Science Editor's Note: This article discusses sexual exploitation, which some readers may find distressing

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n 30th December 2022, notorious internet celebrity Andrew Tate was arrested by Romanian authorities on charges of human trafficking and rape. Tate’s arrest has brought the topic of sex trafficking to the front pages of the news and public discourse, primarily due to his online following, having amassed over 11 billion views on TikTok. Yet Tate is just one man in a complex global network of sex trafficking.

The International Labour Organisation estimates that there are 24.9 million victims of human trafficking worldwide, with 4.8 million of those cases specifically linked to sex trafficking. Generating an estimated $150 billion annually, sex trafficking is a major source of global revenue. Notably, women are disproportionately affected by sex trafficking and make up 90 per cent of cases.

The internet has contributed to the global problem of sex trafficking - not only does it provide criminals with assured anonymity, but it makes finding, locating and profiting from sex trafficking easier and more accessible.

Human and sex trafficking causes serious violations of human rights. There is no specific article that targets human trafficking within the Universal Declaration of Human Rights (UDHR). A combination of various articles create the basis for regarding trafficking as an infringement on an individual’s human rights. Specifically, sex trafficking is regarded by the UN as a breach of Article 3 and 4 UDHR regarding a person’s right to liberty and freedom from slavery or servitude. On this basis, the UN has established multiple conventions specifically targeting human and sex trafficking. The Convention for the Suppression of the Traffic in Per39 | The Eagle Volume 9 Issue 2

sons and of the Exploitation of the Prostitution of Others was approved by the UN General Assembly in 1949. However, only 74 countries ratified or adopted parts of the convention. It was not until 2003 that a second updated convention was approved: the United Nations Convention against Transnational Organised Crime and its three Optional Protocols. The main purpose of this convention was to prevent, suppress and punish trafficking in persons. This convention was ratified by 103 states, significantly more than its predecessor. It outlines human trafficking as a crime that engages three elements: act, means and purpose.

Despite this, it remains a major global issue and the number of people subject to human trafficking continues to grow year on year.

There appear to be three main issues surrounding the successful implementation of human trafficking laws.

The original issue that arose in 1949 surrounding the Convention was the incompatibility with existing laws within states. Many countries did not have any laws or mechanisms to target trafficking. The US introduced its first anti-trafficking laws in 2003 in Washington and Texas, and France and Germany did not implement anti-trafficking laws until the 2000s.

This leads to a second issue with the UN conventions, where their content tends to clash with state laws on prostitution. According to the Global Network of Sex Work Projects in 2021, the vast majority of states globally have laws criminalising sex work that can penalise both buyer and seller. Even in cases where sex trafficking is recognised and the perpetrators are prosecuted, the victims can also be charged. This not only makes it extremely difficult for victims to come forward to law enforcement, but also highlights the pitfalls of the recent UN convention in 2000 to effectively address the differences between prostitution laws and sex trafficking. Due to these problems, National Programme Officer for the UN Office on Drugs and Crime, Foo Yen Ne, criticises the Convention as too ambiguous in its definition of

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human trafficking, and particularly sex trafficking in her 2018 article, Human Trafficking: In the Shadows of the Law. A major issue with the Convention is it does not address the intersection of migration, smuggling and trafficking. According to Professor Lansink’s 2006 article, Human Rights Focus on Trafficked Women, the majority of known women who are trafficked make the decision to migrate, and are subsequently taken advantage of by traffickers. These decisions are normally due to extreme poverty, discrimination, or unemployment in their home countries. In the 2003 Convention, a government-to-government process decides if these women were extradited or not and no safety or support is guaranteed to them, which is ongoing. These core issues with the UN Convention lead to internal problems within states when trying to deal with trafficking.

A problem that leads on from these broader issues is the identification of victims. The victims of trafficking are unlikely to report their situation to law enforcement due to a number of factors. Victims of human trafficking tend to come from disadvantaged backgrounds and in many cases, are isolated from others except for their trafficker leading them to develop a trusting relationship. Fear is also a significant component in the decision to come forward about trafficking - either due to fear of retribution or being caught by the trafficker, or fear of deportation being charged by police. Law enforcement can also find it difficult to identify trafficking. This could be due to lack of training and lack of understanding of the laws and what constitutes sex trafficking.

The internet has also contributed to the worsening problem of sex trafficking globally. Not only does it provide criminals with assured anonymity, but it makes finding, locating and profiting from sex trafficking easier and more accessible. Using the internet for sex trafficking is incredibly lucrative for traffickers. It is estimated that the US pornography market, including both online and traditional forms, will be worth $1.1 billion in 2023. However, the internet can also be used by law enforcement to track and monitor suspicious behaviour and to compile evidence. In recent years, governments have begun to enact laws targeting images and content regulation

online. For example, Ireland has enacted the Child Trafficking and Pornography Act 1998, prohibiting the use of children in the production, dissemination or possession of child pornography. In 2021, Ireland also criminalised image-based sexual abuse in the Harassment, Harmful Communications and Related Offenses Act 2020. This specifically targets the censorship of intimate images uploaded on the internet without the individual's consent. Individual pornographic sites have made attempts to regulate their content, such as PornHub’s new regulations in 2020 which introduced stronger screening processes for videos uploaded to the site. Despite the existence of these laws, the nature of the internet does not allow for extreme regulation of content and it may be difficult to fully remove or control images once they are published. This leaves people who have been subject to sex trafficking in extremely vulnerable positions when it comes to content on the internet.

It remains the responsibility of individual signatory states to the 1949 and 2003 Conventions to implement and enforce domestic human trafficking policies. Human trafficking is a widespread issue that requires more attention and resolve from countries and intergovernmental bodies to effect both crime prevention and the prosecution of criminals. There are specific areas, such as internet pornography, where countries and international bodies have not begun to target or fully enforce laws and regulations.

Nonetheless, positive efforts have recently been made to prevent sex trafficking. In Ireland, the Department of Justice spent just under €100,000 in 2021 towards developing and helping those affected by trafficking.

The US spent around $87 million in the same year.

Ultimately, effective policy frameworks are needed to prevent traffickers from profiting from this heinous crime and to protect victims by ensuring they have accessible information and safe spaces.

Photo courtesy of Matthew O'Shea, LLM International and European Law

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41 | The Eagle Volume 9 Issue 2 Photo courtesy of Ciara Hogan, JS Law and Political Science

Interviews

Interview with Peter Sheekey

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by Emma Bowie, SS Law and Editor in Chief

eter Sheekey is the founder and CEO of the Intercultural Language Service (ILS), an awardwinning social learning school based in Ballybough that offers targeted English language training, social orientation, and intercultural activities for asylum seekers and other migrants who are new to the Dublin community. Emma Bowie speaks to him about the motivation behind ILS, the importance of promoting the “right to speak,” and raising intercultural awareness in Dublin.

Q1: After completing a masters in English Language Teaching and pursuing a PhD in Applied Linguistics, you founded the Intercultural Language Service in 2015.

What inspired you to establish this charity?

The Intercultural Language Service (ILS) is more of a social learning place than a traditional language school. What was coming out of the research I was doing in Trinity was isolation among migrants. I was studying long-term migrants rather than refugees, but certain social barriers are experienced by both groups, not only because of language difficulties, as some of the people I worked with had great language capabilities, but because of the lack of settings in which to use that language. They are under great pressure socially, in terms of accessing education, health, social services … learning about that isolation prompted me to set up a space where people can meet and learn English, and also socialise and build social networks.

Q2: What formal language and integration supports does the Intercultural Language Service provide for asylum seekers and other migrants?

Where we differ from what is classically termed as a “language school” is we are open-ended, so people can attend for as long or as little as they wish. ILS is a drop-in centre, so that helps people who are perhaps struggling with time and can’t commit to a full-time or even a part-time course. Our curriculum is flexible

and is what we call a “real world” curriculum, meaning that it is based on tasks people have to perform in their daily lives: explaining your symptoms to a doctor, reading a landlord’s letter, being able to chat and hold a conversation socially. It is really the nuts and bolts of what we take for granted in everyday life, and that language is what enables people to survive in their new environments.

Linguistically, the curriculum has been designed to focus on their needs, whereas in other language schools, they are focused on learning about the language. We are focused on real-world communication.

At ILS, the curriculum is divided into 3 pillars: the social pillar, which deals with learners’ identity, their social life, where they live, who they are; the public sphere pillar, dealing with public officials, doctors, bankers – they go through a lot of bureaucracy, almost a never-ending stream of bureaucracy in some cases, and it is hard enough, even if you are familiar with the language; and the world of work pillar, helping to compose CVs, what happens in an interview, all of those things we deal with. On top of that, we also would be talking to them about the social and cultural life of Ireland, music, the arts, if they are at a level that they can discuss these. We also do visits to cultural sites to back that up, so they get a sense of belonging. Language and culture are inseparable; traditionally, language has been taught as something abstract from culture, and in many instances you learn the nuts and bolts of the language only. We see the language as married to the culture, and we teach them together.

Language and culture are inseparable; traditionally, language has been taught as something abstract from culture, and in many instances you learn the nuts and bolts of the language only. We see the language as married to the culture ...

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Q3: In your experience, what post-arrival challenges encountered by migrants and asylum-seekers are most exacerbated by the language barrier?

There is something beyond the obvious social and economic barriers of education, employment, ecetera which is called “the right to speak.” Quite often, I see it among our cohort [of learners], that a person may have the linguistic tools, they may be quite advanced, yet still be afraid to speak in specific situations. That lack of confidence - part of that comes down to the ‘right to speak’ and ‘the right to be heard.’ It comes from a deficit position. People look upon people who are struggling in a language or who are not perfectly proficient in English as somehow deficient, when in fact, some of these people can speak four or five different languages! I’ve seen this situation happen where a native will speak to a migrant, and a migrant doesn’t understand, and instead of understanding the situation, the native will just speak louder … and some of [these behaviours] are subconscious, but what we try to work on is [migrants’] right to be heard, and for them to claim the space in the community, in their interactions. A lot of language learning comes down to not just having the tools, but having the confidence to use those tools and claim those spaces.

This has come up a lot in my research – that when people have moved to another country, they have a sense of dislocation - mild or strong or in between.

What happens is, we imagine that these people can rely on their heritage communities - the idea that all the Poles are helping the Poles in Ireland, for example - when this is not always the case. In my research, what came up is that migrants are also often dislocated from their heritage communities – they are in what we call a “double dislocation.” It is a really tough place to be, where you are not getting the support of the host community, and you are not getting the support from the heritage community, which you imagine should be the case. That is another big thing with the right to speak, and that dislocation is what we are trying to mitigate against at ILS, with a certain amount of success I think.

Q4: Successful integration has been consistently defined by the Department of 43 | The Eagle Volume 9 Issue 2

Justice as “the ability to participate to the extent that a person needs and wishes in all of the major components of society, without having to relinquish his or her own cultural identity.” How does ILS enable asylum seekers and other migrants to engage with and participate in Irish society, without compromising their own cultural identity?

This is a very important thing. The word ‘integration’ itself has come under scrutiny – I was at a conference recently, and one of the delegates requested that we not use the word integration, reckoning that he is not a ‘product’ to be ‘integrated.’ That is quite a strong position to take, but I suppose ‘participation’ is a better word, because in participation, you do not need to relinquish anything … We encourage the intercultural part of our [language-learning] cohort in the sense that we value their cultures. We are doing this more and more through poetry events, at which migrants read poetry in their mother tongue, followed by a short text in English. We are producing a multilingual poetry book based on these events called ‘Dubylon’ (as in ‘Babylon’). We received a grant from UNESCO to produce this, and it will tie their experience to their experience in Dublin, using poetry, translations, and mixed language pieces to show that interculturality. This is something that is so important - showing migrants that their cultures are valued and displayed. When I am training teaching volunteers, I ask them not to stop learners using their own language when they are using it to negotiate what is happening in the learning space, as they will often help each other if they share the same language, and we value that.

I have a plan for an initiative called ‘Turning the Tables,’ where our learners will come into our classrooms and teach us about their culture and language. It would be beautiful for the community as well … giving people from different ethnic and cultural backgrounds a taste of their own culture and traditions. That is the kind of thing we should be aiming for, because if we say to migrants, ‘We are the dominant culture, you need to learn all about us and our language,’ without valuing what they have in return, it’s not an equal exchange, and can produce

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negative effects. If you value someone’s culture, it gives them so much more reason to be there and to participate … a level playing field is very important.

For years, this has been something we have been trying to address, particularly through our intercultural activities and events. We can show Irish society, look how diverse this community is, look at the richness here, they have poets, musicians, and directors, as good as ours! And it is something we explore with our learners - we ask ‘who are your poets, who are your musicians?’ And who isn’t proud of what their country produces in terms of culture?

That emboldens them, and again, enhances that right to speak and right to be heard.

Q5: How can Trinity students get involved with and support the work of ILS? We have had many students in the past coming from Trinity and some gaining great experience and going on to actually work in the sector. Students can contact me at dublincityilc@gmail.com and come to ILS, sit in on the classes and find out if it suits them or not.

We don’t ask anybody to sign up, we ask them to observe, get a feel for it, and see if it is something they would like to do … It is an incredibly enriching, rewarding and two-way experience. You are not going into ILS to “help the poor migrants” – our classes are table based, so everyone is sitting around a table, everyone is equal, and that creates a really democratic situation.

Our core classes are Monday, Tuesday, Wednesday morning from 10am to 12pm. As a student you can come along, tell me that you’re interested, we’ll have a chat, and I will place you at a table and I say have a taste! There is always a theme or topic to each class, such as health or housing, and we have an open curriculum which is available on our website. We don’t focus on grammar, but if it is blocking communication, we will deal with it. Some tutors do teach grammar at the higher language levels, but generally, the focus is communication.

Generally, anyone with a drive, a desire to communicate and learn about other cultures can get involved with ILS. We provide ongoing training, formal and informal mentoring, and we are actively recruiting as we find ourselves in this situation where there are a lot of refugees coming in [to Dublin]. The ILS building is located in Ballybough in Dublin 3, so nearby we have East Wall, there is another group near Croke Park, and another in Richmond Street. We have these people who are isolated – they have nowhere to go and nothing to do – so the language classes are a way for them to get out. Our waiting list is extraordinary, so we are looking for volunteers to work with groups from East Wall.

We would really like to provide a service for those people, a place where they can meet up and do the activities that I mentioned above.

ILC's multicultural 'Boetry in Motion' event at community and arts festival Phizzfest, 2022

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Interviews

Interview with Professor Colm O'Cinnéide

by Ciara Hogan, JS Law and Political Science

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Photo courtesy of Matthew O'Shea, LLM International and European Law

olm O’Cinnéide is a professor of constitutional and human rights law at University College London.

He graduated from University College Cork in the mid-1990s and later the King’s Inns. He went on to become a legal advisor for two years in the House of Lords, working with Anthony Lester, Lord Lester of Herne Hill QC. From there he made his way into academia. He has acted as specialist legal adviser to the Joint Committee on Human Rights and the Women & Equalities Committee of the UK Parliament, and advised a range of international organisations including the UN, ILO and the European Commission. He was also a member of the European Committee on Social Rights of the Council of Europe from 2006-16. Ciara Hogan speaks to him about his varied career path, the status of the Human Rights Act 1988 post-Brexit, and constitutionalising socio-economic rights.

Q1: When you were a legal advisor in the House of Lords what sort of matters did you advise on?

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It was an interesting time in the UK [when I started working] because the Tony Blair government - the New Labour government - had come to power in 1997. There was a wholescale constitutional reform package, devolution, the introduction of the Human Rights Act (HRA), and there was a wholescale transformation of UK equality law, linked in part to EU directives … I worked for Anthony Lester, Lord Lester of Herne Hill, who was a liberal democrat life peer. [He was] very famous for being a leading human rights barrister and the architect of 1970s antidiscrimination legislation in the UK, [such as] the Sex Discrimination Act over there and the Race Relations Act, which was the template for much of the EU legislation that spread out across Europe. I was working directly for him and we were advising on government law reform proposals. My job involved writing amendments to legislation, advising parliamentary committees, advising ministers in a slightly arms-length way - because technically we were the opposition and he was an opposition peer but there was a very close working relationship with

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the government of the day. [We were also] dealing with the Human Rights Act coming into force, the EU Charter of Fundamental Rights, the text of which had just been agreed. So there was a lot happening and my job was to provide advice in relation to that. It was an interesting experience.

Q2: Did working in that environment inform your choice to get into academia in relation to human rights or was that always something you wanted to do?

I was always interested in ideas and the debate around ideas and how law could change. But working in Parliament was actually quite a specific experience, because of course as lawyers, you're trained up, you do your law degree … and your focus is very much case-focused: case law development, supreme court decisions, high court decisions. It is very, very interesting suddenly working in Parliament and dealing with law as it is being made and dealing with the law-political interface … There isn't a clear-cut political-legal divide but you often have debates about what the law should be, which is obviously heavily impacted by what the law is, and by considerations of what the law should be, and that particularly interested me.

[T]here was a lot of rhetoric in 2016 that leaving the EU would automatically lead to human rights breaches and I was always quite sceptical about that.

I had done King’s Inns previously and in my head, I was probably going to become a barrister, and there is a bit of me that wonders whether I should have become a barrister. But I enjoyed the debate … thinking about law in creative ways, and also this idea of shaping law to some extent, and of thinking about law in a way that wasn't caught in a court-centred context. So I applied for various academic jobs [and] was hired by UCL, which is a really excellent law school … I should say that is quite an unusual route into academia. I have not, for example, done a PhD, which makes me vanishingly rare now in academia.

I'm probably one of the last generation of people hired who haven't done a doctorate. UCL decided that my work in parliament had given me a sort of unique

skill set that could be treated as the equivalent to a doctorate, so they took the risk of hiring me, which I like to think has paid off ever since.

Q3: A lot of law students get into law with the intention of ending up in a human rights-focused area of the law, but this is often portrayed as a bit of a “pipe dream”.

Do you think that is true, and do you have any advice for law students with these kinds of aspirations?

I have worked quite closely with barristers, with NGOs, civil society groups, and others over the years in an advisory capacity. A couple of things about the human rights career route option: It is true that there are very, very few jobs out there that come with a clear human rights branding … But I think often the key is to think beyond the human rights label.

Multiple areas of law now are closely intertwined with human rights … all of employment law can be viewed as linked to human rights issues, migration law in general, immigration and asylum law, social welfare law, housing law, all these multiple areas of law … are all concerned with human rights issues.

They just don't come with the human rights branding but in these areas of law, you are often at the cold face. I think that is quite important to bear in mind.

We sometimes conceive of human rights in too narrow terms. I think that's certainly true with students coming out from university and so on.

Q4: You've worked as a legal advisor to the Joint Committee on Human Rights in the UK and you've pointed out the risk of human rights standards being eroded in a post-Brexit United Kingdom. In light of the UK government's recent efforts to replace the Human Rights Act of 1988 with a “Bill of Rights,” do you think that we're seeing that risk materialise?

Yes we are, but it’s not necessarily directly linked with Brexit. I pointed out at the time of Brexit that [it] was potentially neutral in human rights terms … there was a lot of rhetoric in 2016 that leaving the EU would automatically lead to human rights breaches and I was always quite sceptical about that. I felt that The Eagle Volume 9 Issue 2 | 46

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was an exaggerated range of political-legal claims.

Everything was going to depend on what happened after Brexit, on specific political-legal decisions about specific aspects of the law. That’s what has materialised, and Brexit itself hasn't directly led to substantial human rights issues, even though there have been issues in relation to the treatment of EU nationals still resident in the UK - complex, messy issues there. But I think what perhaps has been more concerning has been the indirect impact of Brexit how it has lent fuel to longstanding resentment at the prominent role played by the European Convention on Human Rights, ECHR law within UK law, through the Human Rights Act. It has lent extra energy to calls for the UK to amend or repeal the Human Rights Act, or even for the UK to leave the ECHR, as a few prominent conservative politicians have argued for.

Indeed, it is likely that their Bill of Rights which repeals and re-enacts the HRA with significant dilution of rights protection…will soon be reintroduced in the parliament which will begin the debate around these issues again.

Q5: In what particular areas do you see rights being diluted?

The UK, lacking a written constitution, is very dependent on the ECHR to provide its equivalent to constitutional rights protection in Ireland … So what the government of this new Bill of Rights proposal is trying to do is effectively weaken the connection between Strasbourg jurisprudence and UK jurisprudence. If it becomes law, it will impose limits on the extent to which the UK courts can follow new developments in Strasbourg jurisprudence. It will limit their ability to apply Strasbourg case law in areas like positive obligations, when the state is under a positive obligation to do something to ensure that individuals enjoy convention rights. It will also introduce a sort of “good character” test - claimants, [to get a remedy], must show that they have behaved themselves in a way, which is very uncertain legally.

The proposed bill is a real mess … It will certainly weaken rights protections in the UK and will almost certainly lead to greater conflict between the UK as a legal system and the Strasbourg court … The UK at the moment loses very, very few cases in Strasbourg since the Human Rights Act was introduced. The chances of that increasing will greatly go up if the new Bill of Rights is enacted. That in turn will accent47 | The Eagle Volume 9 Issue 2

uate political tensions between the UK and the Strasbourg court, leading potentially to a sustained degree of instability.

The UK at the moment loses very, very few cases in Strasbourg since the Human Rights Act was introduced. The chances of that increasing will greatly go up if the new Bill of Rights is enacted.

Q6: Do you see the Human Rights Act as the “way to go” or do you think there is a general framework that could better protect human rights in the UK? That is an interesting question. There are three schools of thought about the Human Rights Act. One says: "Get rid of it: it gives too much influence to foreign jurisprudence…Let's just develop our native common law rights protection mechanisms.” There are a few problems with that: Convention jurisprudence has been a part of UK law for twenty years, UK law is already impacted by Convention jurisprudence, and common law rights jurisprudence is really thin and vague … The second school of thought says: “Keep the Human Rights Act … it's served us well for twenty years. The Good Friday Agreement says the Convention rights have to be incorporated into Northern Irish law, let's just keep the Human Rights Act.” That gets quite a lot of support … it's probably the majority position among legal experts. There is the third school of thought that sort of says: “We will try and fiddle with the Human Rights Act, try and adjust it in some way,” and that is what the government is sort of fumbling towards they're just doing quite a bad job with it.

There are sometimes discussions of a possible fourth path, which comes from a recognition that the Human Rights Act incorporated the Convention into UK law.

That means UK human rights law is very dominated by the Convention instead of native homegrown laws… [Proponents of this approach] would say: “We will keep the human rights act but actually have a separate UK rights framework.” … [This group] will argue that the UK should have a whole new bill of rights of its own, similar to the rights set out in the

Interviews

Irish constitution. Lots of people talk about that as an option. It is very, very difficult to see how that could ever politically happen, how you would get an agreement. Especially since UK politics is so divisive at the moment ... In an ideal world, you'd probably go for that fourth option … but frankly, it's never going to happen, or at least it's not going to happen absent some radical political transformation.

Q6: You've written about the gap in the Irish Constitution in terms of its social dimension and made comments about the issues associated with constitutionalising social rights. What are your views on the best ways to adequately protect social rights, not just in the Irish Constitution but generally in legal systems like Ireland with resilient constitutions?

I should begin by saying that I was vice-president for a number of years of the European Committee on Social Rights which is the expert body in the Council of Europe that interprets the European Social Charter, which is the social rights instrument of the Council of Europe … So I've had lots of experience in looking at social rights adjudication, looking to see how social rights should be interpreted, what might constitute a violation of a social right, what states should be doing that's better. I tend to argue in favour of social rights as a category of human rights … I do take the view that they should be legally recognised, that there is some value in having recognition of their importance.

Part of that value is to correct the inevitable imbalance that comes into a constitution if you recognise things like property rights … But of course, social rights are difficult: they can be very, very difficult to implement. They require funding decisions, they require administration decisions.

Whereas I argue they should be constitutionalised, I also think that judges need to tread very carefully in applying them. So I sort of take a view that they should be constitutionalised as part of the constitution package but they also should be recognised as involving quite light-touch judicial review. The court should only intervene in cases of clear and manifest breaches of such rights …

I also think, as I said, recognising constitutional social rights acts as a balance in some ways against prop-

erty rights, for example. And also it can play a useful political role in sort of influencing and steering political debate. When de Valera drew up the 1937 Constitution, it contained directive principles …

[T]he problem is that our directive principles are nonlegally enforceable, so everyone ignores them. They [also] basically have no purchase in political debate, no one takes them seriously. In fact, a lot of their wording is frankly outdated … But I think there is something to be said for going back to that original project … because we've seen a sustained period where the state basically said: "We're not really that interested in social matters, or at least we'll provide the basic welfare state but we'll let the market handle everything.” … You reach the stage where that's no longer sustainable, even if it ever was a good idea in the first place … And I do think there is room for constitutionalised social rights to maintain a degree of, at the very least, political pressure in that regard, to be a focus for debates in the Oireachtas, public discussion, and so on.

Q7: Would you have any countries in mind that are doing this right, that Ireland could look to as a model?

Yeah, Germany has a concept - the social state - it’s basically the concept that [the state] is committed to a certain level of state provision for its inhabitants.

Article 20 of the German Basic Law says that Germany is a federal, democratic, social republic, and the "social'' there isn't just an accident. It's supposed to reflect this idea of the social state. And it does mean for example, that the German courts will in certain circumstances assess the adequacy of welfare payments for particular cases...They'll look at the reasonableness of state-decision making in certain areas of housing provision for example, albeit subject to this usual doctrine that they will only interfere when there is a clear and manifest failure to give effect to these constitutional principles … We expect constitutions to perform a legal role but also a symbolic, political, rhetorical role and I think that social rights, the concept of the social state, has some part to play there. This is by the way true of most continental European countries, which most people don't realise I think in the English-speaking world.

What I'm advocating isn't terribly radical or revolutionary - it's actually the norm in most, certainly Western European states.

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Interviews

Q8: We’re seeing big changes in recent years in the global world order, with phenomena such as the rise of populism and nationalism playing a big role. How do you think that human rights law, the courts, and supranational organisations, many of which you have been an advisor to, are responding to this evolution?

That's a really good question, a really big question.

I'm writing a paper on all of this and I'm trying to get my thinking in order on it. I think there’s two separate sets of challenges coming in. One set of challenges [relates to] the pressure on human rights institutions to address democratic challenges, and by "democratic challenges," I’m meaning that in a very broad sense, including populist pushes at national level, right-wing or left-wing. I mean challenges that come from political parties at national level, challenging the development of international human rights law, challenging institutions like Strasbourg … like the EU and the Court of Justice of the EU when they do “human-rightsy” things, challenging the views of UN special rapporteurs. You're increasingly seeing these challenges framed in terms of the democratic challenge, the "Who are you to be telling us what to do at national level?” A lot of the human rights framework was developed in an era when there was quite a lot of consensus that things like the ECHR … [and] the EU governance structures were a good thing and that UN human rights committees should be respected. We now live in an era where a lot of that is up for grabs. Human rights institutions are facing real challenges in that regard ... some of it [based] in very real issues, asking "What is the source of your authority? Why are you justified in making these decisions?" I think that is quite a profound challenge, one that human rights institutions have to take very, very seriously.

At the same time, the need for human rights law, and the need for international dimensions to human rights law remains as strong as ever, as does the need for those dimensions to keep on changing and evolving.

International human rights law at the moment says very little about climate change. That obviously has to change, if only because of the impact of climate change on individual lives. Human rights law for years actually hadn’t much to say about equality, 49 | The Eagle Volume 9 Issue 2

funnily enough. It was mainly focused on individual liberty … [H]uman rights law needs to start talking about global patterns of poverty and exclusion, and the world order in general. The challenge is how to maintain legitimacy in the face of really quite serious legitimacy challenges, at the same time while changing and evolving to reflect the very, very difficult global challenges we face. I think that's a difficult tightrope to walk … But it's also necessary.

International human rights law still remains a necessary and important part of the international ecosystem, precisely because it is in many ways better placed to respond to these global challenges than a lot of decision-making at the national level.

[Human rights law] was mainly focused on individual liberty … it needs to start talking about global patterns of poverty and exclusion, and the world order in general.

Q9: Do you think this issue is quite an urgent one? If so, are these organisations equipped to respond in a manner that is in line with this urgency?

It's difficult. The European Court of Human rights is getting climate change litigation now coming into it where claimants are looking for decisions by the Court that state failure on climate action violates [the] right to life, violates Article 3 on inhuman, degrading treatment, violates privacy and family life rights under Article 8, violates non-discrimination rights under Article 14. This is all coming into a court that is facing a lot of legitimacy challenges; a lot of politicians [are] shouting: "the Strasbourg court needs to be reigned in." At the same time, you have claimants going:"All of this is a genuine human rights issue". The same problems confront the UN human Rights Expert Committees. Do they have the capacity to respond? I think they do. For example, the UN Human Rights Committee had a really interesting and I think compelling decision recently about how climate change was impacting aboriginal and Torres Strait islanders in Australia … It's precisely in these evolving areas where actually their legitimacy might be at their [sic] greatest, in a funny sort of way. But it's a time of considerable pressure.

Interviews

Q10: As a final question, what do you think are the imperative human rights law issues of today in a few words?

Okay. Climate change. Social rights and the social rights-equality interface - a lot of government decision-making in this area is almost immune from legal challenge. The Irish government will get in more trouble over its planning laws than it will when it comes to its disability access policies … Then thirdly, wider issues of global justice, which are linked to climate change and which the next 50-100 years are going to bring forward very very starkly.

These are challenges which are all sort of linked together in some ways and that is where the action is going to be, in my view.

Human rights institutions are facing real legitimacy challenges ... some of these [rooted] in very real questions, such as, "What is the source of your authority? Why are you justified in making these decisions?" I think that is quite a profound challenge.

Matthew O'Shea, LLM International and European Law

Ciara Hogan, JS Law and Political Science

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Law School Life

State Responses to Historical Child Protection Concerns: Has Ireland owned its Past?: A Presentation by Professor Conor O’Mahony

by Síofra O'Donoghue, JF Law

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From left to right: Isabelle Healy, Managing Editor TCLR; Professor Conor O'Mahony; Georgia Dillon, Chairperson of Trinity FLAC; Hugh Gallagher, Editor in Chief TCLR

n 22nd November 2022, Trinity College Law Review and Trinity FLAC welcomed Professor Conor O’Mahony to the GMB for a presentation entitled “State Responses to Historical Child Protection Concerns: Has Ireland owned its past?” Professor O’Mahony is currently a full-time professor in the School of Law at University College Cork. He is also the Director of the Child Law Clinic in UCC, where he works to support litigation concerning children and advocate for law reform in related areas. In 2019, Professor O’Mahony was appointed by the government as Special Rapporteur for Child Protection. Over the course of his term, he published a report on illegal birth registration which highlighted State awareness and inaction in this area.

Professor O’Mahony’s talk focused on three key issues pertaining to historical child protection con 51 | The Eagle Volume 9 Issue 2

cerns - sexual abuse in schools, Mother and Baby homes, and illegal adoptions. Prior his discussion of these issues, O’Mahony highlighted the fact that his talk would have additional relevance, due to the recent revelations concerning sexual abuse in Irish primary and secondary schools. The themes of denial, delayal and division were consistently emphasised by O’Mahony - themes that are the common denominators of the State’s response to its failings.

Professor O’Mahony began by examining the State’s response to sexual abuse in schools. In respect of revelations and litigation, he noted that this topic dates back to the 1970s with the case of Louise O’Keefe, which came to light in the 1990s.

O’Mahony discussed how the State attempted to relieve itself of any responsibility, arguing that schools are managed by private organisations such as

Law School Life

religious orders. O’Keefe lost her case in the High Court and the Supreme Court, but managed to secure victory in the European Court of Human Rights (ECtHR) The ECtHR ruled that the State has a positive obligation to stop abuse at the hands of private actors, as the State handed over control without appropriate safeguards being implemented.

Professor O’Mahony then turned to parse the redress scheme that was put in place in the O’Keefe case, which he characterised as inherently defective. To be eligible for redress under the ex gratia scheme, an individual had to demonstrate that there had been a prior complaint of sexual abuse before their own abuse took place. He highlighted the particular defects of the scheme, including the fact that the scheme had no powers of discovery that could enable them to compel religious orders to hand over records.

The themes of denial, delayal and division were consistently emphasised by O’Mahony themes that are the common denominators of the State’s response to its failings.

By 2019, no survivors had received compensation, which O’Mahony noted had a significant retraumatizing impact for those who were abused. In addition to this, the redress scheme announced on the 22nd July 2021 is woefully inadequate, as a person could only receive compensation if they had brought an action against the State by the 1st of July 2021.

There was no legal basis for this decision and once again, the scheme excluded many of those who had been abused.

The second issue that Professor O’Mahony examined was the Mother and Baby Homes Report. He focused on the significant shortcomings of the report, including the fact that no responsibility was attributed to the State or the Church, instead inferring that society at large was at fault. The report was conspicuous of any absence of human rights law, and despite the fact that human rights principles were listed in one chapter, this was not applied to any facts.

Furthermore, the Commission made a finding that

there was no existence of forced labour in Mother and Baby Homes. This was on the grounds that the work in question was not commercial, and would be done at home anyway, which was refuted by Professor O’Mahony. He argued that there was apt evidence to support that the definition of forced labour had been met; in the case of Siliadin v France (2005), the ECtHR ruled that work did not have to be commercial in nature to meet the definition of forced labour.

Professor O’Mahony also spoke about the theme of delay, which was evident in the implementation of the redress scheme, which took a year and a half. He also highlighted that the theme of division was particularly pertinent - it was necessary to have spent more than six months in a Mother and Baby Home in order to be eligible for redress, which left a substantial number of victims without any remedy.

Thirdly, Professor O’Mahony turned to the issue of illegal adoptions, another area in which the State’s shortcomings are apparent. He stated that the Adoption Board was clearly aware of this issue in 1992, as it was openly admitted to by St Patrick’s Guild in meetings. This issue came into play again in 1996, when it was apparent that documents had been falsified in adoptions. The Tressa Reeves case, he highlighted, truly demonstrated the failings of the State. Despite the adoption board being acutely aware of this case from 2001, Reeves’s son was not contacted until 2012. Professor O’Mahony stated that the EU and UN have consistently called on Ireland to address this contentious issue, but the State has been slow to act. The terms of reference of The Birth Information and Tracing Act 2022 explicitly exclude any reference to redress. In O’Mahony’s report on illegal birth registration, published in his capacity as Special Rapporteur, he recommends the implementation of a Truth Commission Model, drawing on the models of Canada and South Africa.

A truth model, he explained, would champion a survivor-led approach, as opposed to a conventional inquiry or investigation.

To conclude, O’Mahony reiterated the common patterns of denial, delayal and division that are evident in the State’s response to historical child protection concerns. Professor O’Mahony reinforced the message that, in order to truly “own its past,” the State must avoid making the same mistakes over and over again when dealing with victims of abuse.

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Law School Life

Karen Kenny Intervarsity Moot 2022: Housing, Locus Standi, and Advocacy

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by Hugh Gallagher, SS Law and Political Science

ith a series of moot-related puns delivered by Trinity FLAC’s incomparable Moot Convenor Jennifer Salmon, the grand final of the Karen Kenny Intervarsity Moot was underway. Organised in collaboration with our fellow student FLAC societies, the case of Friends of the Homeless Ireland v Minister for Housing, Local Government, and Heritage received its full public hearing. Amy Murray and Scott Dunne from TUD, acting for Friends of the Homeless Ireland, faced off against Ciara O’Reilly and Rachele Ardiff from Trinity, acting for the Minister for Housing. In the hallowed halls of the GMB Chamber, our advocates set out to tackle thorny questions of public law with the potential to shake the foundations of the State.

This moot (the first of Trinity FLAC’s annual moots) is named in memory of Karen Kenny, one of the founders of Trinity FLAC. After completing her studies in Trinity, Kenny became a human rights activist and academic. She served as a UN Human Rights Advisor in peacekeeping contexts and worked as part of the Security Council’s Commission of Experts as a war crimes investigator in El Salvador, former Yugoslavia and Rwanda. In 1995, alongside Brian Mckeown of Trócaire, she founded the International Human Rights Trust, which specialised in the integration of human rights to the framework and policy surrounding peacekeeping, development, and humanitarian action. Upon McKeown’s retirement in 2003, the Trust developed into the International Human Rights Network. Karen passed away in May 2015, aged 49. Each year this competition is a reminder of her impact and deep commitment to defending human rights.

The subject of the moot was twofold; if a right to housing could be found within the Irish Constitution and relatedly, if Friends of the Homeless had the requisite locus standi to advance such an argument.

Our judges for the evening, Professor Gerry Whyte of Trinity College Dublin and Christopher McCann of FLAC’s Traveller Legal Service, are deeply familiar 53 | The Eagle Volume 9 Issue 2

with this area. With housing as a primary area of interest within their work and a commitment to leveraging law to advance often marginalised interests through public interest litigation, they were a fitting pair to adjudicate on these issues.

As the oral submissions began, the exemplary standard of both teams shone through. Amy Murray from TUD began detailing the proposed existence of a right to housing within our constitutional order. She opened with an argument echoing Jessie Hohmann’s detailed work on the theoretical substance of a right to housing. Murray relied on a derived rights formulation, pointing to the various constitutional articles and recognised rights to suggest the inherent existence of a right to housing. She detailed the interplay between housing, privacy, bodily integrity, and the broader constitutional protection of the person. Threading these together through the constitutional value of human dignity, Murray produced a compelling vision of a right to housing grounded in the capacity of the individual to participate in society and enjoy inter-related rights.

The right would principally be a constitutional standard against which policy was measured i.e. ensuring access to and receipt of adequate housing for those in extreme need.

Her co-counsel for the appellants, Scott Dunne, addressed the issue of standing. He began with a detailed analysis of the fundamental purpose of the rules on standing which on his submission were designed to weed out unmeritorious claims and functioned as a threshold test for meritorious claims, rather than a strict or formal set of criteria to be dogmatically upheld. He contended that, on the law, it was not a matter of identifying a better plaintiff but rather that there was a case to be answered. He emphasised that the standard rules should be relaxed and that there was an immense public interest in this case, highlighting the particular difficulties for individuals experiencing homelessness or housing precarity to advance their claim effectively.

Law School Life

Counsel for the respondents mirrored the structure of the appellants, with Ciara O’Reilly challenging the submissions surrounding recognition of a right to housing. She began with the classic argument surrounding the distinction between civil and political as opposed to socio-economic rights. She raised the spectre of distributive justice and argued that the court was being asked to go beyond the scope of the judicial role and assume a policy-making position.

She continued to argue that the vision of a right to housing was ‘vague and ill-defined’ to quote Clarke CJ (as he then was) in Friends of the Irish Environment. She pointed to the current debate surrounding the right to housing, the contentious formulation thereof currently being assessed by the Housing Commission. She queried the impact of a right to housing on presently existing rights, particularly on the property rights of landlords and mortgagees. Her central contention was that a judge cannot recognise a right simply because they believe it to be a good thing. Rather, this was a matter warranting significant further examination, and on the submissions, there was insufficient clarity to enable a judge to do so. She argued for judicial restraint and that this was a matter for the democratic process.

Co-counsel for the respondents, Rachel Ardiff, spoke similarly on the issue of standing. She submitted that Friends of the Homeless had not presented an appropriate case to justify a departure from the rules of standing. She argued that they were unable to satisfy the exceptions presently available, evidencing

this contention through examination of cases wherein the rules were relaxed, such as Irish Penal Reform Trust Limited & Ors v Governor of Mountjoy Prison & Ors. She discussed the reasons for departure in these cases and argued that Friends of the Homeless Ireland are sufficiently distinguishable. In substance, she argued that Friends of the Homeless Ireland were seeking an effectively free-standing actio popularis.

Friends of the Homeless Ireland were, on her submission, pursuing a claim through the courts which ought to be pursued through Leinster House. In response to queries from our judges regarding the example of the Indian Supreme Court, she detailed the divergences in the Irish judicial culture surrounding socio-economic rights protection therefore rendering the import of the Indian approach somewhat implausible.

As noted by our judges, the appellants were faced with the difficult task of dislodging existing precedent and advancing effectively novel arguments. They performed incredibly well in this admittedly uphill battle. On balance, the judges found for the respondents, and Ciara O’Reilly and Rachel Ardiff were declared the winners of the Karen Kenny Intervarsity Memorial Moot 2022. The evening was a demonstration of excellent advocacy, thoughtful consideration of the legal issues, and an outstanding display of talent. Congratulations to all competitors, to our co-organisers and to our beloved Moot Convenor. In the words of our Moot Convenor, the moot was indeed a hoot!

Photo courtesy of Lucy Lu, SS Law and French

From left to right: Amy Murray, Scott Dunne, Christopher McCann,Professor Gerry Whyte, Rachel Ardiff, Ciara O' Reilly

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