The Eagle: Trinity College Law Gazette Volume 11(1)

Letter from the Editor 3

The Case for Global Migration Governance

Simi Oluborode

The Complex Intersection of Cobalt Mining, Technology, and Human Rights in the Democratic Republic of Congo

Ella Chepak

Unmasking the Refugee Convention’s Role in Western Oppression

Nour El Gamal

9条: The Prospect of a Remilitarised Japan

Lorenzo Cheasty

Inequality, Labour Market Monosponies, and Antitrust, Oh My!

Tara Brady

Get Off My Lawn! A Brief Discussion of the Criminal Law (Defence and Dwelling) Act 2011

Laurence Valentine Murray

Ten years on from Ó Maicín: Making The Case for Bilingual Juries

Síofra O’Donoghue

Surrogacy in Ireland and the Health (Assisted Human Reproduction) Act 2024

Jane Beausang

Exploring the Sexual Duty of Care in Ireland

Chloé Asconi-Feldman

Beyond Marriage: O'Meara v Minister for Social Protection and its Aftermath

Vivek Allampally

A New Model for Tort?

Finn Doherty A

The State’s Treatment of Single Male Asylum Applicants: A Threat to the

Photography Eimear Carvill @eimearcarvillart Design and layout Aoife Doheny

Senior Editorial Board

Editor in Chief Aoife Doheny

Deputy Editor Sarah Jones

Copy Editor David O’Sullivan

Public Relations Officer Hannah Hendry

Junior

Editorial Board

Chloé Asconi-Feldman

Mira Bedi

Leah Bernasconi

Danielle Briody

Nazar El-Basheir

Nóra Collins

Maisie Greener

Sarah Gonnord

Cian Goulding

Maeve Hannon

Jessica Jiang

Maebh Kelly

John Lonergan

Isobel McSorley

Síofra O’Donoghue

Lily O’Keeffe

Zhaolu Wang

It is my great pleasure to share with you the first issue of The Eagle Gazette’s Volume 11. It has been made possible through the tireless work of The Eagle’s editorial team, the high standard of our contributors’ submissions, and the generous support of our sponsors, Maples and Calder, with special thanks to Ciara O’Brien.

The themes of this issue are a reflection of the concerns and interests of students in Ireland The topics included range from critiques of international law to case studies of foreign jurisdictions to problems closer to home in the Irish courts. Each article showcases their writers’ qualities of thoughtfulness, confidence, and initiative which will no doubt carry forward beyond the lecture theatre.

Simi Oluborode offers a nuanced critique of the current global migration system, and calls for reform that places the rights of migrants front and centre Nour El Gamal argues powerfully that the global West uses double standards in refugee law to disadvantage non-white minority groups

Ella Chepak’s discussion of the cobalt mining industry in the Democratic Republic of Congo provides a stark reminder that inequality and human rights abuses are rife in some of our most valuable global industries. Lorenzo Cheasty’s article on the remilitarisation policies of Japan brings interesting insight into an issue that has not received a huge amount of attention from Irish media, but that nevertheless provides a strong indication of the direction in which our global community may be headed Tara Brady tackles the structure of the US labour market and the impacts it has on wealth inequality. These articles are a reminder that scholarship and debate benefit massively from comparative perspectives and an interest in the affairs of foreign jurisdictions.

Chloé Asconi-Feldman and Finn Doherty both make compelling use of references to foreign jurisdictions to argue for reform of aspects of Irish tort law Chloé Asconi-Feldman’s piece is a timely reminder that sexual consent is still a pressing issue for Irish courts, suggesting that an extension of the neighbourly duty of care in tort law would be a way to reflect this. Finn Doherty argues that the entire framework of tort law is inadequate when it comes to properly compensating victims.

Other aspects of Irish law are explored through evaluations of the efficacy of our legislation. Laurence Valentine Murray provides an overdue assessment of the implementation of the Criminal Law (Defence and Dwelling) Act 2011, which legislates around acts of self-defence within the home Jane Beausang provides a very topical analysis of a new statute regulating surrogacy in Ireland for the first time Surrogacy has become a sensitive issue across the EU, making Ireland’s approach well worth exploring.

Síofra O’Donoghue and Vivek Allampally tackle some of the more controversial elements of our case law. Síofra O’Donoghue’s article on the right to a bilingual jury brings together discussion on criminal process rights and language rights to ask what impact the case of O’Maicín has had on Gaeilgeoirí (Irish speakers) before the courts Vivek Allampally provides a thoughtful and nuanced examination of the definition of the family in Irish constitutional law with reference to the recent O’Meara case.

Finally, this issue contains not one but two articles examining the Irish Human Rights and Equality Commission’s recent case before the Supreme Court. Daire Murray and Madailein Watters take different approaches to analysing this important judgment, with both concluding that more needs to be done to vindicate the rights of asylum seekers, a vulnerable and growing group in our society

I wish to thank the Junior Editorial Board for their edits, which were completed with diligence and rigour. Finally, my gratitude goes out to the Senior Editorial Team: to Sarah Jones for her invaluable help in coordinating our podcast and tackling administrative issues (which always take up more time than you expect); to David O’Sullivan for his excellent blog-editing skills; and to Hannah Hendry for her brilliant Public Relations work

Le dea-ghuí, Aoife Doheny

The Case For Coherent Global Migration Governance

Simi Oluborode, Senior Sophister, Single Honors Law

Introduction

International migration is a pivotal feature of our globalised world, yet it currently lacks any coherent system of governance. Unlike the welldefined protocols regulating refugee management, the framework for global migration remains fragmented and poorly understood. This gap is compounded by rising nationalist and protectionist agendas in many destination countries, which prioritise local economic interests over the common good and the rights of migrants This article outlines recent developments in migration legislation at Irish, European, and international levels, analysing their implications for the potential evolution of global governance in this area. By situating migration within its historical and political contexts, this analysis highlights pervasive misunderstandings around the role of migration, and advocates for a new architecture of sustainable migration governance.

History of Migration

The governance of migration can be traced back to the early 20th century Early initiatives included the passport regime established by the League of Nations, which facilitated cross-border movement among nations. The International Labour Organization (ILO) contributed to this framework with Conventions focusing on labour rights, primarily within a development and economic context. At this stage, the protection of migrants’ rights was not a priority; rather, the focus was on economic utility

The International Organization for Migration (IOM) was founded in 1951 as the Provisional Intergovernmental Committee for the Movement of Migrants from Europe (PICMME) to address post-war European overpopulation. For much of the Cold War, the demand for wider migration governance was limited due to the relatively low levels of technological means for transcontinental movement. However, the situation began to shift in the late 1980s and early 1990s when increasing numbers of people began to migrate, prompted by economic crises and political instability in their countries of origin

A watershed moment in the history of migration governance occurred during the United Nations Cairo Conference in 1994, which sought to address the complexities surrounding refugees, returnees, displaced persons, and migrants. The conference, however, was characterised by a sharp divide between predominantly migrant-sending and migrant-receiving states, stifling productive dialogue This polarisation reflected historical colonial dynamics, with many receiving states reluctant to engage in discussions about migration due to fears of losing sovereignty As Catherine Dauvergne points out, border control is often seen as “the last bastion of sovereignty.”

Despite these tensions, the international community eventually established the International Convention on the Rights of All Migrant Workers and Their Families (ICRMW), which entered into force in 2003 Unfortunately, this Convention has been largely ineffective and remains unsigned by many powerful destination states, highlighting the persistent lack of political will to create a comprehensive governance framework for migration.

The Current Migration Framework

The early 2000s marked a significant shift in migration discourse, leading to increased recognition of the necessity for a multilateral governance architecture. Four major components now comprise the contemporary framework: HighLevel Dialogues (HLDs), the Global Forum on Migration and Development (GFMD), the Global Compact for Safe, Orderly and Regular Migration (GCM), and the IOM

The first HLD took place in 2006, functioning as a unique and informal platform for discussion. Kofi Annan, then Secretary-General of the UN, reframed the migration debate from one centred on rights to one focused on economic development. This quintessentially neoliberal approach facilitated a more favourable stance among receiving states, who began to view migration through the lens of economic opportunity Subsequent HLDs continued to build

neoliberal approach facilitated a more favourable stance among receiving states, who began to view migration through the lens of economic opportunity. Subsequent HLDs continued to build on this momentum, promoting a more optimistic view of migration.

The GFMD emerged as an informal governmentled dialogue aimed at fostering cooperation among states This initiative further illustrated the reluctance of states to engage in binding normsetting in migration governance The GFMD’s dual structure, consisting of civil society days and government meetings, allows for diverse perspectives on migration while remaining nonnormative. Although it has fostered conversation around human rights and governance issues, the discourse still predominantly emphasises the macroeconomic benefits of migration.

In 2018, UN Member States adopted the GCM, aimed at balancing border security, the protection of migrant workers, and maximising the development gains of migration The GCM filled a crucial gap left by the ICRMW by designating the IOM as the lead UN-related agency for migration governance However, the IOM has been widely criticised for its state-friendly as opposed to migrant-friendly policies, raising questions about its commitment to promoting the common good. Furthermore, IOM’s decentralised structure allows it to exert influence on both horizontal and vertical levels. However, this has caused transparency and accountability concerns. IOM’s funding model further complicates this issue, as it relies on Member States for administrative funding and on ‘voluntary contributions’ for operational funding Critics argue that this structure prioritises the interests of Member States over the needs of migrants.

Towards A New Architecture for Global Migration Governance

In July 2024, Ireland opted-in to the new EU Pact on Migration and Asylum, which represents a significant overhaul of the current asylum policy and is due to take effect in June 2026 This reform includes measures to fast-track decisions on asylum cases and increase the number of detention facilities at borders, allowing countries to make financial contributions instead of accepting asylum seekers. While the policy purports to promote burden-sharing, it raises fundamental questions about the nature of solidarity in migration governance.

The hardening of borders and increase in detention locations for non-vetted migrants pose serious humanitarian and ethical risks, which may be further exacerbated by right-wing nationalist sentiments. To combat this troubling precedent and create a sustainable, equitable global migration governance, a complete reframing of the concept is required at the epistemic level.

First, states must acknowledge that migrants are neither burdens nor solutions to economic challenges A shift away from viewing migration solely through an economic lens is crucial; instead, states should adopt frameworks that prioritise fundamental rights and the realisation of the common good. Although radical on its face, this transformation will ultimately require the development of a global policy framework and supplementary institutional architecture that enables states to facilitate regular migration, address illegal crossings, and respond compassionately to forced migration.

Second, the current marketplace perspective on migration must be abandoned Treating migrants as commodities undermines their humanity and intrinsic personhood A new governance architecture must emphasise the intrinsic value of human beings, placing people before profit to achieve humanitarian outcomes.

Third, significant reforms are needed regarding the IOM’s role as the primary policymaker on migration. The true beneficiaries of IOM’s policies must be made transparent, and states should advocate for increased accountability While UN oversight mechanisms are not without their shortcomings, integrating the IOM more closely into the UN framework could enhance information-sharing and accountability, facilitating more effective governance. Moreover, addressing populist anti-migrant sentiments at a grassroots level is essential. Educational and social initiatives can play significant roles in fostering respect for migrants among young children, while open dialogues among older generations can help reshape regressive attitudes

Finally, the assumption that the global political and economic landscape is fixed requires a paradigm shift This mindset deters the pursuit of structural reforms in migration governance. Recognising the potential for systemic change is vital for developing sustainable solutions.

The Complex Intersection of Cobalt Mining, Technology, and Human Rights in the Democratic Republic of Congo

Ella Chepak, Senior Fresh, History

with English

Introduction and History

Cobalt mining in the Democratic Republic of Congo (DRC) has recently captured global attention due to the country’s vast cobalt reserves Cobalt is an irreplaceable component of lithiumion batteries, which are used in electric vehicles, smartphones, laptops, and renewable energy systems. However, despite its many technological benefits, the mining of cobalt is widely unethical. It is therefore an interesting case study into the intersection of geopolitics and human rights in a new technology-focused age.

The roots of cobalt mining in the DRC can be traced back to the colonial era when Belgium controlled the region and its mineral wealth Postindependence, the DRC has struggled with corrupt governance and international interests fighting for its resources. The unstable political landscape has made it challenging to regulate the mining industry effectively, resulting in social and environmental consequences. Today, the global demand for cobalt is rising, with Amnesty International reporting that the demand for cobalt is expected to reach 220,000 tonnes by 2025, tripling from just 15 years prior This further complicates the existing issues and prompts serious ethical questions about the trade-offs between technological progress and human rights

The Benefits of Cobalt Mining

Cobalt mining brings significant economic benefits to the DRC and supports technological advancements such as electric vehicles and smartphones worldwide. The DRC supplies 70 per cent of the world’s cobalt, with the industry valued at over $24 trillion. If managed effectively, this wealth could foster significant infrastructure growth in the country

Globally, cobalt mining is essential for advancing clean energy solutions, a key tool in reducing carbon emissions and combating climate change. As countries worldwide push towards greener economies and sustainable energy sources, the demand for cobalt continues to grow, positioning the DRC as an indispensable player in the global supply chain.

Chile’s mining sector provides a good example of how national interests can be balanced with global demands Chile’s approach to mining governance, particularly in the copper industry, illustrates how a resource-rich nation can navigate the geopolitics of resource extraction while adhering to international laws. As a leading copper-exporter, Chile has faced pressure to meet the demands of multinational corporations. However, Chile has safeguarded its natural environment and workforce by enforcing the Environmental Impact Assessment System (SEIA) and aligning with International Labor Organisation (ILO) standards on labor rights. The geopolitical significance of Chile as a large and stable exporter of essential minerals demonstrates how countries can maintain sovereignty over their resources while complying with international laws

The Moral Issues of Cobalt Mining

While cobalt's economic and environmental benefits are clear, the moral and ethical issues surrounding its extraction in the DRC cannot be overlooked. Much of the mining occurs in smallscale, artisanal mines where workers, including children, endure dangerous conditions for minimal pay While cobalt mining is a multi-trillion dollar industry, minors, who are exposed to many risks, make on average $7 65 per day Child labor is rampant, with estimates suggesting that tens of thousands of children work in these mines, often forced into hazardous jobs such as digging tunnels, handling toxic materials, and working long hours in oppressive conditions. These conditions violate fundamental human rights and jeopardize the health and safety of vulnerable populations.

Additionally, despite its many long-term benefits, cobalt mining has been linked to severe environmental degradation Many so-called “artisanal” miners (freelance workers who carry out dangerous mining work for low pay) lack knowledge about proper safety protocols and environmental regulations, leading to widespread soil contamination, water pollution, and deforestation. Communities living near these mining operations often suffer from health issues

due to exposure to toxic chemicals and heavy metals.

Finally, the DRC’s cobalt mining industry is mostly controlled by large bodies with no vested interest in the DRC’s infrastructure growth One of the most prominent players is China, which has a market share of 67 per cent of cobalt refining Chinese companies have secured significant mining concessions, often through state-backed agreements. This geopolitical dominance has raised concerns about the exploitation of the DRC’s resources with little return to local communities. Unlike Chile’s robust regulatory environment, the DRC’s weak legal infrastructure has enabled foreign powers to access resources while disregarding labor rights and environmental protections A lack of enforced legal standards allows geopolitical forces, such as China, to exploit the DRC’s resources without accountability, perpetuating cycles of poverty and inequality Strengthening and integrating local laws with international human rights and environmental regulations could counteract this geopolitical imbalance.

In 2023, the United Arab Emirates signed a $1.9 billion deal with a state mining company to develop at least four mines in the East, which will lead to further displacement of locals Amnesty International’s Secretary, Dr Agnès Callamard addresses this: “The forced evictions taking place as companies seek to expand industrial-scale copper and cobalt mining projects are wrecking lives and must stop now.” Deals like this exploit a country’s natural resources while providing little return to local communities. The wealth generated from cobalt exports rarely trickles down to the people who live and work in the mining regions, perpetuating cycles of poverty and inequality.

Possible Solutions

Addressing the human rights violations surrounding cobalt mining in the DRC requires a multifaceted approach First, there must be stricter enforcement of international labor laws, particularly regarding child labor and the safety of workers in artisanal mines. One possible solution is to model it after the Kimberley process. The Kimberley Process is an international initiative established in 2003 to prevent the trade of conflict diamonds, which were fueling armed conflict in various African countries.

The scheme involves over 80 countries and requires that diamonds be certified as “conflictfree” before being exported.

While not directly related to cobalt, the Kimberley Process offers a useful model for the DRC’s cobalt mining industry, where the international community could impose similar certification standards to ensure that cobalt is sourced ethically The Kimberley Process demonstrates that international collaboration, legal frameworks, and transparency can mitigate the trade of conflict minerals. Such a model could be adapted to address the ethical concerns of cobalt mining in the DRC.

The investment in alternative technologies might also provide a sustainable long-term solution In April 2022, Tesla confirmed that nearly half of the vehicles produced in the previous quarter had cobalt-free iron-phosphate (LFP) batteries Lithium-ion batteries (LiFePO4) are generally less expensive but have a lower energy density, so more are needed.

This is not to say there is no role for cobalt in the future. However, continued innovation in this area could lessen the dependence on cobalt, reducing the demand for mining in conflict zones until it becomes more regulated and equitable

Conclusion

The DRC’s government must be more active in regulating the mining sector. By improving governance, cracking down on corruption, and ensuring that mining revenues are reinvested into local communities, the DRC can begin to address the systemic issues that have long plagued its resource-rich economy. Through financial aid, expertise, and monitoring, international support can assist in building the institutions necessary to ensure fair and sustainable mining practices

Unmasking the Refugee Convention’s Role in Western Oppression

Nour El Gamal, Junior Sophister, Psychology and Legal Studies at NYU Abu Dhabi

The United Nations (UN) 1951 Convention Relating to the Status of Refugees (“the Refugee Convention”) was designed to address the refugee crisis of World War II from a deeply politicized, Eurocentric perspective In recent years, the Refugee Convention has proven inadequate when it comes to protecting non-European refugees, whose circumstances, simply put, do not align with the criteria required by the Refugee Convention

Although Article 3 of the Refugee Convention applies the provisions without racial discrimination, this does not often manifest in the real world. When it comes to refugees of eligible political and civil status, Western frameworks for refugee protection often privilege those who conform to an “idealized” profile This profile favors individuals who align with Western standards of innocence and credibility – often implicitly racialized as “white” – and through this make the refugee capable of garnering the support of the international community.

In particular, the credibility element requires that at the time of an attack, the victim was carrying out an action that can inarguably be considered honorable in the eyes of the Western world. Thus, acts of self-defense in response to an attack cast doubt on the victim’s status This doubt becomes amplified – almost suffocatingly so – when the victim is not of the “right” race: white To fulfill the “Ideal Victim” profile, a victim has to be “unrelated” to the attacker, which could arguably strip a victim’s self-defense acts of their justifiability. This is because once a victim acts in response, they become “related” to the attacker, which instead links the justification to the attacker’s action as an aid to his position. This possibly frames the situation as morally ambiguous by placing the blame on all parties. The application of the Refugee Convention proves that the mandatory victim’s “idealized” profile becomes mere contingencies for European victims Throughout history, the original UN 1951 Refugee Convention only catered to European refugees

In the case of non-European victims, when acts of self-defense during an attack come under question by formal authorities, they can be maliciously portrayed as acts of violence rather than selfdefense This is a result of Article 1F’s exclusion clause, which makes no distinction between forms of resistance and war crimes

African and Middle Eastern refugees have to create the circumstances to earn and fulfill the credibility element. This, arguably, is not the case if the person being considered as a refugee is of Western descent. The credibility element, in particular, is automatically met unless there is a specific situation that warrants its loss. This gap suggests that different races do not start from the same point regardless of the similarities of their circumstances For example, this is manifested in the Temporary Protection Directive (TPD) under the European Common Asylum System being triggered for Ukraine but not Gaza following the onset of the violence.

One can certainly attest to the fact that the drafting and application of the exclusion clause of Article 1F of the Refugee Convention includes the requirements of perfect white victimhood. It excludes refugee applicants who have committed a crime against peace, a war crime, or a crime against humanity It also excludes those who have committed a serious non-political crime prior to seeking protection in their host country; and, those who are guilty of acts that are contrary to the purposes and principles of the United Nations. Since international law as a whole is deeply intertwined with the major political empires of the world, Article 1F can, in fact, be weaponized in favor of certain political interests because it makes no clear distinction between warranted resistance attacks and unwarranted terrorist attacks which constitute grave human rights violations. This weaponization could plausibly be associated with the wording of the Article itself It sets out no hard law preventing major political powers from painting actions taken by certain resistance groups

as crimes against humanity, peace, or war crimes if those resistance groups happen to oppose their own geopolitical interests. In extreme cases, this Article can be further weaponized as an ‘execution’ clause that calls for the death of resistance groups, as seen by calls made against Palestinian resistance groups By denying international refuge to individuals who associate with such groups, international refugee law is giving the Israeli occupation the green light to deny them their right to life and breaching international human rights customary law.

Article 1F presents a moral dilemma in international law for all resistance groups at large, but makes it particularly more challenging for marginalized nationalities If one considers a nonEuropean resistance group on the one hand, and the Ukrainian resistance movement on the other, both, to an extent, fail to meet the criteria for the “idealized” victim The Ukrainian resistance movement, nevertheless, has garnered the respect and sympathies of the international community. This gap, conceivably, is a deliberate decision to maintain the flourishing of Western imperialism and to ensure that the Global South remains destabilized. While Article 1F could exclude even Ukrainian resistance fighters, the international community is capable of mitigating the exclusionary effect of Article 1F on them This is because the gist of the power is centered within the Western world, which means that the spreading of propaganda can be tailored to maintain a homogeneous negative political opinion about certain resistance groups. The Temporary Protection Directive is yet again a simple yet crucial example of this dichotomous treatment by the EU specifically.

It was triggered in 2022 for people residing in Ukraine, making the process of asylum-seeking easier by bypassing the requirement for individual assessment of the applications Later, upon its expiration, the TPD was extended until March 2025 The effect of Article 1F is diluted in the presence of the TPD, as it allows the residents of Ukraine to automatically reside anywhere within the EU, thus eliminating the microscopic scrutiny of asylum applications that could potentially reveal an individual’s involvement with a resistance movement.

Nevertheless, with the international support of Ukrainian resistance movements, the impact of Article 1F and the threat that visa control poses are not only diluted but completely eliminated. This is because in practice, when the Western world mandates either the boycott or endorsement of a certain group, this stance often becomes de facto law When white imperialist powers shape their internal political affairs they, in a way, dictate the politics of many of the international legal organizations – including the UN. A clear illustration of this influence is evident in the United Nations Security Council (UNSC) Resolutions concerning Ukraine, which were repeatedly vetoed by Russia, and similarly, the resolutions on Palestine, which were vetoed by the United States

In contrast, the TPD was not triggered for people residing in Gaza after the onset of the violence When humanitarian crises in different regions closely resemble one another, it becomes difficult to turn a blind eye to the only truth: the EU only extends aid when those in need resemble its citizens or when its geopolitical interests are aligned with the crisis location. This conclusion gains further support following the deal between the EU and Egypt. The deal involved a €7.4 billion payment to Egypt to curb migration flow from Egypt, a refugee transit country, to the EU Such deals were deemed “the best way to address migratory flows”, according to Italian Prime Minister Giorgia Meloni Human Rights Watch succinctly captured the essence of such EU agreements with countries as efforts to “stop migrants, ignore abuses”.

The 1951 International Refugee Convention is being manipulated for the geopolitical interests of white imperialist countries in the Global North through the utilization of “perfect white victimhood”, all to maintain a sense of neocolonialism It is ahistoric, nevertheless, to work towards reforming the Refugee Convention without acknowledging how deeply colonized the UN institutions are by white power imbalances While the UN’s inherent core, ironically enough, is promoting equality and peace among states, there is no sense of equality found.

9条: The Prospect of a Remilitarised Japan

Lorenzo Cheasty, Junior Sophister, Law with History

Introduction

For almost eighty years, Article 9 of the Constitution of Japan has stood in the way of Japan’s prospects of remilitarisation. Since its enactment in 1947, this Article has prevented Japan from maintaining an active army and from waging war against another country These limitations have been diluted, with flexible reinterpretations affording Japan some militaristic capacities. However, with a strong desire for constitutional reform coursing through both the ruling Liberal Democratic Party and the powerful ultranationalist Nippon Kaigi organisation, as well as increased tensions around China’s mounting assertiveness, revisions of Article 9 seem more likely than ever.

Enactment

Following the Japanese defeat in the Second World War, a new constitution was drafted under the scrutiny of the United States This constitution led to major fundamental restructuring of Japanese politics, encompassing substantial alterations to the role of the Emperor, the role of family, and human rights throughout Japanese society. However, the most contentious provisions are found within Article 9. In alignment with the Preamble’s bold commitments to peace, Article 9 pledged that Japan would “forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes” In further pursuit of these aims, it pledged to never maintain war potential, including land, sea, and air forces. These limitations, which prevented Japan from holding the rights to maintain an official army, engage in warfare, and even engage in belligerency itself, continues to define this constitution as the “Peace Constitution”.

Ever since the end of US occupation and the Constitution’s enactment, there has been fervent opposition against Article 9’s provisions This strong resistance to the Peace Constitution is a seminal issue in Japanese politics, moulding the ideologies of Japan’s major political parties The call for constitutional change has been carried forward in Japanese politics by the ruling party, the Liberal Democratic Party.

Since its original founding in 1955 and nearly uninterrupted governance, the Liberal Democratic Party has persistently advocated for the revision of Article 9. Another significant political entity which has also long advocated for the revision of Article 9 is Nippon Kaigi

Nippon Kaigi, or the “Japanese Conference”, is Japan’s largest lobbying organisation Only becoming widely known to the public after 2015, Nippon Kaigi identifies itself as an ultranationalist group, advocating a hyper-militaristic and traditionalist outlook for Japan’s future. The organisation openly denies the Japanese Empire’s past war crimes, endorses visits to the Yasukuni Shrine – where war criminals are enshrined – and advocates increasing authority for the Emperor Nippon Kaigi members seek substantial modification or, if possible, the complete repeal of Article 9 Nippon Kaigi currently boasts over 38,000 members, wielding monumental power over Japan’s political landscape. Many ministers, judges, and even Former Prime Minister Shinzo Abe have joined the organisation, with its members constituting over forty percent of the National Diet during Abe’s tenure. Although the exact makeup of Nippon Kaigi currently remains unknown, it still holds great influence over Japanese political discussions

A Waning Reinterpretation

While Article 9 has remained textually unchanged despite immense pressure, its interpretation has gradually eroded over time. The second provision of Article 9, which prevents Japan from maintaining war potential, has been significantly weakened through reinterpretation and policy shifts. In less than a decade following the Constitution’s enactment, Japan had formed its own de facto military forces: the Japanese SelfDefense Forces (SDF). These forces, composed of land, sea, and air forces, appear to contradict the aims of the Constitution's pacifist clause

The Supreme Court validated the SDF’s constitutionality in the 1959 Sunakawa case Following case law has avoided the question of constitutionality, with a temporary district court ruling of unconstitutionality being reversed on ⽇本国憲法第

appeal in the 1976 Naganuma case. The rationale for these cases was built upon the idea that selfdefence does not breach the Constitution, as defence of Japan does not correlate with complete passivity and defencelessness While the SDF’s original role was merely the defence of the island, this has since been further expanded

Since Shinzo Abe’s eight-year tenure in 2012, there have been increased efforts towards constitutional overhaul. In 2015, the LDP passed legislation to allow the SDF to fight in war to protect allies overseas. This sparked major protests due to the Bill’s questionable constitutionality, with the LDP stretching the definition of self-defence. While this has reignited opposition to the withering away of constitutional guarantees of peace, Japan has had troops involved in international conflicts since the Gulf War This involvement raises concerns around Japan’s desire for peace In 2024, in response to these concerns, the LDP outlined plans to revise Article 9 to include the SDF, showing doubts about its Constitutional validity.

Revising the Article would be strenuous, requiring the support of two thirds of both houses of Parliament followed by a referendum voted on by citizens, with Japan never yet having a successful referendum It remains to be seen whether a successful constitutional challenge will be raised against this perceived breach of Article 9 before the Constitution is amended

There has also been a critical response to these constitutional reform movements. The main opposition party to the LDP, the Constitutional Democratic Party (CDP), was set up in 2017 to resist these growing reform movements. It is a centre-left party who support progressive reforms and vocally resist the LDP’s efforts to reinterpret or outright remove the Constitutional protections enshrined in Article 9 They wish to maintain the Constitution’s vehement protection of human rights and its pacifistic nature This resistance highlights the impact remilitarisation has on modern Japanese politics.

Occasion for Potential

The visions of the LDP and the more intense Nippon Kaigi have only served to terrify those who seek peace in Eastern Asia. However, with recent political crises, the desire for further remilitarisation continues to have weight in Japan’s political discourse

The growth of China’s military presence in Eastern Asia alarmed Japan, with Kishida’s advisor recently calling the situation the “most severe security environment since World War II” Recent excursions into Japanese territory by Chinese aircrafts and warships pose a continued threat to Japanese authority These threats arise amidst ongoing territorial disputes between Japan and China around territories such as the Senkaku Islands, and around questions of Taiwanese sovereignty. With Xi Jinping’s renewed calls for Taiwan’s forceful reunification with Mainland China on the 75th Anniversary of the PRC foundation, the necessity for Japanese military deterrence and war potential has never been stronger

In response to these concerns, the LDP has taken measures towards countering Chinese militarism This surge in military activity has led to a responding defence buildup, with Japan wishing to deter potential Chinese military force. Kishida began a hike in the defence budget, doubling it to 2 per cent of the GDP. Ishiba has recently called for the creation of an “Asian NATO” to deter Chinese reunification ambitions, placing remilitarisation at the forefront of Japanese politics. The US has also recently emboldened their ambitions with Japan, with plans being implemented for the “biggest change to US forces Japan since its creation”, that being a joint force with greater control given to the Japanese Rising Chinese nationalism and tightened regional control are fueling calls for further remilitarisation to counter potential future conflicts, with concerns about China’s military ambitions at an all-time high.

Conclusion

Amid renewed tensions and a movement around constitutional reform, support for Article 9’s overhaul has begun to somewhat falter The recent surge in parliamentary support for the CDP introduces new uncertainty around the potential removal of Article 9, eroding the LDP’s power and marking the first serious contest to their parliamentary majority since 2009. In light of this unprecedented potential political shift, the future of Article 9 has never been more uncertain. Nevertheless, ambitions to reform Japan as an official military superpower will continue to dominate Japanese legal and political discourse.

Inequality, Labour Market Monopsonies, and Antitrust, Oh My!

Tara Brady, Senior Sophister, Law and Politics

Introduction

Can antitrust enforcement mend the widening inequality gap created by labour monopsonies? A monopsony is when market power is concentrated in the hands of the buyers (in the case of labour markets, employers) rather than the seller (in labour markets, workers) Inequality, a complex issue affecting millions, is rooted in the labour market For example, inequality is worsened by US antitrust enforcement tactics such as wage suppression and non-compete agreements. These tactics break US antitrust enforcement promises of facilitating open markets and preventing labour monopsonies. Due to the assumption that the labour market is naturally competitive, these practices are allowed to thrive. This article will examine the issue of US labour market monopsonies, their effect on inequality, and why intervention is necessary

Labour Markets

Labour markets operate antithetical to accepted notions of economics and the purpose of antitrust, also known as competition law. Academic Herbet Hovenkamp suggests that the antitrust enforcement tactic of wage suppression keeps prices low, thereby increasing consumer welfare. However, this tactic is inherently anti-competitive, culminating in low prices without sufficient cash flow, allowing firms to manipulate both their workers and the economy The expectation of consumer welfare needs to be changed to focus on maximising economic output, thereby allowing antitrust to protect labour markets. Hovenkamp’s shift has not been adopted in antitrust enforcement because inequality is not usually considered part of the scope of antitrust.

Instead, as Eleanor Fox discusses, perspectives and assumptions push antitrust enforcement, not overall goals of what enforcement should be. A new perspective is needed in the debate around whether antitrust should intervene in the labour market As Naidu and Posner discuss, the labour market’s problems have been known to enforcers for over 20 years Laissez-faire markets are intrinsically monopsonistic – minimal regulation allows firms to suppress wages.

What leads to monopsonies in labour markets if they act differently to the traditional market? Labour markets are influenced by both consumers’ and producers’ competing demands. Scholars and economists have attempted to explain the influence through the dynamic monopsony model. In this model, workers exert massive amounts of effort in job searches, thereby giving employers all the power Employers can set wages and workplace conditions because work demands are so high, and few alternatives are available Furthermore, employers are influenced by financial incentives rather than social aspects as they are driven by profit motivations. Monopsonies misrepresent the compatibility of firms and workers, effectively lowering output instead of increasing it; in this way, wage suppression has adverse effects on the efficiency of the entire market.

The lack of enforcement in the US labour market does not suggest there are no deficiencies in the labour market Instead, it is treated differently in antitrust law enforcement The US Sherman Act of 1890 was the first measure passed to combat abuses of economic power in the market. Yet the language of the Sherman Act creates no distinction between labour and product markets. Thus, most antitrust enforcement cases are aimed at producers of goods and services, with few, if any, cases regarding the labour market. Naidu and Posner argue that the rise of unions was considered the obvious solution to any labour market problem; therefore, economists did not invest sufficient time into the issue

The rationale behind this is the idea that labour is not a commodity Yet labour is a commodity, as workers sell their labour to earn a wage. The labour market is fluid –workers can move if jobs are available and wages are low. Labour market monopsonies bear responsibility for the widening gap in income inequality. Their tyranny takes multiple forms, including wage suppression and non-compete clauses.

Non-compete clauses

Non-compete agreements, where workers are

estricted in their choice of where to work within a particular labour sector, have recently increased in frequency in various labour market sectors, such as the tech industry, prompting authorities to file cases stating that these agreements violate Section 1 of the Sherman Act as they are structured to restrict competition

The US Department of Justice (DOJ) has stated that non-compete agreements actually encourage competition, specifically on the producer (employer) side. However, it is generally the case that, depending on the labour sector, workers who are party to non-compete agreements do not receive wages equal to the loss they suffer as a result of the agreement. It is understandable why non-compete agreements would be widespread in the tech industry, but it is not a sufficiently protective measure for low-wage workers

In the US case of Weisfield v Sun Chem Corp, the Court acknowledged that non-compete agreements may result in wage suppression. However, the Court analysed non-competes narrowly, ignoring the anti-competitive behaviour these agreements encourage by raising barriers to entry and deterring competing firms through more competitive wage offers.

Arguably, US courts generally refuse to acknowledge the role of labour market monopsonies in wealth inequality In the US case of Butler v Jimmy John’s Franchise LLC, it was considered that there was no threat posed by lowwage workers that required a non-compete to be signed. Labour monopsonies are looked at through a narrow lens, and as a result, the current imbalance is allowed to continue and affect the most vulnerable people within the market sector. Yet some scholars, such as Daniel Crane, believe that antitrust cannot mend wealth inequality caused by labour market monopsonies

Crane’s Counter-Argument

In the discourse surrounding antitrust and wealth inequality, most scholars argue that antitrust enforcement in the labour market can mitigate the wealth disparity in US society. However, a minority of academics, such as Crane, argue that increased antitrust enforcement is not the way to solve wealth inequality. His argument rests on the observation that more competition will not necessarily lead to less inequality.

Crane states that minimum wage requires employees to be compensated based on their merit and not their output in the competitive market. Further, unions should be exempt because of their similarity to cartels

This article rejects Crane’s assertions that antitrust will not fix income inequality Inequalities in markets are inherently anti-competitive, which means that firms carrying out wage suppression are also anti-competitive. Labourers who are victims of wage suppression cannot return money to the economy because they are focused on survival. If all antitrust enforcement were to operate as Crane suggests, enforcement would become stagnant.

Posner has recommended that the DOJ focus on breaking up monopsonies to create a trickle-down economic impact This article agrees that the DOJ needs to change its perspective on what antitrust can do and what it is meant to protect. Labourers are consumers, and if one does not protect labourers, then one does not protect consumers.

Conclusion

Labour market monopsonies have contributed to the widening inequality gap in the United States. The DOJ has only recently shifted its focus to tackling labour monopsonies, which are still affecting the market in devastating ways Tackling inequality should be ingrained in antitrust enforcement rather than a sub-goal Inequality is pervasive in the market, and to mitigate the issue, intervention must start at the source – the labour market and breaking down monopsonies. As seen in the cases mentioned above, antitrust intervention benefits the entire market.

Get Off My Lawn! A Brief Discussion of the Criminal Law (Defence and Dwelling) Act 2011

Lawrence Valentine Murray, Senior Sophister, Single Honors Law

On a farm in Mayo in October 2004, Padraig Nally was at home listening to his radio when a car entered his driveway. By the time he had left his house to investigate, one of the two men who had entered his property – John Ward – had already made his way to the back of the house and was trying to force entry One scuffle and two shotgun shells later, Ward was dead on the public road just outside Mr Nally’s home The case that followed, DPP v Nally, was long and controversial, but eventually ended with the acquittal of Mr Nally following an appeal and retrial. His case became a catalyst for the Criminal Law (Defence and Dwelling) Act 2011 (“the Act”).

The Act enshrined the classic ‘castle doctrine’ in statute This doctrine traces its roots to 1600s English common law Most critically, as part of the doctrine, a homeowner can stand their ground in the presence of an intruder and is not required to retreat The version of castle doctrine found within the Act was mostly transposed from Hardiman J’s judgment in DPP v Barnes. It has both a subjective and objective aspect to it, with the beliefs of the homeowner and the presence of reasonable grounds being relevant considerations in justifying the use of force, lethal or otherwise, against intruders.

The Act was introduced in the face of immediate public pressure following a number of incidents The public seemed overwhelmingly in favour of the law once it came into effect, which is understandable. Being prosecuted for defending yourself against a criminal is not something the average person believes to be fair or reasonable, especially when said criminal has broken into your home. Given that around the time the Act was passed an estimated 80% of burglaries occurred while an occupant of the house was in the building, it is also clear that many people were in danger of a possibly violent encounter with a trespasser The Act was both practically and morally necessary to enable residents to protect their loved ones and their rights

But how and how often has the Act been used since its passing as a defence in court? There has not been a high-profile case in the same vein as

Nally since 2011. Indeed, it took until 2018 for the Act to be used as a legal defence. In that case, Martin Keenan killed one of two intruders with garden shears after one of them rushed towards him during a forced entry Butler J stated that the 2011 Act provided certain rights around one’s home with an emphasis on the right to stand one’s ground In another case, Dean Kerrie, who was 17 at the time of the offence, killed a man who had broken into his house and assaulted him and his mother. The case was retried as the original jury was unable to reach a verdict. He was ultimately found guilty of manslaughter as the jury found that, while he had used excessive force, he had honestly believed the force used was necessary.

These two cases highlight an issue with the 2011 Act While it theoretically incorporates both subjective and objective elements, in practice the law is entirely subjective The jury was left to determine whether, based on the evidence in both cases, it was “objectively” necessary to use lethal force. They came to opposite conclusions in both cases despite the fact that both involved an intruder breaking into a home and assaulting the occupant. If anything, the level of force used was ‘objectively’ more reasonable in the Kerrie case. Kerrie and his mother were both physically assaulted Keenan was not Kerrie was a child and was attacked by a much larger man Keenan was a grown man and in a better position to defend himself than Kerrie This is not to say that Keenan should have been convicted of murder, but it is difficult to see how jurors came to the conclusions they did. It seems even more difficult to see how they could have come to these conclusions on an “objective” basis.

Apart from the aforementioned cases, the 2011 Act has rarely seen use. It was mentioned briefly in the discussion of self defence in the case of DPP v Crawford The case is also useful for its discussion of the “reasonable person” concept and the objective and subjective elements of self-defence However, there is no detailed specific discussion of the 2011 Act itself beyond comparing it to the Non-Fatal Offences Against the Person Act 1997.

There have been some cases where the Act may

have applied were it not for certain details preventing its use. In Longford, a woman who had been harassed in her home over a four-year period stepped out onto the street and chased her harassers with a pellet gun The “harassment” included repeated damage to her windows and doors It was noted that she may have had a defence under the Act had she stayed inside her home, and shot pellets at her harassers from there Stepping out onto a public street, even one directly attached to her home, meant that the Act no longer applied.

There have also been multiple cases where, for whatever reason, the Act was not used or may have been used but was not mentioned. In 2020, Martusz Batiuk killed a man who had broken into his home and attacked him The jury acquitted him on the basis that he was entitled to defend himself as he had been attacked in his own home The force used, a single stab wound to the gut, was also determined to have been objectively reasonable. The 2011 Act was almost certainly the basis for the defence case here, but is not specifically mentioned. Also in 2020, Sarah Doyle killed her husband in their home after he

assaulted her and dragged her down the stairs by her hair. The jury returned a not guilty verdict as the killing was in self-defence. Again there was no explicit mention of the Act. This is possibly due to the husband not qualifying as an intruder in the case in question

These cases could suggest that the defence established in statute by the Act has now become accepted and commonly used. There may not be a high-profile Nally-like case since the Act was passed, as we now have a clearer answer as to how these cases are decided. While the defence existed at common law before the Act was introduced, it was treated more as self-defence that happened to occur within the home rather than a form of selfdefence specific to the home The position of the home in one’s life was acknowledged as important, but it did not merit specific legal provisions The 2011 Act was welcomed for enshrining the right to stand your ground in your home Residents should not have to live in fear that they may be jailed for defending themselves in the face of an intruder. Criminals should be afraid that if they break into a house, they will be faced with potentially lethal consequences.

Ten Years On from Ó Maicín: Making the Case for Bilingual Juries

Síofra O’Donoghue, Junior Sophister, Single Honors Law

Article 8 of the Irish Constitution provides that Irish is the national language and the first official language of the Republic of Ireland. Additionally, it declares that English is the second official language of the State Interestingly, in the Irish language version of the Constitution, the verb “glactar” (to accept) is utilised, thus implying that the English language is accepted as the second language of the State and supposedly highlighting the primacy of Irish. From this wording, it could be inferred that the Irish language enjoys a superior status.

However, this is not evident in practice. Per Article 38 of the Irish Constitution, when accused of a crime of a serious nature, one has the right to be tried in front of a jury The remaining question of the right to a bilingual jury has highlighted the fact that Articles 8 and 38 of the Constitution seem to contradict one another

MacCárthaigh v Éire (Ireland) – Representation is Key

The current position in the Republic of Ireland is that there is no entitlement to a bilingual jury. This was firstly analysed in MacCárthaigh v Éire. Here, the defendant was accused of three criminal offences which were alleged to have taken place within the Dublin Metropolitan District It was arranged that the trial would take place in front of a jury at Circuit Court level However, the defendant wished to conduct his own side of the proceedings through the Irish language, which is permissible under the provisions of Article 8 of the Irish Constitution as confirmed by the High Court in the case of Stát (MacFhearraigh) v Gamhnia. In addition to this, he wished for a bilingual jury that would be capable of understanding his case without the assistance of an interpreter.

The criminal proceedings were adjourned to allow MacCárthaigh to seek judicial review proceedings in the High Court Here, it was held that it would be impossible to assemble a bilingual jury without compromising the principle of random selection, which is central to the institution of the jury Delivering the material judgement, O’Hanlon J analysed the American case of Taylor v Louisiana

which declared that “[r]estricting jury service to only special groups or excluding identifiable segments playing major roles in the community cannot be squared with the constitutional concept of a jury” On appeal, the Supreme Court upheld the decision of the High Court If it were permissible to stipulate a bilingual jury, between 75-90% of the population would be excluded from jury service

Interestingly, the Court in MacCárthaigh placed a significant emphasis on the capacity of a jury to understand legal terminology in Irish, despite the fact that there is no requirement for a jury to do so when proceedings are conducted through the English language. Indeed, those with significant knowledge of legal terminology, such as those who are concerned with the administration of justice, are automatically excluded from serving on a jury in this jurisdiction

O’Maicín v Éire – A Case for Change?

The question of whether a bilingual jury could be assembled was once again presented with the case of Ó Maicín v Éire. There were two notable differences between Ó Maicín and MacCárthaigh, yet the same conclusion was reached in both cases. Firstly, all the parties in Ó Maicín were native Irish speakers Secondly, Ó Maicín was charged in the Circuit Court in Galway concerning an alleged infraction in Ros Muc, a Gaeltacht area Delivering his judgment, Clarke J declared that allowing bilingual juries would offend Article 38 since most people would be ineligible to serve on an Irish-speaking jury. This was despite evidence to the contrary being given in this case.

Not every judge agreed with the decision in Ó Maicín – the dissenting judgment of Hardiman J suggests that it would not be impossible to assemble a bilingual jury without offending against the principle of random selection In this judgment, the majority placed significant emphasis on the case of de Búrca v Attorney General, a case concerning the participation of women on juries, while reaching their conclusion in this case Clarke J declared that the principle of de Búrca, in which a jury must be representative of the population,

would be violated by allowing for bilingual juries. To refute this, the evidence given by expert Dr Colm Ó Giollagáin suggests that a bilingual jury would not offend the principle of random selection due to the high population of Irish speakers in Galway, as alluded to by Hardiman J in his judgment.

Canada: A Shining Exemplar for True Bilingualism

Even though Irish language rights are enshrined in law, true parity between our official languages simply does not exist. This is in stark contrast to Canada, where a particular effort is made to ensure that French speakers are accommodated. Canada utilises the concept of “positive rights” to achieve this, involving the State taking an active role in protecting and promoting the French language Shortly after the ruling of the Irish Supreme Court in MacCárthaigh v Éire, the Supreme Court of Canada gave a decisive ruling in favour of language rights in the case of R v Beaulac. The Court ruled that an individual should have the right to a bilingual jury in British Columbia, notwithstanding the fact that French speakers only comprise a small minority in the province, stating that “[l]anguage rights are not negative rights; or passive rights; they can only be enjoyed if the means are provided ”

Languages are an integral part of cultural identity, and if a state fails to actively protect minority language rights, they are essentially making a mockery of this identity.

The Feasibility of Assembling a Bilingual Jury According to the Canadian Exemplar

Per the Canadian Criminal Code, bilingual trials should occur in the same district as the infraction that has allegedly been committed If this is not feasible, the case is moved to another district, which affirms the fact that the selected jury is representative of the population without compromising the random selection principle. Each province has its own system to ensure equality by granting a bilingual jury to those who wish to conduct their trial through French. For example, in the Province of British Columbia, every trial utilising a French-speaking jury occurs in New Westminster due to the high population of French speakers in this area Even in Ó Maicín, the Supreme Court recognised that there was “ample evidence that a representative cross-section of a jury panel drawn from the Gaeltacht districts” would be capable of following the legal proceedings in Irish.

Conclusion

Ten years on from Ó Maicín, it is regrettable that the status quo remains the same with regard to language rights. Despite Irish being designated as an official EU language, there is still no right to a bilingual jury Article 8 is essentially only paying lip service to the Irish language if the State is unwilling to intervene and protect language rights The Irish saying “ní neart go cur le chéile” (there is no strength without unity) is relevant here. The Canadian exemplar proves that bilingual juries is a goal that the Irish system can unite for and work towards.

Surrogacy in Ireland and the Health (Assisted Human Reproduction) Act 2024

Jane Beausang, Junior Fresh, Single Honors Law

The law surrounding surrogacy in Ireland was recently set out in legislation for the first time in the Health (Assisted Human Reproduction) Act 2024 (“the Act”). This comes on the heels of extensive governmental debate and intense scrutiny, with a wealth of revisions and changes required before this comprehensive Bill was finally enacted by the Oireachtas

The Act serves as a welcome effort to increase legal certainty around surrogacy in Ireland. However, in traversing a previously entirely untouched legal landscape without previous statutes and case law to build upon, it is to be expected that further questions, uncertainties and concerns will arise.

Legal Status of Surrogacy Prior to 2024

Prior to the passing of the Act, the law surrounding surrogacy in Ireland lacked any tailored legislative support, leading people to turn instead to various laws relating to adoption and guardianship of adopted children for regulation. Genetic affinity between the commissioning parents and child was not considered in these laws.

In all cases, the woman who carried the child to term was considered the legal mother, and in the case of her being married, her husband, the father and joint guardian Accordingly, the commissioning mother (the commissioning mother and father, as referred to in this article, are the mother and father from whom the embryo and genetic material used in the surrogate pregnancy was sourced) was entitled to none of the legal rights attributed to mothers in our legal system, including those relating to childcare, adoption, and education. There were methods by which custody of the child could be transferred, but these were long and arduous processes which ignored any right the biological parents may have to custody of the child

This system was unfit for purpose to such an extent that its constitutionality could be brought into question This legislative gap was a marked failure on the part of the State to guarantee the guardianship of a child reflecting that child's best interest.

The Health (Assisted Human Reproduction) Act 2024 and Surrogacy

The introduction of this Act in June 2024 was an attempt at eliminating any ambiguity associated with the legal status of surrogacy in Ireland It has implemented a variety of far-reaching regulatory provisions Yet how effective and well advised are these in practice? Do some open more legal questions than they answer? And perhaps most importantly, what legal issues are ignored by this statute entirely?

The approach in this Act takes clear inspiration from the corresponding UK legislation. Forgoing an outright ban, it instead enshrines into law the concept of “altruistic surrogacy”, a marked departure from the law of other EU jurisdictions, most notably those of Germany, France, and Spain, all of which have codified or enacted legislation amounting to a comprehensive ban on the practice

The arguments against criminalisation of the practice are clear; it often results in underground, entirely unregulated surrogacy agreements, usually involving payment, falling into the category of “commercial surrogacy” as defined by the Act. Such agreements are often made to the detriment of the surrogate mother, preying upon disadvantaged, financially unstable women

The Place of Posthumous-Assisted Reproduction in Irish Law

A novel aspect of this Act is the considerations it gives to posthumous assisted human reproduction (PAHR): the implantation of embryos containing the genetic material of a deceased parent into the womb of the surrogate mother. The relatively lenient conditions put forward are as follows: the embryos used in the surrogacy must have been created prior to the passing of the deceased parent, and no treatment can be provided until at least one year has passed since their death Furthermore, both parents must have provided prior consent for the procedure to take place This raises interesting legal questions relating to the succession rights of the resulting children.

Under current Irish law, where a person in a civil

Exploring the Sexual Duty of Care in Ireland

Chloé Asconi-Feldman, Senior Sophister, Single Honors Law

In recent years, there has been increased recognition of the dangers of sexual harassment and the urgent need to hold perpetrators accountable for their actions. This heightened awareness has prompted jurisdictions to strengthen their consent and sexual harassment laws, reflecting a societal shift towards greater protection of individuals' rights and safety Relevant to this discourse is the tortious principle of the duty of care, which, in this context, obliges individuals to exercise a reasonable standard of care in interactions, particularly sexual encounters, to prevent harm to others. Applied to sexual conduct, this duty would impose a responsibility to secure affirmative consent, with failure to do so resulting in liability for negligence.

In the context of Irish law, a duty is typically owed to any person who can reasonably be classed as your neighbour While there is flexibility within this framework, there are different legislative variations of the duty of care to provide clarity. For instance, under the Safety, Health and Welfare at Work Act 2005, employers are required to take all reasonably practicable steps to protect their employee’s mental and physical well-being. This explicit employer duty of care outlines the obligations clearly, minimising ambiguity in this area In a similar vein, a statutory sexual duty of care would clarify the responsibilities owed in intimate relationships

Defining the Sexual Duty of Care

The Criminal Law (Sexual Offences) Act 2017 amends the Criminal Law (Rape) (Amendment) Act 1990 to define consent as a free and voluntary agreement to engage in a sexual act. While this legislation provides a foundation for understanding consent, the implementation of a sexual duty of care would strengthen the responsibilities of individuals to protect one another in sexual relationships This proposed duty of care would offer a preventative approach by establishing a clear standard of responsibility that parties owe to each other, encouraging awareness to avoid harm This legal expectation around consent would serve as a deterrent to sexual deception and coercion, as individuals

would be made aware that failure to uphold the standard of care could result in liability and damages. While tort law compensates for harm after the incident has occurred, implementing a statutory sexual duty of care would also proactively reduce harm and increase clarity, thereby decreasing the risk of unwanted sexual behaviour

Comparative Analysis with Canadian Legal Frameworks

By adopting a sexual duty of care, Ireland could draw inspiration from Canada’s approach to consent and sexual harassment laws. Canada is one of the few jurisdictions that has introduced the affirmative consent standard into law, as part of a standard which demands that consent be explicit, ongoing, and clear While there is debate as to whether this standard is too high to be met, introducing affirmative consent as a legal standard promotes a respectful culture regarding sexual encounters and positively reinforces the importance of ensuring that a partner is providing consent. Canadian law also states that a person cannot mistakenly believe that a person was consenting if they did not take proper steps to check if there was consent, creating a responsibility for both parties to actively seek consent. If Ireland opts to implement a sexual duty of care, the affirmative consent model adopted by Canada would be a sensible approach

Case Law Implications: O’Keeffe v Ireland

While the sexual duty of care applies to individuals, its scope may go beyond private relationships to include government bodies. Arguably, the Government owes a duty of care to prevent sexual harm within their institutions. One case that indicates that the law is moving in this direction is O’Keeffe v Ireland, which concerned the failure of the State to protect the applicant from sexual abuse in a national school The applicant claimed that Ireland was in violation of several articles of the European Convention on Human Rights, notably the State’s positive obligation under Article 3 to put in place an adequate legal framework to protect children from a known or foreseeable risk of sexual abuse, tying

into the idea of a sexual duty of care. The ruling established that the state has a positive duty to safeguard children from ill-treatment in primary education. However, there remains a need for clarification concerning the knowledge required to establish state liability The implications of this decision, and Ireland’s recognition of its positive duty to prevent sexual abuse, may extend to historical injustices, such as the treatment of individuals within the Magdalene laundries and other long-running issues that have been previously overlooked. In the current legal landscape, the ongoing allegations and prosecutions of historical sexual abuse in religiousrun schools could be influential in the implementation of a sexual duty of care owed by educational institutions

Conclusion

While the principle of a duty of care is wellestablished within a variety of contexts, including workplaces and educational institutions–which can sometimes encompass aspects of a sexual duty of care–emphasising the sexual duty of care as a distinct concept will significantly enhance clarity regarding its necessity across all environments Its explicit recognition can serve to inform policies and practices in different settings, making the need to protect individuals from sexual harm universally acknowledged.

Beyond Marriage: O'Meara v Minister for

Social Protection and its Aftermath

Vivek Allampally, Junior Sophister, Law

Introduction

The Constitution’s goal of marriage as the foundation of the family has long been supported by Ireland’s legal system. However, a failed referendum brought attention to the expanding discussion surrounding the rights of cohabiting couples, who currently make up a sizable share of Irish families The need for legal recognition is still urgent in spite of this setback In the case of O'Meara v Minister for Social Protection, decided in 2024, the Supreme Court of Ireland considered whether cohabiting couples should have the same rights as married couples, especially with regard to social welfare benefits like the Widow’s Contributory Pension (WCP).

Case Background

John O’Meara and his partner, Michelle Batey, were cohabitants in a non-marital relationship for several years They had three children together and planned to marry, but Ms Batey’s premature death due to Covid-19 put an end to their plans. Following her death, Mr. O’Meara petitioned for the WCP, a social assistance benefit for surviving spouses and civil partners. His application was denied because they were not legally married, prompting him to pursue legal action.

In the initial High Court proceedings, Mr O’Meara claimed that the rejection of his WCP application was discriminatory, citing precedents in the United Kingdom such as Re McLaughlin In this Northern Irish case, the UK Supreme Court held that section 39A Social Security Contributions and Benefits (Northern Ireland) Act 1992 was in breach of Article 14 ECHR read with Article 8. Despite Mr. O’Meara's claims, the Irish High Court ruled against him, citing Article 41.3 of the Irish Constitution, which emphasises marriage as the basis of the family.

Key Judgments and Reasoning

The case was appealed to the Supreme Court, which ruled unanimously in favour of Mr O’Meara Chief Justice O’Donnell's ruling was groundbreaking, declaring Section 124 of the Social Welfare Consolidation Act 2005 invalid. This case demonstrated the growth of the Irish judiciary’s understanding of family, recognising

recognising societal changes and the growing number of cohabiting couples.

Delivering the majority opinion, O’Donnell CJ claimed that the traditional definition of family based on marriage is out of date, and that limiting benefits on the basis of marital status alone violates the equality principle of Article 40 of the Constitution. He proposed that the legislature redefine the family and hold a public referendum on it.

O’Donnell CJ also underlined the equal rights of the children of unmarried couples under Article 42A, adding that the case may have been handled differently if the O’Mearas did not have children He emphasised that the social welfare code discriminates against non-married children in barring unmarried spouses from the WCP, exacerbating inequalities in welfare payments

The social welfare code’s restrictions on access to the WCP indicate a legal preference for marital families, prohibiting non-marital children from enjoying certain benefits. This discriminatory approach arises from historical beliefs contained in the Irish Constitution, which traditionally regarded family units as being formed via marriage As a result, benefits such as the WCP are limited to surviving spouses or civil partners, thus barring children from non-marital relationships from receiving assistance This approach, as underlined by O’Donnell CJ, fails to account for changing family patterns and ignores the equal status of married and unmarried children as recognised by Article 42A.

Hogan J adopted a more extreme approach, contending that marriage is not the only requirement for the Irish Constitution’s definition of family Noting that such views were out of date, he criticised the decision in Nicolaou, which had rigidly construed family as a unit founded on marriage Hogan J contended that the courts ought to embrace a broader definition of family, as the authors of the Constitution did not intend to limit it in any way.

A New Model for Tort?

Finn Doherty, Senior Sophister, Single Honors Law

Introduction

Tort law is open to many criticisms. Scholars have pointed to the fact that tort is inefficient, discriminatory, and inconsistent with morality. The serious deficiencies with tort law in many ways necessitated the creation of the modern regulatory system and discrete state compensation schemes, which have overtaken tort law’s regulatory function Yet personal injury and medical negligence cases remain a significant burden on the judicial resources. So why not expand state compensation claims and eradicate torts entirely?

State Compensation Claims

This proposal is not as radical as it might first appear; New Zealand allows those in employment to receive compensation from a state compensation scheme in return for relinquishing the right to sue except in the case of exemplary damages This scheme, in existence since the 1970s, has been expanded many times to include more types of personal injury beyond just clinical negligence. The scheme is purely compensation oriented, excluding damages for pain and suffering. The scheme is instead designed to be equitable, to deal with claims extremely quickly and to get people back to work as fast as possible, emphasising the economic benefits of this state compensation claim scheme.

The Importance of Corporate and Personal Responsibility

Tort may be inefficient at regulating people’s actions, however, it does promote personal responsibility and individual altruism. Kennedy argues that tort enforces a degree of altruism as it insists that the interests of the injured party be considered. This can be extrapolated further: Tort also tacitly recognises the harm done to society when an individual is harmed. Damages pay for the person’s medical bills, and if nothing else, tort enforces a degree of personal responsibility and prevents over-reliance on the state

Issues arise when the tortfeasor or the plaintiff is poor and lacks resources The New Zealand model avoids this issue and provides quick and efficient compensation regardless of the financial status of either the wrong-doer or the victim. In doing so,

however, New Zealand chooses to sacrifice personal responsibility unfairly. While making doctors liable to huge clinical negligence suits does not improve the quality of healthcare provided, it does recognise that someone (or some system) was at fault and demands payment for the damage they caused

A State Compensation Model that Respects Personal Corporate Responsibility

Tort ensures that somebody (or some corporation) must accept responsibility for the consequences of wrongful action and that the state and society alone are not left to clean up the mess left behind by wrongful conduct. If a state compensation scheme were to be introduced in this jurisdiction, it would require an important modification From the plaintiff’s perspective, the system would work identically to the New Zealand model, but once the compensation has been determined, the state compensation agency would then bring proceedings against the actual wrongdoer, with the aim of recouping the compensation paid to the victim. The agency would have to assess whether it was worth fining the wrongdoer for full compensation or whether a nominal fine would be more financially sensible in the case of a poor wrongdoer These, however, are merely practical niceties beyond the scope of this paper

The theoretical and practical benefits of this system are certainly worthy of consideration Theoretically, this system addresses the issues inherent in tort while preserving personal and corporate responsibility. It satisfies the generally held moral understanding that people and companies should take responsibility for the foreseeable consequences of their wrongful and morally dubious action. If the wrongdoer is a multinational corporation, there is a sense of moral repulsion to the prospect of the corporation being shielded from the consequences of their actions by a state compensation system If the wrongdoer is poor, a nominal fine still acknowledges that the wrongdoer was in the wrong and forces them to accept some level of responsibility.

In terms of practicality, the proposed model is more efficient regarding transaction costs. It prioritises quick compensation for the plaintiff, enabling them to regain economic productivity as quickly as possible It also ensures that the state does not have to cover the costs of wrongful actions by wealthy actors Undoubtedly, this agency would still run at a loss, but a huge drain on judicial resources would also be removed

Downsides to the Proposed Model

The proposed modification to the New Zealand model is, of course, not a magic fix-all. It would lend the state an enormous amount of power to determine who should be held accountable for their actions. Wrestling civil wrongs out of the hands of the parties means that virtually all private party initiative is removed from the process, leaving just the initiative and direction the state decides to take

Differential fining of wrongdoers based on their economic status also raises concerns regarding fairness and efficiency, as wrongdoers would inevitably try to demonstrate that they could not afford to pay the entirety of the compensation awarded The model would also be a net loss for the state and would result in society paying the entire cost of at least some individuals’ wrongful actions, although this already happens to a degree

Conclusion

Tort is a heavily damaged, if not broken, system, preserved largely because it is lucrative for lawyers. The proposed model has flaws and increases state control of private litigation. However, it addresses some of tort law’s issues while insisting upon personal and corporate responsibility and is certainly worthy of consideration

The State’s Treatment of Single Male Asylum Applicants: A Threat to the Rule of Law?

Daire Murray, Junior Sophister, Single Honors Law

For the first time in its history, the Irish Human Rights and Equality Commission (IHREC) has used its statutory powers to bring a case against the Irish State. In Irish Human Rights and Equality Commission v Minister for Children, Equality, Disability, Integration and Youth & Ors, the Commission claimed that the Government had infringed on human rights by failing to provide accommodation for asylum seekers – in particular, single, male applicants. This case is one of several that have targeted the Irish “direct provision” system of accommodating asylum seekers.

The decision of the High Court in this case was to issue declaratory orders against the State for breaches of its obligations under constitutional and EU law However, O’Donnell J declined to issue mandatory orders which would have forced the State to change its policies on accommodating single, male asylum seekers This judgment follows a long line of case law in which the courts have taken a deferential approach to enforcement orders against the state. The test applied, originating in the seminal case of TD v Minister for Education, is whether the state has acted in clear disregard of the constitution, defined as consciously and deliberately in breach of its obligations through bad faith or recklessness. The judgment of Hardiman J asserted that such an order should be reserved “as an absolutely final resort in circumstances of great crisis and for the protection of the constitutional order itself”, thereby setting an extremely high bar

Given the social and political context of the direct provision system as well as the threat to the rule of law arising from human rights abuses, an obvious question arises – why should the courts be prevented from stepping in where the State is actively violating rights?

Direct Provision

The Irish system of accommodating asylum seekers, known colloquially as “direct provision”, has come under fire since its inception in 2000 for alleged human rights infringements Indeed, the system was challenged in the 2014 case of CA v Minister for Justice and Equality. In CA, the High Court upheld the direct provision system, but

struck down specific rules relating to, among other things, unannounced room checks and the lack of an independent complaints procedure.

Since then, organisations such as Amnesty International have lobbied for an end to direct provision, arguing that the low standards of living, lack of integration measures, and long wait times are in violation of constitutional and international human rights standards. However, the massive increase in asylum applications since the inception of the direct provision system has resulted in hundreds of applicants not being able to access even this very minimal level of service.

The Human Rights Issue

The IHREC argued that the financial assistance provided to applicants in lieu of accommodation was insufficient, and that the lack of adequate accommodation for asylum seekers was a breach of human rights standards The applicants based these submissions on the right to human dignity under Article 1 of the Charter of Fundamental Rights, Article 40.3 of the Irish Constitution and the European Convention on Human Rights. Furthermore, the applicants alleged that this practice constituted a breach of EU law, namely the Receptions Conditions Directive.

As addressed above, the Court declined to issue mandatory orders despite finding that the State was in breach of its human rights obligations This decision was taken on the basis that there was no evidence that the State would continue to fail to fulfil its obligations.

However, no concrete change has arisen from the decision in August, despite another application in October from the IHREC requesting mandatory orders. The State claims to have provided accommodation for any asylum applicants who are “actively rough sleeping” However, it is unclear whether such applicants were accommodated in state facilities In the months after the case, the number of applicants denied access to accommodation has risen from 259 to 2,352 This means that thousands of asylum seekers are still left with no other option than to compete night after night for a bed provided by non-profit

organisations, charities, and NGOs

It is difficult to see how this does not justify a mandatory order against the State, which has shown through its actions that it will not be able to fulfil its obligations. This is a glaringly obvious violation of human rights, and without proper enforcement from the Irish courts – which are relied on to enforce EU or ECHR orders – it is unclear whether the Government will be held accountable

The Riots

This issue however has not been characterised in the Irish media as one of human rights abuses by the State against asylum seekers. Instead, the existence of greater numbers of asylum seekers has sparked riots, arson attacks on proposed accommodation sites, and attacks. An article from the London School of Economics and Political Science attributes the growing anti-immigration sentiment in Ireland to four factors: a lack of state investment in social services, inadequate reception facilities, the ability of the far-right to mobilise people quickly through disinformation on social media, and underlying racism in Irish communities. Altogether, far-right riots pose a massive threat not merely to the maintenance of law and order, but more broadly to the rule of law in Ireland.

The point of convergence for all of the factors outlined above is a profound failure of public communication between the State and citizens on the issue of immigration The clearest example of this were the riots in Coolock in July 2024 The riots stemmed from a protest against the decision of the Government to situate a new asylum seeker accommodation facility in a local disused paint factory. This decision, taken after years of underinvestment in social services, with record

numbers waiting years for access to social housing, brought the community out in droves to protest. Aggravated by the involvement of the far-right, the protest quickly devolved into a riot, complete with petrol bombs, arson attempts, and even greater confusion regarding the facts of the issue

The Rule of Law Issue

When taken together, the human rights abuses perpetrated by the Irish state and the complete breakdown of communication regarding the facts of immigration, pose a real threat to the rule of law and the Irish constitutional order. One of the key requirements for a rule of law compliant state is an effective, independent courts system, capable of ensuring that the state fulfils its legal obligations towards its people Nowhere else was this idea so stridently expressed as in Denham J’s dissenting judgment in TD, in which she described the core of the judiciary’s power as the protection of constitutional rights against the state While the separation of powers is clearly important, Denham J’s contention is that this should not prevent the court from exercising its core function.

Concluding remarks

Ireland is facing significant problems regarding the issue of immigration. Without new and effective policies, the State will continue to breach the rights of international protection applicants Without better communication and increased investment in social services, community tensions will not abate The fact is that Ireland is not equipped to deal with the magnitude of this crisis. Where the Government fails to protect rights, the responsibility falls on the courts to step in and mandate basic human rights protections. Continued judicial inaction weakens the rule of law in Ireland. After all, what is the point of having rights that cannot be enforced?

A Ray of Hope: A Note on the Most Recent Irish Human Rights and Equality Commission Case

Madailein Watters, Senior Sophister, Law and Political Science

Introduction

The Irish High Court ruled on 1 August 2024 that the Irish State had failed in its duty to provide adequate accommodation for international protection applicants This case is monumental in recognising the government’s duty to house international protection applicants and raises broader questions regarding the Irish State’s responsibility for housing

The Housing Crisis

The housing crisis and its detrimental consequences are undeniable, with many facing the harsh realities of this political and legal issue and being met with schemes and policies that seem to have no real effect. For example, despite the recently published Housing for All Plan, 58% of all newly built homes in greater Dublin were bought by investor funds, with only 7,500 allocated for social housing–many of which are at risk of being purchased by big developers A public crisis such as the housing and homelessness crisis in Ireland do not emerge by happenstance. A lack of proper public policy, enforceable housing rights, and a general dismissal of housing as a basic human right all help to explain the disproportionate crisis faced by Irish citizens.. The role of the courts in holding the government accountable cannot be dismissed, though until now they have been extremely reluctant to convincingly enforce socio-economic rights, often citing concerns that to do so would be undemocratic However, this case changes that narrative, shining a positive light on judicial activism and the courts’ ability to address the government when they are clearly failing to fulfil their obligations.

The IHREC Case

This case, IHREC v The Minister for Children, Equality, Disability, Integration and Youth, Ireland and the Attorney General, did not deal with housing in Ireland generally, but rather in the context of emergency accommodation (EA) for International Protection Applicants (IP applicants) Homeless asylum seekers and migrants can be seen in tents around Dublin, living in horrible conditions, and contending with a strikingly inadequate response by the State.

The Irish Refugee Council (IRC) alone has had over 400 homeless IP applicants reach out to their offices since December 2023, and these are just the people who know where to look for help. Of the nearly 500 people who reached out, the IRC reported that four unaccompanied children were forced to sleep rough The homelessness among IP applicants in Dublin was inhumane, and required a stronger response from the state However, the government claimed that they did not have the resources or space to properly house all of these individuals. The Irish Human Rights and Equality Commission commenced litigation on the basis that the state breached the human rights of IP applicants by failing to provide material reception conditions. What this means is that the Irish State failed to meet the minimum requirements of IP applicants under EU law many of which are categorised as “material reception” conditions These material reception conditions include the provision of food, water, shelter, and basic hygiene access. The courts notably found that the “saturation of the reception networks” cannot be used to justify “any derogation from meeting those standards.”

EU Law

Under EU law, Member States have minimum material reception requirements that they must fulfil According to the Irish courts, the state was not doing enough to fulfil these requirements in this case However, many EU member states, such as Italy, Hungary, Greece, and others, have adopted the notion that providing favourable reception conditions for refugees will increase migration to their countries. It cannot go unrecognised that the emergence of this narrative in Europe has coincided with Ireland’s failure to provide proper reception conditions. This is not only extremely politically convenient, but leads one to presume this is Ireland’s attempt to deter migration The Irish courts have made clear their intolerance of this misguided, inhumane, and illegal strategy As such, EU Member States have now been issued a warning as to the consequences of over employing the strategy of providing inadequate material reception conditions. The creation of poor conditions in a state for refugees

is not only inhumane, but is also illegal and will not be tolerated. Beyond its immorality, this deterrent strategy is also simply ineffective. Over the last 10 to 15 years, one thing has become abundantly clear: people will stop at nothing in pursuit of a better life for themselves and their families. Beyond this, these people are trying to merely survive. It is this very notion that drove much of the Irish population throughout history to flee political violence and economic suppression How disgraceful it is to now punish people for embodying the same spirit that has so deeply defined the Irish people

‘Us versus Them’ Ireland’s approach to the housing and homelessness crises has been lacklustre to say the least. The issue amounts to one the most significant political and legal failings our generation has seen from the Irish State. Instead of addressing these issues with proper policy and legal reform, the blame seems to be shifting to increased refugee and migration flows This blame game ignites a scarcity mindset within the population of Ireland, fostering an “us or them” mentality when it comes to accessing public goods such as housing. However, as a society, we must demand

wholeheartedly that access to basic needs such as food and shelter are not privileges or discretionary powers bestowed upon the State, but rather the State’s first and foremost duty. The links between anti-migrant and racist sentiments and the dissatisfaction of citizens with their governments cannot be dismissed Furthermore, it should not be utilised cynically to discourage migration We must ask ourselves: what is the difference between me and the family freezing and starving on the street? It is my hope that this case has urged the Irish State and other EU member states to rethink their migration policy, which not only lacks in humanity, but in efficacy.

The Future

When politics fails, the courts must intervene In this case, the Irish Courts have provided a blueprint to follow when holding the executive to account for failures of material reception for EU Member States Moreover, its impacts may be felt more generally where the human dignity and fundamental rights of citizens are at stake. As activists for housing policy reform continue to urge the Irish state to address the homelessness crisis, the rationale demonstrated in this case may serve as a ray of hope, not just in Ireland but across the European Union.