The Eagle: Trinity College Law Gazette Volume 9, Issue 3

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

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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, students, or administration of Trinity College Dublin.

Design, layout and cover image: Emma Bowie

Photo courtesy of Emma Bowie, SS Law

Letter from the Editor

A chairde,

It is my pleasure to conclude Volume 9 of The Eagle with the publication of our spring edition It seems like only yesterday that I submitted my application to The Eagle Editorial Board in July 2020, at which stage the terms “social distancing,” and “lockdown” had firmly entered our common vernacular. In the throes of the Covid-19 crisis, I was grateful to be offered an Editorial Board position; the gazette offered an engaging community of student editors at a time of great physical isolation from peers, a series of focused editing projects in the face of debilitating uncertainty, and a forum to write about exciting political-legal developments when enthusiasm for my own degree dwindled This year, it has been a privilege to serve as Editor of a publication that has enriched and inspired my study of law at Trinity.

From ICC arrest warrants to the 25th Anniversary of the Good Friday Agreement, this final, open-themed issue of The Eagle offers a wide range of articles examining some of the most significant political-legal developments of the past term in an informative, yet accessible manner I am delighted to feature an Irish language article in this issue, written by our very own Síofra O' Donoghue (p. 15), as well as the winning pieces of our ‘Home and Housing’ essay competition in collaboration with the Trinity College Law Review In our “Law School Life” section, you can also find articles reflecting on the variety of activities coordinated by our excellent student-run law societies over the past academic year I would like to extend my gratitude to all of our authors who took the time out of a particularly busy season in college to craft these compelling and thought-provoking pieces.

As always, this issue would not have been made possible without the dedication of our talented Junior Editorial Board: Rose, Aoife, Chloé, Beth, Arielle, Ciara, Jacob, Muireann, Laoise, Caoimhe, Síofra, Mark, Jenny and Simon. In addition to being excellent writers in your own right, I have been consistently impressed by your careful, diligent and perceptive editing this year. I would like to express my sincere gratitude to the gazette’s wonderful Deputy Editor, Mark, who has been a fantastic first point of contact for authors and editors alike, as well as being a helpful sounding board for new ideas To our Copy Editor, Doireann, you have done a fantastic job in maintaining the upkeep of our blog this year, and I am forever indebted to your eye for detail, syntax, grammar, and spelling Under your direction as Editor-inChief for 2023/24, I am confident that The Eagle is in safe hands! I would also like to thank our talented Public Relations Office, Eoin, for promoting The Eagle’s online presence this year through such wonderful, eye-catching graphics and social media posts Finally, I am immensely grateful for the generous financial support of our title sponsor

Maples and Calder (Ireland) LLP, particularly the ongoing support of HR Business Partner, Ciara O'Brien.

In this final foreword, I would like to take the opportunity to impart the three most important lessons that I have learned from my time studying law at Trinity – advice that was, incidentally, offered by the first three lecturers of our Junior Freshman year Their guidance has, I would submit, informed and inspired my own college experience and that of my colleagues, sustaining our capacity to study amidst the challenges of remote learning. To the Class of 2023, I hope these are lessons that you will carry with you beyond the steps of House 39 and into your postgraduate and professional lives

After providing a colourful introduction to the Law of Torts in our first term of college (replete with tales of snails in ginger beer bottles and episodes of “egging”), Dr Des Ryan imparted the first word of wisdom to our class of fresh-faced first years: Remember to keep law in its place. While not grasping the full import of his counsel at the time, I quickly learned that Dr Ryan’s advice was, in actuality, often difficult to observe. Law is a demanding subject and the learning curve in first and second year is steep: there are Latin terms to interpret, bottomless reading lists to tackle, the OSCOLA referencing style to master As you come to the end of your Freshman years, you begin to recognise that the law is never static, rarely black and white, and ascertaining the current status of a particular legal principle is seldom a straightforward task Left unchecked, law can be allconsuming Taking proactive steps to avoid burnout and combat demotivated periods has been critical, particularly in the absence of regular college routines and face-to-face teaching during the Covid-19 crisis Freshman and Sophister

students: enjoy your study of law, attend your lectures and seminars, engage in rich and contextualising conversations with your peers, apply yourself to your assignments, but know that your degree has a place alongside those activities that inspire and energise, such as spending time with friends and family and engaging in society life.

To the Class of 2023, I hope these are lessons that you will carry with you beyond the steps of House 39 and into your postgraduate and professional lives.

The second piece of advice was offered by Dr David Kenny in the final week of our Constitutional Law I module. After twelve weeks of accepting the law we had been taught at face value, Dr Kenny encouraged us to question everything from that point forward; to challenge the foundational principles on which our core legal subjects were based, to subvert the process of non-thinking that is so often masked as “legal reasoning ” In my sophister years of study, I have learned that once you start to interrogate the “rightness” of law, the sociopolitical ideologies and power relationships on which its grounding assumptions are based begin to unravel: your eyes open to the capitalist underpinnings of tort law, the fallacy of equal bargaining power in contract, the inherently male-based standards of “objective” reasonableness and gendered constructions of sexual offences in criminal law. Modules that have facilitated this exercise of deconstruction have undoubtedly made for a more rewarding and intellectually stimulating law degree, and it is my hope that The Eagle has provided, and will continue to provide, a vehicle for such critical debate amongst students.

Finally, the most significant lesson I have learned at my time in Trinity was imparted by Professor Neville Cox in the first Foundations of Law lecture of September 2019. After denouncing natural rights as “nonsense upon stilts” and offering a scintillating taster of the Socratic method, Professor Cox noted that to survive our time in law school, we needed to observe three pieces of advice: Be kind, be kind, be kind Admittedly, this instruction seemed wholly antithetical to Freshers’ Week rumours of snatched pages from library books and hidden copies of McMahon and Binchy in the Berkeley’s midwifery section.

Fortunately, after four years of Trinity law, I can confidently say that for all its brilliance and academic rigour, kindness is the defining characteristic of the Law School. It is evident in the members of faculty who have been responsive and available to meet students when studying law has, at times, proven overwhelming, in the colleagues who have offered to proofread essays in critical moments of self-doubt, and in the friends who have consistently helped me to “keep law in its place ”

With these lessons in mind, I would like to dedicate this final issue of the gazette to the Class of 2023 You have zoomed in the face of fickle Wi-fi connections, gone to great lengths to connect with peers in spite of physical isolation, and endured online assessments while facing debilitating uncertainty. Throughout the tumultuous period of remote learning necessitated by the Covid-19 pandemic, I hope you know that you have acquired qualities that cannot be learned within the confines of a lecture hall – qualities such as resilience, perseverance and resourcefulness - which will stand to you in your postgraduate and professional lives For the law students of today are the lawyers, leaders, politicians, academics, and journalists of tomorrow; I have every confidence that you will pursue justice with patience, serve clients with diligence, and lead with empathy

Emma Bowie Editor-in-Chief

Minford

Copy Editor

Doireann

Le gach dea-ghuí,

Mark McGrane Deputy Editor

Eoin Ryan Public Relations Officer

Winner of The Eagle and Trinity College Law Review 'Home and Housing' Essay Competition 2023

Housing for All - Within Planetary Boundaries

by Laoise Murray, SS Law

The housing crisis has been a pervasive part of the Irish experience in the past decade, acutely felt by young and old Thousands of people are suffering in insecure and inadequate accommodation.¹ The endless media commentary on the subject is wearing us all down: the housing crisis almost has the same conversational value as the weather. Deprived of the choice of affordable and appropriate housing in which to kickstart an independent adult existence, our cohort of about-to-graduate fellow students are planning their emigration with resigned sighs We hope desperately that somewhere else it will be different

It has been estimated that we will need to accommodate approximately 49,000 people per year until 2051 in housing that is not currently available.² As a reaction to this, the Irish government produced the Housing for All plan in which they committed to investing €20 million euros until 2025 in housing development ³ In the recently published National Development Plan for 2021 until 2030, the government states that they expect 400,000 new dwellings will need to be constructed by 2031 to address the present strains on the housing market and expected population increase over the next decade.⁴ Unfortunately, the construction of 400,000 new homes could not have come at a worse time, environmentally speaking.

Sectoral Emissions Ceilings

Discussions are emerging in the media and academia, both in Ireland and internationally, concerning the unaccounted greenhouse gas (‘GHG’) emissions associated with construction, and the impact of this source of emissions on the achievement of our residential sector emissions reductions targets.⁵ Last summer, the Government produced sectoral emissions ceilings which are designed to achieve a 51 per cent reduction in national GHG emissions by 2030.⁶ They are not exactly legally binding, but they are part of

the larger framework created by the Climate Act 2021, and reflective of the target to limit global warming to 1 5° in accordance with the Paris Agreement and EU law.⁷ Of concern to this paper is the residential sector’s emissions ceiling which was capped at 4 million tonnes of carbon dioxide (equivalent) by 2030, representing a 44-56 per cent reduction in emissions from those recorded in 2018.⁸ The 2021 carbon budget programme has a five-year term, and excess emissions are carried forward to the next budget period with corresponding reductions

Notably, the emissions ceilings framework also provides for 26 MtCO2eq of unallocated savings which the government hopes will arise due to “emerging technologies, changing scientific consensus or policies."⁹ Friends of the Irish Environment have begun proceedings to quash these sectoral emissions ceilings on the basis that the unallocated savings have been “picked from the sky "¹⁰ Despite the lack of enforceability and potential impracticality of the targets, they are, for now, a relatively helpful means to quantify our progress – and our failures

Housing and GHG Emissions

Housing results in GHG emissions from energy and electricity use by occupants, in addition to transport costs associated with commuting between one’s residence and workplace.¹¹ These ‘operational emiss-

Despite the lack of enforceability and potential impracticality of the residential sector emissions reduction targets, they are, for now, a relatively helpful means to quantify our progress – and our failures.

ions’ are being reduced in Ireland through retrofitting and the transition to renewable energy sources.¹² However, construction of new dwellings involves the heavy use of non-renewable materials, takes up land that could be used for wildlife and biodiversity, and is an energy-intensive process.¹³ These more subtle carbon impacts are labelled ‘embodied emissions’ and have been increasingly given more attention in carbon accounting literature. Combined, researchers have calculated that the operational and embodied emissions of the built environment in Ireland are currently responsible for upwards of 37% of national emissions ¹⁴

Armed with these figures, it is alarming to read the Irish Green Building’s Council’s recent report outlining the emissions trajectory of the buildings sector in Ireland based on the government’s plans for housing and infrastructural works in the coming decades ¹⁵ The researchers found that works envisioned by the National Development Plan, National Retrofit Programme and Housing for All, if completed, would produce double the built environment’s embodied emissions and considerably increase the annual operational emissions for the building sector.¹⁶ The researchers note that while operational carbon emissions will decrease as renewable energy sources begin to dominate and retrofitting homes increases their energy efficiency, there will be a five-fold surge in embodied emissions from the materials and construction process involved in adding 400,000 residential buildings to the market ¹⁷ If such a path is taken, embodied emissions will be responsible for 40 per cent of all residential emissions by 2030, when they are currently only responsible for one third of emissions. The bad news is that there will be negligible reductions in the total GHG emissions for the residential sector if the 2030 housing targets are achieved.¹⁸

(Tentative) Solutions

Placed in the eye of the storm, it seems the Irish State has committed itself to fulfilling two conflicting obligations: increasing housing supply en masse, while simultaneously halving national carbon emissions by 2030. This appears to be an irreconcilable conflict, as housing development in the way that we want and think we need is simply unsustainable. Our neoliberal political mindset that

relies on an oversupply of housing to improve its quality and reduce its price ignores the reality that there are elements of home and the natural environment in which it sits that remain noncommodifiable. We must ask ourselves how we want to live on this ever-warming planet, and then shape our physical structures and legal rules to fit this new lifestyle.

It is my view that we can create a sustainable housing system that satisfies basic housing needs without destroying the planet in the process Revamping building regulations is one vital component of this process Embodied carbon in buildings has become a hot topic of conversation amongst building regulation specialists and a ‘whole life carbon’ approach is likely to be included in the next iteration of the European Union’s Energy Performance Building Directive.¹⁹ This means that embodied carbon will be considered thoroughly in the form and structure of new housing construction. The EU’s new approach follows the exemplary lead of Sweden, Denmark, France, Finland and the Netherlands who all introduced a whole life carbon accounting approach to energy reduction in the construction sector.²⁰ These regulations can place a cap on the GHG emissions that each building may produce, require that certain sustainable materials be used, or limit the floor space per-capita so as to reduce land take and demand for materials.

We can also make use of existing buildings The transformation of over one hundred and fifty thousand vacant, derelict or underused properties in Ireland will be essential to increasing housing supply without causing a massive increase in embodied emissions The new tax and fiscal incentives to encourage private redevelopment of vacant properties is a start, but we need to think more progressively to make use of the valuable environmental resources that are

Photo courtesy ofEmma Bowie, SS Law

We must ask ourselves how we want to live on this everwarming planet, and then shape our physical structures and legal rules to fit this new lifestyle

existing buildings ²¹ For example, the State – and by extension, Local Authorities - could use their social justice prerogatives under Article 43 2 1° of the Irish Constitution to intervene in certain people’s private property rights and purchase their vacant properties compulsorily for purposes of social housing provision or affordable purchase schemes. As our social order changes and three-generational homes fall out of disuse, we also need to consider the idea of splitting existing houses into self-contained apartments or cohousing strategies ²²

Additionally, the potential referendum on inserting a right to housing, depending on the verdict in the impending Housing Commissions report,²³ could be an excellent legal counterpoint to the strong private property protections in the Constitution that politicians have regarded as being an obstacle to progressive State intervention in the housing system ²⁴ Increased opportunities for public intervention in private property could lead to a collective re-organisation of the housing system with principles of sustainability and sufficiency placed at its core, without undermining totally the institution of private property guaranteed by Article 43.1.2° of the Irish Constitution.

As a final note, Ostrom has argued persuasively that polycentric and localised governance structures like that of the Irish planning system are the most effective means of achieving transformative and lasting improvements in the physical environment.²⁵

The local planning authorities and An Bord Pleanála are at the front line of housing development in Ireland, and their position as such must be given more attention. Where these public authorities are endowed with effective legal tools such as the Environmental Impact Assessment process, when based in scientifically approved environmentally protective reasoning, they can ensure that any development that is taking place does not benefit the economy at the sake of the environment Additionally, reforming the Planning and Development Act 2000 to explicitly define “sustainable development” would strengthen this normatively neutral concept and ensure that the environment is weighed more heavily against competing economic and social policy considerations. The improved definitional framework could require considerations of calculated carbon footprints, proportion of land take and projected impact on wild-

wildlife or biodiversity to be integrated more deeply into the planning permission process Key to the success of “sustainable development” in restricting unsustainable development is the use of scientific imperatives and accurately calculated planetary boundaries.²⁶

Conclusion

Leading Irish social policy analyst Rory Hearne has commented that “the connection between housing and the environment urgently needs to be moved centre stage in both the housing and climate debates."²⁷ Indeed, this is a subject and conflict that requires a great deal more consideration by lawyers, environmental scientists and the residential construction industry as a whole. It is only through a combination of collective and individual efforts that we will learn how to live within our planetary boundaries. The series of tentative solutions offered here are merely the tip of the iceberg; innovative regulation and policy will be necessary to transform housing systems around the world from a path of growth-dependency to one of sufficiency and sustainability

Simon Communities of Ireland, ‘Homeless Figures Press Release’ (30 September 2022) and Department of Housing, Local Government and Heritage, ‘Summary of Social Housing Assessments 2021 – Key Findings’ (30 March 2022),

Eoin Burke-Kennedy, ‘50,000 new homes needed every year to solve housing crisis – industry report’ (Irish Times Online, 12 August 2021)

Department of Housing, Local Government and Heritage, Housing for All – A New Housing Plan for Ireland (2021)

Department of Public Expenditure and Reform, ‘National Development Plan 2021-2030’ (16 February 2018), 15.

Sylvia Thompson, ‘Developers, architects and builders must incorporate carbon reduction measures into construction’ (The Irish Times, 2 Feb 2023)

See Department of the Taoiseach, ‘Press Release: Government announces sectoral emissions ceilings, setting Ireland on a pathway to turn the tide on climate change’ (28 July 2022) The sectoral emissions ceilings were created in accordance with Section 9 of the Climate Action and Low Carbon Development (Amendment) Act 2021

In accordance with Article 2(1)(a) of The Paris Agreement on Climate change, adopted at the 21st Conference of the Parties, (Paris: United Nations, 12 December 2015) and the EU Emissions Targets and Regulation (EU) 2021/1119 of the European Parliament and of the Council of 30 June 2021 establishing the framework for achieving climate neutrality

Kevin O’Sullivan, ‘Sectoral emissions ceilings published by Government for carbon budgets up to 2030’ (Irish Times Online, 26 Sep 2022)

10 Ellen O'Riordan, ‘Environmental group lodges legal action over emissions cuts ‘picked from the sky’’ (The Irish Times, Monday 27 Feb 2023)

11 Aidan Duffy, ‘Land Use Planning in Ireland-a Life Cycle Energy Analysis of Recent Residential Development in the Greater Dublin Area’ (2009) 14(3) International Journal of Life Cycle Assessment, 268–77 and Georgia Pozoukidou, ‘15-Minute City: Decomposing the New Urban Planning Eutopia’ (2021) 13(2) Sustainability, 928

12 European Union (Energy Performance Of Buildings) Regulations

2019 (S I No 183/2019) as enacted under Directive 2010/31/EU of the European Parliament and of the Council of 19 May 2010 on the energy performance of buildings (recast) as amended by Directive (EU) 2018/844 of the European Parliament and of the Council of 30 May 2018 [2010] OJ L153/13.

13 M Röck, M R S Saade, M Balouktsi, et al, ‘Embodied GHG emissions of buildings – The hidden challenge for effective climate change mitigation’ (2020) 258 Applied Energy, 114107

14 Richard O’Hegarty, Stephen Wall and Oliver Kinnane, for the Irish Green Buildings Council (V4, In Draft) Whole Life Carbon in Construction and the Built Environment in Ireland (October 3rd, 2022),

10

15 ibid

16 ibid, 5

17 ibid, 21, 26

18 ibid, 36

19 Richard O’Hegarty, Oliver Kinnane, ‘Whole life carbon quantification of the built environment: Case study Ireland’ (2022) 226 Building and Environment, 109730, 13

20. Harpa Birgisdóttir, ‘Why Building Regulations Must Incorporate Embodied Carbon’ (Buildings and Cities 30 October, 2021). Ministry of the Interior and Housing, National Strategy for Sustainable Construction Denmark (2021)

21 Finance Act 2021, s 80

22 Maria Sandberg, ‘Downsizing of Housing’ (2017) 38(2) Journal of Macromarketing, 154-167

23 Jack Horgan-Jones, ‘Right-to-housing referendum: Recommendations due this month on wording of vote’ (Irish Times, 4 Jan 2023)

24 Hogan & Keyes, ‘The Housing Crisis and the Constitution’ (2020) available at SSRN 3731506.

25 Elinor Ostrom, ‘Beyond Markets and States: Polycentric Governance of Complex Economic Systems’ (2010) 100(3) The American Economic Review, 642

26 David Hunter, ‘An Ecological Perspective on Property Theory’ (1998) 12 Harvard Environmental Law Review, 311

27 Rory Hearne, Housing Shock: The Irish Housing Crisis and How to Solve It (Policy Press, 2020), 239

Runner-Up of The Eagle and Trinity College Law Review 'Home and Housing' Essay Competition 2023

Article 40.3 and Compulsory Acquisition Orders

by Aoife Doheny, SF Law

Introduction

While land and property have undeniable economic value, they have a further, perhaps more important, dimension to our lives Property provides security, familiarity and shelter which is indispensable for our development as persons Most obviously, this can be seen in the relationship we have with our homes This essay will argue that the Irish Constitution, in separating Articles 40.3 and 43, recognises this kind of relationship between people and property, as opposed to viewing housing as a purely economic commodity. Furthermore, it argues that Article 40.3, if isolated in a meaningful way, can create a new lens through which homes and a right to housing can be viewed

To illustrate this fully, the first section of this essay outlines the case law surrounding the relationship between Articles 40.3 and 43. It will surmise that

most of the discussion so far has been focused on the standards of review of property rights, namely whether “the exigencies of the common good” and “the requirements of social justice” prevent State action from amounting to an “unjust attack” on property rights. It will propose that, following older case law, the articles are protecting two fundamentally different things, and that therefore the mixing of the standards of review by the courts can be misleading It will briefly discuss the role Article 40.5 could play here, given its increasing prominence in the protection of homes.

The second section of this essay will outline Margaret Radin’s theory of property, in particular the spectrum of personal to fungible property outlined in her paper ‘Property and Personhood.’¹ It is proposed that this spectrum could be a valuable tool for assessing the

strength of relevant property rights at play; at the very least, it demonstrates that there can be legal recognition of the non-economic value that property gives us. Using the personhood theory, I will attempt to evaluate an area of Irish property law where there is significant interaction between public authorities and individuals: compulsory purchase orders.

A new light on Articles 40.3 and 40.5

This section will attempt to show that Article 40.3 should be isolated on the basis that it protects personal property, of which homes are paradigmatic This is not to suggest that certain property rights are absolute, or that Article 40.3 offers an unenumerated right to housing. Here, we are merely focusing on the actual rights protected by these articles.

ion of private property as an institution, but at the same time permits, in particular circumstances, the regulation of the exercise of that right "⁶

Article 40.3.2°

The Courts have held that Articles 40.3.2°, 40.5 and 43 all mutually inform each other.² The exact nature of their relationship, however, continues to be explored. Following a complete lack of private property protections in the 1922 Free State Constitution, the drafters of Bunreacht na hÉireann dedicated two provisions to it As a consequence, much of the case law around property rights has considered the interaction between Articles 40.3 and 43 at length. Following early distinctions, it is now agreed that Article 43.2’s qualifications of “the principles of social justice” and “exigencies of the common good” can be used to inform the Court’s decision on whether the State has unjustly attacked property rights under 40 3 ³

This was not clear from the outset, however In Blake v Attorney General,⁴ the Supreme Court endorsed Davitt P’s High Court decision in Southern Industrial Trust v Attorney General.⁵ This meant that, as a consequence of the ruling in Blake, Article 40.3.2° had a protective function distinct from Article 43: "Article 43 is headed by the words ‘Private Property’… It is an Article which prohibits the abolit-

Meanwhile, Article 40.3.2° protects the personal right of the citizen to property, and therefore has a higher standard of protection, since “the State is bound, in its laws, to respect and as far as practicable to defend an vindicate the personal rights of citizens.”⁷ However, this distinction was not maintained In Dreher v Irish Land Commission, ⁸ it was held that a State action which is allowed under Article 43° cannot be contrary to Article 40 3° Somewhat confusingly, O’Callaghan v Commissioner for Public Works ruled that where State action amounts to an unjust attack, no other provision of the Constitution can be invoked to make that attack just,⁹ including the principles of social justice and exigencies of the common good stated in Article 43°. This case still emphasised the close, mutually informative nature of the two articles, and its approach was followed in ESB v Gormley,¹⁰ Pine Valley Developments Ltd v Minister for the Environment, ¹¹ and Lawlor v Minister for Agriculture ¹² In these cases, delimitations of the common good and social justice were imported to clarify the meaning of ‘unjust attack’ on personal rights.

Ultimately, Re Article 26 and Part V of the Planning and Development Bill 1999 resolves the conflicts between Blake and Dreher in favour of the Dreher interpretation,¹³ with the Supreme Court “clearly advocat[ing] a holistic reading of the two private property provisions "¹⁴ The conflation of these two articles has made the question of what amounts to an “unjust attack” identical to the question of what falls outside the scope of the common good and social justice. In J & J Haire and Company Ltd v Minister for Health, ¹⁵ McMahon J enumerated several ways in which an interference with property rights could be ‘unjust’ under Article 40 3 2°, including “[a] lack of fair procedures, unreasonableness and irrationality, discrimination, lack of proportionality and, in some cases, lack of compensation ” The overarching principle seems to be (1) that an attack on property rights is unjust where it does not further the common good or social justice, and (2) that it does not further the common good or social justice where measures are arbitrary, selective or discriminatory.

The Courts have held that Articles 40.3.2°, 40.5 and 43 all mutually inform each other. The exact nature of their relationship, however, continues to be explored.

Article 40 5

Homes already receive special protection in the Constitution due to the fact that, in line with Article 40.5, they cannot be “forcibly entered, save in accordance with law.” Recently, the courts have invoked Article 40.5’s ‘inviolability of the dwelling’ provision to a greater extent, and in the case Clare County Council v McDonagh, the Supreme Court held that it was the corresponding domestic provision to the ECHR’s Article 8 protection of the ‘home.’¹⁶ McDonagh is an interesting case because it demonstrates the weight given to homes in proportionality tests A Traveller family successfully argued that the county council failed to apply the proportionality principle before evicting their caravans from public grounds. The test is to be applied in all cases concerning ‘homes’, held here to be simply a place of residence. But as a procedural article, Article 40.5 is silent on substantive principles: the forcible entry must simply be in accordance with law, not, say, in the “exigencies of the common good” Any evaluation of the law itself must therefore be examined under a different article

Shifting the discussion increased protection for homes?

What seems to be absent from these discussions of ‘unjust attacks’ is the nature of the property itself, and the individual owner’s relationship with it. Article 40.3 is titled ‘Personal Rights’. It is situated among three other rights: life, liberty and a good name, all of which are fundamental to our personal and social development None of these other three, important as they are, have a further provision underlining their natural right status and delimitations. But by containing two property protection provisions, it is submitted here that the Constitution creates a distinction between protecting property which is truly personal to us (such as our homes)¹⁷ and protecting our capitalist system.

Margaret Radin’s Property for Personhood theory

In her influential paper ‘Property and Personhood’, Radin suggests that: “[t]he premise underlying the personhood perspective [of property] is that to achieve proper self-development to be a person—an individual needs some control over resources in the external environment.”¹⁸ The paper goes on to state that "[o]ne may gauge the strength or significance of someone’s relationship with an object by the kind of

pain that would be occasioned by its loss On this view, an object is closely related to one's personhood if its loss causes pain that cannot be relieved by the object's replacement. If so, that particular object is bound up with the holder."¹⁹

It follows that, the protection afforded to particular property rights should be assessed according to their position on the scale of fungible (i.e. replaceable) to personal in our lives Radin argues that state interference with the personal kind of property should be subject to stricter scrutiny by the courts A paradigmatic example of this would be home ownership. The importance of homes can be most clearly illustrated in the conversations around homelessness, where it is recognised that those without a secure place to live suffer from more than just a lack of shelter. A home roots our place in society and offers dignity, security and protection. The involuntary deprivation of this can have huge physical and psychological tolls

From the survey of case law, however, it is not altogether clear that the Irish courts have reviewed property rights along the lines of personal/fungible. The meaning of common good or social justice remains murky and vague, and the nature of the person-property connection is not really elaborated on beyond its status as a ‘natural right.’ This leaves open the risk that the allocation of property will come to take on a purely utilitarian sheen, or that the property’s economic value becomes the sole or primary consideration ²⁰ Taking a ‘personhood’ perspective of property provides us with a “moral basis” for choosing certain property rights to be more strongly protected than others.²¹ Article 40.3 could be an article which provides space for recognition of the fact that land and housing provide far more than purely economic value to us. In other words, it could implement Radin’s personhood theory into our constitutional law The “principles of social justice” and “exigencies of the common good” still play a significant role in regulating our private property system Any exceptions to these vitally important considerations should be more protective of the personal rather than the commercial sphere. This ensures that higher protections of the individual do not unduly interfere with efforts to create the most fair and just state possible.

Compulsory acquisition orders

Compulsory acquisition orders allow public authorities to acquire private land without the consent of the owner. They make up a complex area of law, governed by over seventy pieces of legislation, the oldest of which dates back to 1845.²² They are often crucial to the building of important public infrastructure,²³ or protection of historic monuments.²⁴ They are also infringements on the property rights of individuals, so it is recognised that mitigatory measures may be required to make the breach less drastic This section will briefly consider the roles of compensation and provision of specific reasons, and will argue that our current law fails to live up to the personhood protection of private property through under-development of these mitigatory measures.

Compensation

Compensation is technically not mandatory in Ireland when property is compulsorily acquired (other constitutions, such as the Lebanese and Greek ones, have put compensation on a constitutional footing).²⁵ However, in practice, compensation at full market value is usually the starting point, with reductions needing further justification.²⁶ Given recognition of the fact that compensation cannot truly replace a unique good like land (both judicially²⁷ and in popular culture),²⁸ it can be a poor substitute which does not truly reflect the value which has come to be attached to the property

Specific reasons

In Hendron v Dublin Corporation,²⁹ the High Court held that a local body looking to acquire land would require a “solid reason and not a pious hope or a mere pretext” for seizing it.³⁰ As the LRC has noted, “[t]his case from 1943 reflects an approach that does not appear to be the position of the more modern judiciary.” A public authority is not required to give specific reasons for the acquisition of land.³¹ In other common law jurisdictions, notably the US, vague reasons like ‘economic development’ have been considered sufficient in cases where the state has acquired private land from one individual to give to another.³² While this question has not yet been considered by the Irish courts,, a strong deferential approach to the legislature on the meaning of the common good and social justice may see the same stance adopted here.³³ In their paper, Compulsory

Acquisition of Land, ³⁴ the Law Reform Commission suggested that for homes, An Bord Pleanála should be required to give detailed reasons for the compulsory acquisition of homes (see Issue 2 of the paper) ³⁵ The property for personhood view ascribes a powerful importance to the home which should require concrete reasons to dislodge.³⁶ A CPO-stricken homeowner is entitled to know the State’s exact proposed use of their land, and should be able to see the benefits of acquisition realised. This involves the citizen more in the community and provides greater transparency.

Conclusion

This essay has argued that Article 40.3 has the scope to provide a more ‘personhood’ view of property which limits or reformulates the role of social justice, in order to bring about higher protections for homes, particularly in contexts such as compulsory purchase orders This would lead to increased legal recognition of the fact that homes, and property in general, provide far more than just economic benefits

Margaret Jane Radin, ‘Property and Personhood’ (1982) 34(5) Stanford Law

Review 957

Reid v Industrial Development Agency [2015] IESC 82 [43]

Re Article 26 and the Employment Equality Bill 1996 [1997] IESC 6

[1982] IR 117 (SC)

Attorney General v Southern Industrial Trust (1957) 94 ILTR 161, 168

Blake v Attorney General [1982] IR 117 (IESC), original emphasis ibid, my emphasis

[1984] ILRM 94 (SC)

[1985] ILRM 364 (SC)

[1985] IR 129 (SC)

[1987] IR 23 (SC)

(1990) 1 IR 356 (HC)

[2000] IESC 20, (2000) 2 IR 321

Hogan and others, Kelly: the Irish Constitution (5th ed, Bloomsbury Professional 2018) [7 8 65]

[2009] IEHC 562 (17 December 2009)

[2022] IESC 2, (2022) 1 ILRM 353

Marx and Engels recognised this type of distinction in Karl Marx and Friedrich Engels, The Communist Manifesto (Penguin Books, 1979) 96

Radin, ‘Property and Personhood’ (n 1) 957

ibid 959

Rachael Walsh, ‘The Principles of Social Justice The Compulsory Acquisition of Private Property for Redevelopment in the United States and Ireland’ (2010) 32

DULJ 1, 19-20

Radin, ‘Property and Personhood’ (n 1) 959

Law Reform Commission, Issues Papers: Compulsory Acquisition of Land (LRC IP 13 2017) [2 02]

Crosbie v Custom House Dock Development Authority (1996) 2 IR 531

O’Callaghan v Commissioners of Public Works [1985] ILRM 364

Dreher v The Irish Land Commission [1984] ILRM 94; Central Dublin Development Association v Attorney General (SC) (1975) 109 ILTR 69, 86 Reid v Industrial Development Agency (n 2)

Crosbie v Custom House Dock (n 23)

Plenty of books and movies centre around stories of people with strong connections to land, including the 1997 Australian comedy film The Castle [1943] IR 566

Ibid, 573

Clinton v An Bord Pleanála [2007] 4 IR 701

Kelo v City of New London 545 US 469 (2005)

Central Dublin Development Authority; Crosbie v Custom House Dock Development Authority [1996] 2 IR 531

Law Reform Commission, Issues Papers: Compulsory Acquisition of Land (LRC IP 13 2017)

Ibid, [2 07], [10 16]

Compulsory acquisition of shares is not allowed under Irish law, but compulsory acquisition of homes is legally sound

Photo courtesy of Emma Bowie, SS Law

25 Years on from the Good Friday Agreement: The Windsor Framework

by Ciara Murray, SF Law and Political Science

With the month of May marking the 25th Anniversary of the Good Friday Agreement, Northern Ireland remains in political upheaval The Agreement helped to bring an end to three decades of conflict but the complicated relations between Britain and Ireland have yet to cease. Britain's formal departure from the European Union in 2020 renewed Northern Ireland’s state of flux which Stormot has done little to alleviate. The Windsor Framework, consisting of an agreement between the United Kingdom and the European Union on Northern Ireland’s border, represented an opportunity to do so The new arrangement is being presented as ‘a new way forward’ which brings to mind connotations of the ‘new beginnings’ pledged by the Good Friday Agreement. Twenty-five years after the original agreement was ratified by both Northern Ireland and the United Kingdom, the future of their relationship has never been more uncertain.

Reflections on the Good Friday Agreement

The Good Friday Agreement (or "Belfast Agreement") of 1988 was drafted with the aim of reconciling sectarian divisions and putting an end to political violence in Northern Ireland It allowed for the functioning of two separate parliaments over Northern Ireland: Westminster and the devolved government of Stormont. Crucially, the Belfast Agreement operates under a provision that necessitates respect for the autonomy of Northern Ireland. Ever since the Brexit referendum in 2016, a threat has been posed to the cooperation that has developed between the two states Given that Northern Ireland voted to remain within the EU, the concept of a hard Brexit has created distinct adversity. It must be remembered that legal and political developments in this context carry emotional consequences. In the wake of the Covid-19 pandemic Belfast writer Adam McGibbon, commented on the high levels of PTSD present in Northern Ireland with a proven connection to the conflict and the future uncertainty of political affairs Northern Ireland has the highest documented cases of post-traumatic stress

disorder in the world according to evidence from 2011 It is submitted that any change in the relations of Britain and Northern Ireland, altered by the Windsor Framework, should be completed with respect for Northern Irish identity. The physical border is innately categorised by differing citizenship. The Good Friday Agreement allowed people in Northern Ireland to hold Irish or British citizenship, or both. Brexit brought this to the fore, encouraging UK citizens to seek to gain EU passports 2016 marked a 27% increase in applications for Irish passports compared to 2015 Considering the intergenerational trauma caused by the Troubles and the recent complications of identity caused by Brexit, the drafting of the Windsor Framework ought to have centred around more than just the impact on businesses and the economy.

beginnings’ pledged by the Good Friday Agreement.

The Windsor Framework

The Windsor Framework allows Northern Ireland to stay within the EU single market and customs union. The agreement involves the establishment of a green and red lane. Green lane goods are those sourced from the UK which are remaining in Northern Ireland resulting in minimal delays Goods continuing to the Republic of Ireland will be required to go through the red lane with the previous elongated checks The Windsor Framework includes a Stormont Brake provision which would allow Westminster to call the agreement to a temporary halt should one third of Stormont disagree with additional EU regulations that could threaten the economy. The UK government would be forced to agree to such an objection, but the likelihood of it passing in Stormont is rare This provision, it is submitted, is an adequate response to

[T]he new arrangement is being presented as ‘a new way forward’ which brings to mind connotations of the ‘new

the devolved government which is integral to upholding the Belfast Agreement

‘A New Way Forward?’

The aftermath of Britain's exit from the EU has posed particular challenges for the island of Ireland. The Windsor Framework has arisen due to the dissatisfaction of Northern Ireland’s Democratic Unionist Party with the 2019 Protocol. The previous unresolved arrangement was economically objectifiable, involving checks on all goods entering and leaving the Northern island which created additional costs and endless bureaucracy. The Northern Ireland Protocol also posed political problems, causing the collapse of Stormont over a year ago. The Assembly of Northern Ireland is yet to recover, with the Protocol dominating the elections in October 2022. The last devolved government of Northern Ireland entered a state of collapse in 2017, and did not recover for a further 3 years The agreement was expected to act as a chance to end the political absence that has been normalised in Northern Ireland It is also being perceived by some as a concrete solution to the ongoing questions surrounding trade with Northern Ireland. But the people of Northern Ireland have largely been ignored

in these negotiations The shortcomings of the Good Friday Agreement are yet to be addressed. It is noted that it did not provide support to victims domestic and sexual violence during the Troubles. Abortion cases prior to the 2018 referendum left women of Northern Ireland vulnerable. The UK government cast a blind eye to this using devolution as an excuse. The fear that the UK Parliament will prioritise their own political demands above the welfare of Northern Ireland is a legitimate one that needs to be reconciled with respect for the Good Friday Agreement

The Good Friday Agreement evidently emphasised the promotion of human rights. But it is obvious today that social justice issues outside of the Troubles were not considered. This is reflective of the values at the time, and the Agreement is indicative of this. Given that the Windsor Framework has been formally passed, it is argued that further issues of social justice need to be addressed and afforded the same attention as trade agreements One can only hope that the interests of the citizens of Northern Ireland are central to future considerations Only time will tell as to whether or not the people of Northern Ireland will finally see stability and certainty.

Photo courtesy of Ciara Hogan, JS Law and Political Science

An Ghaeilge sa Chóras Oideachascnámh spáirne sa lá atá inniú ann?

Síofra Ó Donoghue, JS Law and French

Tar éis streachailt le sraithphictiúirí agus níos measa fós, an Spailpín Fánach, ní haon ionadh go bhfuil daltaí na tíre seo breá sásta scrúdú na hArdteistiméireachta a chríochnú agus aghaidh a thabhairt ar an gColáiste gan cíos, cás ná cathú orthu. Is ceist choigilteach conspóideach í múineadh na Gaeilge sa chóras oideachas, ceist atá go mór i mbéal an phobail i latháir na huaire tar éis fógra Norma Foley, an t-Aire Oideachas, ar na mallaibh. Dar lena bplean nua seo beidh laghdú ar an t-am a leagtar amach leis an nGaeilge a mhúineadh i mbunscoileanna ina mhúintear trí Bhéarla An leor trí uair a chloig in aghaidh na seachtaine leis an nGaeilge a fhoghlaim? Anuas ar seo, is léir go bhfuil an tSrath Sóisearach nua ag cruthú scata fadhbanna do scoileanna lán-Ghaeilge agus scoileanna eile araon toisc go bhfuil easpa tuiscine maidir leis an caighdéan atá ag teastáil do T1 (do Ghaelscoileanna) agus T2 (do scoileanna ina mhúintear trí Bhéarla).

Tá easpa cistíochta roimh Ghaelscoileanna agus easpa leabhair de chaighdeán mhaith ar fáil trí Ghaeilge Tá sé níos deacra bheith ag tabhairt faoi scolaíocht trí Ghaeilge de bharr na bacanna structúrtha- déanann an tsraith sóisearach nua píonós a chur ar mhic léinn atá dúshlán rompu cheana féin.

An Ghaeilge i mbunscoileanna na tíre seo Is léir go bhfuil éileamh ann do Ghaelscoileanna in Éirinn. Freastalaíonn 8% de dhaltaí ar bhunscoileanna lán-Ghaeilge agus 4% de dhaltaí ar mhéanscoileanna lán-Ghaeilge Go minic, bíonn an éileamh i bhfad níos mó ná an líon áiteanna atá ar fail, le líostaí fada ann do Ghaelscoileanna i gceantair áirithe Má theipeann ort áit a fháil do do pháiste i nGaelscoil áitiúil, níl an dara rogha agat ach iad a sheoladh go dtí bunscoil ina dhéantar an teagasc trí Bhéarla. Mar atá luaite cheana, mar atá fógraithe ag an tAire Oideachais Norma Foley, ó 2025 ar aghaidh beidh laghdú ar an t-am ina mhúintéar Gaeilge. Níl sé seo pioc sásúil mar gheall go ndéanann sé an tábhacht a

bhaineann leis an nGaeilge sa chóras oideachas a laghdú agus fágann sé an doras ar oscailt don argóint go mba chóir go mbeidh an Ghaeilge mar ábhar roghnach don Ardteist.

Freisin, sa phlean seo tá sé i gceist ag an Rialtas go múinfear teangacha iasachta ar nós an Fhraincis agus an Ghéarmáinis sa bhunscoil ó rang a trí ar aghaidh. Ar ndóigh, is mithid dúinn moladh a thabhairt don Aire as ucht an smaoineamh seo a chur chun tosaigh. Foghlaimíonn daltaí i dtíortha Eorpacha eile, ar nós an Ghearmáin, teangacha iasachta ag seacht mbliana d’aois Cabhraíonn teangacha go mór le deiseanna fostaíochta, san Aontas Eorpach ach go háirithe, áit ina mbíonn líofacht réasúnta sa Bhéarla, sa Fhraincis agus i dteanga eile ag teastáil le cur isteach ar phostanna ar leith. Nach féidir linn an Ghaeilge a chur chun tosaigh i gcompháirt le teangacha iasachta, gan ligeant dóibh teacht salach ar a chéile? Ar ndóigh, níl ach líon áirithe uaireanta i lá scoile agus d’fhéadfadh go mbeadh gá leis an lá scoile a shíniú nó an t-am a leagtar amach don Teagasc Reiligiúnach a laghdúd’fhéadfadh go mbeadh an Teagasc Reiligiúnach mar ábhar roghnach ag deireadh an lá scoile

Nach féidir linn an Ghaeilge a chur chun tosaigh i gcompháirt le

teangacha

iasachta, gan ligeant dóibh teacht salach ar a chéile?

Is seoid luachmhar í an Ghaeilge agus bhí an choincheap seo breá soiléir le Lá Fhéile Phádraig le déanaí. Tháinig turasóirí (tuairim is 212,000 duine) ó fud fad na cruinne agus iad ag déanamh a seacht ndícheall le cúpla focail a fhoghlaim. Sea cinnte, níl ach méid uaireanta teoranta ann sa churaclum, ach cén fath go bhfuil bata agus bóthar á thabhairt don líon uaireanta a chuirtear ar leataobh don Ghaeilge?

Photo courtesy of Matthew O'Shea, LLM

Má laghdaítear an teagasc a dhéantar trí mhéain na Gaeilge, d’fhéadfadh go mbeadh an baol ann go dtitifidh caighdéain na Gaeilge sna scoileanna seo. Mar sin, bheadh an bhearna idir Gaelscoileanna agus scoileanna eile imithe ó ghiolla na sliogán go giolla na mbairneach, gné a gcuireadh leis an éagothromaíocht sa chóras oideachais Ní hé sin le rá muna fhaigheann do pháiste áit i nGaelscoil, ní bheadh deis foghlama na Gaeilge acu, ach is cinnte nach mbeadh an caighdéan céanna acu lena chomhbhádóirí a d’fhreastail ar scoileanna lánGhaeilge.

An Ghaeilge agus Scrúdaithe Stáit:

I 2020, rinneadh athchóiriú ar an scrúdú Gaeilge don Teastas Sóisearach Tugadh bata agus bóthar don Teastas Sóisearach agus grádanna A, B, C agus aruile agus thug daltaí agus múinteoirí araon aghaidh ar an tSraith Sóisearach nua. Táimid tar éis an seanchóras a hionadú leis an gcóras nua- anois, an marc is fearr a féidir a bhaint amach ná Gradam (90-100%). De dheasca an Choróinvíreas agus a héifeachtaí ar an tsochaí, ach go háirithe ar dhúnadh na scoileanna, cuireadh scrúdaithe na Sraithe Soisearaí ar ceal in 2020 agus 2021- mar sin, thug daltaí na triú bliana faoin scrúdú seo don chéad uair in 2022. Ba dheacair an rud é le gradam a bhaint amach- bhain 3.6% de dhaltaí a rinne an páipéar T1 agus 2 6% de dhaltaí a rinne an páipéar T2 Gradam amach. In 2019, sa Theastas Sóisearach, bhain 12% de dhaltaí grad “A” amach.

Is fiú a lua go bhfuil difríocht suntasach le feicéail idir an tSrath Sóisearach nua agus an Teastas Sóisearach Dar le Maighréad Ní Iarlaithe, múinteoir Gaeilge i Scoil Mhuire gan Smál i gCorcaigh, tá an iomarca béime á chur ar an litríocht agus tá an teanga labhartha á thréigean Dar léi, cuireann sé seo go mór leis an strus scoile agus ta an baol ann go mbeadh níos mó daltaí ag lorg díolúintí sa Ghaeilge. Tar éis an scrúdú Ghaeilge i Mí an Mheithimh na bliana seo caite, dúradh go raibh an páipear T2 “scannalach” agus “dochreidte deacair”. Anuas ar seo, Iarradh ar dhaltaí an straiseog (emoji) is mó a úsáideann siad a lua, agus cur síos a dhéanamh air Mar aisfhreagra, cheistigh múinteoir amháin as grúpa do mhúinteoirí Gaeilge ar line an raibh an cheist seo “Cruthaitheach nó craicéailte?”

Mar aon leis seo, bhí an scrúdú ardleibhéil Gaeilge déanta ag 48% de dhaltaí a rinne an Teastas Sóisearach i 2022, idir scoileanna T1 agus T2- an líon daltaí is ísle le deich mbliana anuas

Ar an lámh eile, áfach, níl cothrom na féinne á thabhairt do dhaltaí a fhreastlaíonn ar scoileanna lánGhaeilge agus iad ag streachailt le grád gradam a bhaint amach- níor bhain ach 3.6% de dhaltaí a rinne an scrúdú T1 grád gradam amach. Níl staitiscticí ar fáil go poiblí maidir leis an gcéatadán daltaí ó scoileanna lán-Ghaeilge a bhain grad “A” amach leis an dTeastas Sóisearach, ach is féidir leis an duine réasúnta samhlú go raibh an céatadán seo a leanas i bhfad níos airde ná 3 6% Ar a laghad, tá stop curtha leis an bplean dhá chúrsa nua Gaeilge T1 agus T2 a thabhairt isteach do scrúdú na hArdteistiméireachta, cúis faoiseamh dóibh siúd a léirigh buairt faoi cúrsa níos deacra a dhéanamh gan pointí breise a fháil dá bharr. Ní bheadh sé seo cothrom toisc go ngearrfaidh sé píonós ar ghrúpa nach bhfaigheann i ndóthain cistíochta, mar atá luaite agam cheana.

Ar an iomlán, is léir go bhfuil an Ghaeilge mar cnámh spáirne i gcóras oideachas na tíre seo i láthair na huaire- ní mór dúinn ach féachaint ar an agóid Gaeilge4All le féicéail cé chomh ábharach is atá an argóint seo Rinneadh go leor cáineadh ar chinneadh Norma Foley ina mbeadh daltaí ag suí páipéar a haon sa Ghaeilge agus iad sa chúigiú bliain. Mar gheall ar an gcáineadh ó mhúinteoirí, ó dhaltaí agus a thuilleadh nach iad, thréig Foley an plean seo. Is léir go bhfuil géarghá le cothrom na féinne a thabhairt don Ghaeilge sa chóras oideachas agus mar sin, caithfidh sí a bheith inrochtana do chách, ní hamháin dóibh siúd a fhreastalaíonn ar scoileanna lánGhaeilge

Is léir go bhfuil géarghá le cothrom na féinne a thabhairt don Ghaeilge sa chóras oideachas agus mar sin, caithfidh sí a bheith inrochtana do chách, ní hamháin dóibh siúd a fhreastalaíonn ar scoileanna lán-Ghaeilge.

The Death of the Death Penalty in the US: The Effect of Judicial Intervention and Societal Shifts

by Chris McCay, SS Law and French

Introduction

The US death penalty has long withstood the test of time and like most countries with a death penalty, has become dependent on the deterrent that the punishment creates. This dependence on ‘fear’, is intertwined with the structure of the US criminal justice system. However, we can observe a recent decline in the use of the death penalty. The ultimate cause of the decline, which itself has several originating factors, is the realisation that the death penalty is a remnant of a system which has long passed its usefulness The materialisation of this opposition is detailed in Furman v Georgia This article will discuss the main causes of the decline, as well as the actual, and potential, effect that judicial intervention has on the continued use of the death penalty as a form of punishment.

I. The Principal Cause of the Decline: the Evolution of Societal Values

I contend that the main reason why the use of the death penalty in the US has decreased is due to a change in societal values Specifically, I propose that as the political ideology of society has evolved from a retributionist one to one that has become fixated with protection of rights, the presence of the US death penalty has served as a reminder of a past approach that no longer works.

The Evolution of Criminal Law

Cohen, a judicial philosopher and legal scholar of the University of Chicago, proposed that in order for criminal law to protect public morality, it must be able to evolve to match public values The question of what is a crime, and thus its punishment, is therefore ultimately a social construct. To illustrate, it was not until 2003 that homosexuality was definitively legalised in the US after the case of Lawrence v Texas. The principal reason, as determined by Judge Kennedy, was that it would be archaic to continue to criminalise something that society no longer deemed

to be a crime Putting this in the context of the death penalty, I propose that the general public in the US has moved away from the brutality of the death penalty. The general idea at present, in a point made by Garett (the L. Neil Williams, Jr., Professor of Law at Duke University School of Law), is that there is no justification that allows the state to intervene to such an extent as to end one’s life. When the US Judicial System accepted, in the case of Furman v Georgia, that the death penalty had long passed its use, it created a society wherein there is no paradoxical disconnect between those who define punishments of crime, and those who that definition will affect

It is no surprise that this change has had a direct impact on the reduction of juries imposing the death penalty. The case of Hurst v Florida reaffirms that the jury alone must impose the death penalty. Ultimately, if the jurors on the jury no longer support the idea of the death penalty, it only makes sense that the rate of the use of the death penalty declines

Ultimately, if the jurors on the jury no longer support the idea of the death penalty, it only makes sense that the rate of the use of the death penalty declines.

The Practical Reasons Behind the Decline in the Use of the US Death Penalty

In furthering the idea that societal values have been the main cause behind the decrease in the use of the death penalty in the US, we must discuss the main reason that has caused this change. The primary reason is that the effectiveness of the death penalty, the main source of its support, has been invalidated –the idea that the death penalty reduces costs for taxpayers is a myth. For example, the Nevada State Legislature made it public knowledge that the pro-

cess of imposing the death penalty costs on average $1 26 million, as opposed to non-death penalty cases of a similar nature which cost on average $740000 (Financial Facts About the Death Penalty, Nevada State Legislature 2017). We must also consider that this process may be carried out, costing millions, only for the death penalty to be replaced by life imprisonment at the end. This illusion can be said to have been constructed as a scaremongering tactic; a political tool to increase support for the politicians who support its use

II. The Influence of Judicial Decisions on the Decrease, and Potential Removal, of the US Death Penalty

The general disillusionment towards the death penalty in the US has made its way to the Supreme Court. The fight against the death penalty, from the viewpoint of the general public’s opposition, can only go so far as people allow it A 2021 study by Pew Research Centre showed that 38-40%, up from 31% in 2011, of Americans were opposed to the death penalty in all forms - but this doesn’t necessarily correlate to the idea that they consider this when casting their votes. The idea of die-hard Republicans, or indeed Democrats, supersedes any idea of progression – essentially, people will vote for the name of the party, more so than what they actually want. A solution to this problem is to bring it to the independent courts, that should ignore politics The US Supreme Court in the Furman judgement introduced the biggest barrier to the use of the death penalty yet

The Effect of the Furman Judgement

The Court in Furman ruled that the death penalty was an arbitrary punishment and thus unconstitutional under the 8th Amendment of the US Constitution. There was a positive legal effect introduced after Furman that meant that in order to reinstate the death penalty, the US States had to remove the arbitrary elements of the penalty in order to satisfy the 8th amendment of the US Constitution The visible effect of this case was a de facto moratorium of the death penalty in the US, which lasted 4 years. While, arguably, the effects of this case were short lived, it resulted in over 630 death sentences being vacated in the US. The precedent of this case is revolutionary and supports the idea that a judicial challenge to the

use of the death penalty is the best way to abolish it

For the first time, the states no longer have unilateral authority when it comes to implementing the death penalty. I propose that in using the precedent set in this case, it is likely that there will be a new case that implements even stricter requirements to use the death penalty, to the point where the restrictions in place render it so inconvenient as to no longer be viable. While this type of case may be far off, considering the current politicisation of the US Justice System, I contend that one could use this platform to advance opposition to the death penalty. As mentioned, Supreme Court cases are highly publicised, much more so than any protest by normal citizens, meaning that taking this opposition to the judicial system of the US is a more efficient way than simply waiting for political change that may never come. In the 50 years following Furman, 14 states have abolished the death penalty, and 3 more have seen the introduction of gubernatorial moratoriums Furman introduced the idea that it is possible to limit its usage It is submitted that if we have a similar case to Furman, one would expect it to have a similar effect, and a complete abolition of the death penalty could be realised. It appears that judicial intervention is a more suitable method to remove the death penalty than political intervention.

Conclusion:

The decrease in the use of the death penalty in the US can be definitively linked to the evolution of societal values, and the effect of this evolution has made footing in the Supreme Court It makes sense if we consider that, ultimately, if the US populace had no issue with the use of the death penalty, there would be no discussion on the point, meaning that any other factors that may decrease support would not even be highlighted. Therefore, considering that a major proportion of the public is becoming increasingly disillusioned, we are able to see real opposition towards the use of the death penalty in the US I propose that a challenge similar to the challenge seen in Furman is the best way to efficiently end the use of the death penalty as the Supreme Court allows for actual acknowledgment and promotion of the problem that political methods simply do not allow. One would hope that the precedent established in a similar challenge will bypass any political constraints and deal a fatal blow to the death penalty.

How is Intellectual Property Protected in the Metaverse?

by Arielle Hillock, SF Philosophy

In February 2023, a New York jury set a novel legal precedent regarding intellectual property rights in the Metaverse The case, Hermes International v Rothschild, has increased the visibility of challenges involving virtual ownership rights and jurisdiction, which creators, distributors, and lawyers are now facing more than ever. French luxury goods company, Hermes - a high fashion brand built on exclusivity and famous for their coveted Birkin Bag - filed a suit against Mason Rothschild in a New York federal court for the creation and distribution of “NonFungible-Token” MetaBirkin bags NFTs are unique digital identifiers for cryptocurrency, often exceedingly pricey and highly coveted. Ultimately, the court ruled in favour of Hermes and awarded the company $133,000. The court stated that Rothschild’s MetaBirkins “constituted trademark infringement, trademark dilution, and cybersquatting of Hermès’ protectable intellectual property rights.” The significance of the ruling lies not within the compensation awarded or dicta, but within the momentous impact of the decision on the preservation of property rights in the virtual world

In December 2021, Hermes sent a cease and desist letter to artist Mason Rothschild alleging that his sale of NFT MetaBirkins was in violation of the company’s federally-registered trademarks. Rothschild, however, viewed his works as safeguarded by the First Amendment of the US Constitution, which protects free speech online or in the press Rothschild argued that this protection “gives me every right to create art based on my interpretation of the world around me.” Rothschild first claimed that his NFTs, first sold for $42,000, were created in tribute to Hermes' long lasting influence on fashion which he hoped to extend into the virtual world. However, upon receiving the cease and desist letter from Hermes, Rothschild decided his MetaBirkins, covered in fur, were instead a “commentary on fashion’s history of animal cruelty, and its current embrace of fur-free initiatives and alternative textiles ” Rothschild’s failure to cooperate

led Hermes to finally file suit in January 2022, alleging federal and common law trademark infringement, trademark dilution, cybersquatting, false designation of origin, and injury to business reputation by Rothschild under New York General Business Law. Hermes sought monetary reparations, particularly Rothschild’s profits from selling the NFTS, and injunctive relief to prevent any further trademark infringement.

Rothschild immediately attempted to have the case dismissed and argued that the trademark infringement and dilution allegations should follow the precedent set in Rogers v Grimaldi Rothschild asserted that his artistically designed MetaBirkins complied with the “low threshold of minimal artistic relevance”. He claimed that there was “nothing explicitly misleading about [his] depictions of the Birkin bags or his use of the ‘MetaBirkins’ name as the title of his art project,” or in his use of the name online. While Manhattan District Judge Jed Rakoff agreed with the logic of the precedent set in Rogers v Grimaldi regarding immunity to artistic work, he believed that the MetaBirkins misled consumers as to their source and that there was no artistic relevance for the use of Hermes’ trademark Therefore, Judge Rakoff found Rothschild’s work to not be protected by Rogers v Grimaldi, and did not dismiss the case upon Rothschild’s request. The judge further disallowed testimony by art critic Blake Gopnikin in support of Rothschild, both men likening the MetaBirkin to Andy Warhol’s graphic painting of Campbell’s soup cans

As one of the first rulings dealing with intellectual property in the Metaverse, the decision in Hermes v Rothschild will guide future courts in their treatment of NFT ownership rights and defences of artistic expression

Ruling in favour of Hermes, The New York jury ultimately decided that Rothschild’s use of the Birkin mark was unlicensed and therefore, illegal The jury reasoned that the name “MetaBirkin” was likely to confuse potential consumers as to whether these MetaBirkins were officially affiliated with the Hermes brand and could mislead customers into investing in the product. Thus, Rothschild’s attempt at defending his virtual creations using the First Amendment proved unsuccessful

In considering whether Rothschild’s work constituted trademark infringement, the jury appreciated factors such as the similarities between the appearances of the Birkin and MetaBikrin, the level of fame possessed by the Hermes’ Birkin Bag, whether the target consumer audience for the individual products overlapped, whether Rothschild’s operation was formed upon mal-intent, and the likelihood that Hermes would enter the metaverse to sell NFT Birkins of their own While no one factor is solely determinative of trademark infringement, the jury found through their evaluation of all relevant factors that Rothschild was liable for trademark infringement

Additionally, the jury found Rothschild to be guilty of ‘cybersquatting’ the practice of registering internet domains of well-known brands in the hopes of reselling them for profit. The jury was persuaded that Rothschild’s internet domain selling the MetaBirkin NFTs and Hermes’ Birkin internet domain were nominally and aesthetically similar same time, and that there was bad i Rotschild’s MetaBirkin domain T that acting for commercial gain sati malicious intent required t cybersquatting charge.

As one of the first rulings dealing property in the Metaverse, the dec Rothschild will guide future courts of NFT ownership rights and de expression While individual crea newly set precedent favours large renowned brands over small-scale, the application of the precedent Rothschild does not necessarily s brands. Historically, intellectual pr been a complex topic and they will

on scenario-specific evidence including the intention behind use, the strength and influence of the product in question, and its effects on consumers While Hermes’ legal arguments concerning the trademark infringement of the MetaBirkin prevailed due to Rothschild’s non-benevolent intent and the dilutive effects of the NFTs on the Birkin brand, one wonders how the ruling may have been affected if the conditions for MetaBirkins in the metaverse had been different If the Birkin marking was merely a small component of a larger metaverse world rather than a stand alone, sellable NFT, would the ruling have changed?

It is hard to tell exactly how intellectual property laws will apply to the Metaverse in the future, as the nature of the space is changing rapidly and is poorly understood by most of the general public. Furthermore, determining infringements of intellectual property in the Metaverse is a difficult task because the defendants behind NFT drops and creators of meta-property are often unknown or anonymous Thus, it will be difficult to prevent infringing uses also Despite this, Hermes v Rothschild can inspire some confidence in IP owners that their intellectual property rights will still be protected when represented in virtual reality. The ruling has already been relied upon in the Yuga Labs, Inc v Lehman trademark lawsuit and in another case regarding the Bored Ape NFT in the Singapore high court

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

Introduction

Those Who Wait: ICC Arrest Warrants Explained

by Sam Walsh, JS Law and French

On Friday 17 March 2023, the Pre-Trial Chamber of the International Criminal Court (ICC) issued two arrest warrants arising from investigations into the situation in Ukraine. The concept of an arrest warrant traditionally evokes images of officers in uniform seizing the individuals charged, placing them in vans marked ‘ICC,’ and sending them to The Hague to await trial. In reality, however, this is not how the international court operates So what do these warrants actually mean? In order to understand their likely long- and short-term implications, this article will examine the nature of the allegations they substantiate, the extent of the courts’ competence, and the context in which this development has occurred.

Who has been indicted and what have they been indicted for?

The most eye-catching aspect of this announcement was the revelation that one of the arrest warrants charges Russian President Vladimir Putin himself In a press release, the ICC Chief Prosecutor’s office stated that it has “reasonable grounds to believe that President Putin bears individual criminal responsibility” for crimes committed in Ukraine. At this point however, this unambiguous statement applies only to the war crimes of “unlawful deportation of population” and “unlawful transfer of population” under Articles 8(2)(a)(vii) and 8(2)(b) (viii) of the Rome Statute, the treaty which establishes the ICC and outlines the crimes for which it has competence The Ukrainian prosecutor’s office has indicated that more than 16,000 instances of these crimes are currently under investigation, while the ICC chief prosecutor Karim Khan said in an official statement that his office had identified cases of “at least hundreds of children” taken from orphanages and care homes in Ukraine to be brought to Russia. Prosecutors believe that President Putin may be directly liable for these crimes or, at the very least, liable for his failure to exercise control over his sub-

ordinates. Meanwhile, Russia’s Commissioner for Children’s Rights Maria Alekseyevna Lvova-Belova has been accused of the same crimes as President Putin, albeit as a direct perpetrator, meaning she will be tried for her own actions rather than for those of individuals under her command.

Why these crimes?

Considering that reports from NGOs such as Human Rights Watch and investigations by the UN Human Rights Council indicate that forces under President Putin’s command have been blatantly committing human rights violations on Ukrainian soil for over a year now, it would be reasonable to ask why the ICC has focused on the deportation of children as the subject of its arrest warrants. Aside from the fact that these are heinous and reprehensible crimes, it would appear that the prosecutor’s decision is based on the sheer weight of inculpatory evidence available to him This is exemplified by the findings of a report published by the UN’s Independent International Commission of Inquiry on Ukraine two days before the warrants were released establishing that Russia had carried out extensive forced deportations. Chief Prosecutor Karim Khan also pointed to a decree issued by President Putin expediting the conferral of Russian citizenship upon Ukrainian children as evidence of “an intention” on the President’s part to “permanently remove these children from their own country ” President Putin had also previously appeared on live television to discuss the policy with Ms Lvova-Belova, who thanked him for the opportunity he had given her to “adopt” a child from Mariupol. Therefore, it is submitted that there is little which could place these individuals' responsibility in doubt. However, it is widely recognised that these crimes are far from the only ones for which the Russian President could be indicted and it is reasonable to assume that the Chief Prosecutor is, for now, simply picking the low-hanging fruit Indeed, while the Pre-Trial Chamber was not obliged to

announce the issuing of these warrants, it ultimately opted to do so because it believed that their publicity may contribute to preventing further crimes from being committed.

What has been the reaction?

The announcement was quickly welcomed by Ukrainian President Volodymyr Zelensky and many Western leaders, while Human Rights Watch described the warrants as a “wake-up call to others committing abuses or covering them up.” Russia’s foreign ministry meanwhile was quick to point out that “Russia is not a party to the Rome Statute of the ICC and has no obligations under it” and described the warrants as “legally null and void” within Russia itself Indeed, the ICC has no police force or enforcement mechanism and thus relies on its 123 State parties to enforce its warrants of their own accord While Russia signed the Rome Statute in 2000, it never ratified the treaty and eventually withdrew from the agreement entirely in 2016. Ultimately, it is accepted these warrants are unlikely to be enforced any time soon.

What could this mean in the long term?

While the warrant against President Putin is unlikely to have any immediate effect, this does not mean that it will not play a role in placing him before the court in the future This is because there is no limit on the period in which ICC arrest warrants can be enforced. In addition, the ICC statute allows the court to ignore the personal immunity which usually attaches to heads of state under public international law. As a result, two paths towards President Putin’s future arrest present themselves. First, the Russian president could potentially be arrested if he travels to any state which is party to the ICC and willing to enforce its decisions This warrant is therefore an important tool in efforts to effectively render President Putin a true international pariah Alternatively, this warrant could be used to execute Putin’s arrest in the event that the political tide in Russia turns against him. In a postwar world, it is likely that any attempts the Russian state makes to reintegrate itself into the international order will be conditional on handing over their indicted leader. This outcome, while at present merely speculative, is not without precedent, as a similar sequence of events led to Serbia’s decision to hand

over ex-President Slobodan Milošević to the International Criminal Tribunal for the former Yugoslavia.

Conclusion: What’s next?

The lack of immediate prospect of Putin’s arrest has not deterred the Chief Prosecutor Investigations into the situation in Ukraine will continue and efforts to bring Russia’s president to justice are ongoing. A war crimes conference has been convened in London and debate is continuing on how Russian leaders may be prosecuted for the crime of aggression, which criminalises individuals who plan and execute an aggressive war in breach of international law. While UN investigators recently announced they had found no clear evidence of the crime of genocide thus far, it cannot be ruled out, particularly as Article 2(e) of the Convention on Genocide states that “forcibly transferring children of the group to another group” may constitute genocide if accompanied by the requisite intent to “destroy in whole or in part” the group in question. Scrutinising Russian actions for evidence of this specific intent will no doubt be a key aspect of investigations into the situation in Ukraine in the months and years to come. Nonetheless, the significance of the current ICC arrest warrants should not be underestimated In issuing an arrest warrant for the sitting head of a belligerent nuclear power, the ICC has set out into uncharted territory Never before has the Court conducted a prosecution on this scale, and while it is an institution which runs as much on patience as it does on action, anyone seeking justice in Ukraine must remember that good things often come to those who wait.

Photo courtesy of Ciara Hogan, JS Law and Political Science

[T]he significance of the current ICC arrest warrants should not be underestimated. In issuing an arrest warrant for the sitting head of a belligerent nuclear power, the ICC has set out into uncharted territory.

Russian Reliance on Wagner: An Assessment of Prigozhin’s Secretive ‘Sellswords’ and their Role in Ukraine.

by Daniel Shields-Huemer, SS Law and Political Science

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

Introduction

When Russia invaded Ukraine in February 2022, the infantry on the Russian side was not constituted solely of Russian soldiers. Mystery men dressed in green without insignia were reported to be fighting on the Russian side not long after the onset of the war. These combatants were soon recognised as members of the Wagner PMC (Private Military Company), who had also been stationed in Ukraine during Putin’s 2014 annexation of Crimea The definition of this group and its legality as a combatant group is an emerging issue within international law This is particularly relevant due to the Wagner Groups’s favourable status within the Kremlin, and its ongoing use as infantry in the current war in Ukraine.

Prigozhin and Wagner’s Emergence

Yevgeny Prigozhin is often referred to as Putin’s “chef” - a nickname stemming from his spell as a high-end restaurateur in the 1990s, when he frequently catered to Russian elites, Putin amongst them Not long after, Prigozhin found himself managing lucrative government catering contracts, further ingratiating himself in Putin’s inner circle. It was the Kremlin’s 2014 annexation of Crimea and increasing military presence in Eastern Ukraine which presented Prigozhin with the opportunity for a new business venture, as Putin sought plausibility for his outright denial that Russian forces were not involved in Ukraine Thus, the Wagner Group was born. Despite long denying his involvement, Prigozhin admitted in 2022 to having owned and funded Wagner from the outside, alongside the more public figurehead Dmitri Utkin, a nationalist veteran of the Russian military intelligence service, whose far-right tendencies are believed to have led him to name the group after Hitler’s favourite composer. Since then, the Wagner group has also served Russian interests around the African continent, largely providing security services to state regimes and by extension

furthering business ventures of the Russian oligarchy - in Sudan and the Central African Republic, Prigozhin has gained mining concessions in exchange for training state security services. Wagner has also fought extensively for the Assad regime in Syria alongside Russian forces there, often in direct conflict with US forces.

Human Rights Concerns

Wagner has earned a brutal reputation for its cruel treatment of its enemies, as well as its own members Numerous videos have circulated on the internet showing torturous and degrading punishment within Wagner, as those no longer wishing to fight are often violently executed. Such practices appear to be tolerated and even encouraged from above, exemplified by Prigozhin’s reported response to a video of a defector in Ukraine being murdered with a sledgehammer: “a dog’s death for a dog.” This suggests Prigozhin is savouring the newfound notoriety attached to his role as Putin’s top warlord. The Wagner group has not only been implicated in the Bucha massacre in the Ukraine war, but also in similar atrocities in Mali and Syria. Its combatants appear to act with a level of brutality not usually seen regularly with official state forces. Of course, tactical state use of PMCs with abhorrent human rights records is not unique to Russia. Wagner lends itself to comparison with the US “Blackwater” group, which was heavily employed in Iraq by the Bush administration Much like Wagner, they faced regular outcry for their grave human rights violations, most notably the Nisour Square massacre in Baghdad in 2007. However, the number of Wagner operatives active in Ukraine today sets Russian use of PMCs apart – Wagner troops in Ukraine have been reported by Western intelligence to have reached 50,000 men. This is following evidence of widespread prison recruitment drives to sustain the Russian war machine in Ukraine Prigozhin, who himself spent most of his

twenties in prison, has been filmed promising Russian inmates pardons if they survive a 6-month stint with Wagner in Ukraine Worryingly, Wagner has been accused of using such troops as cannon fodder on the front line, with one former commander suggesting the group had deteriorated from “a band of brothers to a group of combat serfs.”

Difficulty of Definition

Despite the media’s common labelling of the Wagner group as “mercenaries,” the group does not lend itself to clear definition under existing international law The definition of mercenary under the 1989 International Convention against the Recruitment, Use, Financing and Training of Mercenaries specifies that a combatant must be “neither a national of a party to the conflict nor a resident of territory controlled by a party to the conflict” to fall within the scope of the definition. This certainly excludes Wagner’s operations in Ukraine from the scope of the Convention Even its operations in Syria, it has been observed, are likely outside the Convention’s scope, as Russia unambiguously supported the regime with its own troops and weaponry

Wagner’s open involvement in Ukraine has put an end to its once secretive status. There has been much speculation regarding the reasons why the Kremlin is willing to bend its own laws for Prigozhin’s group.

Legal Grey Area - a Tactical Shirking of Responsibility?

The Wagner group’s legal status, evidently unclear under international law, is equally murky under domestic Russian law. Notwithstanding the registration of “PMC Wagner Center” in January of this year as a joint stock company in St Petersburg and the construction of a flashy new Wagner HQ there, PMCs remain illegal under Article 359 of Russia’s Criminal Code In its registration, the company states its interests as comprising business and management consulting, publishing, media, scientific development, and the leasing of ships and airplanes. However, Wagner’s open involvement in Ukraine has put an end to its once secretive status.

There has been much speculation regarding the reasons why the Kremlin is willing to bend its own laws for Prigozhin’s group The “plausible deniability” motive is one explanation – that Russia allows Wagner to do their dirty work for them, and then can shirk responsibility for their heinous acts. This appears convincing in the context of the group’s early involvement in Eastern Ukraine in 2014, where Putin sought to surreptitiously stir up pro-Kremlin sentiment in the region while avoiding outright Russian military involvement However, regarding the war in Ukraine, in which Russia is by now the clear aggressor, this argument is less convincing. Another factor may be the greater perceived expendability of PMC troops – public outcry is sadly but inevitably lessened by the fact that many of the Russian fatalities are contracted combatants rather than conscripted civilians. Indeed, Prigozhin has justified his prison recruitment campaign by callously suggesting “either mercenaries and inmates [fight], or your children do”

Conclusion

There is little denying that the extent of Wagner deployment in Ukraine presents a novel dilemma from a humanitarian perspective, but also the perspective of the law of armed conflict, as the Wagner group evades convenient definition. The sheer number of Wagner troops involved in Ukraine sets the situation apart from otherwise comparable examples like Blackwater Reliance on legally dubious PMCs to the extent seen in Ukraine is far more typical of weak authoritarian regimes than of a global powerhouse like Russia, and is thus quite surprising. Whether Prigozhin’s status as “warlord” will continue to reap military results for Russia may depend on whether he can maintain popularity with Putin. Recent tensions suggest Prigozhin’s burgeoning power and increasing criticism of Russian forces has birthed scepticism within the Kremlin. Regardless of its future, however, the Wagner group has exemplified a unique and troubling phenomenon in modern-day warfare: the large-scale use of brutal PMCs in a full-scale invasion of a neighbouring state

Photo courtesy of Emma Bowie, SS Law

The Need for Judicial Activism in the Adjudication of Socio-Economic Rights for Disadvantaged Groups

by Nikola Wieclawska, JS Law

Recently, socio-economic rights have gained a significant amount of exposure due to the ongoing economic crisis in Ireland. Socio-economic rights are basic human rights, essential for one’s survival and human development. They include the right to food and water, essential healthcare, relevant education, appropriate housing, cultural respect, and participation in society As stated aptly by academic Claire Smyth, past failures to adequately provide for these rights “ha[ve] had a devastating impact on the most vulnerable in society ” Apart from the right to free education safeguarded by Article 42.4 of the Constitution, no other socio-economic right is guaranteed protection under the Irish Constitution. Given that these rights concern our survival and provide for the most fundamental aspects of human experience, it is unsettling to note that with one exception, there are no express provisions directly referring to socio-economic rights Certain limited protections can be deduced from Article 45 relating to broad principles of social and economic policy, with subsection 4 1° outlining that “The State pledges itself to safeguard with especial care the economic interests of the weaker sections of the community.” However, this protection is tainted by the fact that these provisions have been intended solely for the general guidance of the Oireachtas, and are not enforceable by any court.

The question remains as to what could be done by the judiciary in order to sufficiently protect these rights, with constitutionalising them being on the political agenda Education is explicitly protected by the Constitution yet is not always upheld under the law; this is exemplified in the cases of both Sinnott v Minister for Education and TD v Minister for Education. We therefore must ask ourselves what such a reform would accomplish. Although both of these cases did not specifically deal with the issue of socio-economic rights, the commentary of judges in relation to judicial activism is of importance. In

Sinnott, the Supreme Court questioned whether the judiciary could issue a mandatory injunction directing the Minister to take specific action regarding the educational needs of the plaintiff. Leading the majority decision, Hardiman J ultimately concluded that such an issue was to be dealt with solely by the legislative and executive branches of the government, relying heavily on the doctrine of the separation of powers Yet, in a notable obiter, Denham J expressed the view that she was open to judges intervening in “rare and exceptional” circumstances

Article

state is

obliged to offer protection to these disadvantaged groups, yet in reality, these groups do not stand a chance of having their voices heard.

The Supreme Court in TD further aggravated the decision in Sinnott, with Murray J clarifying that a mandatory order would only be granted if the state had “flagrantly” breached its constitutional duties. For a disadvantaged plaintiff or group, the threshold to establish that a right has been breached by the state is therefore set very high. Nevertheless, what further complicates the process is that the courts have not defined the ‘exceptional circumstances’ they deemed as capable of intervention Hence, if the constitutionalising of socio-economic rights were to occur, there is the possibility that courts would still only be able to intervene in “exceptional cases,” and that prospective plaintiffs would be left with both uncertainty in the court process, and in the executive’s decision-making process.

In an ideal world, if implied socio-economic rights were to be constitutionalised, it would be followed by greater freedom for judicial creativity so that fairness

It is paradoxical that under

45, the

constitutionally

is achieved for marginalised and disadvantaged groups in particular Dr Niamh Hardiman insightfully offers several reasons why disadvantaged groups would be incapable of effectively influencing political decision-making in Ireland. She clearly argues that such groups are not provided with adequate living circumstances in which they can build networks of involvement and acquire a voice with which to lobby the government. It is paradoxical that under Article 45, the state is constitutionally obliged to offer protection to these disadvantaged groups, yet in reality, these groups do not stand a chance of having their voices heard This issue of majoritarian democracy as not adequately serving the needs of minorities is where I believe the argument that parliamentary democracy by itself achieves fair results falls apart.

One reason that judges are unable to cast greater power in matters of socio-economic rights is because they are unelected representatives As a result, greater power offered to the judiciary to determine matters of distributive justice would be an undemocratic process since the voice and votes of people would not be given equal consideration across the three branches of government. Hardiman deals specifically with the disadvantaged and the political process in her studies. Gerard Whyte in an IHRC Conference on Economic, Social and Cultural Rights in 2015 suggested that the studies conducted by Hardiman portray that long-term non-voters are much more likely to be socially disadvantaged than regular voters Furthermore, there are significant correlations between poor electoral participation and social deprivation in the Dublin area at an aggregate level. Conversely, swing voters consisting of those who “occupy far more of politicians' and party activists' attention ... are far more likely to be urban, middle-class, and articulate about their interests and preferences.” From the above analysis, it is clear that the views of disadvantaged groups will never be given priority under liberal democratic theory, which inherently prefers judicial conservatism As the democratic process does not always create fair results by excluding minority views, it is difficult to see how judges would be adding further unfairness to the process by supporting those individuals with minority rights.

The need for protection of the disadvantaged groups

is particularly acute at the current moment Recent CSO statistics indicate that a vast number of people in Ireland are at risk of their socio-economic rights being breached on account of the economic crisis. According to the survey, 54 per cent of households with children reported making food cuts, 17 per cent reported making healthcare cuts, and 5 per cent reported making education cuts. From these statistics, it is evident that the most vulnerable are making the most considerable cuts to the fulfilment of their fundamental socio-economic rights Interestingly, a complete percentage of 93 per cent reported in the survey that they felt their current economic situation would remain the same or get worse over the next year, asserting their uncertainty about whether the Irish State would be capable of managing the economic crisis and aiding their socio-economic rights.

Although judicial activism could be regarded as breaking the high constitutional doctrine of the separation of powers, such an issue does not have to arise in these circumstances As noted by Conor O’Mahoney, a move from judicial restraint would not signal a move to the complete freedom of judges, but rather it would permit judges to act when the fundamental rights of disadvantaged groups are at stake, and where the state has not done enough to vindicate these rights. Furthermore, the Supreme Court in the recent case of Friends of the Irish Environment v Government of Ireland [2020] has advocated for greater judicial activity when it was declared that judges could become involved in the identification of new rights if they could be ‘derived’ from the structure of the text or title in the Constitution. In order to achieve adequate protection of socio-economic rights, in particular those of disadvantaged groups, a step must be taken forward to allow for greater judicial activity. Arguably, Friends of the Irish Environment could be the case to advance this step forward

[A] move from judicial restraint ... would permit judges to act when the fundamental rights of disadvantaged groups are at stake, and where the state has not done enough to vindicate these rights.

Transgender Rights the US and Ireland: Are We Regressing?

by Chloé Asconi-Feldman, SF Law

In March 2023, Tennessee passed a bill which discriminated against transgender youth and drag performers. Senate Bill 0001 essentially bans transgender minors in Tennessee from receiving gender-affirming healthcare, including puberty blockers, hormones, and gender affirming surgery. Another law passed in the same month by Tennessee’s Republican Governor Bill Lee also restricts drag shows from taking place in public or with children in attendance in an attempt to limit the development of drag within the state In response to the bills, there have been rallies planned by organisations such as the Human Rights Campaign to promote acceptance and protect LGBTQ+ speech and expression.

Many medical organisations, including the World Health Organization and the American Medical Association, endorse gender-affirming care for minors as an effective treatment for gender dysphoria Despite this, children currently taking these influential medications in Tennessee must cycle off the drugs by 31 March 2024 according to the new law. As certain medical professionals and researchers have endorsed such care for transgender youth as reputable, it is submitted that Governor Bill Lee’s legislation endorses a transphobic mandate for healthcare. Essentially, this law goes beyond prohibiting gender affirming medication for minors by banning gender dysphoria as a legitimate diagnosis The law completely disregards any youth who experience gender identity disorder or gender incongruence, reflecting state intolerance

Senate Bill 0003 was also passed in conjunction with this bill restricting “adult-oriented performances that are harmful to minors” in public areas, adding “male and female impersonators” to the list of performers under restrictions. This, in essence, targets drag performers, which is why this bill is commonly referred to as the “Drag Bill ” Although it is acknow-

ledged that there is value and understanding in legislation banning children’s exposure to explicit content, the consequences that this bill will have on transgender communities and future legislation regarding drag shows is significant, and should not be disregarded in the eyes of the law. Drag does not have to be a sexualised show, which is why implementing a blanket ban is overly restrictive when it does not need to be

Critics state that this legislation, and other attempted ‘drag bans,’ might be a response to events where drag queens are directly interacting with children. This includes country-wide events such as ‘Drag Queen Story Hour,’ where drag queens read books to children in library style readings. These events have been perceived by conservative politicians as threatening, which is the reason for this increase in legislation banning drag performers Ultimately, it is a parent’s choice to bring their children to these ‘Drag Queen Story Hours’ or other community events If these families do not agree with these events, it is submitted that they simply do not have to attend. Instead, implementing harsh legislation puts transgender communities at a larger risk of discrimination and teaches future generations patterns of avoidance and intolerance.

This issue has gained national attention, with White House Press Secretary Karine Jean-Pierre stating that Governor Bill Lee has not laid out clearly why drag shows are an issue for the American people JeanPierre goes further, stating that these policies are not only unnecessary but have dangerous implications as well. Since 2014, the Human Rights Campaign has found that Tennessee lawmakers have passed 14 antiLGBTQ laws, which is more than any other state, with Lee’s focus on anti-LGBTQ legislation receiving additional backlash for encouraging other states to pass harsher legislation on trans people Legislators in other states have already filed similar proposals to

that in Tennessee, such as Texas, West Virginia, Nebraska, and South Carolina Indeed, independent legislative researchers have observed that 2023 has seen more anti-transgender legislation passed than any other year in American history.

Turning to a consideration of transgender rights in Irish law, the Gender Recognition Act 2015 enables trans people to apply to have their preferred gender legally recognised by the State This applies to everyone over 16, where anyone over the age of 18 can apply, and those who are aged 16 or 17 may apply, but have to face a more complicated process Since they are minors, a parent or guardian would have to apply on their behalf while applying to the Circuit Family Court in order to exempt the child from the over-18 age restriction. The age requirement to access gender hormone therapy is 16 years old. Despite its permission in Irish law, the Irish Medical Times conducted an investigation on its practice and found that many Irish trans patients are resorting to “DIY healthcare,” after feeling that the HSE has failed them

A patient at Loughlinstown hospital has reported that the average wait period is seven years before patients can access the services To avoid such a long waiting period, many who want to acquire these services do so by illegal means. On the black market, hormone therapy is significantly cheaper, the wait times are significantly lower, and patients do not have to worry about invasive assessment procedures and medical reluctance that many face in the Irish health care system

Seven-year wait periods and astronomical prices have not proven effective in Ireland Although trans people are better legally protected in Ireland than in Tennessee, Irish policy still has shortcomings and it is important that we remain critical of Ireland's legislation as it is not as accommodating in practice as it is on paper. What we can learn from Governor Bill Lee’s legislation is that transgender rights must be protected in legislation so we do not promote discrimination to future generations

Children's Rights in the Digital Environment

by Sarra Abdallah, SF Law

Childhood and adolescence have been significantly altered by digital technologies The internet and devices used to access it have become essential parts of young people's lives all around the world. They have changed how they go to school and learn, how they make and maintain friendships, how they use their free time, and how they interact with the rest of society. According to UNICEF, one child out of every three uses the internet globally, and one out of every three of these users is a child under the age of 18. As much as the internet provides children with an opportunity to learn, and be innovative, there are hazards involved and potential negative effects that need to be considered It is therefore important to ensure the correct implementation of children's rights in the digital environment.

Along with the vast opportunities the digital environment brings for children comes a range of risks. These risks range from cyberbullying, data pro-

r tection issues, cybercrime, and child sexual abuse material However, with the provision of the right education and implementation of laws children can avoid the harmful risks of the internet and take advantage of the useful resources it may provide them. The Council of Europe Strategy for the rights of the child (2022-2027) focuses on children's rights in the digital environment. This was reinforced by the Recommendation CM/Rec (2018)7 of the Committee of Ministers to Member States to respect, protect and fulfil the rights of the child in the digital environment These principles are completed by the new Handbook for Policy Makers on the Rights of the Child in the Digital Environment, which offers policy makers interpretive advice to ensure that children's rights are respected online, supports the creation of national frameworks and laws, and promotes compliance. Ultimately, these policies are important as they aim to protect children online from grooming, sexual violence, cybersexism, cyberbullying and online hate

speech, as well as exposure to pornographic and other harmful content These policies also provide guidance to teachers and other professionals on how to involve children in the creation and delivery of digital education and address the spread of false information, hate speech, and violent radical ideologies over the internet and social media. Moreover, the policies urge businesses to fulfil their obligations to children, particularly by conducting child impact assessments, ensuring that children are involved in the evaluation process, and incorporating children into the creation of digital services and products

Turning to other sources of child protection in the digital sphere, the General Data Protection Regulation (GDPR) (EU) 2016/679 requires companies to obtain parental consent before collecting personal information from children under the age of 16. It also gives children the right to access and delete their own data The United Nations Convention on the Rights of the Child (UNCRC) is an international treaty that outlines the basic rights of all children, including the right to privacy, protection from harm and access to information The Irish government consented to have its implementation of the UNCRC periodically evaluated by the UN when it signed the UNHCR. As a result, Ireland undergoes an oral examination by the Committee members every five years and provides a progress report to the UN Committee on the Rights of the Child. On behalf of non-governmental organisations, The Children's Rights Alli l provides an impartial report, which is "Parallel Report ”

Despite the existence of relevant le international obligations, it is submitted human rights institutions should engage with independent oversight authorities their mission regarding children's righ government should encourage the esta organisations such as The European Ombudsman for Children (ENOC), organisation which ensures that releva wide organisations adopt a child right their work and place children's rights at their operations, legislation, and pol advocacy and policy work. Such provide a central role in ensuring the im of heightened child protection laws.

Undoubtedly, the effect of the content that children encounter online should be a primary focus of these organisations According to The Internet Watch Foundation, a report in 2021 illustrated that there were 252,000 confirmed URLs containing images/videos of children being sexually abused. It is evident from these statistics that governments need to take urgent action by implementing harsher penalties on those who break child protection laws and ensuring the swift removal of illegal online content It is important for the government to protect the rights guaranteed by the UNCRC by strengthening implementation measures to deliver a modern data protection framework that protects the "best interests" of the child in digital environments.

It is important for the government to protect the rights guaranteed by the UNCRC by strengthening implementation measures to deliver a modern data protection framework that protects the "best interests" of the child in digital environments.

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

DU Law Society: A Year in Review

by Eoin Ryan (Secretary) and Ruth Brady (Auditor)

The 89th Session of Lawsoc was jam-packed as ever with a massive array of events from balls to boxing.

The Society was delighted to award a number of individuals with the Praeses Elit medal in recognition of their distinct contribution to justice. Notable recipients this year included Chief Justice Donal O’Donnell, Lord Justice Andrew Burrows, and Ailbhe Smyth Mathew S Rosengart, the attorney who led the #FreeBritney case, however, was undoubtedly the members' favourites

Lawsoc’s competitions were as successful as ever, receiving huge engagement across the board from Senior Mock Trial to our annual Natalie Forde Maidens Memorial Competition. In what might be a Lawsoc first, Crea Shine and Tacha Byrne won both Commercial Negotiations and Junior Mock Trial This year also marked the first year of Cambridge hosting the Trinity-Cambridge Intervarsity which was a massive success - aside from the fact both Trinity teams lost! As always, members had huge enthusiasm for LawSoc’s infamous social events. Firm favourites such as Swing Ball in the Shelbourne Hotel and Law Ball in the Knightsbrook Hotel, Meath returned with a great night had by all. These were complemented by some fantastic themed club nights such as the Berghain night and the Monochrome Party which made for a packed calendar of socialising.

The Charities subcommittee had a hugely successful year raising over €15,000 for BeLonGTo Services, an LGBTQ+ youth charity. Lawst and Law Day were

held alongside Charity Boxing's sold-out fight night, headlined by some of the meanest and toughest law students to ever grace the ring. Trinity Women in Law, now in their third year, carried on the great work of previous committees by running the hugely popular Mentorship Programme and published their Annual TWIL Report LawSoc’s Outreach programme also continued to further its aim of promote access to studying law at third-level by teaching and mentoring Transition Year students from DEIS and disadvantaged schools After Covid put a stop to the programme during the 88th Session, this year saw a return to in-person classes in Dublin alongside online classes delivered across the country. The programme reached nearly five hundred students with thirty student mentors from Trinity taking part.

This year was the biggest year that the Law Society has had yet In between the partying, fundraising, competitions and innovation (hopefully new events like the Alumni Gala and the Human Rights Speaking competition will continue for years to come!), we grew our social media by platforms and following, passed a new constitution, and successfully navigated the first full year back post-Covid. There were bumps along the way (these are available to read about in The Piranha!) but all in all, it was a stellar year thanks to a stellar committee Jack R, Aisling, Amy, Alice, Alex, Connor, Hattie, Canice, Cormac, Crea, Eoin, Sam, Louise, Hobbes, Hana, Lara, Meher, Kylie, Michael, Jack W and Ursala - thank you for making this year happen Your efforts will give the 90th session a smooth takeoff.

Committee of the 89th Session of the DU Law Society

Trinity FLAC: A Year in Review

by Zoya Kherani, JF Law and Business

Trinity College Dublin's Free Legal Advice Centre (FLAC) has been an active hub of legal activity over the past academic year. We provide free legal information, advice, and representation to people who cannot afford to pay for legal services FLAC's mission is to promote and protect human rights, equal access to justice, and the rule of law FLAC's clinic work is a crucial part of its mission to promote and protect human rights and equal access to justice. Through its clinics, FLAC is able to provide vital legal services to people in need, while also contributing to the broader goal of promoting greater awareness and understanding of legal issues in society. The organisation's work is a testament to the power of volunteerism and the importance of collective action in promoting social justice and human rights

FLAC’s consistent endorsement of social justice and legal knowledge can be portrayed by the myriad of events and initiatives that address pressing social issues. We started off the year with a panel discussion on housing rights, featuring Professor Gerry Whyte, Emily Murtagh from the Irish Traveller Movement, and Paul Dornan from Mercy Law The discussion focused on the challenges facing people who are homeless or at risk of becoming homeless and highlighted the need for effective policy solutions to tackle the housing crisis This was followed by a panel discussion on transgender rights and history in Ireland. The speakers included Lilith FerreyraCarroll, Clare Tebbutt, and Conor Tormey, and the event was held in collaboration with QSoc. This dis-

cussion highlighted the struggles and achievements of the transgender community in Ireland, and the need for greater awareness and support for transgender rights

FLAC also collaborated with Trinity Access Programme to host a “Know Your Rights” workshop with City Quay National School This event aimed to educate young people about their legal rights and provide them with practical tools to navigate the legal system. The workshop was a success, and the students were also treated to a campus tour and an administrative law problem question. In addition to these events, FLAC hosted several talks and workshops on a range of legal topics These included a talk on state responses to child protection concerns with Professor Conor O'Mahony, a workshop on LGBTQI+ rights with Professor Mark Bell and James Rooney BL, and a workshop on the Freedom of Information Acts with Sharon Dillon-Lyon BL.

FLAC's commitment to promoting social justice and advocacy was evident in their announcement of an article competition on 'Minority Rights and Marginalised Interests in the International Context' in collaboration with The Eagle and 'Social Innovation for Social Change' competition held in collaboration with Trinity Entrepreneurial Society. These competitions encouraged students to come up with innovative solutions to address social issues and promote positive change in society. Finally, a FLAC Committee favourite was the presentation of the Advocacy Award to Noeline Blackwell, who is the

Trinity FLAC Committee 2022/23

CEO of the Dublin Rape Crisis Center, the former Director General of Ireland’s Free Legal Advice Center and has been an active leader in advancing social justice in Ireland.This was an important event for the society as FLAC loves to endorse and appreciate people that have been anchors of social justice.

At the end of the day, none of this would be possible without the hard work and dedication of the FLAC committee; Georgia Dillon, Lucy Shuyao Lu, Hugh Gallagher, Isabelle Healy , Sorcha Byrne, Tara Brady, Leanne Healy, Jenny Salmon, Katie Loughney, Zoya

Kherani, Fiona Stenson, Deirbhile Clenaghan. Sophie Moutray, Pauline Greiner and Anna Clarke. The panel discussions, research projects, workshops, and moot competitions that were organised have all contributed to promoting legal awareness and access to justice. It is only through your tireless efforts and dedication that the Trinity College Dublin Free Legal Advice Centre has been able to make such a positive impact on the community. Their hard work has not gone unnoticed

The Eagle: A Year in Review

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

The unfortunate luck bestowed upon Trinity’s graduating class of 2024 was that our college life began, and for two years was continuously marred, by the global pandemic In between Zoom orientations and society coffee mornings, I saw a call for first years to apply for the junior editorial board of The Eagle, Trinity College Dublin’s Law Gazette. As a fresher who admittedly idolised their Leaving Certificate English teacher, I could think of no role I would enjoy more. By a stroke of luck, I was chosen alongside three other first years. While initially having to deal with feelings of intimidation as I edited alongside more experienced (and plainly better) editorial board members, I watched The Eagle go from strength to strength under the leadership of Samantha Tancredi, then Editor-in-Chief. I was amazed by the dedication of the board in perfecting articles for the issues. I can remember spending hours on Zoom ensuring pieces would be perfected before they went to print.

This past year has been no different Although Zoom lectures have thankfully been replaced, The Eagle has continued to grow This year we have published three issues, with a total of 50 articles A highlight was, of course, our collaboration with DU Amnesty. The launch of this article was a great time to spend time with members of the Editorial Board, as well as meet contributors, members, and our collaboration partners in DU Amnesty. What stuck with me, however, was the impassioned speeches by our Editor-in-Chief

Emma Bowie as well as Deirdre Walsh, the Activism Coordinator from Amnesty Ireland Given the current state of affairs in international politics, with particular reference to the Russian invasion of Ukraine, human rights have never been more relevant Even though we are only an undergraduate publication in a university on a tiny island in Western Europe, we have the power to shed a light and bring awareness to the darkest corners of the world. Through the dedication of both the junior and senior editorial boards, as well as DU Amnesty, this issue hopefully provided an insight that readers would not have had otherwise

Keeping with this theme of social justice, we also had the incredible opportunity to collaborate with Trinity FLAC and hold an article competition based on minority rights in the international context. Senior Sophister student Laoise Murray won the competition with her powerful piece highlighting the plight of Uyghur Muslims in China and the failure of the UN to intervene In Hilary term, we also collaborated with Trinity College Law Review for a panel event and essay competition on “The Home and Housing.” Once again, we received impactful submissions that focused particularly on the failures of the Irish Government to address the housing crisis plaguing the State. At the intersection of law and politics, The Eagle has published articles engaging students on the most prevalent issues of our time. It is my hope that this will continue in both Volume 10 and long past

when the class of 2024 has left Trinity

When I joined the editorial board in first year, the blog was in its early stages. However, under the leadership of Olivia Moore and then Ellen Hyland it has gone from strength to strength. As Copy Editor this year, I had the opportunity to edit countless articles and was extremely proud to publish articles from both Trinity and Cambridge students. This year, the blog was expanded beyond its traditional format with publications of an article as Gaeilge by editorial board member Caoimhe Molloy as well as a recap of this year’s Law Society Senior Mock Trial written by Editor-in-Chief Emma Bowie. We also had impressive submissions such as Ciara Hogan’s assessment of the 2022 Italian General Election as well as Chloe Asconi-Feldman’s powerful article on sexual violence during wars. Though biased, it must be said that the impressive range of articles on the blog provided readers with quick, but informative reads throughout the year, and I have no doubt that this tradition will continue at The Eagle for years to come

The Eagle would not be in existence if not for our sponsors, contributors, readers, and junior and senior editorial board members PRO Eoin Ryan worked tirelessly this year to provide us with colourful and engaging social media graphics. Deputy Editor Mark McGrane went above and beyond in organising the board to prepare us for publication. Last but certainly not least, Emma Bowie, as our fearless leader had extremely tough shoes to fill following Matthew O’Shea, Editor-in-Chief of Volume 8 Yet, this did not stop her from publishing three impressive issues while organising essay competitions, the launch and the day-to-day running of the gazette Without her hard work and support of other board members, Volume 9 would not have been such a success. My past three years in Trinity have been defined by my time on The Eagle board. As we approach the 10th anniversary of the gazette, I hope that next year we see more people getting involved than ever as readers, contributors, and board members so that The Eagle may soar to new heights

Photo courtesy of Lucy Lu, SS Law and French

As we approach the 10th anniversary of the gazette, I hope that next year we see more people getting involved than ever as readers, contributors, and board members, so that The Eagle may soar to new heights.