Irish Yearbook of International Law, Volume 7, 2012

Fiona de Londras, Siobhán Mullally, Fiona de Londras, Siobhán Mullally

• Publisher: Hart Publishing
• Year: 2014
• Print ISBN:
  9781849466295
• Edition: 1
• eBook ISBN:
  9781849469753
• Topic: Law
• Subtopic: International Law
• Index: Law

The Irish Yearbook of International Law (IYIL) supports research into Ireland's practice in international affairs and foreign policy, filling a gap in existing legal scholarship and assisting in the dissemination of Irish thinking and practice on matters of international law. On an annual basis, the Yearbook presents peer-reviewed academic articles and book reviews on general issues of international law. Designated correspondents provide reports on international law developments in Ireland, Irish practice in international bodies, Ireland and the Law of the Sea and the law of the European Union as relevant to developments in Ireland. In addition, the Yearbook reproduces key documents that reflect Irish practice on contemporary issues of international law.

Publication of the Irish Yearbook of International Law makes Irish practice and opinio juris more readily available to Governments, academics and international bodies when determining the content of international law. In providing a forum for the documentation and analysis of North-South relations the Yearbook also makes an important contribution to post-conflict and transitional justice studies internationally.

As a matter of editorial policy, the Yearbook seeks to promote a multilateral approach to international affairs, reflecting and reinforcing Ireland's long-standing commitment to multilateralism as a core element of foreign policy.

CORRESPONDENT REPORTS

HUMAN RIGHTS DEVELOPMENTS IN IRELAND 2012

FIONA O’REGAN

Law Reform Commission

INTRODUCTION

2012 saw a number of significant positive developments within the human rights sphere in Ireland. Children’s rights were potentially strengthened by the holding of a long gestated referendum on the incorporation of specific children’s rights provisions into the Constitution. In addition, a number of important pieces of legislation relating to vetting and withholding of information were passed which should ensure greater protection for the rights of both children and vulnerable adults. Ireland also took up relevant positions in international institutions, including the chairmanship of the Organisation for Security and Cooperation in Europe (OSCE) and membership of the UN Human Rights Council in 2012. Yet, in this year particular attention was also focused on the continued problematic nature of abortion rights in this state with the high profile Savita Halappanavar case highlighting the unacceptability of the present situation. The frailty of the rights of irregular migrant workers was also exposed in a notable High Court decision, Hussein v The Labour Court.¹ Finally, the European Court of Human Rights (ECtHR) again found further violations of Article 6 and the right to a hearing within a reasonable time: an issue which has been the subject of numerous cases concerning Ireland.

LEGISLATIVE AND CONSTITUTIONAL DEVELOPMENTS

Referendum on Children’s Rights

On 10 November 2012, a referendum relating to children’s rights was held in Ireland. Strengthening the rights of children in Ireland had become an issue of particular priority in the wake of a number of reports relating to child abuse and neglect.² In addition, groups including the Constitutional Review Group and the UN Committee on the Rights of the Child have been vocal in calling for greater constitutional protection for children in Ireland.³ Such groups recognised that the existing provisions of the Constitution failed to adequately protect children’s rights, with emphasis placed on the rights of the family as a unit rather than its individual members. The thirty first amendment to the Constitution thus proposed repealing Article 42.5, which provided that ‘In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child’ and replacing it with Article 42A. Article 42A states:

1 The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.

2 1° In exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children to such extent that the safety or welfare of any of their children is likely to be prejudicially affected, the State as guardian of the common good shall, by proportionate means as provided by law, endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.

2° Provision shall be made by law for the adoption of any child where the parents have failed for such a period of time as maybe prescribed by law in their duty towards the child and where the best interests of the child so require.

3 Provision shall be made by law for the voluntary placement for adoption and the adoption of any child.

4 1° Provision shall be made by law that in the resolution of all proceedings—

i brought by the State, as guardian of the common good, for the purpose of preventing the safety and welfare of any child from being prejudicially affected, or

ii concerning the adoption, guardianship or custody of, or access to, any child, the best interests of the child shall be the paramount consideration.

2° Provision shall be made by law for securing, as far as practicable, that in all proceedings referred to in subsection 1° of this section in respect of any child who is capable of forming his or her own views, the views of the child shall be ascertained and given due weight having regard to the age and maturity of the child.

Whilst the decision to hold a referendum on children’s rights was broadly welcomed by human rights and children’s rights organisations,⁴ the proposed Article 42A nevertheless attracted criticism. On the ‘no’ side, an umbrella group of organisations including The Christian Solidarity Party, Parents for Children and The Alliance for Parents against the State opposed the amendment mainly because they felt it would increase the power of the state to intervene into the lives of children and limit their right to parental protection.⁵ Yet, even for those organisations in favour of a constitutional amendment, Article 42A presented problems. One of the core recommendations of organisations including the Irish Human Rights Commission (IHRC) was that any proposed constitutional amendment providing for children’s rights should include a specific reference to the UN Convention on the Rights of the Child (CRC), which was ratified by Ireland in 1992.⁶ Reference to the CRC would enable its use as an interpretative tool which would assist the Courts in enumerating the rights children would hold under Article 42A.1. Instead, this article is vague, referring only to the ‘natural and imprescriptible rights’ of the child without listing any particular rights or including any guiding principles which may aid with the enumeration of such rights. As the IHRC pointed out in its Concluding Observations on the thirty-first amendment, ‘natural’ has been the subject of differing meanings in the Courts and thus more guidance in defining the rights to be included under this article would have been welcome.⁷ Furthermore, in recommending that Article 42A.1 be revised, the IHRC suggested that ‘the Article be phrased in more absolute terms regarding the obligations of the State’ as the State only ‘recognises and affirms’ the rights of children and shall ‘as far as practicable’ by its laws protect and vindicate those rights.⁸ This contrasts with the more forceful language found elsewhere in the Constitution, in particular, Article 40.3.1°, whereby the state ‘guarantees in its laws to respect, and, as far as practicable by its laws to defend and vindicate the personal rights of the citizen’ (emphasis added).⁹

The IHRC also felt that the four guiding principles of the CRC should be included in the children’s rights Article.¹⁰ The first guiding principle relates to the best interests of the child as contained in Article 3 CRC. The IHRC recommended that the best interests of the child should be included as a primary consideration in all actions concerning children and not just in situations described in 42A.2.2° and 42A.4.1° relating to ‘preventing the safety and welfare of any child from being prejudicially affected’ and proceedings related to adoption, guardianship, custody and access.¹¹ This is a core principle of the CRC and failure to provide for it on a more comprehensive basis within Article 42A weakens the protection offered by the proposed Article, in addition to falling short of Ireland’s obligations under the CRC. The IHRC also recommended that the Article ought to include references to the principle of non-discrimination (Article 2 CRC) and the right to development (Article 6 CRC), as well as...

Table of contents

• Cover
• Title Page
• Editorial Board
• Contents
• Editorial
• Articles
• CORRESPONDENT REPORTS
• BOOK REVIEWS
• DOCUMENTS
• eCopyright