New human rights LLM in Ireland

(Today we welcome back alumna Siobhán Mullaly, who contributes this guest post)

We at University College Cork, Ireland, are delighted to announce the launch of a new LLM in International Human Rights Law and Public Policy, to commence in September 2011.
This an innovative and exciting new LLM programme, which builds on the Law Faculty’s strengths in the fields of International and European human rights law. The programme is taught by academic staff with extensive experience in human rights law and public policy, both at national and international levels. It includes a core International Human Rights clinic module, which is designed specifically to engage students in the practice and policy context of Human Rights Law. Students will benefit from a series of guest seminars and workshops with representatives of civil society, Government, international human rights bodies and the world of legal practice.
The Programme Director is, yours truly, Dr Siobhán Mullally.
Our teaching team includes staff with distinguished records in research, teaching and public policy engagement: Professor Caroline Fennell, Dr Ursula Kilkelly; Dr Darren O’Donovan, Dr Siobhán Wills; Dr Conor O’Mahony, Dr Louise Crowley, Dr Aisling Parkes, and me.
The Law Faculty is delighted to include in its team of Adjunct Professors leading world experts on human rights law and practice: Professor Samantha Power, Special Adviser to President Obama on Multilateral Affairs and Human Rights and; Lord Lester of Herne Hill QC, Blackstone Chambers, London and of Europe’s leading human rights law practitioners.
Details on the program and its curriculum are here. The deadline for applications for the session beginning this autumn is May 1, 2011.
I am happy to answer any queries (e-mail: s.mullally@ucc.ie) that you might have concerning the programme and opportunities for prospective students.

Birth citizenship & Ireland

(Delighted to welcome back alumna Siobhán Mullaly, who contributes this guest post)

The primacy given the protection of the family in Irish constitutional law has frequently been invoked as a marker of Ireland’s distinct national identity, most recently in debates on the ratification of the Lisbon Treaty and constitutional reform in the European Union. Despite the apparent strength of these protections, however, migrant families, including those with Irish citizen children, have found themselves repeatedly denied the core protections of private and family life, including the right to remain in the State. In a series of cases in the Irish courts (right), the limits of citizenship in securing the right to be ‘part of the Irish nation’ (Article 2 of the Constitution) have been revealed.
The rapid increase in inward migration to Ireland at the start of the new millennium (now sadly reversed), led to increasing controversy surrounding the right to citizenship by birth. As the numbers of families claiming residence rights on the basis of having Irish citizen children increased, political pressure to deny these claims grew. In 2003, the Supreme Court, in the L. and O. cases, dismissed an appeal from the third country national parents of Irish citizen children, who were challenging their pending deportation from the State. Distinguishing earlier case-law, the Court concluded that requirements of the common good, including the need to preserve the integrity of the asylum and immigration process, could justify justify the deportation of a parent of a citizen child and a denial of the child’s right to the care and company of their parents in the State. At the time, more than 11,500 applications for residence were pending from third country national parents, with Irish citizen children.
The Supreme Court judgment, however, did not stem the tide of inward migration. And so, just one year later, the L. and O. cases were followed by a divisive constitutional referendum, which led to the imposition of restrictions on the right to citizenship by birth. Questions remained, however, as to how to address the position of the many Irish citizen children who might now face ‘de facto’ deportation along with their third country national parents. In January ’05, the Government introduced the Irish Born Child (IBC ’05) scheme, to assess applications for residence from third country national parents of Irish citizen children, born prior to Jan ’05. The majority of the applications under the IBC ’05 scheme were granted. A small minority, however, led to refusals and to a series of cases challenging the scheme’s compliance with article 8 of the ECHR, with EU law and with Irish constitutional law.
In Bode v Minister for Justice Equality and Law Reform (2007), the Supreme Court controversially concluded that ECHR and constitutional rights claims did not have to be considered when assessing applications under the IBC’05 scheme, and would only arise in the context of deportation proceedings. The Court found that a decision to grant residency within Ireland on the basis of the IBC ‘05 Scheme was a mere ‘gift,’ extended by virtue of the benevolent and ‘generous’ exercise of executive power. The Supreme Court reversed the earlier findings of the High Court, where Justice Mary Finlay Geoghegan found that the failure to consider the citizen child’s personal rights and right to private life was a breach, both of the constitutional protection of personal rights and article 8 ECHR. Citing Sisojeva v Latvia (Eur. Ct. H. Rts. 2007) , she concluded that the right to private life gave rise to positive obligations on the part of the State to ensure the effective exercise of the child’s rights. The rights guaranteed by article 8, she said, must be ‘practical and effective.’ Given the tender age of the children in the test cases before the Court, she concluded that the State had a positive obligation to grant permission to the parent to remain in the State.
The relational understanding of rights implicit in Finlay Geoghan’s judgment did not, however, find support in the Supreme Court. Neither has it, until now, found support in subsequent case-law. An ‘insurmountable obstacles’ test continues to be relied upon by the Irish courts, to determine whether or not the parent of an Irish citizen can be lawfully deported. Currently there are several cases pending before the High Court involving deportation proceedings against third country nationals, who are parents of Irish citizen children. Two recent judgments are likely to have a significant impact on these proceedings:
► The first is ZH (Tanzania) v the Secretary of State for the Home Department, an 11 February 2011 judgment of the UK Supreme Court (left), in which Lady Brenda Hale, giving the lead judgment in the case, found that in making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This, she said, ‘means that they must be considered first.’ Notably Lady Hale cited directly from Jacqueline Bhabha’s essay, 'The "Mere Fortuity of Birth"? Children, Mothers, Borders and the Meaning of Citizenship,’ to support her conclusion: ‘the fact of belonging to a country fundamentally affects the manner of exercise of a child's family and private life, during childhood and well beyond.’ In contrast to the Irish courts, Lady Hale emphasised the intrinsic importance of citizenship, including the value of ‘growing up and being educated’ in one’s own country, and pointed to the increasing emphasis on the child’s best interests in the Strasbourg case law, including in Uner v Netherlands (2006), Maslov v Austria (2007), and da Silva, Hoogkamer v Netherlands (2006). She also noted that in the context of immigration, the requirements of the ECHR must be interpreted in harmony with the general principles of international law, including those set out in the UN Convention on the Rights of the Child.
► The second significant development is the Zambrano judgment handed down by the European Court of Justice (right) on March 8 of this year. The Zambrano judgment has direct and immediate implications for Ireland’s practice to date in allowing de facto deportations of citizen children. What is notable about the Zambrano judgment is the willingness of the ECJ to go beyond the protections of family life afforded by the Irish courts. The Zambrano judgment did not, in fact, engage with arguments concerning family life or family unity. The judgment of the Court, instead, focuses on the ‘cardinal value of citizenship’ – the right to live and remain in the State of which one is a national. As in the 2004 Zhu and Chen judgment, the ECJ recognizes the network of relationships into which a child is born, and the dependency and vulnerability of a child. Going substantially beyond the Irish courts, the ECJ in both Chen and Zambrano recognizes that a child’s state of dependency requires the presence of his or her parents, so as to ensure the effective enjoyment of the rights associated with citizenship of the Union, as protected by Article 20 of the Treaty on the Functioning of the European Union. Questions remain as to how dependency will be interpreted, and of course, what will be the ‘push back’ from Member States of the EU, many of whom, including Ireland were watching these proceedings closely.
Predictably, the Zambrano judgment has given rise to much commentary in Ireland. It is to be hoped, at least for now, that it will finally bring home to Irish courts, the significance and meaning of a child’s citizenship and attachment to the State.

Steps forward for Irish same-sex couples

(Delighted to welcome back alumna Siobhán Mullally, who contributes this guest post)

The Dáil (left), the lower house of Parliament in Ireland, has passed legislation giving formal legal recognition to same-sex relationships for the first time.
The Civil Partnership Bill 2010 passed last Thursday evening without a vote, support coming from all (or most) parts of the political spectrum. It now must be considered by the Seanad.
Under the terms of the Bill, marriage-like benefits will be extended to gay and lesbian couples across a range of areas including property, succession, maintenance, pensions. Further legislation is due to extend benefits in the fields of social welfare and tax.
The status of civil partnership will not provide rights and privileges equivalent to marriage, which remains open only to different sex couples. This distinction has remained because it is deemed necessary to safeguard the protection given to marriage in Article 41(3) of the Irish Constitution (right), which states in part:

The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.

The constitutional text does not, however, make any reference to marriage as being exclusively open to different sex couples. Rather, it is legislative and judicial interpretation of the constitutional text that has presumed this exclusionary stance. Much of the debate on the Civil Partnership bill has touched upon the inequalities that will persist on introduction of this new status, and upon the failure to provide for the rights of children within such partnerships.
Despite these shortcomings, the Civil Partnership Bill has been heralded by many as a mark of progress, a contribution to what Minister for Justice, Mr Dermot Ahern, describes as a ‘modern code,’ that marks a break from a past in which sexual orientation discrimination was commonplace. Included within that modern code are the:
► Employment Equality and Equal Status Acts 2000-2004, which prohibit discrimination on grounds of sexual orientation; and
► Prohibition on Incitement to Hatred Act, 1989, which includes homophobic incitement within its scope.
Introducing the Bill, the Minister for Justice noted that it was now time to add to the legal protections in place against discrimination and exclusion, and to officially recognize and affirm same-sex relationships so as to bring to an end the legacy of prejudice and inequality.
Granting official recognition and affirmation brings with it the question of whether a ‘conscientious exemption’ clause should be granted to those whose religious belief and affiliations do not allow for affirmation or even tolerance of same sex relationships.
A proposed legislative amendment, allowing for such an exemption clause, was dismissed, despite last minute interventions by the Irish Bishops’ conference, who argued that the failure to provide for such a clause was unconstitutional, given the limits imposed on freedom of conscience and on social and civil freedom in religious matters. In response, John Gormley, the Minister for Environment and Green Party representative, criticized the Church’s attempt to exert influence on the legislative process, which he noted was reminiscent of earlier eras of ‘church interference’. The debate on conscience exemption, and its swift dismissal, reflects the changing relationship between Church and State in Ireland, and the waning influence of religion in matters of gender, sexuality and family.
The passing of the Civil Partnership Bill follows on from the judgment that a Chamber of the European Court of Human Rights (left) rendered on June 24th in Schalk and Kopf v Austria.
The applicants had complained that the absence of same-sex marriage in Austria violated their European Convention rights, both under Article 12 (right to marry) and Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to private and family life). They appealed to the Court to interpret the Convention (below right) in light of present-day conditions, and not to restrict the application of Article 12 to different-sex couples. The Court rejected their argument, noting the absence of a European consensus on same-sex marriage. Importantly, however, drawing on Article 9 of the European Union Charter of Fundamental Rights, the Court took the view that the right to marry was not necessarily confined to marriage between different-sex couples. It nonetheless concluded that:
► The question of whether or not to allow same-sex marriage fell to be determined by national law; and
► States continued to enjoy a wide margin of appreciation on this question.
The Court’s judgment left open the question of whether the absence of any form of relationship recognition for same-sex couples might be a violation of the European Convention.
Significantly, the Court’s judgment extends the scope of Article 8. At paragraph 94, it finds for the first time that same-sex couples enjoy not only a right to ‘private life’, but also ‘family life’:

[T]he Court considers it artificial to maintain the view that, in contrast to a different-sex couple, a same-sex couple cannot enjoy “family life” for the purposes of Article 8. Consequently the relationship of the applicants, a cohabiting same-sex couple living in a stable de facto partnership, falls within the notion of “family life”, just as the relationship of a different-sex couple in the same situation would.

Strong dissenting judgments were entered specifically on the Court’s finding of no violation of Article 14 (non-discrimination), suggesting the possibility of change in the future.
For the moment, the Court’s judgment is unlikely to assist the campaign for marriage equality in Ireland. However, it does challenge existing Irish case-law, including the October 2009 judgment in McD v L, in which the Irish Supreme Court found that ‘de facto’ same-sex couples did not enjoy family life within the meaning of Article 8 of the Convention.
Small steps forward!

Guest Blogger: Siobhán Mullally

It is IntLawGrrls' great pleasure to welcome Dr. Siobhán Mullally (pictured left) as today's guest blogger. Siobhán is a Senior Lecturer in the Faculty of Law, University College Cork, where she is director of an Irish Research Council project on Gender, Multiculturalism and Religious Diversity in Contemporary Ireland. She is currently a Fulbright Scholar and Senior Fellow at the Gender, Sexuality and Law Program at Columbia Law School. We were lucky enough to have Siobhán as a visiting scholar at Temple Law School last fall, when I was first introduced to her excellent work on gender, religion, and multiculturalism. She discusses the French Parliamentary Commission's recent report on the voile integral, which falls squarely within the themes of her scholarship, in her guest post below.
Siobhán is former Chair of the Irish Refugee Council. She has worked with NGOs and UN bodies in Afghanistan, Pakistan, Timor-Leste, Kosovo and most recently in Ethiopia. She has previously held lecturing positions at the University of Peshawar, Pakistan, and the University of Hull, UK. She has published in the field of gender, human rights and migration. Publications include: Gender, Culture and Human Rights: Reclaiming Universalism and ‘Migrant Women Destabilising Borders: Citizenship Debates in Ireland’ in Cooper D, Grabham E (eds.) Intersectionality and Beyond: Law, Power and the Politics of Location. She is Editor of the Irish Yearbook of International Law.
Siobhán dedicates her post to Hanna Sheehy Skeffington (pictured below right). Born on 24 May 1877 in Kanturk, County Cork, Johanna Sheehy married Francis Skeffington at the age of 26; henceforth they both used Sheehy Skeffington as their surname.
Five years later, they became founders of the Irish Women's Franchise League, declaring the need for ‘Home rule for Irish women as well as Irish men’ and refusing to subordinate women’s campaign for the vote to the parliamentary campaign for Irish home rule. When they failed to convince Irish Home Rule leaders to support women’s suffrage, the IWFL broke with constitutional nationalism and began militant protests. Hanna was arrested in June 1912 for breaking windows in Dublin Castle. After refusing to pay the fines she was given a two month sentence and imprisoned in Mountjoy Jail. Following her release she was dismissed from her teaching post.
Hanna continued to combine her feminist and nationalist aspirations. She refused to join and was openly hostile to Cuman na mBan (the women’s auxillary of the Volunteer Republican movement). The British Government prevented her (and other Irish delegates) from attending the Women’s International Peace Conference at The Hague in 1915. During the 1916 Easter Rising, Francis set up a citizen’s militia to stop looting, concerned that it damaged the ideals of those leading the Rising. He was arrested by the British authorities and shot on the orders of a British Army officer.
At the end of 1916, Hanna travelled to the United States at the invitation of the Friends of Irish Freedom. Her talk ‘British Militarism as I have known it’ was later published as a pamphlet. When seeking support for the Irish cause from the British feminist movement, Hanna stressed the significance of the revolution for international feminism:

It is the only instance I know of in history where men fighting for freedom voluntarily included women.

On her return to Liverpool in 1918, Hanna was arrested and imprisoned in Holloway Jail. She went on hunger strike and was released. She joined Sinn Féin and was later appointed to the Executive, serving as its Organising Secretary in 1921-22. She served as a judge in the Republican Courts (the parallel courts operated by Sinn Fein) during the Irish War of Independence.
As she refused to take the oath of allegiance to the British Crown Hanna was barred from teaching but found work as a journalist and was later elected to Dublin City Council in 1925. She continued to oppose the Irish Free State, which she declared was anti-Republican and anti-feminist. She belatedly parted ways with Fianna Fail and De Valera, when he entered the Parliament in 1927. Her assessment was that the Free State was

rapidly becoming a catholic statelet under Rome’s grip – censorship and the like, with a very narrow provincial outlook… Result of a failure in revolution really. I have no belief in de Valera…essentially conservative and church-bound, anti-feminist, bourgeois and the rest.

Hanna combined her nationalist activities with support for the labour rights movement. In 1911, she was a founding member of the Irish Women Workers’ Union. She opposed the Conditions of Employment Bill because of the restrictions it imposed on women’s employment. She was a founder member of the Women’s Social and Progressive League which attempted to alert women to the implications of the anti-feminist provisions in the 1937 Constitution (Bunreacht na hÉireann), and in legislation being passed in the Dáil.
Hanna died on 20 April 1946. The Irish Times obituary described her as 'the ablest woman in Ireland'. Hanna’s son, Owen Sheehy-Skeffington, was a leading Labour Party activist, member of the Seanad (Senate), and a civil rights campaigner.
Heartfelt welcome!

The Values of the Veil

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

On Jan 26th 2010, the widely anticipated Parliamentary Commission Report on the wearing of the voile intégral (face veil) in France was published. The 200 page report includes recommendations for legislative and policy initiatives to deter and limit the practice, which is described as a challenge to the French Republic and to republican values. Against those who question France’s preoccupation with the veil, the Report argues that the veil represents more than a piece of cloth; it reflects a system of values, a set of social and family constraints that weigh on the Muslim woman.
Debates on the wearing of the veil in France have coincided with a consultation on national identity, ‘Le grand débat sur l’identité nationale,’ which the Minister for Immigration, Eric Besson, has said will seek to redefine familiar concepts of citizenship and national belonging. Pre-empting the presentation of the Commission’s Report to Parliament, a leading figure in the governing UMP party, Jean Cope, presented proposals for a sweeping prohibition on the wearing of the face-veil in all public spaces. The Commission’s Report, however, recommends a limited prohibition, restricting the wearing of the face-veil in public services. This recommendation was met with a heated response from Parliament, with some representatives rejecting what they referred to as a ‘demi-loi’ (half-law). By restricting the scope of the proposed prohibition, the Commission hopes that the requirements of proportionality, key to ECHR protections on religious freedom and freedom of expression, will be met. The concern with proportionality, and effectiveness, is evident also in the discussion on enforcement. Rather than proposing the imposition of fines or other penalties for non-compliance, the Report proposes that wearing the face-veil will lead to a refusal of public services, though how this will be enforced in public transportation, for example, is unclear.
What is clear from the Report is that the possibility of a Muslim woman choosing to veil was problematic for the Commission. The Report briefly acknowledges that a multiplicity of motivations may lie behind the wearing of the veil, and that a diverse range of reasons were presented to explain the practice. Ultimately however, this plurality is erased, the wearing of the face-veil, the Report notes, represents: ‘une servitude volontaire, libertes alienées et situations de contraintes.’ Evident also in the Report is a questioning of the normativity of Muslim families. Like Antigone, the veiled Muslim woman represents a non-normative family and a set of kinship relations that do not conform to dominant cultural norms.
The continuing reach of colonial preoccupations is evident in the Commission’s report. In his foreword, the Rapporteur, Eric Raoult recounts a meeting in Damascus with ‘Farah’, a young (of course) veiled woman from Marseille. He concludes his ‘living testimony’ with an emotional appeal: it is ‘pour les yeux de Farah’ (for the eyes of Farah), that he and his fellow Commission members have worked, ‘Farah de Damas, du Koweit ou du Golfe, mais avant tout, Farah de Marseille!’ Not only is this a living testimony, it is a veritable call to arms.
The Report reflects a deep rooted suspicion of multiculturalism, including rights claims asserted by Muslim women to support the practice of veiling. Radical and fundamentalist religious groups stand accused of instrumentalising human rights norms to support their communitarian (non Republican) goals. The appeal to the House of Lords in the 2005 Begum case in the UK, is given as an example of one such communitarian challenge. This criticism falls within France’s broader contestation of minority rights claims, long a feature of its engagement with UN human rights bodies.
Less controversy has surrounded the Report’s proposals on immigration and citizenship laws, reflecting the seeming inevitability and greater legitimacy of coercive measures in this field. The Commission recommends changes to legislation governing immigration and asylum, to explicitly include equality between women and men, and secularism, amongst the values that applicants for family reunification or long-term residence should be familiar with. Drawing on the formula of the Conseil d’État, in its 2008 Silmi decision on naturalisation, the Commission recommends refusal of a residence permit for anyone manifesting a ‘radical religious practice’, incompatible with republican values, including in particular, gender equality. Such a refusal would be justified on grounds of the applicant’s failure to integrate. On citizenship laws, the Commission recommends amending the Civil Code to explicitly provide that a radical religious practice would be considered a failure of assimilation. These proposals build on existing trends in immigration and citizenship law in France, and at the EU level, where recent years have witnessed an expansion in integration testing.
The expansion of integration testing seeks to assess the newcomer’s commitment to liberal democratic ideals, including gender equality. This ‘gender turn’ in citizenship and immigration practices mark a challenging departure and raises questions as to what are the costs of such inclusion. These trends, of course, cannot be divorced from the broader politics, and bio-politics, of the post 9/11 world. With the increasingly aggressive focus on integration, Muslim women in Europe are being placed yet again at the center of the human rights versus Islamic world dialectic.

Go On! "Transcending the Boundaries of Law"

(Go on! is an occasional item on symposia of interest) Next week, from Thursday to Saturday, the Feminism and Legal Theory Project (FLTP), now hosted at Emory Law School, will celebrate 25 years of cutting edge scholarship in feminist legal theory with a major conference entitled Transcending the Boundaries of Law. The conference will feature papers from some of the most prominent legal academics working in feminist legal theory across various different areas of law and society. The incredibly impressive programme is available here, and, inter alia, features papers from a number of people working in international law (including myself, Laura Spitz, Fionnuala ní Aoláin and Siobhán Mullally).
The FLTP was founded by Professor Martha Fineman (below right) while she was in the University of Wisconsin, Madison, and it travelled with her as she progressed through her career at Columbia, Cornell (where she held the first endowed chair in feminist jurisprudence in the United States), and most recently, Emory. (photo credit) In a recent interview with our colleagues at Feminist Law Professors, available here, Martha explained her motivation for establishing the FLTP thus:

My tenure decision at the University of Wisconsin was delayed a year when one of the [liberal] senior professors pulled his letter of support from my file because I published an article arguing that formal equality was not the model to use for family law reform. He was outraged that I rejected liberal precepts. He later changed his mind and apologized. Another colleague condescendingly told me that even if I questioned formal equality he knew I didn’t want any “special treatment” simply because I was the single mother of four children. I told him I didn’t want special treatment, but perhaps deserved some recognition that I had managed to meet all the tenure requirements while balancing family circumstances that probably would have defeated many others on the faculty (I meant him, with his stay-at-home wife who not only raised the children, but also edited his papers). Those and other encounters taught me there was a real need for a supportive environment to encourage feminist work, particularly of the kind that challenged traditional assumptions and received wisdom, and was based on women’s lived experiences.

For many of us--myself included--the Project and Martha have offered (and, indeed, continue to provide) a supportive and warm environment in which rigorous debate, scholarship and lots of writing have taken place. All the indications are that next week’s conference will carry on in precisely that refreshing, challenging and creative vein.