INSIDE T HIS IS S U E C onor D oy l e o n h o w t h e E CHR h as f aile d to p ro te c t th e rig ht s of s am e-s e x c o u p l e s D arr agh Mc D o n a g h o n w h y Bre xit is d e mo c ratic ally le g itimat e I n col l abor a t i o n w i t h Tr in i t y FLAC, o u r Alte rn ative Care e rs in Law s ecti o n lo o k s a t s o m e le sse r kn o w n c are e rs availab le to la w student s
The Eagle Gazette Volume 6 Issue 1 ¡ 1
Foreword As another term draws to an end, another issue of The Eagle is here to mark it. We have articles on topics ranging from human rights, Brexit (no surprise there) and Catholic Canon law. We’ve been blown away by the number of submissions this year. Thank you to everyone who showed an interest and apologies to those we couldn’t publish. We hope to hear from you again. Every editor tries to add something to The Eagle and this year I’ve been keen to expand our blog and online presence. Our blog is now continuously updated with original content, as well as hosting all previous issues of The Eagle. We hope that this will encourage even more students to get involved.
commended for creating such a beautiful issue so quickly. Special thanks to Celia, Hannah and everyone at Trinity FLAC for their help with our Alternative Careers section. Hopefully it’ll take some pressure off everyone going through the milkrounds to know there are other options! We hope you enjoy Volume 6, Issue 1 of The Eagle: Trinity Law Gazette
Ciaran Moore Editor in Chief
I’d like to thank Olivia, the deputy editor, and all the editorial board for their help on this issue. Ivan Rakhmanin has really stepped up to the plate as our new graphic designer, he has to be
Editor in Chief Ciaran Moore
Contents Administrative Accountability Under Threat
3
A United Ireland: the End of Bunreacht na hÉireann
4
Baptism as an Unbreakable Contract
6
Brexit: an Expression of Sovereignty
7
Editorial Board Liaden Mack Zoe Timmons Jonathan King Gareth Foynes Kate Nolan Orla Murnaghan Ross Malervy Libby Phillips Eoin Gormley Lawrence Morris
Divisions within the Economic Monetary Union
8
The Hijab is just a scarf
10
Europe’s Failure to Protect the Rights of Same-Sex Couples
13
Erasmus Report: Helsinki
15
In Trinity: Luis Moreno Ocampo
16
Design and Cover Photography Ivan Rakhmanin
All the opinions expressed are that of the authors and not of The Eagle.
Deputy Editor Olivia Moore
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Alternative Careers: Judicial Assistant
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Alternative Careers: Office of the Attorney General
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Alternative Careers: Office of the Attorney General
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Administrative Accountability Under Threat: A Presumption Against FOI Disclosures? Ronan McGurrin
SS Law and Political Science
The capacity of the Freedom of Information Act 2014 to facilitate accountability in administrative decision-making may be weakened pending an upcoming joined appeal to the Supreme Court, arising from the cases of Minister for Communications v Information Commissioner (2019, the ‘eNet’ case), and UCC v Information Commissioner (2019). Both are FOI cases but it is the decision in UCC which has caused garnered particular attention for its ramifications: namely, the possible establishment by the courts of a presumption against the disclosure of information in FOI requests. UCC concerned an FOI request by RTE for details of a financial contract to which University College Cork (UCC) was a party, along with internal documentation pertaining to same. UCC claimed the information was not disclosable per s 36 of the Freedom of Information Act 2014, which exempts commercially sensitive information in certain circumstances. The Information Commissioner said the threshold for exemption under s 36 had not been met here and that UCC would have to provide reasons for its refusal to
comply with the FOI request, but no reasons were provided. On appeal by UCC to the High Court, Simons J allowed the appeal, holding, inter alia, that the Information Commissioner had ‘mistakenly [taken] as its starting point a presumption in favour of disclosure’. Simons J said the simple invocation of the contested exemption by UCC meant there was no need to provide any further rationale for non-disclosure. The Information Commissioner has argued that this key passage of the judgment, if upheld, would effectively mean the end of its office. The function of the Information Commissioner is, after all, to investigate non-compliance with FOI legislation by public bodies: if it is held that the presumption is against disclosing information, and there is no obligation to provide reasons for non-compliance, then the task of holding administrative decision-makers accountable for their actions will become considerably more difficult. It is therefore incumbent upon the Supreme Court to recognise the importance of FOI legislation in providing a check on administrative decision-making, by allowing the Information Commissioner’s appeal when it appears before the Court. The joined appeal is scheduled for hearing in the Supreme Court in January 2020.
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Brexit and a United Ireland: the end of Bunreacht na hÉireann? Robert Tolan History is a curious thing. Almost a century since the partition of Ireland, the issue that divided Dé Valera and Carson now divides Varadkar and Foster: should the entire island of Ireland be united and independent of Great Britain? The Good Friday Agreement states sucha question must be answered by a border poll and it appears that such a question will be answered in the affirmative as the historically separate Nationalist and Europhile-Unionist communities look likely to form an unlikely alliance in favour of unification. If my suspicions prove correct, a border poll would succeed and the new united Ireland will therefore require a new constitution to replace Bunreacht na hÉireann. Such a document must somehow acknowledge the tragedy of Ireland’s past, as well as find a common ground between socially conservative Unionism and the more liberal majority if this island is to have peace. The next question is, what form should this document take? Our constitution is fundamental to Irish democracy. It legitimises our organs of government and provides for how the state is accountable to the people. For this reason, the imminent debate on the new constitution will have meaningful consequences for every current and future inhabitants of the island. Hence, a united and democratic Ireland cannot exist in the absence of a constitution. This debate is unavoidable. The situation is further complicated by the failure of the current Constitution to reflect what is a secular Ireland. The Catholic church no longer holds sway over legislators; the churches are empty. The mention of “God” therefore ought to be removed from the Constitution; the President and their ministers should only swear 4 · The Eagle Gazette Volume 6 Issue 1
loyalty to the citizens and their rights, not to an abstract Abrahamic idea. Notwithstanding this, freedom of religion should still be ensured as it is a form of freedom of expression and association. The next obstacle is Dáil Éireann, which will possibly have to be renamed. If Unionists perceive that a certain concept of Irish Gaelic identity is being thrust upon them, the results could be treacherous- especially due to linguistic divisions. Language is more than a simple form of expression; it is key to belonging and thus tends to be the main chasm dividing different indigenous groups. Recent controversies around the place of the Catalan language in Spain and the place of indigenous languages in countries such as New Zealand can attest to this. As things stand, the Republic has proportional representation, but would this make unification unpalatable to Unionists, who will undoubtedly be a minority group in a united Ireland? One possible solution is to guarantee the Unionist community a minimum number of seats in parliament. No European democracy utilises such a system, although there exists a similar system in Lebanon, where each religious group is guaranteed a certain high-level post. In Iran, the Jewish community is specifically allocated
a seat. However, the precedents these countries set would be problematic for the state to imitate, especially when there is the danger of making the conversation focus on the relatively minor issues of faith and not around issues that affect a majority of Irish citizens, irrespective
stitution acknowledging their special heritage? These matters turn on a knife edge and must be treated tactfully: the best option may be to recognise the Unionist community at an official level, as the law currently does with Irish Travellers, but still ensure their primary loyalty is to the Irish State.
Concessions will certainly have to be made on both sides to avoid violence. However, a fine balance must be struck between avoiding bloodshed and preventing the tyranny of a minority.
It is clear that Bunreacht na hÉireann is unsuitable as the constitution of a united Ireland. The above points are only some of the alterations and compromises that must be made in order to accommodate two opposing communities under the umbrella of all-island unity. It is likely that many of these modifications will prove unpopular with both communities, but it is vital that these difficult decisions be made and carried out. The chance to prevent a return to the Troubles will soon beckon; it must not be wasted.
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of their religious beliefs. To allow government attention to focus on more minor issues at the expense of the majority would contravene the fundamental right of citizens to equality before the law: no group should be given disproportionate or extraordinary legal status. Regarding the rights of citizens, interesting debates arise concerning the definition of sedition. Should Orange Order marches be considered seditious in a united Ireland? Would Unionists demand some article in the new con-
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Baptism as an unbreakable contract? Olivia Moore JS Law
It was during a riveting evening spent listening to Professor Mary McAleese speaking about her thesis topic, children’s and human rights in the future of Ireland, that I first properly came into contact with Latin Catholic canon law. Professor McAleese, the Edmund Burke Lecturer for 2019, explained canon law in terms of baptism. She described both the theological impact and the controversial legal aspect to the sacrament of baptism, namely that the baptism of an infant supposedly deems the infant to have voluntarily entered into membership with the Catholic Church. Professor McAleese’s description of this as an “onerous contract” struck a definite chord with the audience. It led me to question something else Professor McAleese referred to – once one is baptised, are they canonically legally obliged to be a Catholic forever? Catholic law (CIC 845) provides that “Since the sacraments of baptism, confirmation and orders imprint a character, they cannot be repeated” – once one is baptised, he is baptised forever. Similarly, it follows that one baptised a Catholic remains Catholic. Another provision (CIC 205) stipulates that those baptised are fully in the communion of the Catholic church joined with Christ “by the bonds of the profession of faith, the sacraments and ecclesiastical governance.” Although this provision appears to strongly uphold the idea of non-revocation of the contract of Baptism, especially considering the reference to the sacraments, it can be argued that this very provision provides an “out”-clause. This canon implies that some degree of profession of faith, regular sacramental participation and submission to ecclesiastical governance is also required. This infers that one could consciously or unconsciously reject any or all of these elements to the point of a rejection of Catholicism itself. Furthermore, in discussion of another sacrament (often likened to a contract also) Canon 1117 6 · The Eagle Gazette Volume 6 Issue 1
requires that canonical form for marriage be observed by any who are baptised unless they have “left the Church by a formal act of defection”. It is thus evident that the “leaving of the Church” as a concept itself is an established one, as opposed to a mere lapse of faith or breaking of Church laws. What is required for a defection is unclear; marrying outside the Church, attending services of another denomination, and failure to practice the Catholic faith do not constitute a formal act of defection. However, it is generally accepted that formal registration in another denomination does constitute a formal act of defection from the Catholic church, perhaps as well as pubic declaration of such formal defection. However, it is worth noting that as Catholic baptism establishes a canonical presumption of Catholic affiliation, canonical proof of defection from the Church must be produced to overcome this. So while baptism as a contract with the church holds much rhetorical weight, and certainly means a lot to many people, it is not an unbreakable bond. The maxim “once a Catholic, always a Catholic” is not a certainty under the church’s own law.
Brexit: An Expression of Sovereignty Darragh McDonagh SS Law
Brexit was and remains an expression of sovereignty by the British people. The majority might only have been by a hair’s breadth but it was a majority all the same. It is irrelevant if the politicians who pushed it were disingenuous or had ulterior motives - the electorate freely voted for it; to state that people need to be handheld is simply advocating for a ruling class from a leftist/liberal viewpoint rather than a ruling class by conservatives. If people are capable of voting, they should be capable of disbelieving lies and most voters are aware that campaigning politicians are prone to hyperbole. Everyone knew what Boris Johnson was like long before he took on a role in the campaign. Most of Ireland (myself included) and almost half of the UK view Brexit as an absolute disaster that is only going to get worse — but just because we don’t like it doesn’t mean we can overrule it. So much of the “democratic” argument is nonsense. Yes, Scotland and Northern Ireland voted to remain, but the United Kingdom is not a confederation of States that enjoy veto powers over one another. It is a United Kingdom ruled from
Westminster. It also seems to be forgotten that Scotland had only voted in favour of remaining under Westminster rule two years before the referendum (and bearing in mind it was pretty obvious exiting the EU was going to remain the Tories’ agenda). Northern Ireland is a different case but until a border poll results in them voting for a united Ireland they too remain, ultimately, under Westminster. Threats of violence from a small minority in one region cannot dictate the direction of the seventy other million people. To look at it from another example: if a small group of anarchists moved to County Sligo and threatened to bomb and kill people until Ireland left the EU, we would not surrender to their threats — we would prosecute them. Furthermore, there is this continuously rehearsed argument that the vote was too close, one which I really do not understand. We live in a majoritarian democracy, the 1995 divorce referendum in Ireland only scraped through with a 2% margin; many votes are close; that does not invalidate them. What about the fact that the result may be just ‘wrong’ and that the people should have another go to try and get it right? Even looking at referenda that have been re-run in Ireland, they tended to be re-run when there was a perceived change in social attitudes (an obvious exception being Lisbon II but that made a sham of Irish
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democracy). Brexit is still, however, separated by a 4% vote, with 7% of the voters undecided (Politico’s poll of polls). There will not be a massive swing to remain - there might be a remain result, but it will be marginal again and would not diminish any of the divisiveness that exists. Even the rhetoric that is used (especially by the Liberal Democrats) around another referendum, is nonsensical. It’s being called ‘the People’s Vote’; did the People not vote in the last one? Or was it that the people who voted were working class, as opposed to the more educated LibDem voter? Richard Dawkins is among those who take this viewpoint, saying in Prospect magazine that he was unqualified to make the decision: ‘How should I know? I don’t have a degree in economics. Or history. How dare you entrust such an important decision to ignoramuses like me.’ If we adopt this viewpoint about something as fundamental as national sovereignty and the direction a country takes, where does it end? Why not bring back serfdom where a much more intelligent Lord can make all our decisions for us poor ignoramuses? The difference from Dawkins’ viewpoint is that he perceives that the current crop of liberal expert has our necessary, best interests in their heart — but how do we know that fact? I’m not saying they don’t, but we can’t know, and we can’t therefore give up our freedom to any elite, be it conservative, liberal, fascist or communist. I believe Brexit is a wrong, self-destructive decision — but it was democratically made by the British people and they have a right to determine their own destiny as a population, and unfortunately for those who don’t like it, majority rules.
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Divisions within the Economic Monetary Union run deeper than internal ECB disagreements
Robert Morgan SS Law
As Christine Lagarde takes over as president over the ECB from November 1st, one of her main aims will be to resolve the recent disagreements that exist within the ECB governing council, the main body in charge of formulation of monetary policy for the Euro area. In doing so she will encounter the same problems of her predecessor, Mario Draghi, as to how much an ECB, with competency only in monetary policy, is willing to push itself into the realms of formulating economic policy within the EU. How she manages this from a political perspective is for another day. However, from an EU law perspective she runs up against the same problems of 1) a lack of true fiscal integration (monetary+economic policy) and 2) a real institutional battle in threading a narrow path available within existing EU treaties. Before examining both points and their current significance, it is necessary to briefly examine how the ECB has become embroiled in recent controversy over its role in economic policy. The causes of the financial crisis has been well documented, however the response from the EU is still one that has failed to tackle the lack of effective economic coordination or centralised power. Prior to the crisis, the Stability and Growth Pact was the means by which budgetary discipline of economic policies was enforced through the member states. The Growth Pact, based on Articles 121 and 126 TFEU, directed that members agreed to keep their deficit below 3 percent of their annual GDP, and their debt below 60 per cent. There was also an excessive deficit procedure to penalise states that failed to stay within these measures but politically such fines were never realistic. Post crisis, It was hoped that the 2011 ‘six pack’, five regulations and one directive strengthening budgetary disciplinary rules, and the fiscal treaty of 2012 would
lead to more economic convergence within the Eurozone, however they did not add anything ‘new’ in terms of coordinating member states economic policies. What has spiralled from this lack of integration has been the flexing of the ECB’s muscles as a means of filling in the gap to preserve the Eurozone economy. To realise Mario Draghi’s promise in 2012 that the ‘ECB is willing to do whatever it takes to preserve the Euro’, the ECB’s policies since the crisis have strained the division in competencies within the EU between economic and monetary policy. In particular the Quantitative easing programme has caused major disagreements between some member states. Quantitative easing (QE) involves the central banks of the Eurozone Member States buying government bonds in massive quantities, financed by the ECB. Essentially, it is an indirect financing of member states in financial trouble by buying bonds that no other investor would. This set the scene for a direct confrontation with the explicit rule banning monetary financing by the ECB in Article 123 TFEU.
market from investors who acquired them from countries in difficulty first. In the 2015 Gauweiler case, Peter Gauweiler, a CDU politician, pursued a case that was ultimately referred to the ECJ. The main argument by the ECB was to the effect that no monetary policy could be conducted unless the markets were ‘cleared’. As such, the main question referred relating to the competence of the ECB in economic matters was ultimately dismissed by the ECJ. In examining the objective of the OMT programme, the court held that the programme contributed to maintaining price stability, falling within the scope of monetary policy. In relation to the ban on monetary financing, the court was convinced that the necessary safeguards were in place to ensure that the reasoning behind such a ban, upholding prudent budgetary standards by Eurozone countries, would still operate effectively. When the answer was referred back to the German constitutional court, it was held that the German central bank could participate in the OMT programme as long as the conditions laid down by the ECJ in relation to the ECB’s scope were followed.
In Particular, when the emergency outright transactions programme (OMT) was established as a form of QE by the ECB in 2012, German politicians and academics did not take too kindly to, what was in their view, another means by which countries in the Eurozone will be paying for the ECB’s role in financing other Eurozone countries’ mistakes. This programme involved the ECB purchasing bonds on the secondary
What the case has highlighted is not so much the merits or demerits of such a policy but how the integration of Economic and Monetary Union itself is undeveloped and is exposed both legally and practically to the economic and governance issues of the Eurozone member states. The problem has not gone away either. A judgment is expected by the end of 2019 in another case relating to the QE programme itself. A case, involving nearly 2,000 complainants from The Eagle Gazette Volume 6 Issue 1 · 9
the Academic and Political sphere in Germany was again referred to the ECJ in 2017. Similarly to the above, the ECJ again found that the actions of the ECB did not breach EU law and with the judgment awaiting the German Constitutional court interpretation, it raises all sorts of Institutional questions beyond just the issue of the future fiscal integration within the EU to much more pressing concerns relating to the primacy of EU law itself. Therefore, the Quantitative easing programme, vital to the financial stability of the euro during the crisis, faces being at the centre of a storm consisting of two major institutional questions of EU law; the future integration of the EMU and the interplay between National courts and the CJEU. Some German scholars have wrote how the ‘basic law’ of Germany is not automatically superseded by EU Law. In the background of all this, Draghi, in his last meeting of the ECB governing council, insisted on keeping the programme going, with a plan to start buying €20bn of bonds a month from November. Despite the public backlash from countries such as the Netherlands, Austria and Germany, where one tabloid accused him of being ‘Count Draghila’ who ‘sucks our bank accounts empty’, Draghi told the press that a majority within the governing council existed to keep the programme going. For Lagarde going forward, she is caught between a disgruntled governing council disagreeing about the need for such a programme on one side and on the other side, institutional legal problems within the EU order. So must choose between ditching the controversial policy and not following through on Draghi’s plans or testing the limits of the relationships between EU law and national governments over the remit of the ECB and its powers under the treaties. However, fundamentally it is clear that the Lisbon treaty ten years on has still not offered any answers to the sensitive questions on the relationship between national economic sovereignty and the health of the Eurozone. With a lack of political will to amend the treaty intertwined with questions of sovereignty and democracy over economic policies, it seems that the goal of forming a complete economic and monetary union is stuck in limbo. Lagarde faces an uphill battle. 10 · The Eagle Gazette Volume 6 Issue 1
The Hijab is just a scarf
Saba Malik JS Law
Over a 100 million Muslims live and meaningfully integrate in the states governed by the European Convention of Human Rights today. However, increasingly this peaceful cohabitation is being viewed through political lenses to perpetuate prejudice and misunderstanding about Islam. Unfortunately, due to political tension and religious intolerance, Islamophobic attacks have become a natural phenomenon. An example of this is the recent ‘Punish a Muslim Day’ letter. The malicious letter encouraged islamophobia by allocating points to several hideous crimes against Muslims. One which caught my attention, being a Hijabi, amongst the other barbarous but sadly obvious crimes, was ‘Pull the headscarf off a Muslim woman’, highlighting how a mere piece of clothing, is viewed as a potential threat and thus targeted. It is regrettable how Muslim women living in democratic countries, feel prejudiced and center of suspicion due to hijab controversy. This article discusses, the right to wear a hijab under Article 9 in the context of schools and universities. Freedom of religion under Article 9(1) includes the right to ‘manifest’ religious beliefs however, with the limitation imposed under Article 9(2). The courts role is therefore crucial in resolving conflicts and to ensure an adequate balance between the rights. But has the ECtHR struck the correct balance? It is important at the outset, to demystify somewhat the ‘Hijabi Culture’. The hijab, is just a scarf, worn as a voluntary act of submission to God and Islam which encourages modesty. It serves Hijabis, a spiritual connection with God and is central to their existence. So, its motive is starkly different to what the western world perceives it: as a symbol of oppression or as a call for jihad, which is a fundamental misunderstanding about the hijab and Islam arising out of ignorance. Unfortunately, the ECtHR in its case
law, as seen in Dahlab and Sahin, has done little to dispel this misunderstanding. Dahlab v. Switzerland involved a primary school teacher who was banned from wearing a headscarf in school, as it was against ‘secular education system’. The ECtHR, noting the margin of appreciation doctrine, upheld the ban as it was provided by law and pursued a legitimate aim of protecting the rights and freedom of others while also noting its potential proselytising effect on children. It further held that the ban complied with gender equality and non-discrimination principles that are taught in schools. Şahin, a medical student, was refused admission into lectures and examination because she wore a headscarf and was ultimately suspended. In taking a systematic approach to the margin of appreciation doctrine, the ECtHR again finds no violation and holds that such interference was proportionate to the aim of preserving secularism. As with these cases and many other cases placing curbs on veiling, states have often cited secularism, which notably is not a ground for limiting the right under Art 9(2). The headscarf in itself poses no threat to secularism or democracy . Furthermore, it can be accommodated in a secular society if it’s not politicised and associated with extreme religious fundamentalist movements. The related gender-equality argument is also ill-founded and unduly paternalistic as it presupposes oppression in the hijab without obtaining the viewpoints of the applicants. If the hijab was a symbol of oppression as the western feminists claim it to be , these women wouldn’t have litigated the issue right up to the Strasbourg courts, and instead would’ve used the initial ban as an excuse to uncover. To dictate what Muslim women should and shouldn’t wear, is manifestly disrespectful to their autonomy, which is highly valued elsewhere in the convention as a core democratic value. In terms of the proselytising argument, there is no evidence that Şahin wore the headscarf in an ostentatious manner intending to proselytise or exert pressure on unveiled women so it doesn’t
offend hypothetical rights of others. The potential proselytising argument in Dahlab can be rebutted on the fact that there was no evidence that she discussed the headscarf with pupils. Hence it is grossly unfair for the ECtHR to assume that it’s proselytising without actually considering the facts at hand. This argument is further undermined by the Lautsi case which held that displaying a crucifix, a symbol expressly related to Christianity, on the classroom wall had no such effect as it was ‘a passive symbol’. The ECtHR makes an arbitrary distinction between the two symbols which highlights how the courts have been swayed by politics when Muslim values are on the agenda. The courts fail to acknowledge the potential positive effect of the headscarf, as a symbol of multiculturalism and diversity.
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The hijab, is just a scarf, worn as a voluntary act of submission to God and Islam which encourages modesty. It is not a symbol of oppression
In affording a margin of appreciation to states in veiling cases, courts believe that individuals states are best suited to decide on religious issues based on their culture, history and politics thus should determine their own laws. Arguably, courts can take a supranational approach and consult a third party, for example, Islamic scholars, if they felt ill-equipped to decide on religious issues. However, in failing to do so and deferring to individual states the ECtHRs abdicates their responsibility of protecting freedom of religion. This highlights a fundamental flaw in the ECtHR system in which courts readily adhere to politics in order to secure the on-going political legitimacy of the ECtHR system instead of carrying out its fundamental role of protecting rights of the minority. The states that enact anti-veiling law, in effect creates a legislative map of exclusion for Muslims. The ECtHR, by upholding such laws valThe Eagle Gazette Volume 6 Issue 1 · 11
idate stigma and endorses Islamophobic views. So, no matter what justification or potential benefits courts provides for upholding the bans, it simply doesn’t protect the interests of Hijabis. The ECtHR jurisprudence doesn’t consider the reality of their claims and the consequences of upholding these bans, which not only sends a message that veils are inherently dangerous and socially unacceptable but also presents these women with a form of ‘non-choice’. Since a devoted Muslim cannot simply discard the headscarf as a precondition to pursuing her aspirations, so essentially there is no choice.
Therefore, the ban on veiling is disproportionately disruptive to Muslim women who have a conscience and moral obligation to wear it. Such rulings don’t empower them but instead immobilises them and marginalises them from society. Women living in a democratic society are afforded autonomy and utmost respect in how they choose to express themselves. It is manifestly unfair that the same is not afforded to Muslims. The ECtHR, in failing to adequately protect a peaceful manifestation of religious beliefs, not only legitimises intolerant views, racial profiling and abuse but also renders freedom of religion under the convention as worthless. The United States, in particular, has shown callousness in their approach to protecting the culture and environment of the indigenous 12 · The Eagle Gazette Volume 6 Issue 1
peoples there. Under current international law indigenous peoples have a self-determination status. However, this typically only applies to their internal property rights, meaning they are often powerless when facing infrastructure developments and land grabs by private companies or by the governments of nation-states. U.S. courts have ruled that cultural harm which, in the case of indigenous peoples, is tied inherently to environmental harm, is not grounds for compensation. Such was the case of the indigenous peoples affected by the Exxon Valdez oil spill. Moreover, in 2017, U.S. President Donald Trump announced that the United States would no longer participate in the 2015 Paris Agreement on climate change mitigation because it would undermine U.S. economic development. Under current international law, these agreements are the only legal compacts securing the cooperation of nation-states in mitigating climate change, though those efforts are fraught when nations like the U.S. refuse to participate despite being the greatest contributor towards the problem. For the U.S. to refuse to make a commitment to mitigate climate change should be considered a human rights violation due to the exacerbated negative impact on the environment and lifeways of indigenous peoples. Domestic law rarely suits the urgent needs of the climate crisis in regards to indigenous peoples. For peoples like the Inuit, whose people span beyond international borders, it simply is not applicable. Compared to litigation against national governments and multinational corporations, which prove difficult for claims of environmental rights and human rights and cannot prevent future harms, international protocols are currently the most effective tool available for protecting indigenous peoples. International law must accommodate the needs of indigenous peoples and their right to self-determination, regardless of their sovereign status, to protect the traditional lands and environments that sustain them. If the United States is unwilling to do justice to the indigenous peoples who fall under their domain, then those peoples should at least have a voice in the international decision-making process to ensure, as much as possible, their own protections.
Europe’s Failure to Protect the Rights of Same-Sex Couples Conor Doyle
The European Convention of Human Rights (ECHR) was drafted in 1950 with the hope of protecting and unifying the citizens of Europe in a post World War II society. After the atrocities of World War II, it was an obvious imperative that a fundamental standard of human rights was founded. These were applicable across the continent. As such, the document was born. It protected families and religion, it protected free speech and it prevented torture. It is one of the most effective instruments of human rights protection in the world. And yet, as we approach the 70th anniversary of the European Convention, it is sad to see that it still reflects the attitudes of 1950s societies. Its rigidity and antiquated ideals with regards to sexuality and marriage are critical failures in the document, as it fails to protect the rights of same-sex couples to marry. There are many articles in the ECHR that, if read liberally, would easily afford equal marriage rights to all. Article 12 assigns a right to marry and start a family. This is limited as it must be read in accordance with national laws.
Article 14 explains how the rights of the Convention are to be enjoyed without discrimination, though it does not explicitely mention discrimination against sexual orientation. One could even read Article 8, the right to a private life, as protecting same-sex marriage rights. Unfortunately, the Convention has never been read in this manner. Of the 47 signatories to the European Convention, only 16 of them provide a full, unrestricted right for same-sex couples to marry. While a further 13 countries recognise civil partnerships, the standard of protection enforced by the European Union as a whole is ineffective at best, and negligent at worst. The Convention’s confidence in nations to not abuse the margin of appreciation, while understandable, has forgotten the European gay community at large and has entirely failed in its ambition to protect the most basic human rights. In the case of Re X in 2017, a same-sex couple moved to Northern Ireland, having been married in England, only to find that their marriage was not recognised. Judge O’Hara of the Northern Irish High Court asserted that neither the
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particularly those to which there is no European consensus. Respectfully, this reasoning is archaic. It is rooted in the mindset of the 1950s, namely by presupposing that same-sex marriage is an additional right that people can be granted and not the natural extension of Article 12. While the issue in Northern Ireland has now been resolved, albeit through a technicality, other countries are not as lucky. Governments are not being forced to effect change for equality. But it is high time they should. At the simplest level, marriage is a fundamental right as recognised by the Convention and not enforcing that for people of all orientations and beliefs cannot be seen as simply an acknowledgment of the margin of appreciation. It is a flagrant dismissal of all orientations by the very bastion of human rights protection. It is no longer 1950. Providing and protecting the right of marriage for same-sex couples ought not to be left up to the member states. It is a moral imperative. laws of Northern Ireland nor the ECHR were breached by this and the union was to be treated as a civil partnership. In his judgment, he recounted the repeated decisions of the European Court of Human Rights (ECtHR) where they said that no rights under the Convention can be interpreted as providing full and unqualified right to same-sex marriage. Such cases have included Schalk and Kopf where it was held that defining marriage as union between a man and a woman was not contrary to Article 12. It was also discussed at length in the Grand Chamber decision of Hamalainen where they confirmed that there was no obligation on member states to grant access to same sex marriage. Both Schalk and Hamalainen also raised arguments utilising Article 8, proffering that as a facet of their private lives they were entitled to marry their partner. These arguments were rejected. Oliari v Italy in 2015 argued that reading Article 12 in conjunction with Article 14 would provide for an obligation to legislate for same-sex marriage, but this submission was also rejected by the ECtHR insisting that there has to be a margin of appreciation available to countries regarding the application of rights, 14 ¡ The Eagle Gazette Volume 6 Issue 1
Erasmus Report: Helsinki Orla Murnaghan
JS Law and Political Science Helsinki doesn’t sound initially like a sexy city. But when I decided to go on my Erasmus, I knew I wanted to go somewhere unique - that is what initially attracted me to studying at the University of Helsinki in Finland. I had already frequented the likes of Paris and Barcelona, so I wanted to experience a completely different culture in a different region of Europe. My attraction to Finland even meant passing down a chance to study in Australia - but in hindsight, I know I had made the correct decision, unequivocally. I genuinely find it hard to fault anything about Helsinki. Academics, for a start, are organised much better than Trinity: each class is only five credits, and is taken on a rolling basis - meaning you’ll start a new class every two weeks, study it intensively, complete your assignments and finally move on to another subject. Some students admit they find this workload a lot more intensive than Trinity, but personally, I found it easier to focus on one subject at once and achieve my grades with significantly less effort than at home. Assessment methods here are completely different too - “learning diaries” are my new favourite thing, wherein I recall and reflect on what we discussed in class, as well as open-book “takehome” Moodle exams you can take sit in your pyjamas in the comfort of your own bed. The range of modules on offer far surpass that of Trinity - this semester alone, I took international Criminal law, US Privacy law, Nordic Law in European Context, Public International Law and EU Law - other modules include Dispute Resolution, Jurisprudence of the ECtHR, International Environmental Law and Data Protection Law. The grade conversion too is extremely generous. I find that the lecturers are significantly more friendly: we call them by their first names and we can chat ca-
sually with them or email them about anything. Each professor really wants to get to know you and what you are interested in learning about - one of my lecturers even gave me chocolate! The city itself is, in my humble opinion, awesome: the Baroque architecture is to die for, and public transport is a dream - imagine having a metro and tram right outside your door! There are so many cafes to try Finnish cuisine - such as salmon soup and the divine cinnamon rolls. It’s also so easy to get to nature- there are so many parks inside and around the city, you’ll never feel far away from fresh air, and it makes for a beautiful Instagram collage in autumn. Finns are extremely athletic, so this is a great option if you adore hiking, outdoor cycling, swimming, or just frequenting the gym. One of my favourite memories was visiting Allas Sea Pool, where we went skinny dipping in the freezing Baltic Sea. Sauna (pronounced sow-nah) has become my new favourite hobby. And the night life is incredible- there are so many bars and big parties almost every week, organised by the law society Pykala or the Erasmus Student Network. The only regrettable thing is that virtually everything in this city costs a bomb - even your humble pints - so Helsinki may not be the most economical option for all students. Make sure to attend a sitsit- a traditional academic dinner party with lots of minity vodka shots, singing and dancing on tables- it will be a highlight of your experience, for sure! But the real gem of Helsinki is how it serves as a base to travel Europe - I have been lucky enough to be able to travel to Tallinn, Riga, Stockholm, Oslo, Copenhagen and even the magnificent St. Petersburg during my short stay in Helsinki. Each experience has been unforgettable and filled with laughter. In December I am going skiing and husky sledding at Santa’s Village in Lapland. I hope I see the Northern Lights. If you are really looking for a “cultural” Erasmus experience, don’t hesitate - choose Helsinki! The Eagle Gazette Volume 6 Issue 1 · 15
In Trinity: Luis Moreno Ocampo Cormac Donnelly Speaking to an assembly of staff and students on the 28th of October was Luis Moreno Ocampo, presenting his views on global justice and the future of international cooperation in the area of international criminal cases. Joined by our resident adjunct assistant professor of public international law, Michael Becker, and Dr. Laura Graham, Executive Director of the Yemen Accountability Project at Case Western Reserve University School of Law, the three speakers brought to the table the combined weight of their considerable experience in the field of International Law. Topics discussed included the International Criminal Court, the problems associated with the contemporary application of international or supranational justice and courts, the future of such systems and the role to be played by lawyers in this future. Citing the modern phenomena of climate change, global terrorism and widespread civil conflict as examples of the problems facing the contemporary justice system, the speakers emphasised the increasing need for lawyers to cooperate with other professionals to meet the challenges of the “new era of international legal work.”
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Addressing some of the allegations of inequality and biased selection in the operations of the International Criminal Court, Ocampo highlighted the pronounced need for such a body in specific regions and the role of the court as an authority on international law as well as a judicial body. Of particular note in the comments of all three speakers was the emerging importance of technology in the modern legal world, noted expressly by Dr. Graham. Modern technological impacts on the justice system were heralded as marks of a changing epoch; the onset of a broader global justice and activism through social media and the use of online campaigns. The Black Lives Matter movement and the censorship of the protests in Hong Kong were posited as contrapuntal examples of the effects which the new era of digital connection can have on civil justice. Left unanswered by the panel were the questions this posed about the global justice system; How would change in the global justice affect cases on a national level? How could such a court operate with limited international support and lack of political will to cooperate with such? And with the election of a new prosecutor in 2021, does the ICC have the potential to change and adapt to meet the problems of this new era of war and justice in the twenty-first century?
A l t e r n a t i v e C a r e e r s
Judicial Assistant: Mary Hastings The role of a judicial assistant is to provide support to a member of the judiciary. This can range from collecting a judge’s papers for court to conducting legal research; from updating their diary to proofreading a judgment. I only began working as a judicial assistant recently so I can’t describe all aspects of the role yet but it became clear at the start that no two days are the same in the courts and the exact duties of a judicial assistant can vary widely. Someone assigned to a list judge of the High Court may have to liaise with other judicial assistants to find out which judges are free to hear a new case, while a judicial assistant of an appellate court may help to summarise lengthy submissions ahead of hearings. I have been assigned to the research team of the Court of Appeal so I don’t accompany a judge to court every day like most of my colleagues. However, though I expected to remain at my desk, I have had the chance to don the robes and announce “all rise” in a courtroom while covering for another judicial assistant who was on study leave.
or are more interested in a career in research and policy. You could be exposed to many areas of law and discover which you are most interested in, or you could gain deeper insights into an area which you have previous experience of. While you learn about substantive areas of law, you can develop the skills you gained in college that you will need whatever your
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Working as a judicial assistant is an excellent way to start a career in law, whether you intend to go into practice or are more interested in a career in research and policy
next career step is. For my colleagues who plan on becoming barristers, it is the perfect place to observe some of the best advocates in the country. Besides what you can learn on the job, there’s an encouraging atmosphere to pursue further qualifications, with many people studying for FE1s or the King’s Inns during their time as judicial assistants. There is still so much I need to learn in my new role but I am excited to see what new challenges lie ahead for me. I would encourage anyone finishing college next May unsure of what to do next to keep an eye on the careers section of the Courts Service website.
Even from the brief time I have been working in the courts, I can appreciate how valuable this opportunity is. During my four years in Trinity, I never learnt so much about the day-to-day practice of law as I have over the past six weeks. It’s one thing to understand the rights enshrined in our Constitution or the essential criteria for negligence, it’s quite Hopefully by the time you arrive I will another to know how to initiate proceed- have plenty of tips to help you settle in! ings or manage to escape liability for costs when a decision doesn’t go your way. Working as a judicial assistant is an excellent way to start a career in law whether you intend to go into practice The Eagle Gazette Volume 6 Issue 1 · 17
A l t e r n a t i v e C a r e e r s
Office of the General Attorney: Cormac Bergin As part of the Clinical Legal Education module, I worked as an intern at the Attorney General’s Office (AGO) for four weeks in May. While the role of the AGO seems relatively straightforward – providing professional legal advice to the Government, Departments and Offices – the remit of the AGO is very broad and diverse. The AGO is comprised of three main divisions to reflect this: advisory counsel, parliamentary counsel and the Chief State Solicitor’s Office. I worked in advisory counsel division, which itself is subdivided into five groups, each of which has defined areas of law that they are responsible for. The role of advisory counsel is to advise the Attorney General on legal issues raised by the Cabinet but also to advise and update other government departments on legal issues and plot litigation strategy for cases involving the State. Advisory counsel are permanent civil servants. The majority of them are barristers with varying levels of experience at the Bar but some qualified as solicitors as well. For many advisory counsel, working at the AGO represented greater financial stability and greater predictability of working hours than being self-employed at the Bar. Others were attracted to the job by the idea of public service and the opportunity to work on complex cases with far-reaching implications. Although advisory counsel all have legal backgrounds, their working life is very different to working in private practice in corporate firms or independently at the Bar. With a defined salary and a guaranteed stream of work from the State, advisory counsel do not need to devote time to trying to ‘win’ clients or pitch for work. The highly confidential nature of the work means that they generally are not expected to reply to emails outside of the office too. The fact that work is guided by the interests of the common good of
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the State rather than the interests of private clients can add some pressure due to the potentially extensive implications the work can have, especially in the sphere of criminal law. This also makes the work very tangible and meaningful though, especially with it often being discussed and analysed in the media.
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Work is guided by the interests of the common good of the State rather than the interests of private clients
The typical day of an advisory counsel is hugely varied. It can include going to the Four Courts to brief defence counsel for litigation against the State, examining the impact of recent court judgments, particularly in constitutional and administrative law, meeting with other government department officials to update them on developments in EU law and researching constitutional law and administrative law issues. Advisory counsel often are also seconded to other government departments like the Department of Finance and the Department of Justice to provide in-house department-specific legal advice away from the AGO itself. Additionally, some advisory counsel have spent time working abroad for the AGO in Brussels and Strasbourg to represent Ireland at the European Court of Justice and the European Court of Human Rights. Overall, working at the AGO is a very interesting and attractive alternative career in law to explore that offers a better work-life balance and often more widely tangible results from work than in corporate law or at the Bar as well as the opportunity for public service.
A l t e r n a t i v e C a r e e r s
Community Law and Mediation Centre: Hannah Edwards I was an intern in Community Law and Mediation for two months during the summer. They provide free legal education and mediation services to members of the public and work towards a number of policy objectives which aim to address injustice and exclusion in law. Their work makes legal advice accessible to all.
On a more daily basis, I helped the solicitors with their case work. This ranged from sorting through files and preparing affidavits to drafting letters and emails to clients and researching cases with the solicitors. There was also a great deal of administrative work to be done. In the realm of legal education, I helped one of the solicitors in drafting an FAQ regarding a recent piece of legislation and helped to prepare slides for talks and lectures on various topics. During my internship, I was given the opportunity to sit in on a number of free legal advice clinics. These are run by CLM on a weekly basis, aided by voluntary barristers. Not only that, but I was also given the chance to attend a number of talks on areas of law and policy relevant to the work of CLM, which were either held or being attended by the organisation.
For the most part, my job was to help the solicitors with their work. This involved a great deal of legal research in the relevant areas – employment law; family and child law; housing; equality; education; and public interest law in general. I researched and answered a number of legal queries that came in, as well as general legal questions that came up in the course of the solicitors’ work. I was also assigned the task of compiling a weekly update for the solicitors on developments in law and policy in their I found my experience at CLM to be inareas of interest. valuable and would highly recommend it to anyone interested in working in the area of social justice. It is different to working for a corporate firm in the sense It is different to working for a that it is much smaller and the areas of corporate firm … the areas of focus are quite different, with a strong emphasis on public interest law, as well focus are quite different, with as a number of policy objectives that a strong emphasis on public would not be seen in a traditional firm. interest law, as well as a number Hence, I found the work that I was involved in to be both interesting and reof policy objectives that would warding. On a more general level, it has not be seen in a traditional firm given me practical experience that I cannot get in lectures and seminars. NeedAs well as this, I was involved in some less to say, it vastly improved my legal of the policy work that CLM were en- research skills and it has given me the gaged in. I helped write a number of sub- opportunity to learn about subjects that missions to the Oireachtas and attended a I will be studying in the coming years, hearing in Leinster House that arose out of thus aiding me in my future studies. I one of these submissions. I was also given am extremely grateful to all of the staff the opportunity to look at past policy work at CLM who’s help was invaluable. the organisation had engaged with and They were nothing but accommodating to see how these had affected cases and and do not get enough credit for the worhelped to change the law to date. thy and challenging work that they do.
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The Eagle Gazette Volume 6 Issue 1 · 19
The Eagle: Trinity Law Gazette Volume 6, Issue 1
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