Publications – Page 6 – Professor Fiona de Londras

Call for Papers: Irish Yearbook of International Law

Siobhán Mullally and I, who edit the Irish Yearbook of International Law, now invite submissions for publication in the Yearbook.

Articles should not be published or under consideration for publication elsewhere.

An annual, peer reviewed publication, the Irish Yearbook of International Law is committed to the publication of articles of general interest in international law as well as articles that have a particular connection to, or relevance for, Ireland. Articles are usually 10,000 to 12,000 words in length, although longer submissions will be considered. The Yearbook also publishes a small number of shorter articles and notes, which should not exceed 6,000 words.

Submissions, comprising a brief 100-word abstract, article and confirmation of exclusive submission, should be sent to both Professor Siobhán Mullally (s.mullally@ucc.ie) and Professor Fiona de Londras (fiona.de-londras@durham.ac.uk) by 30 June 2015. (Submissions are also accepted on a rolling basis).

Anyone wishing to review a particular title in the Yearbook’s book review section is also invited to contact the editors. Further information on the Yearbook (including style guide) is available at the IYIL website. The Irish Yearbook of International Lawis published by Hart-Bloomsbury and is also available on HEIN Online.

New policy paper on repealing the HRA (and withdrawing from the ECHR?)

Today a group of scholars, including myself, have released a new policy paper outlining some implications of repealing the Human Rights Act 1998 and, possibly, withdrawing from the European Convention on Human Rights. The paper emerged from a workshop in Edinburgh last March. The workshop was convened by Tobias Locke (Edinburgh) and Kanstantsin Dzehtsiarou (Surrey) who also co-edit the policy paper that has been released today. Following the UK General Election last week and the manifesto pledge to repeal the HRA, we hope that this paper will give some insights into the possible implications and repercussions of the government following through on that pledge. The paper can be downloaded (without charge!) here.

Key findings include:

Any attempt to repeal and/or replace the Human Rights Act would have to take into account the devolution settlement. A repeal of the Human Rights Act might require the consent of the devolved legislatures under the Sewel Convention. A repeal would at present run counter to the UK’s international treaty obligations under the British-Irish Agreement which was incorporated in, and agreed as part of the UK-Ireland obligations under the Belfast (Good Friday) Agreement. A new Bill of Rights may require the consent of the devolved legislatures.

If the Human Rights Act were not replaced, individuals would still be able to rely on common law remedies, as far as they exist, as well as the EU Charter of Fundamental Rights in cases in which the UK has acted within the scope of EU law. Hence, in some areas repealing of the Human Rights Act without more will not lead to the ‘regaining of sovereignty’ anticipated by the proponents of such proposals.

A replacement of the Human Rights Act with a British Bill of Rights would enable Parliament to provide for the protection of additional rights, such as a right to trial by jury. It would also allow Parliament to introduce certain procedural changes, such as no longer making it mandatory for courts ‘to take into account’ the case law of the European Court of Human Rights or to read legislation ‘as far as it is possible to do so’ compatibly with Convention rights. It should be noted, however, that the Supreme Court has relaxed the conditions under which courts are required to follow the European Court of Human Rights and that a removal of these requirements could result in an increased number of cases brought against the UK in the European Court of Human Rights.

A complete withdrawal from the European Convention on Human Rights would deprive people in the UK from the possibility of bringing their human rights complaints to the European Court of Human Rights. However, it would not relieve the UK of the duty to comply with judgments already handed down by the European Court of Human Rights, for instance on prisoner voting. The UK would also be setting a negative example so that the protection of human rights within Europe as a whole would suffer. Withdrawal from the European Convention on Human Rights is technically possible with six months’ notice, however it would lead to wider consequences for the UK’s other international commitments. Long-term membership of the Council of Europe may become impossible.A withdrawal from the European Convention on Human Rights may be incompatible with the UK’s commitments as a member of the European Union. Withdrawal from the European Convention on Human Rights could also result in a substantial reduction of human rights protection for minority and vulnerable groups in the UK.

New Paper on Constitutionalising Foetal Rights

I have posted a working version of my new paper, ‘Constitutionalizing Fetal Rights: A Salutary Tale from Ireland’ on SSRN for free download. The final version will be published this winter in the Michigan Journal of Gender and the Law.

The paper considers how the idea of ‘foetal rights’ made its way into the Irish Constitution in 1983. With the 8th Amendment, Ireland became the first country to explicitly recognise the foetus as a constitutional rights bearer, and the repercussions of that for law, medicine and politics–not to mention for pregnant women–have been immense. In the paper, I outline those developments and argue that, by constitutionalising foetal rights, a system blocks out the space forpersonal moral judgement in reproductive decisions, medical judgement in clinical decisions, and political judgement in policy decisions. This has particularly been the case in Ireland, where an über conservative interpretation has been applied to the 8th Amendment, not only in the earlier cases that foreclosed information provision, for example, but also in very recent cases appearing to establish a constitutional concept of foetal best interests.

There is still time for me to make revisions to this paper, and comments are most welcome. You can download the paper for free here, and it is also attached to this post here. The formal abstract states:

In 1983, Ireland became the first country in the world to constitutionalize fetal rights. The 8th Amendment to the Constitution, passed by a referendum of the People, resulted in constitutional protection for “the right to life of the unborn”, which was deemed “equal” to the right to life of the “mother”. Since then, enshrining fetal rights in constitutions and in legislation has emerged as a key part of anti-abortion campaigning. This article traces the constitutionalization of fetal rights in Ireland and its implications for law, politics and women. In so doing, it provides a salutary tale of such an approach.

More than thirty years after the 8th Amendment it has become clear that Ireland now has an abortion law regime that is essentially ‘unliveable’. Not only that, but it has a body of jurisprudence so deeply determined by a constitutionalized fetal rights orientation that law, politics and medical practice are deeply impacted and strikingly constrained. This is notwithstanding the clear hardship women in Ireland experience as a result of constitutionalized fetal rights and the resultant almost-total prohibition on accessing abortion in Ireland.

This article argues that, wherever one stands on the question of whether legal abortion ought to be broadly available in a particular jurisdiction, constitutionalizing fetal rights leaves no meaningful space for judgement at either political or personal levels. Rather, the outcome of all arguments for a more liberal abortion law regime is effectively pre-determined in the negative. Furthermore, constitutionalizing fetal rights can have unforeseen implications across jurisprudence and medical practice, creating a situation in which there is essentially no space for more liberal interpretations that respect women’s reproductive autonomy. While this may be desirable from an ideological perspective for those who hold a firm anti-abortion position, it is distinctively problematic for women and for politics.

The Impact, Legitimacy and Effectiveness of EU Counter-Terrorism: New Book!

My new book, co-edited with Josephine Doody, on The Impact, Legitimacy and Effectiveness of EU Counter-Terrorism has now been published by Routledge. The book is available on Google Books here, and can be purchased through Routledge and Amazon. The collection brings together key insights from my FP7-funded project SECILE, which completed last autumn. Featuring chapters from key researchers in the field, it presents empirically-informed findings of the project, together with broader theoretical and principled analyses of how to enhance and assess impact, legitimacy and effectiveness in the EU context. The table of contents is below, and I have also attached a pre-print version of the introduction to this post.

1. Introduction: The Impact, Legitimacy and Effectiveness of EU, Fiona de Londras and Josephine Doody Part I: EU Counter-Terrorism: Its Scope and Institutions 2. Taking stock: the evolution, adoption, implementation and evaluation of EU counter-terrorism policy, Ben Hayes and Chris Jones 3. The Institutional Framework of EU Counter-Terrorism, Josephine Doody Part II: Disciplinary Perspectives on EU Counter-Terrorism 4. Assessing Counter-Terrorism as a Matter of Human Rights: Perspectives from the European Court of Human Rights, Mathias Vermeulen 5. The Societal Impact of EU Counterterrorism, Peter Burgess and Médéric Martins Maze 6. Democratic legitimacy, effectiveness and impact of EU counter-terrorism measures, Yulia Chistyakova 7. Social Appropriateness in EU’s Counter-Terrorism Law and Policy, Bruno Oliveira Martins Part III: Practical Perspectives on EU Counter-Terrorism 8. The Perspectives of Counter-terrorism Operatives on EU Counter-terrorism Law and Policy, Cian C. Murphy, Aldo Zammit Borda and Lucy Hoyte 9. Civil Society Perspectives on EU Counter-Terrorism, Josephine Doody and Rose van der Hilst 10. ‘Closing the Loop’ on EU Counter-Terrorism: Review as Key to Understanding Impact and Enhancing Legitimacy, Fiona de Londras

Here is the Intro outlining the individual chapters.

My chapter in the collection is entitled “Governance Gaps in EU counter terrorism: implications for democracy and constitutionalism”. In it I argue that the making and implementation of EU counter-terrorism raises serious questions as to the extent to which this limb of the Union’s activities is undertaken in accordance with the constitutionalist spirit of the Union and, if not, what implications this may have for constitutionalism and legitimacy within the EU. Although some of these concerns have been doctrinally (if not yet practically) resolved through the dissolution of the three pillars and further empowerment of the European Parliament in the Lisbon Treaty, a number of fundamental concerns persist. The chapter starts by outlining the scope of the EU’s counter-terrorism activities since 2001, before going on to consider the paper’s framing concepts of constitutionalism and legitimacy. Building on this, the paper then assess EU counter-terrorism by reference to provenance, process, democratic oversight and effectiveness in order to consider the extent to which EU constitutionalism may be compromised or called into question in the field of counter-terrorism as so far engaged with by the Union. I argue that the EU experiences constitutionalist tensions in the making and implementation of counter-terrorism law and policy, some of which are resolved by the courts of the EU, but the nature of which point to the need to build further constitutionalist structures into EU counter-terrorism.