Irish Centre for Human Rights (Scholarly Articles)

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  • Publication
    Human rights and smart economics: Mainstreaming gender in international trade policy
    (UCD Law Review, 2009) O'Rourke, Maeve
    At the time, the 1995 Fourth World Conference on Women in Beijing was applauded as a massive turning point for the status of women's human rights worldwide. Gender mainstreaming, established in the Beijing Platform for Action2 as a major global strategy for the promotion of equality between men and women, was hailed as exactly what women needed for participation in areas where they had never previously been considered. Gender equality and women's empowerment would no longer be regarded as separate policy areas, independent of sectoral policies. Governments had eventually acknowledged, through the Platform for Action, that gender equality could not be achieved without changes in a wide variety of areas, including labour market, fiscal and financial policies. In every critical area of concern, governments and other actors were called on to 'promote an active and visible policy of mainstreaming a gender perspective into all policies and programmes, so that, before decisions are taken, an analysis is made of the effects for women and men, respectively.' 3
  • Publication
    Suu Kyi has made herself the face of a murderous regime
    (Business Post, 2019-12-15) Murphy, Ray
    The Gambia is bringing the case to the International Court of Justice to stop what it sees as genocide and to get a preliminary finding on the issue. The case is the first international attempt to make Myanmar accountable for the alleged atrocities against the Rohingya.
  • Publication
    10 ways institutional abuse details are still being kept secret
    (RTÉ Brainstorm, 2019-09-05) O'Rourke, Maeve; Jim Carroll
    The Taoiseach has tonight issued an apology on behalf of the State and its citizens to the victims of child abuse. Mr. Ahern made the apology as he announced a package of measures to tackle such abuse. These include the establishment of a Commission to inquire into child abuse and the establishment of a £4 million professional counselling service for victims.
  • Publication
    State must allow institutionalised people access to personal files
    (Irish Times, 2019-01-08) O'Rourke, Maeve
    his year, politicians must do what is right by survivors and family members of deceased victims of all forms of so-called historical abuse in Ireland. It is a milestone year. The Mother and Baby Homes Commission of Investigation is to report next month and in May it will be 20 years since then taoiseach Bertie Ahern’s State apology for abuse suffered by tens of thousands of children in residential institutions.
  • Publication
    Ireland's Magdalene Laundries and the state's duty to protect
    (Law Society of Ireland, 2011) O'Rourke, Maeve
    Irish society has recently begun to come to terms with a legacy of systemic physical, sexual and emotional maltreatment of children from the 1930s to the 1970s in State-funded, Catholic Church-run Industrial and Reformatory Schools. Soon after the findings from a nine-year official inquiry into institutional child abuse were released in Ireland in May 2009,1 questions began to surface as to why the Magdalene Laundries had not been covered by the inquiry, nor their survivors compensated by the Residential Institutions Redress Board, set up by the government in 2002.2
  • Publication
    Burial of a child's remains: Resolving parental disputes
    (Law Week Limited, 2013-02-28) O'Rourke, Maeve
    A dispute between parents as to where or how to dispose of their child's remains may seem too tragic to countenance. However, it can occur, understandably, where two parents live far apart (in different countries even), or have differing beliefs, and neither can bear the thought of being distanced permanently from their child's final resting place or being unable to mourn their child's loss in the way that they would wish. If an application to court becomes necessary to determine the dispute, a sensitive and urgent approach is called for. It is hoped that this article might assist in navigating the limited and somewhat conflicting reported decisions on the issue so that an application can be brought as soon as possible.
  • Publication
    Prolonged impunity as a continuing situation of torture or ill-treatment? Applying a dignity lens to so-called historical cases
    (Springer and T.M.C Asser Press, 2019-03-28) O'Rourke, Maeve
    Around the world many survivors of so-called historical abuses persist in seeking truth and justice decades after rights violations have been perpetrated. Recognising that prolonged impunity may cause victims suffering to intensify over time, the United Nations Committee Against Torture stated in its General Comment No. 3 that victims of torture or ill-treatment must be enabled to access comprehensive redress regardless of when the violation occurred. However, it seems far from settled in international human rights law that there is a substantive right to redress for torture or ill-treatment regardless of when in the past the violation occurred. In cases before several international human rights treaty bodies (and domestic courts), claims concerning historical rights violations have been rejected on the basis that the adjudicating body does not have temporal jurisdiction or, if temporal jurisdiction is not in issue, because the claimant is guilty of delay . This article proposes that a focus on the dignity of survivors could enable the international human rights treaty bodies and other actors to recognise the existence of a continuing situation of torture or ill-treatment where impunity for the initial substantive violation is prolonged. Such an understanding could provide the doctrinal basis for recognising a substantive right to redress for torture or ill-treatment even where the initial torture or ill-treatment occurred prior to the coming into force of the relevant treaty obligation, and indefinitely. The article illustrates its arguments using the case study of impunity for the systematic abuse of girls and women in Ireland s Magdalene Laundries.
  • Publication
    Mladic trial marks end of an era
    (RTE Brainstorm, 2017-11-21) Murphy, Ray; Jim Carroll; |~|
    The International Criminal Tribunal for the former Yugoslavia will this week deliver its judgment in what is the Tribunal s last big trial. Although the world has grown weary of the trials arising from the 1992-95 war in Bosnia-Herzegovina, the judgment in respect of 75-year-old General Ratko Mladić, nicknamed the Butcher of Bosnia , will determine the guilt or innocence of one of the most notorious figures from that conflict. He faced charges of war crimes, genocide and crimes against humanity.
  • Publication
    Mladic is convicted but jury is still out on Yugoslav tribunal
    (The Irish Times, 2017-11-24) Murphy, Ray; |~|
    General Mladic, the former Bosnian Serb commander, has been found guilty of war crimes and other serious violations of international law. This was the last trial judgment to be delivered by the International Criminal Tribunal for the former Yugoslavia before its closure at the end of this year. It is one of the most important trials conducted by the war crimes court to date. It also marks the end of an era for one of the most significant developments in international criminal justice since the Nuremberg and Tokyo tribunals established in the aftermath of the Second World War. However, apart from punishing some notorious individuals, what did the creation of the war crimes court achieve?
  • Publication
    UN peacekeeping mission to Haiti leaves controversial legacy
    (RTE Brainstorm, 2017-09-12) Murphy, Ray; Jim O Sullivan; |~|
    UN military peacekeepers are withdrawing from Haiti after 13 years. The mission (known as MINUSTAH) has been marred by controversy involving allegations of sexual abuse and human rights violations. Operations began in 2004 when widespread violence forced then President Aristide from power. While the mission is credited with stabilizing the country, particularly in the aftermath of the 2010 earthquake, there has been much criticism of the use of force in the restoration of law and order. However, its most controversial legacy relates to the disastrous outbreak of cholera.
  • Publication
    Considering time in migration and border control practices
    (Inderscience, 2016-10) Yahyaoui Krivenko, Ekaterina; |~|
    Practices within the area of migration and border control are often analysed through a spatial lens. This is understandable: migration studies deal with movement of people across different places and spaces. International migration involves movement across a very specific type of space: states and their borders. This contribution argues that, despite its apparent emphasis on spatiality, migration, and more specifically migration control, has a distinct temporal element. This temporal element needs to be analysed and understood in a close relationship to the spatial aspect of migration and border control. This will lead to a more multifaceted view of migration and border control practices and assist in revealing their discriminatory or inadequate nature more clearly and easily. The paper also proposes a conceptual grid as an initial framework for such an integrated analysis of spatiotemporality of migration and border control.
  • Publication
    International law, literature and interdisciplinarity
    (Taylor & Francis, 2015-07-03) Yahyaoui Krivenko, Ekaterina; |~|
    This article analyses the relationship between international law and literature from the point of view of its form of expression. Using insights from Deleuze and Guattari's analysis of Kafka's oeuvre as a ‘minor literature’, it argues that stylistic conventions of international law present a serious barrier to the full development of the truly revolutionary potential of international law. International law is situated in proximity to minor literature. Therefore, the constraints imposed on the use of language by the discipline of international law produce particularly distorting results within international law scholarship. These distortions reflect the need to open the language of international law up to new uses that allow for the precedence of expression over content, as in a minor literature.
  • Publication
    Rethinking human rights and culture through female genital surgeries
    (Johns Hopkins University Press, 2015-02) Yahyaoui Krivenko, Ekaterina; |~|
    The article revisits the relationship between culture and human rights through the analysis of one traditionally condemned cultural practice known in human rights law as female genital mutilation. The analysis draws on anthropological and medical literature and demonstrates the importance of interdisciplinary analysis to any inquiry within the area of relationship between culture and human rights. An analogy between the traditional practice of female genital mutilations and the less widely publicized female genital aesthetic surgeries practiced in many Western countries serves as a methodological tool. Laws and attitudes towards both practices are compared, demonstrating many similarities and thus the difficulty of drawing a clear-cut line between a cultural and an a-cultural practice. In this light, human rights insistence on condemnation of the practices of the Other exclusively appears as hegemonizing, racializing, and, ultimately, discriminatory in its effects. Some suggestions as to what a more adequate human rights approach could look like are made as well, as the constant necessity for interdisciplinary inquiry in human rights law is emphasized.
  • Publication
    The "Reservations Dialogue" as a constitution-making process
    (Brill Academic Publishers, 2013) Yahyaoui Krivenko, Ekaterina; |~|
    The article proposes a new reading of the reservations regime to human rights treaties. The practice developed by states in relation to the reservations regime is analysed and presented as a constitution-making process. This new vision is based on the notion of the reservations dialogue as presented and developed by the Special Rapporteur of the International Law Commission on reservations to treaties. However, the article also proposes a wide reading of the practice of the reservations dialogue using examples from the Convention on the Elimination of All Forms of Discrimination against Women. Based on this analysis, the author formulates some proposals as to a more adequate development of the reservations dialogue and the reservations regime. A development which will favour the formation of inclusive international human rights as a basis for a future international constitution accepted as legitimate by all members of the international community.
  • Publication
    The Islamic veil and its discontents: how do they undermine gender equality
    (Brill Academic Publishers, 2012) Yahyaoui Krivenko, Ekaterina; |~|
    The article addresses the use of notions of gender equality and non-discrimination in the discussions concerning the practice of Islamic veiling by the European Court of Human Rights as well as by French authorities in relation to the recent adoption of the law banning full face veils in public spaces in France. The author argues that the use of the rhetoric of gender equality without the required knowledge and understanding of the justifications for and discussions about this practice existing within Islam is in both cases very inadequate and leads to results opposite to those they intended to promote. Based on insights into the discussions of Muslims about the practice of veiling the author makes some proposals for a more adequate approach to this practice both from the point of view of women s status as well as from the point of view of relationship between Islam and the West.
  • Publication
    Hospitality and sovereignty: what can we learn from the Canadian private sponsorship of refugees program?
    (Oxford University Press, 2012-09-10) Yahyaoui Krivenko, Ekaterina; |~|
    This article addresses the tension between state sovereignty and refugee protection. The application of refugee law is often harshly criticized with such modern tendencies as increased border controls and visa regimes, and growing security and identity concerns creating impediments for persons requesting protection. Consequently, a common concern is how to improve refugee protection to make it independent from states evolving political interests and changing preferences. In order to explore international law specifically, refugee protection beyond state sovereignty, this article draws from Derrida s notions of unconditional hospitality and sovereignty. To envisage the practical application of these philosophical ideas, the article considers the operation of the Canadian private sponsorship of refugees program. The article argues that individuals can be the bearers of an other sovereignty, distinct from that of states, and can implement international obligations in the area of refugee and human rights law more efficiently. The application of this distinct sovereignty also extends a type of unconditional hospitality, as defined by Derrida. The article concludes that the private sponsorship of refugees program should be regarded as more than just an interesting way to implement states obligations. It should be seen as an example of, and opportunity for, innovative development in international law, which could provide a more human dimension, enabling more persons to get the protection to which they are entitled.
  • Publication
    Muslim women's claims to refugee status within the context of child custody upon divorce under Islamic law
    (Oxford University Press, 2010) Yahyaoui Krivenko, Ekaterina; |~|
    This article analyses case law from the UK, New Zealand, and Canada relating to claims for recognition of refugee status presented by divorced Muslim women, revolving around the issue of child custody after divorce under conservative Islamic law, which deprives women of any meaningful relationship with their children. The negative attitude of the UK authorities is compared to the open and positive approach of decision makers in New Zealand and Canada. The use and interpretation of aspects of the refugee definition, such as persecution, particular social group and the standard of state protection, are analyzed in more detail. The article argues that, in order to adequately evaluate this type of claim, decision makers should take into account all aspects of a woman's experiences including the consequences of the decision on their children.
  • Publication
    Feminism, modern philosophy and the future of legitimacy of international constitutionalism
    (Brill Academic Publishers, 2009) Yahyaoui Krivenko, Ekaterina; |~|
    International constitutionalism relates to processes of limiting traditionally unrestricted powers of states as ultimate subjects, law-makers and law-enforcers of international law. Human rights occupy a central, but very confusing and confused role in the theorisation of international constitutionalism. If feminist scholars have criticised the inadequacies, shortcomings and gaps of international law of human rights at least since 1991, the doctrine of international law theorising constitutionalisation of international law until now has remained blind to these critiques idealising human rights and often using them as the ultimate legitimating factor. Thus, legitimacy and legality become confused and the distinction between them blurred in the doctrine of international constitutionalism. This in turn creates a danger of failure of the constitutionalists project itself, as it will serve to reinforce existing inadequacies and gaps in human rights protection. To illustrate this argument, I discuss some examples related to the protection of women's and migrants' rights. In order to avoid this dangerous development, I argue that international lawyers theorising international constitutionalism shall adopt an adequate, inclusive notion of legitimacy. In order to develop this adequate understanding of legitimacy, they should first take seriously feminist and other critiques of international human rights law and international law more generally. In the final parts of this article I develop my own more detailed proposals on the future of legitimacy and international constitutionalism. In doing so, I draw on the 'self-correcting learning process' developed in the writings of Jürgen Habermas, 'democracy to come' and more general views on the nature of sovereignty and human rights expressed by Jacques Derrida, as well as Levinasian 'responsibility-to-and-for-the-Other'
  • Publication
    Retaliation and Reprisal, forthcoming in Marc Weller (ed.), Oxford Handbook on the Use of Force, Oxford University Press (2013)
    (2015-04-17) Darcy, Shane
    This book chapter explores the evolution of the law on the use of force as it relates to armed reprisals and retaliation, particularly since the adoption of the Charter of the United Nations in 1945. While the preponderance of scholars, and indeed States, view armed reprisals or countermeasures involving force as prohibited under international law, the doctrine would seem to retain appeal for those seeking to legitimise force not falling within the Charter¿s exceptions. The counterpart applicable in times of armed conflict, belligerent reprisal, has been restricted but not completely outlawed under international humanitarian law. The chapter examines the development of international law on the use of force relating to reprisals and consider claimed instances of State practice, as well as judicial and scholarly consideration of the lawfulness of such reprisals. It concludes with a look at calls for the revival of reprisals or retaliation as permitted exceptions to the prohibition on the use of force.