The Eagle

A look into the ECHR’s stance on conscientious objections of pro-life health care providers in relation to abortion MAEBH NI GHUAIRIM

IN SI DE THIS IS S UE “I g o t n ( EU ) r u le s ” : a w o r r y i n g d e ve lo p m e n t i n th e ri gh t to be for gotten ?

BLÁNAID NÍ BHRAONÁIN

Bio l o g y t o I d e n t it y : P r o g ress an d P robl em s w i th T r ans g end e r R e c o g n it io n by th e E u r opean Cou rt of H u man Ri g hts EOLANN DAVIS

So c i a l Se c t i o n : No el i ne B la c k we ll S p e a k s to Tri n i ty F LAC: Revi ew The Eagle Gazette Volume 5 Issue 2 · 1

Foreword Plus ça change, plus c’est la même chose-- and while the law school has seen many radical changes this year, law students can still rely on the Eagle to provide some familiarity. Though still a nascent publication in the grand scheme of things, it’s been around the arts block for as long as any of us have, and is providing the same range of content: recaps of the social calendar, insight into political and legal developments, insight into erasmus experiences, and advice from alumni regarding their career and education.

I’d like to thank all contributors to this issue, and the deputy editor Caoimhe Daly, as well as the rest of the editorial board for their industrious work. I’d also like to thank Dr. David Fennelly of the Law School for connecting us with alumni, Ivan Rakhmanin for his photography work and help with our blog, and Sulla Montes for designing the issue. On behalf of the editorial board, I welcome you to Volume 5 Issue 2 of The Eagle: Trinity Law Gazette!

Mary Murphy

However, while we’re still relying upon this tried and true formula, the editorial board this year have made a few simple improvements. Like last term’s, this issue will be available online through our website, along with much original commentary on our blog.

We’re also delighted to continue our new tradition of environmental friendliness, with the hardcopy printed on 100% recycled paper, using vegetable based inks.

Contents

Editor in Chief Mary Murphy Deputy Editor Caoimhe Daly Editorial Board Feargus Campbell Tasin Islam Thea Lawler Robyn Maher Caoilainn McDaid Lucy Mockler Ciaran Moore Olivia Moore Orla Murnaghan Kate Nolan Kevin Seery James Watson Photography Ivan Rakhmanin Design Sulla Montes

All the opinions expressed are that of the authors and not of The Eagle.

2 · The Eagle Gazette Volume 5 Issue 2

A look into the ECHR’s stance on conscientious objections of pro-life health care providers in relation to abortion

3

“I got n(EU) rules”: a worrying development in the right to be forgotten?

4

The Widening Scope of Article 8 ECtHR in Challenging Industrial Pollution

7

Human Trafficking: Red Light for Europe

9

The apparent bias of the Spanish Supreme Court in favour of financial institutions

10

Feargus Campbell Talks with Nina Milosavljevic about Pursuing an LLM at Berkeley Law

12

The ‘legality’ of the use of force by the Russian troops in Syria?

13

Political short-Termism vs Legal Long–Termism

14

Tasin Islam talks with Rebecca Keatinge, Managing Solicitor of the Mercy Law Resource Centre 15 Orla Murnaghan talks to Barry Tumelty, Counsel General of Ireland in Sao Paulo, about working in Foreign Affairs

17 Robert Morgan, JS Law, Tells the Eagle About Studying in KU Leuven

19

The Social Section

19

A look into the ECHR’s stance on conscientious objections of pro-life health care providers in relation to abortion MAEBH NI GHUAIRIM SS LAW AND POLITICS

Since May 2018, when Ireland voted to repeal a constitutional amendment that made abortion legal, pro-life health care providers have been lobbying to be granted freedom of conscience. The Health Minister has promised that GPs will not be forced to perform abortions, however he maintained that they will have to refer their patients to a nonobjecting provider. Pro-life groups feel that this still breaches their rights and have pledged to bring the case to the European Court of Human Rights. The question this article attempts to answer is whether or not conscientious objection to the provision of healthcare is covered by Article 9 of the European Convention to Human Rights and will do so by first looking at the relevant case law before applying it to Ireland. Thus far, the Court has been reluctant to engage fully with the issue of conscientious objection to healthcare. That being sad, the most relevant case for us to examine on the topic is that of Pichon and Sajous v. France.

In this case, two French pharmacists were convicted of refusing to sell contraception to three women.

The applicants argued that as Christians, they had a religious and moral objection to contraception and the conviction was an affront to their right to freedom of religion. The Court, however, held that their application was inadmissible as their conviction did not fall under Article 9. It reaffirmed that citizens must be free to hold religious beliefs, however it distinguished between the holding of a belief and the manifestation of said belief. Article 9 protects religious practices which are closely linked to the exercise of religious beliefs but does not cover all actions which are motivated by a religion or a moral conviction. Additionally, this protection only covers most private, rather than public, actions. As such, the Court held that this case did not fall under Article 9.

constitutes reasonable interference with that right, the law on conscientious objection in healthcare would have been a lot clearer. As it stood, what is most evident is that public healthcare workers cannot prioritize their beliefs over their professional obligations, as they can express their beliefs through other private channels. This implies that the court takes a balancing approach when determining whether an interference with an individual’s freedom of conscience was legitimate.

If the court accepted that refusing to sell contraception was a manifestation of religious beliefs, they would have used a triple-pronged test to see whether or not the State’s interference was legitimate. The interference must be “prescribed by law”, have “legitimate aims”, and be “necessary in a democratic society”. In Pichon, the interference was lawful as there were no laws exempting the pharmacists and the French State had legitimate aims in hoping to protect public health. Lastly, it was accepted as necessary in a democratic society as it is vital that women have access to reproductive healthcare. Ensuring that pharmacists provide such care was deemed a proportionate response.

Since Pichon, the court has looked at several cases in Poland dealing with conscientious objection and abortion. Although the court has not recognised the right to abortion, in R.R. v Poland, the Court held that once a State decides to allow abortion, they cannot establish obstacles which prevent women from accessing the procedure. Furthermore, if they allow for the exercise of conscientious objection, they must put a system in place to ensure that patients have access to the healthcare that is legally available to them. In P. and S. v. Poland, this position was confirmed. Moreover, the State must ensure that the system is enforced, there should at least be a prior record of objection and that referrals must be given to the patients.

As such, should an Irish case on conscientious objection come to the ECHR, it is doubtful the

Here, the court relied upon previous judgements rather than dealing comprehensively with conscientious objection in health care. Had they accepted the applicants’ actions as a manifestation of their religion, and subsequently discussed what The Eagle Gazette Volume 5 Issue 2 · 3

applicants would be successful. Like in Pichon, Ireland’s interference in the right to freedom of conscience would likely pass the threshold of the triple pronged test. At the point the case comes to the ECHR, abortion will be legal in Ireland, and medical providers will be required to give referrals. Restricting freedom of conscience to ensure that women have reasonable access to healthcare have been confirmed as a legitimate aim, and necessary for a democratic society in the Polish cases. Additionally, the Court approved of the referral system in P. and S. v. Poland.

The Court also often looks for a “European Consensus” when dealing with controversial issues. In 2010, the Parliamentary Assembly issued Resolution 1763 on the right to conscientious objection to lawful medical care. Although non-binding, parliamentary resolutions can be very influential in the Court. This resolution held that no individual nor body could be pressured into or discriminated against for refusing to perform or assist in abortions, amongst other controversial medical practices. As such, the Court may decide that there is a European consensus on the allowance of conscientious objection and allow States a narrower margin of appreciation. However, this resolution still maintains that patients must be referred to a non-objecting provider of the procedure. This means that if Ireland didn’t put a referral system in place, the Court may intervene and decide that Ireland is permitting obstacles in accessing reproductive healthcare.

Overall, if a case made it to the ECHR, the Court would have to balance the rights and freedoms of the pro-life practitioners and the rights and freedoms of women seeking access to reproductive healthcare.

As the practitioners work in the public sphere, and because their failure to act harms the rights of others, their moral and religious beliefs would not be covered by Article 9. Not only would a referral system not infringe on the rights of conscientious objectors, but if there was not such a system in place, Ireland would be violating the European Convention on Human Rights.

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“I got n(EU) rules”: a worrying development in the right to be forgotten?

BLÁNAID NÍ BHRAONÁIN ALUM

As more and more of our lives are recorded online, each of us leaves behind a growing ‘digital footprint’ of data – for better or worse. The law has often struggled to keep up with technological advances in this new and unfamiliar territory. It is understandable, then, that the EU waded into this online ‘Wild West’ and attempted to lay down the law with broad new principles, such as the protection of personal data and the ‘right to be forgotten’. However, sweeping privacy protections inevitably affect the interests and rights of other individuals, as well as the general public interest in maintaining a society where information is expressed and exchanged freely. A recent decision in the Netherlands highlights this disconnect.

In its 2014 decision in Google Spain v González, the Court of Justice of the European Union considered the application of the Data Protection Directive (95/46/EC) to the indexing of websites by internet search engines. The case concerned newspaper articles from 1998 which announced a forced auction of properties in order to recover Mr González’s social security debts; googling his name revealed links to the articles. Advocate General Jääskinen, whose role is to deliver an impartial opinion to the Court, took the view that as Google merely indexes and directs users to third-party sites, it does not fall into the category of a ‘data controller’ under the Directive.

Moreover, he noted that Google’s processing of personal data is carried out by the trawling of the internet by ‘Googlebot’ – an entirely automated process which could not have been envisaged at the time the Directive was written. However, the Court disagreed, holding that Google was a data controller and that a data subject had the right to object to the indexing of links about them. The controller must consider the request and balance the subject’s right to privacy against the general right to freedom of expression - the economic interests of the search engine being of lesser significance. While not quite reading a full-blown ‘right to be forgotten’ into the 1995 Directive, the Court opened up a new arena for such claims: it stated that there was no need for a data

subject to show that the information was inaccurate, but that being ‘inadequate, irrelevant or excessive’ could be enough. Furthermore, the data subject did not need to show that the information caused any prejudice to their interests.

Article 17 of the General Data Protection Regulation (2016/679) (‘GDPR’) built on the broad pro-privacy position of the Court in González and created a general ‘right to erasure’ available in a range of situations. The data controller must show that there are compelling legitimate grounds to reject a data subject’s request for erasure. Article 85 of the GDPR acknowledges that these rights will impinge on the rights of others to freedom of expression; member states are tasked with balancing these rights in their national legislation that implements GDPR. Naturally, the variety of national regimes has led to a swathe of new decisions as statutory regulators across Europe grapple with the new claims arising from the ‘right to be forgotten’. While on the facts in González the de-listing of links seemed relatively harmless, some subsequent cases raise much more finely balanced conflicts of rights.

In a recent decision (case C/13/636885/HARK17301), the District Court of Amsterdam sided with a surgeon who had been conditionally suspended for medical negligence and sought erasure of links to a site showing her name on a ‘blacklist’ of doctors maintained by an advocacy group. Google had refused her request, saying that the material related to matters of public importance. The Dutch Data Protection Authority also refused to assist her because the information was correct and it concerned her professional practice.

In applying Article 17 of the GDPR, the District Court of Amsterdam followed the CJEU decision in Google Spain v Costeja Gonzáles. It also considered the Dutch Supreme Court’s decision in X v Google, which referred to the rights to respect for private and family life and protection of personal data, as protected by the Charter of Fundamental Rights of the European Union. In this case, the Supreme court noted that these interests generally outweigh not only the economic interests of search engines, but also the legitimate interests of those using search engines.

The latter is a much more significant encroachment on the freedom of expression and association. Even though ‘X’ was convicted of a serious crime at first instance, which was covered in the media, the Court held that this did not automatically sufficiently engage the public interest to justify the conviction appearing when the name of the applicant was searched; rather, a case-by-case balancing exercise must be carried out.

In the case of the doctor, it was argued that there was a limited public interest because the links related to a single, unrepresentative incident and they were disproportionately publicised (the first three results when her name was searched), especially in light of the absence of interest from other media outlets. The court was influenced by the negative connotations of placing a name on a ‘blacklist of doctors’. The Supreme Court previously found the advocacy group’s ‘blacklisting’ of doctors who had not been subject to disciplinary measures to be unlawful. The Court was not convinced that a doctor has a ‘public function’ in the same way as a politician does and should thus be expected to tolerate more criticism than the average citizen. On the basis that there were no special circumstances to justify the applicant’s right to respect for privacy and personal data giving way to the public interest, and that the public could find the information if they went to the professional regulator’s website and specifically searched for it, the Court ordered Google to remove the links.

This decision by the District Court of Amsterdam has received considerable attention as it represents a significant expansion of the ‘right to be forgotten’ as balanced against general arguments for the public’s right to access information. However, there are several questionable steps in the reasoning which led the court to this decision. The court seemed to take the existence of the doctor’s sanction on the medical regulator’s website as a factor weighing against the legitimate interest of the website in publicising the information. However, since the medical register’s sanctions do not appear in a Google search, a potential patient is highly unlikely to find out about the suspension unless they are already suspicious.

Similarly, the lack of interest from other media outlets – a factor which the doctor sought to rely upon in her favour – surely highlights all the more that the public will be unable access the information unless it is made available through Google’s indexing.

Furthermore, the analysis of the relevance of the data subject’s profession and status as a doctor is lacking.

Although the doctor’s role is not directly comparable to that of a politician or ‘public figure’, that does not mean that the role should not be viewed in light of the particular privileges and responsibilities which accompany it. Indeed, the very fact that such professionals are subject to the decision-making of a regulatory body demonstrates that they are not purely private actors. It is to be hoped that the right to be forgotten and its interaction with other competing rights will be analysed more thoroughly in future cases.

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Biology to Identity: Progress and Problems with Transgender Recognition by the European Court of Human Rights EOLANN DAVIS JS LAW

The approach to the recognition of transgender people by the European Court of Human Rights (hereinafter, ‘the Court’) has undergone a complete overhaul in recent years. Whilst initially slow to respond to change, the Court now affords greater protection to the privacy rights enjoyed by transgender people under Article 8 of the European Convention on Human Rights (hereinafter, ‘the Convention’). Notwithstanding the progress made, there are still several issues facing transgender people that need to be addressed by the Court.

Early jurisprudence Article 8 of the Convention guarantees the ‘right to respect for private and family life’. Initially, the Court was slow to afford the protections of Article 8 to transgender people seeking recognition of their gender. In both Rees v UK and Cossey v UK, the Court held that recognition of transgender people through updating the Birth Register would amount to a positive obligation on the UK. A wide margin of appreciation had to be afforded to the UK in this matter due to a lack of European consensus regarding the rights of transgender people. Both judgments lacked any strong evidence to substantiate this claim that no consensus existed. A more evidencesupported statement of the European consensus was made in Cossey by the dissenting Judge Martens.

He argued that an emerging European consensus in the applicant’s favour was indicated by the fact that fourteen states had made gender reassignment surgery and legal recognition of transgender people’s genders available in recent years.

The first major success for transgender recognition came in B v France. Here, the Court found a violation of Article 8 in the fact that B was forced to use an identity card with an incorrect gender every day.

Subsequently, Sheffield and Horsham v UK seemed to be a step back, as Rees was reaffirmed. Again, the Court emphasized the lack of European consensus, as well as the uncertainty as to the essential nature of transgender identity. In these cases, the court gave greater consideration to these matters than to the integral nature of gender to the applicants’ identities. In contrast, in the 1981 case of Dudgeon 6 · The Eagle Gazette Volume 5 Issue 2

v UK, the Court held that legislation criminalizing homosexual conduct violated Article 8, as sexual orientation is an “intimate essential manifestation of a human’s personality”. While these cases can be distinguished on the facts, a person’s gender identity is just as intimate and essential a manifestation of a human’s personality as their sexual orientation.

Progress In Goodwin v UK, the Court drastically departed from its earlier decisions regarding the updating of official documents. The decision was a refocus on individual rights. Scientific knowledge was held to no longer be a determining consideration, with the guarantee of individual privacy under Article 8 being given primacy in the Court’s considerations.

While the outcome reached in Goodwin is a positive step forward in the protection of privacy rights for transgender people, the route the Court took in reaching this conclusion was arguably just as questionable as the earlier case law which it had held to be unsatisfactory. The Court found a lack of evidence of a common European position, but cited Australia and New Zealand as examples supporting a continuing international trend in favour of legal recognition of a transgender person’s new identity.

Justifying action within the jurisdiction of the Convention based on trends observed outside that jurisdiction is a questionable approach. This was also unnecessary, as the wording of Article 8 allows for the finding in Goodwin to be made without any need for recourse to examination of European consensus or international trends.

Following Goodwin, the Court’s expansion of its protection of rights under Article 8 to novel situations was surprising given its previous deferential position to member states In Van Kuck v Germany, it was held that the failure of an insurance company to reimburse the cost of the applicant’s hormone treatment and gender reassignment surgery violated Article 8.

Recently, the Court has ensured that recognition rights are not contingent on any medical action to reassign gender. In Garçon and Nicot v France, the Court concluded that to hold otherwise would force a person to relinquish their right to physical integrity to exercise their right to a private life, both of which are protected by Article 8. The same reasoning is clear in SV v Italy. In this case, the applicant’s rights had been violated as authorities had refused to change her male forename for over two years because she

had not undergone gender reassignment surgery.

This reflects how much the focus has shifted from state convenience to individual identity. Early case law gave much scrutiny to the notion of transgender identity itself and justified its deference to member states based on a lack of medical or scientific evidence of the validity of transgender identity.

The law has progressed to afford both transgender and transsexual people equal protection, through holding their personal identification as the primary consideration.

Problems Despite these positive developments, certain legal issues remain. It is unclear whether the ECHR’s pre-Goodwin decision in X, Y and Z v UK will be departed from in light of subsequent reforms. In this case, X sought recognition as the father of Z, who had been conceived by his partner Y through artificial insemination. The Court held no violation of Article 8 had occurred. As there was a lack of European consensus on granting parental rights to transsexuals, the state must be afforded a wide margin of appreciation. This return to a reliance on European consensus and strict adherence to biological determinations of gender seems to conflate with Goodwin and subsequent jurisprudence. As transgender couples are likely to want to use artificial insemination, clarity is needed on this matter.

Another issue emerging from state gender recognition is that the gender identity of people who had married prior to transitioning and who remained with their spouse was conditional on their marriage being terminated through annulment or divorce. Under Article 12 of the Convention, marriage is between a man and a woman according and governed by each state’s national laws. The Court has repeatedly declined to grant exceptions to transgender people in this scenario. In Parry v UK and R and F v UK, the Court held in both cases that while the applicants “must invidiously sabotage their gender or their marriage” their cases were declared inadmissible for being “manifestly ill-founded”. This position was reaffirmed in Hämäläinen v Finland, despite the applicants’ strong religious convictions against the dissolution of marriage. The Court argued the balance is struck through civil partnership offering virtually identical legal protections to applicants as marriage does. The Court may be satisfied with their reasoning, but the tension in this verdict demonstrates that while much progress has been made in furthering transgender rights, there is still more work to be done.

The Widening Scope of Article 8 ECtHR in Challenging Industrial Pollution AMANDA CLIFFE SS LAW

The degradation of the environment has become a pressing issue, as demonstrated by the latest Intergovernmental Panel on Climate Change (IPCC) report. A major underlying cause of this is industrial pollution, such as water contamination from mining, toxic fumes released from factories and diesel emissions from air traffic. Though there is currently no provision for an environmental right in the European Convention of Human Rights, Article 8 is progressively being used to challenge industrial pollution where it has interfered with an applicant’s rights to home, private or family life. The European Court of Human Rights (ECtHR) has traditionally afforded a wide margin of appreciation to states in environmental cases due to the competing interests involved, as well as the lack of explicit enumeration of an environmental right in the Convention.

However, this has not impeded the development of environmental case law under Article 8. This piece will demonstrate the ECtHR’s increasingly progressive approach to industrial pollution challenges under Article 8 despite the wide margin of appreciation given to states. This will be done by analysing successful and unsuccessful cases from ECtHR case law, as well as a parallel case in Irish law.

López Ostra v. Spain (1994) is one of the first successful cases invoking Article 8 to challenge industrial pollution. The applicant claimed that the fumes emanating from a liquid waste treatment plant near her home affected her right to home, family and private life. The ECtHR found a violation

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of Article 8 as the plant was operating without an adequate permit. This is a noteworthy case as the court established that the state had a ‘certain’ margin of appreciation, due to the competing rights of the town’s economic well-being and the plaintiff ’s enjoyment of her home, but nonetheless found for the plaintiff.

The use of Article 8 in challenging industrial pollution reached a high water-mark in Tatar v Romania (2009). The applicants in this case were subjected to contamination from chemicals used in gold mining in the vicinity of their home. The ECtHR found a violation of Article 8 as the state had failed to investigate the risks involved in the operation of the mine and to protect the surrounding population from these risks. This case is important as the court found that states have a positive duty to regulate industrial activities, even where there is mere risk of pollution and none has occurred yet. This is a significant legal development for a right which is not explicitly enumerated in Article 8.

These cases show a promising development of jurisprudence in the area of environmental rights and an enlargement of the scope of Article 8. However, it must be noted that the majority of cases which challenged industrial pollution were successful because there was a breach of a domestic obligation by the state, such as the lack of the operating permit in Lopez Ostra or the duty to disseminate information in Tatar v Romania. This highlights the court’s deference to the member states and the wide margin of appreciation afforded to them in environmental matters.

The ECtHR has at times retreated from its usual progressive position-- perhaps due to this emphasis on procedural requirements and wide margin of appreciation afforded to states. Hatton v United Kindgom (2003), albeit concerning a challenge to night flights over a residential area and not industrial pollution per se, is a seminal case on the use of the margin of appreciation in rejecting an environmental claim under Article 8. The ECtHR in this case accordingly found that the economic well-being of the country superseded the Article 8 rights of those disturbed by night flights from Heathrow airport.

Hardy and Maile v The United Kingdom (2012) followed this restrictive position. It concerned individuals living in the locality of liquefied natural gas tankers. The individuals argued that they were not properly informed as to the risks concerned with the operation of this machinery and that it was poorly regulated. The court found that the UK had not violated its obligations under Article 8 as it had 8 · The Eagle Gazette Volume 5 Issue 2

implemented multiple regulations in this area. This decision shows the court relying on the margin of appreciation afforded to the United Kingdom.

However, the Hatton and Hardy judgments can be seen as exceptions to a generally more progressive approach. A return to this position was seen in the recent judgment of Jughegli v Georgia (2017), in which the applicants complained of health problems caused by pollution released from a thermal power plant near their homes. The ECtHR accordingly found a violation of Article 8 arising from the insufficient regulation of the plant operations and the failure of the authorities to enforce the pollutionreducing measures imposed on the plant. There was no fair balance here between the town’s use of the power plant and the applicant’s rights under Article 8.

An interesting parallel to this positive development of environmental claims can be seen in the Irish case of Friends of the Irish Environment v Fingal County Council (2017), in which the applicants challenged the construction of a new runway at Dublin Airport. Though the challenge ultimately failed, the High Court found an unenumerated right to environmental protection in the Irish Constitution.

Interestingly, Barrett J noted that this right was ‘an essential condition for the fulfilment of all human rights.’ This recognition of the environment in the context of human rights could give more legitimacy to environmental cases in Irish courts.

The European Court of Human Rights has thus shown an overall increasing willingness to extend the scope of Article 8 in challenging industrial pollution, despite a few blips such as Hatton and Hardy. This is a promising legal development as it is likely that the ECtHR will see a substantial increase in environmental claims in light of worsening climate change. However, one could question the court’s reliance on procedural mistakes in finding state authorities guilty in matters of industrial pollution.

A narrower margin of appreciation could potentially lead to better outcomes for applicants in cases like Hatton and Hardy. Perhaps the optimum solution for industrial pollution cases and environmental claims in general would be to recognise a right to a clean environment in the Convention. This would lead to greater certainty in ECtHR judgments on environmental matters and would lessen the scope of the margin of appreciation afforded to states. Analysis of the effects of a right to environmental protection in Irish law may provide an interesting insight into the potential impact such an enumeration would have on European Law.

Human Trafficking: Red Light for Europe CAOIMHE DALY SS LAW

Human trafficking stands amongst the world’s fastest growing crimes and regrettably this modern slavery has fallen through the cracks of many legal systems.

Charlie Flanagan, the Minister for Justice and Equality has described human trafficking as “hidden in plain sight” allowing it to be sheltered by secrecy.

Ninety-five individuals were identified as victims of human trafficking in Ireland in 2018. This figure rose for the third consecutive year. These figures do not align with the reality of the situation and regrettably, the majority of victims of human trafficking are not identified. They are instead punished for minor offences as an alternative to vindicating their human rights.

In Rantsev v Cyprus and Russia, the European Court of Human Rights recognised human trafficking within the ambit of Article 4 of the European Convention on Human Rights (the ECHR). This was a widely appreciated shift in the Court’s attitude in line with a developing society, recognising this as a modern form of slavery. The Court founded positive obligations inherent in Article 4 in Siliadin v France, such as the obligation to have satisfactory legislative and administrative frameworks to take necessary steps to protect individuals and to investigate alleged offences of human trafficking. Regrettably, these positive obligations are not efficiently enforced due to the large amount of discretion afforded to member states in applying them. The European approach to human trafficking imposes obligations on states unlike the international framework, the Parlermo Protocol. However, the reality of the obligations on states, is that they are loosely enforced and lack the effectiveness needed to adequately combat the problem. There are two main issues in which Ireland is failing victims of human trafficking: the identification of victims and the treatment of them.

The identification of victims is an intricately difficult task, fuelled by a number of factors. Victims of human trafficking are usually immigrants illegally living in a country, involved in a dependent relationship, carrying out work that is discrete by nature and wholly unaware of their status as a victim.

Ireland has proactively provided training on the identification of potential victims to 520 probationer members of the Gardaí. Human trafficking is an

evolving criminal activity. It is unsurprising that officials are ill-equipped to deal with these presentday cases as they have had minimal experience with this issue. Therefore, it is crucial that training is provided to a wide range of officials who are likely to come into contact with potential victims including, social workers and work inspectors, as recommended by the Second National Action Plan to Combat Human Trafficking. Targeted training programmes can effectively educate individuals on identifying victims. Currently, without effective training, it is a disservice to both victims and the frontline personnel, as they are essentially blindly searching for a needle in haystack, in their efforts to identify victims “employed” in Ireland.

Article 26 of the Council of Europe Convention contains a non-punishment principle for states “in accordance with the basic principles of its legal system”. This highlights another example of the discretion left to member states in not adopting the European standards. GRETA, the Group of Experts on Action against Trafficking in Human Beings, has strongly recommended that Ireland adopt a non-punishment principle as it is critical to the protection of a victim, that they are seen as a victim, not a criminal. States are hesitant to adopt the nonpunishment principle as they feel the European Convention is usurping their powers and interfering with their criminal justice system. The Netherlands strikes a fair balance in this area. This is evidenced in the Mehak case, in which a trafficked girl was convicted of the manslaughter of a baby in her care.

The court considered the non-punishment principle and determined that it should be assessed in line with the gravity of the crime.

States feel their sovereignty comes under threat when dealing with human trafficking cases. There are continuing tensions between a rights-based approach to human trafficking and a state’s interest in immigration control. Directive 2011/36/EU does not impose a prohibition on punishing victims but only requires that measures are in place so that national authorities can choose not to impose penalties. It is futile to provide an opt-out clause rather than a prohibition. Due to the dearth in the identification of victims and the blurred distinction between immigrants and human-trafficking victims, there is a real risk that these cases will be dealt with inadequately. The non-punishment principle would ensure that victims are not unduly punished, silenced, and thrown into the criminal justice system, silenced and feeding into the secrecy of this crime.

Furthermore, Ireland should adopt a whistleblowing legislative regime, similar to the Protected The Eagle Gazette Volume 5 Issue 2 · 9

Disclosures Act 2014, in which whistle-blowers are ensured protection from reprisal. Applying this to the human trafficking context, the victims should be ensured a safe place for them to stay, with their anonymity protected, and measures taken to help them obtain new employment and residency.

Victims have been viewed not as victims of trafficking but as potential witnesses in the eyes of the Irish criminal justice system. In a truly distasteful application of justice, human trafficking victims are required to co-operate in the criminal investigations if they wish to obtain support services, such as residency. GRETA strongly advises Irish authorities guarantee that identification of victims is dissociated from the suspected victim’s co- operation with the investigation. This grave injustice echoes the requirement that a sexual assault victim be a witness in their case, causing considerable trauma for the victims involved and impinging on their due process rights. It is strongly suggested that Ireland mirrors the Italian model, a pioneer among other member states. It provides victims with a right of residence not contingent on their co-operation with the investigative or criminal proceedings against traffickers, embodying a true victim-centred approach with a clear goal of vindicating human rights.

Previously, Ireland’s only approach to human trafficking was founded in criminal legislation.

Today, there is a greater understanding that human trafficking is a double-sided coin and the criminal aspect is not the only element that needs to be addressed. The recent case P v Chief Superintendent of the Garda National Immigration Bureau, highlighted the inadequacy of Ireland’s administrative scheme and how it fell short of its obligations under the Convention. This is further evidence of the inefficacious positive obligations founded in Article 4. The margin of appreciation doctrine is respected and acknowledges the ancillary nature of the Convention, however at times and particularly in relation to this issue, it appears to be a tool the European Court of Human Rights uses to evade coherently regulating an issue and maintaining a neutral position. It is at times like this, that I question if the European Court of Human Rights is a sword to be used in the battle of vindicating human rights or a political device to appease Member states.

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The apparent bias of the Spanish Supreme Court in favour of financial institutions DARA NEYLON JF LAW AND POLITICS

Last November, the Spanish Supreme Court fell under public scrutiny due to a series of contradictory decisions. On the sixteenth of October the Supreme Court held that it was the responsibility of the banks to pay a particular tax on mortgages. However, this decision was soon overturned, causing the general public to feel as if they had been betrayed for the sake of financial interests.

This is not the first time that people have doubted the transparency of the Spanish Supreme Court. In July of 2015, Luis Diez Picazo was appointed President of the third chamber, which was met with discontent from other Supreme Court members and politicians alike, due to being appointed through “merits” rather than through the common system. To do so, he had to be supported by the conservative members of the Court who are affiliated with the political party in power at the time. Not only was this method questionable, but the chamber that he was chosen to preside over was one in charge of decisions that may affect government legislation, making it seem even more possible that his appointment was politically motivated.

This is not the only controversy that the Court has faced recently. Many of their latest rulings have ended up before, and been overruled by, European Courts.

For example in 2015, the European Court of Human Rights held that Arnaldo Otegi, a pro-independence Basque politician, underwent an unfair trial.

The tax on “Actos Juridicos Documentados” (Judicial Documents), is a governmental source of revenue that the bank’s clients who acquired a mortgage traditionally had to pay. However, on the sixteenth of October, the Spanish Supreme Court decided to depart radically from what had been the norm since the tax was created in 1993.

The tax on mortgages is regulated by “Ley del Impuesto sobre Transmisiones Patrimoniales y Actos Jurídicos Documentados” (“Patrimonial Transmission and Judicial Document Tax Act”). It was enforced through executive order but was then maintained through legislation. This legislation deems that the one responsible to pay the tax is “whoever [the mortgage] may benefit”. Since

it is the bank that profits from the interest paid on mortgages this should be clear. However, through an executive order in 1995 (“Real Decreto 828/1995”) a clause was added, in which it was specified that the individual borrowing the money should be the one paying the tax. This executive order only acquired bylaw status (Article 68 in the “Reglamento del Impuesto sobre Transmisiones Patrimoniales y Actos Jurídicos Documentados”) in contrast to the document previously mentioned. As this clause was in contradiction with the higher status legislation, the Supreme Court, in its initial decision of 16th of October, believed that the correct thing to do would be to eliminate the bylaw that specified that the payer should be the client.

After the ruling that it would now be the banks who would have to face paying this tax, the stock value of Spanish banks began to decline radically while many consumer platforms celebrated. The celebration was cut short when, just the next day, Mr Diez Picazo announced an emergency plenary session that would freeze any decisions involving the mortgage tax issue due to the “huge social repercussion”. The possibility that this was an illegal move of the President of the Chamber has been discussed by many academics and lawyers. As pointed out by Jose Luis Gonzalez, the spokesperson for an organisation representing those negatively affected by mortgages, this unprecedented and sudden change is highly questionable. The Supreme Court had already applied the rule that it is the bank’s responsibility to pay the mortgage tax on three separate occasions, nullifying Article 68 of the “Reglamento del Impuesto sobre Transmisiones Patrimoniales y Actos Juridicos Documentados” (a bylaw) and embedding the new law. The resolution of the “extraordinary plenary session” was to return to the previous doctrine that imposed the tax on the mortgage payer. The Court justified the return on the grounds that it was an “error” that would lead to judicial uncertainty and that would make other issues arise, like whether the banks would have to reimburse the amount that the clients had been paying for the last 23 years.

financial sector. It became apparent that people were not satisfied with the idea that their tax money was being used to help institutions that had continuously acted abusively towards their clients.

Knowledge of the market consequences that the initial decision brought in addition to awareness of the connection between the president of the chamber and politicians, it seems reasonable that it was portrayed as though the Chamber was under pressure to return to the original doctrine. It is difficult to believe that the law was simply “being applied”, , as the ruling of the 16th of October appeared to have been a clear demonstration of “clearing up” this law by nullifying a contradictory bylaw. Therefore, the overturn of such a decision on the grounds of “maintaining what has always been the law”has no logical reasoning behind it. It should come as no surprise that consequently the concept of separation of powers, as well as the independence of the Supreme Court, was severely put into question.

To conclude, it appears that the issue may be resolved with the approval of a new set of laws to clarify the intention of the tax. Pedro Sanchez, the current President, has already stated that it is his wish to make the banks pay for this tax. However, national election will take place on the 28th of April and could potentially change this route of action. Whatever the outcome, the public must not be under any illusions - any extra tax that banks might have to face will be indirectly paid by the customers through higher interest rates or other mechanisms.

The news was met with public outrage as it led to feelings of betrayal among by public by their own justice system. Whether in the media or on streets, the general consensus was that the financial sector had “bought out” the Supreme Court and that, once again, the interests of the wealthy elite were made a priority. This resentment towards the banks dates back to the 2008 economic crisis. After being were rescued by the government with “public money”, many cases of corruption and questionable practices came to light, building a terrible image for the The Eagle Gazette Volume 5 Issue 2 · 11

Feargus Campbell Talks with Nina Milosavljevic about Pursuing an LLM at Berkeley Law What are the major differences between Trinity and Berkeley?

I’d say the range of classes that you’re offered, and the areas that you can specialise in. Berkeley’s in the Bay Area of California, which is very technology focused, and that’s part of the reason I wanted to go here. Even if you’re taking business classes, those business classes are focused on things like venture capital and have that technology aspect to them.

Every year they introduce new intellectual property and tech law classes, and rotate the core IP and tech classes. In any given year, they offer around thirty to forty classes just in tech law, separate to anything else. Also what’s cool is you can actually go and take classes outside of the law schools. I know in Trinity there’s the broad curriculum, but that’s a quite limited programme. Here, it’s more like the sky’s the limit, in terms of the classes you can take. You can also take classes at the business school, although that is more restricted. With the wealth of classes, depending on what you’re interested in, you can get a really good interdisciplinary knowledge. So for example, if you’re really into tech like me, you can take computer science classes and free coding classes. That, I’d say, was the biggest difference I found.

How much of an impact does the current political climate in America have on your studies?

I’d say that personally it has no effect at all. Student visas are student visas, they haven’t changed. The only difference is that if you get in trouble with the police, the consequences are much more severe than they used to be I think. You definitely would get deported. And of course, if you overstay your visa, the consequences for that are also much more severe than they used to be. But the Bay Area, and California in general, is very liberal, or the people in Berkeley are, so you don’t really feel any of that at all.

What motivated you to move to America and study a masters?

I knew from my time in Trinity that I was really interested in tech, and I knew I sort of wanted to go abroad for that kind of programme, and Berkeley has a really great tech programme. What motivated me to go to America was I went abroad in my third year at Trinity to Emory, and I loved the US style of law schools. The type of classes they have are the typical doctrinal classes but also skills classes, and I knew I 12 · The Eagle Gazette Volume 5 Issue 2

wanted to try out more of those. I really just loved my time in Emory and made a lot of great friends, and so I really wanted to study in the US again.

What advice would you give to anyone who is thinking of moving abroad for college?

I’d say to make sure this is what you want to do, and think about your overall career trajectory. Is this a good option for you? Will you get the things you want out of it? And of course, are you the type of person who’s not going to get too homesick, and is able to establish a life for themselves without missing home too much. Explore your options, and make sure it’s feasible with funding. I think that’s the big thing if you’re going to be moving out of Europe, I think it’s less of an issue in Europe, because European education is more affordable. Work out what appeals about the particular country you’re thinking of moving to, and does it offer the things that you’re used to and that you love. Think about how much culture shock you’re able for. So yeah, the three things would be how it would help you professionally; whether you’d be able to handle being away from home, and definitely sort out your funding.

If you could change one thing about America’s legal system, what would it be and why?

Well, I’d say the health system probably. You don’t really think about it in Ireland, where spending €60 to go to the GP is outrageous, but here, if anything happens to you and you have to have a surgery, the surgery alone costs in the thousands, let alone any hospital fees you may have. Even if you have insurance, it’s not always adequate, it depends on how much it covers, and you still have to pay a deductible. I have friends here who have gone skiing and things, and I’ve had to decline those invitations because I’m just too afraid of anything happening to me, because I don’t want to have to learn how to use this system.

What has been the best aspect of studying abroad?

I’d definitely say the people you meet. LLM programmes in the US are extremely, extremely diverse. You get to meet people from all over, and the random conversations you’d have, the travelling, it all makes for such a great experience. What I get out of it is that there’s so many opportunities around you, in terms of events, not even affiliated with the law school or Berkeley, and you can learn so much just from going to San Francisco to whatever’s on, and meeting people, and you learvn so much more than you could ever learn in a classroom. I think that’s one really amazing thing about it.I know people who are doing language exchanges with other people in the course which is really cool, and I’m doing a language exchange for Mandarin. The amount of possibilities and opportunities that come from all these different people would be the best thing about studying in America.

The ‘legality’ of the use of force by the Russian troops in Syria?

KATHRYN CULHANE-TIPPER JS LAW

The dispute over the legality of Russian intervention in Syria has grown in prominence in recent years.

There are two main arguments on the legality of Russian intervention in Syria. First, whether Russian intervention was a legal act pursuant to Art 2 (4) of the United Nations (hereinafter UN) Charter. This provision strictly prohibits the use of force “against the territorial integrity or political independence of any state”. However, this provision is subject to two orthodox exceptions; namely, the use of force in selfdefense, and the use of force under the authorization of the Security Council per Chapter VII of the UN Charter. The second main argument regarding the legality of Russia’s intervention concerns whether the actions of the Russian forces violated international human law. This article will examine the former, focusing on whether the use of force was proportional to the purpose of this force.

The first issue of whether the UN Charter legally permitted Russian intervention goes to the very heart of the charter. The charter strictly prohibits the use of force against any sovereign states. This principle of non-intervention in purely domestic matters,

including civil wars, was reaffirmed in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America). However, the Russian Government bypassed this restriction on the use of force, under Art 4 (2) of the UN Charter, by relying on the State request exception.

Moreover, chapter 51 of the UN Charter permits the use of force by a state in self-defense or “collective self-defense”. Therefore, since the Assad regime is still the recognized ‘government’ of Syria by the UN, the Russian intervention was at the request of a sovereign state, and thus legal. In contrast, it has been argued that this regime doesn’t have the authority to request the intervention of another state as many countries have stopped recognizing the regime as a legitimate government of the Syrian people. The UK’s ambassador to Syria, Mr. Martin Longden, asserted that the Assad regime in Syria has “lost its legitimacy due to its atrocities against Syrian people”. Following this line of thinking, the Russian act of intervention, which infringed on the territorial integrity of the Syrian State, could be viewed as illegal. However, the Assad regime is backed by the Chinese and the Russian governments, who reject this argument and consider it an encroachment on Syria’s autonomy. It remains to be seen whether this issue of legitimacy will be clarified.

Another issue that emerges is whether the use of force was strictly proportional to the purposes of this force. According to Russia, the purpose of the intervention was to target and eliminate extremist forces. However, according to the Director of the Institute for security and Development policy, 90% of Russian intervention did not target ISIL, the largest extremist force. Therefore, Russian intervention was ineffective in achieving the result for which it was sought. Furthermore, Russian intervention may have violated the basic principles of international human law, which attempt to regulate conflict to minimise human suffering. For instance, the principle of quantification requires that military forces should lessen the amount of side losses. However, the use of cluster bombs by Russian forces clearly violates this principle. According to the 2008 Convention on Cluster Munitions, the use of cluster bombs is prohibited, and as such Russia may be held accountable for committing war crimes. The Syrian Observatory of Human Rights have reported that mass numbers of civilian casualties were caused due to Russian intervention. Moreover, the targeting of civilian utilities such as hospitals violates the principles of necessity and differentiation. This lack of regard for civilian lives is widely rejected under international law. On top of all this, Russia may have The Eagle Gazette Volume 5 Issue 2 · 13

inadvertently assumed responsibility for the war crimes committed by the Ba’ath regime since under international law a side which supports and assists a military regime can be held accountable for the war crimes committed by that regime.

Arguably, if we view the use of force by the Russian troops in Syria by reference to international law principles then Russia may be accountable for numerous violations. However, the power of the International Crimes Court is limited as Syria is not a signatory to the Rome Statute, and Russia has not approved it either. Nonetheless, the Security Council may authorise private courts to be established for prosecuting war crimes, such as the International Crime Tribunal of Rwanda but their ability to do so may be limited by Russia’s veto. A possible solution would be to call a special session of the U.N General Assembly. This measure can be invoked when the Security Council fails to maintain security due to a veto of a permanent Security Council member, although this is unlikely. It remains to be seen how Russia’s intervention will ultimately be understood on an international level.

Political short-Termism vs Legal Long–Termism OLIVIA MOORE JF LAW AND POLITICS

During her speech to Trinity students on climate change on the 18th of February this year, Mary Robinson made a point that was particularly resounding. She noted that the inactivity on behalf of politicians in Ireland regarding causes like global warming could be due to the fact that politicians are always looking toward the next election and emphasised the short-term nature of politics. This provides an interesting contrast when considering the relatively long-term nature of the law.

Politicians are frequently accused of political shorttermism, meaning having the sole or primary purpose of obtaining support for the next election, rather than working towards long-term goals for the good of the public. It is perhaps true that democracy perpetuates this. In Ireland a general election must take place at least every five years, and arguably only around half of this time is spent on policies, after taking into account the settling-in periods and the time spent campaigning for re-elections. However, even the short-range policies that are actually implemented can be viewed simply as incentives for voters in the hopes of re-election. In Ireland politicians do tend to rely on their pensions more so than in other countries, which only further enhances this gravitation towards instant gratification in pursuit of popularity and possession of power.

This boils down to the approach of merely “getting through” the problems in the short-term rather than actually finding solutions long-term, as can be seen so clearly in the build-up of the current Irish Healthcare Crisis. In the words of Warren Buffett in 1977, “when human politicians choose between the next election and the next generation, it’s clear what usually happens.” However, in terms of the law, this is quite clearly not an applicable criticism.

It can certainly be contended that in Ireland the doctrine of precedence is vital in ensuring solid and consistent long-term effects within the legal framework. As a common law system there is no set of authoritative codes for our jurisdiction, so the rules are found in the previous decisions of Courts.

This is precedent, defined by Kenneally and Tully in The Irish Legal System as the “application of a principle of law as laid down by a higher court on a previous occasion in a similar case.” Stare Decisis,

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whether it’s non-legal and to support them through the process, to be a listening ear. We also work on policy and advocacy. Our main theme is the right to housing which is gathering momentum and we have published a trilogy of reports on the right to housing, the most recent of which looks at the gap of legal protection as it affects children in homelessness.

And finally, we provide training and legal services for organisations that are working in the housing and homelessness sector.

What is your role in the organisation? the principle that follows this, indicates in itself the obligation to follow earlier cases. Case law is made with the future in mind. The final decision is often not solely considering the case at hand – the judge may also think about the implications that the judgment will have for individuals in future generations.

Countless times have judges been exceptionally cautious in their decision to prevent such things as a “floodgates” argument from arising in future or make a particular effort to clarify a certain principle with the aim of alleviating future problems. This way, the law can advance gradually along a regulated course.

The entire aim is to link new issues being raised with old ones being settled, to use previous case law in constant recognition of what is yet to come in the most equitable method of doing justice for all. This system of certainty, stability and uniformity appears to be an infallible method of incorporating centuries of past decisions into modern society in the pursuit of justice with the long-term playing a pivotal part in their decision-making process. Politics may choose the next election but the law decidedly chooses the next generation. The past is drawn upon in the present to improve the future.

Tasin Islam talks with Rebecca Keatinge, Managing Solicitor of the Mercy Law Resource Centre What type of services do the MLRC provide?

I am the managing solicitor. I am responsible for the overall management and the smooth running of the services, and of managing the staff. We have three solicitors, myself included, and three support staff, and we have volunteer administrators. We have a very active board and a number of volunteers who also assist in the day-to-day management. I’m also a solicitor so I would have an active number of cases. I attend the clinics and I’m also primarily responsible for the policy work and communications as well.

What do you believe are the causes of rising homelessness in Ireland?

That is a very challenging question! When you look at the flow of homelessness from the year before last, the flow comes predominantly from family breakdowns. Now we see families that are coming to homelessness that is being caused by evictions from the private rented sector. Landlords can serve a lawful termination if they’re selling the property, or they’re doing substantial refurbishment, or they have a family member coming in, and there are other causes. Many of the families we’re meeting have been given notice that is lawful and they come to the MLRC. Similarly, for single people, the flow to homelessness comes from the private rented sector.

The root of the problem is the lack of supply in the private rented sector. Exiting homelessness is another challenge when there is no housing available.

Do you think that current tenancy legislation sufficiently protects tenants?

We would like to see a move to a model where there

We are an independent law centre and a registered charity. We provide 5 main services. We provide legal advice for those at risk of homelessness through legal advice clinics and we provide legal representation to those clients that we meet at clinics. We will advocate to local authorities—and bring litigation—if and when needed. We also provide a befriending service.

We match our clients to volunteer befrienders to assist them with other supports they may need, The Eagle Gazette Volume 5 Issue 2 · 15

is security of tenure—because as government policy shifts from social housing to social housing support through the Housing Assistance Payment and greater reliance on that, where there is an absence of security of tenure it doesn’t provide people with a home in any sense. We’ve had families that have entered into the private rented sector and became homeless again and that shows how the private rented sector is failing to meet the needs of that cohort. There needs to be greater security of tenure and there needs to be a tightening up of the effectiveness of the grounds of termination.

Relating to that, what are the types of policy changes you would like to see?

Threshold (a national housing charity) speaks quite clearly and articulately on the changes required in the tenancy legislation. For us, what we’re dealing with this families that can’t access homelessness entitlements, single people who are struggling to access their entitlements, or who are in homelessness accommodations for a long period of time. An issue at the moment is trying to get a time limit put on the length of time that families can be in emergency accommodation, because we see people in hotels and B&Bs for periods of 22 months. There is a lack of transparency as to how you get to that, and we’re dealing with very vulnerable families.

Do the types of emergency accommodation we have in Ireland adversely affect families?

Absolutely. I can say from our own experience that is definitely the case. We would work with medical professionals who would have assess families that we had been working with and documented the detrimental impact homelessness has on families.

We’ve been working with a family for 3 years now and the year before last they lived in hotels moving night to night for about 4 months. They got a secure placement in a hotel that was a 90 km round trip from their children’s schools and those children only had a 20% attendance rate of their infant classes— we got a heartbreaking letter from the principal that documented how it had impacted their early learning. We know from for research, especially in the early years, that security and stability of learning can have a positive impact. We’re dealing with a number of families that live in night to night accommodation which is chronically unstable and chronically unsuitable and that’s at the very severe end of the spectrum.

What are the difficulties that have faced the MLRC in the past, and what do you anticipate are going to be difficulties moving on into the future?

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In terms of difficulties, you can divide that into two broad categories. In terms of the legal framework, there is no legal right to housing and there is no legal right to shelter. We would have a number of cases in the year before last where we have had families that have been refused emergency accommodation and were sleeping in a tent. One family went to the Garda station and then were subsequently picked up by an NGO. The legislation says the local authority may provide emergency accommodation so there is essentially a discretionary power, and the courts are very deferential to the local authorities and have applied a very high standard of deference. It is up to the local authorities to assess whether somebody is homeless in their opinion, and the courts have been very reluctant to interfere in that. That has been an obstacle to our work—to assert our client’s entitlements for accommodation. We hope to resolve these in the early stage and we don’t jump to litigation. Certainly, the deficiencies in the legal framework with respect to homelessness provisions is an obstacle for us, and the overall absence of a right to housing which is protected in international law but is not protected in domestic legislation, and which is needed to bring about a cultural shift, and a legal shift, so that families and individuals can access entitlements.

Secondly, we are an independent law centre, and we are a charity, so we are entirely dependent on funding and donations. We have a staff of three solicitors. The volume of queries we get and as a consequence of the amount of people that come into our offices, we have to be very judicious about what cases we take on. There is a huge need because there is no legal aid for housing and homelessness matters except in very exceptional circumstances. Those are our current challenges and those challenges are probably not going to go away anytime soon.

Finally, is there any way interested students can help with the MLRC? Donations are always hugely welcome—small, medium or large—we really are grateful for any support we get. There is a tab on our website which is www.mercylaw.ie. We also will be seeking volunteer befrienders in the coming months—we’re just updating our befriender services and updating our befriender training, so anyone interested in befriending services, we would be very interested in hearing from you. We also do take some interns through the course of the year so to people who are interested, we would really welcome you getting in touch.

Orla Murnaghan talks to Barry Tumelty, Counsel General of Ireland in Sao Paulo, about working in Foreign Affairs Can you tell me a little about your educational background?

Sure. I started in Trinity doing law and French in 2001, so I suppose I always had the idea of during sometime international, not necessarily taking the traditional route of being a barrister or solicitor, but something in the international dimension. I did my Erasmus in Paris and I was lucky enough to get a scholarship to go to the European College in Bruges when I finished my undergrad. It was at a point in 2006 where there was quite a few opportunities so I actually was lucky to go directly from my Master’s to joining the Department of Foreign Affairs.

What is your role in Irish foreign affairs?

At the moment I am the Counsel General of Ireland in Sao Paulo. We have an embassy in Sao Paulo because it is such a big city, with a population of over 20 million people in the city and over 40 million in the state, there are great trading opportunities here and great opportunities to promote Ireland especially in research and business. We also work very closely with Enterprise Ireland, they have an office here beside us so we actually share what we call an Ireland-house arrangement: we are under the one roof, they have their client companies and we support Enterprise Ireland’s efforts but also work to promote Ireland more broadly, getting the image of Ireland out there and the profile of Ireland’s work with educational sectors in particular. At the moment about 16,000 Brazilian people go to Ireland every year to learn or improve their English. Many of them actually go on to third level in Ireland. That wasn’t happening about 10 years ago and is creating new interest between Ireland and Brazil. And new opportunities! Basically we find when you have those personal connections, then economic opportunities can open up and there is great potential down the road for trade between Ireland and Brazil to increase. Then there is a lot of cooperation at third level- so for example, the Brazilian government ran a scheme that was called Science without Borders which saw over 3300 Brazilians studying in Ireland for about a year each and that meant that a lot of research partnerships were formed - between Irish Universities and institutes of Technology, we have around 100 agreements in place at the moment

in universities. The Irish Research Council just confirmed in February an agreement with the Sao Paulo Research and Innovation Foundation, it is an area that is growing in significance and for research.

So really the role of foreign affairs is very different so depending on where you are the nature of your work changes very dramatically.

Is there a lot of variety in working in foreign affairs?

Well I suppose the variety is fantastic. Diplomats can move. I had the opportunity to work in Brussels on multinational negotiations, working on legislation across all sorts of different areas of interest for Ireland… any area you can think off under the sun.

But then I went to Mexico and Sao Paulo to promote Irish culture, and I also worked for example with the Department of the Taoiseach during our presidency of the European Union in 2013. And I have been able to work for a period on behalf of the protocol team and look after visits of VIPs into Ireland and also arrange a programme for the President when he travels abroad. I got to travel to a lot of different countries over the years, and get to meet the people in other countries and get to understand them a bit better. When you are living abroad you are trying to adapt and understand things from their perspective, to try and analyse the opportunities and relationships that can help Ireland. I think we put a lot of emphasis on our values so obviously in every mission we work to present our foreign policy objectives.

This week, Ireland has just launched a new international development policy for a better world.

We work to promote peace, disarmament, and security so Brazil has traditionally been a partner of multilateral force. Actually at the moment, Ireland is launching a major campaign to get elected onto the UN Security Council in 2021 so really that is something that is a focus for our mission. I think for a small country looking outwards we need to The Eagle Gazette Volume 5 Issue 2 · 17

recognise the values that we actually get from having a peaceful UN that promotes human rights and the peaceful contribution that we can make, given that Ireland traditionally has not been a partisan player.

So that means that we are getting our message out in every country in the world, not just the ones where we have embassies and consuls, and then in the UN itself we are quite active, so Ireland is currently the chair of the UN Commission on the Status of Women. It is also co-chairing the Committee on Partnerships for Small Island Developing States and will join the UN Peacebuilding Commission.

In Sao Paulo we are not just involved in meeting rooms, we are also promoting Ireland’s values and making sure they find reflection in what we do here on the ground. Yesterday I was actually with the UN helping in a couple of shelters for Venezuelans refugees, who cross the border from Venezuela into the north of Brazil, and the Brazilian government have a system to bring them to other parts of the country to facilitate their integration into society here, so that is a project that we are keen to support and it is great to see the project hitting the ground.

The Venezuelans have arrived and they are very happy with the support that they are getting from the UN and the UN partners here on the ground.

Another aspect of the very fulfilling interactions that we have is with Irish citizens. The Irish community here is actually small but it’s vibrant. For diplomats, it is so rewarding when you can help an Irish citizen that is in trouble – maybe they’ve had a bereavement or an accident – and you can take small steps to make their lives easier in great stress or trauma, so those moments are wonderful. You have to think of the big picture but also humanity.

How has studying Law and French helped build your career? Is a law degree necessary to work in the Department of Foreign Affairs?

I think it is a great foundation, and obviously having studied a language is a huge benefit as well if you are thinking about going down the international path.

I would strongly encourage a language or two, and I picked up a few more along the way myself. In terms of skills, particularly analytical skills are really valuable generally. Foreign Affairs are expanding at the moment and we recognise other people have a large variety of skills and backgrounds, so law and economics might be a very traditional place where people would be recruited from, but we have geneticists and archaeologists also part of our diplomatic core, as well as people with different backgrounds. We are very keen to insure that it is a positive environment in terms of gender and we 18 · The Eagle Gazette Volume 5 Issue 2

are increasingly ensuring that we can be broader in terms of our social diversity. We feel that we are strongly motivated on these issues. I think that there are great opportunities for young graduates to come into Foreign Affairs. Just in June of last year, we launched a Global Ireland policy which effectively will double the growth of Ireland’s footprint by 2025.

It’s a hugely ambitious project and we are trying to grow and diversify our exports investment from abroad and look at new ways to connect with our diaspora. When we talk about the diaspora our traditional community, like in the US and UK, are themselves changing, so we are looking at new way of reaching out for regeneration and location. Earlier I spoke about the education of some Brazilians who have studied in Ireland - we would consider them part of our diaspora as people with a close relationship with Ireland, and we are looking at how we connect with them. We are also expanding our cultural programme and our bid for security council membership is part of the programme as well. We are in a great position to open new embassies because it would give Ireland even greater reach. In South America alone in January we opened in Bogota, in Colombia, and we are opening as well in Santiago in Chile. Already our footprint on the ground in Latin America has increased significantly. Also, we have training opportunities for Irish people who are considering a career in international relations. There are huge opportunities opening up for very diverse roles. Law is great as a background, but we are also interested in candidates with great adaptability, resilience and the ability to work in different environments as well. It is very rewarding when you have that variety to work with.

Finally, what advice would you give to someone who aspires to work in Foreign Affairs?

I think that there are a few different things to consider. I think you should reach out to people working in foreign affairs, or other Trinity graduates, for some informal advice. Learn a language, look at different international opportunities. There are so many different routes into the international world.

You don’t need to get fixated on exams to get into the Department for Foreign Affairs because there are other opportunities where you can gain real practical experience, such as working in Brussels or in the UN. That direct experience will show that you are ready for the job by having worked with others organisations and NGOs, getting as much practical experience as you can. Law is a very academic background, but showing diversity and adaptability and practical experience will all help you.

Robert Morgan, JS Law, Tells the Eagle About Studying in KU Leuven Before arriving in Leuven, I knew virtually nothing about it, but it has lived up to everything I could have imagined. It is a university town with students comprising almost one third of the population. What struck me about life here in general is the cultural diversity. Living with people who seamlessly speak multiple languages shows that there truly is a vast international character to the university. In Brussels, which is just a short train ride away, French replaces Dutch as the spoken language.

One can also see such diversity in the university curriculum. Academically, I have taken courses taught by experts from all over the world. As the credit system works differently here, I have had to take 6-7 subjects a semester. So far we have had the opportunity to be taught by judges from both the European Court of Human Rights and the European Court of Justice. For other classes, it is not uncommon to have guest lecturers from the European Commission or the World Trade Organisation. The workload here is challenging but the broad choices of modules on offer enable all students to find something that interests them. I have had the opportunity to take classes in a variety of topics, ranging from European Financial Regulation and European Social Law to EU External Relations Law and International Criminal Law. Studying masters courses can seem daunting at first, but after a few weeks I began to really enjoy my studies and became very interested in certain classes. This semester, as part of some of my modules, I hope to attend organised trips to the European Court of Justice, the International Labour Organisation in Geneva and the International Court of Justice in the Hague. As KU Leuven is a highly competitive university the workload and exams have been more difficult than what I am used to, but the Law School is a thoroughly enjoyable place to study.

For anyone who has a love for EU law in particular, I would highly recommend Leuven.

Furthermore, the Belgian culture makes Leuven a great place to live. As there are 4 regions in the country it means it is home to numerous languages and a wealth of diverse history. With Leuven being the home of Stella Artois, you can imagine what the town is known for aside from the books! As such, although a bit of a cliché, Leuven is a ‘work hard, party hard’ place. The student life here is great: there are numerous bars and cafes to go to with friends; student restaurants that are cost friendly; and the

town itself is a very safe place to live. Not only have I had the opportunity to live with other international students, the nature of the Erasmus programme in Leuven means that the majority of my classmates are also from different parts of the world.. There is also a sizeable Irish community here meaning that you never feel too far away from home. I have had the opportunity to visit Belgian cities such as Ghent, Brugge and Antwerp. As Brussels is only thirty minutes away from Leuven, you have easy access to the various EU institutions. Last semester I got to attend the European Commission and a sitting of the European Parliament, something that adds to the advantage of studying in Leuven. Overall, for the people you meet, the travel opportunities, and the challenging but rewarding academic experience, I would highly recommend studying in Leuven.

The Social Section Noeline Blackwell Speaks to Trinity FLAC: Review On Thursday, February 21st, Trinity FLAC welcomed Noeline Blackwell to give a talk on the experience of victims of rape and sexual assault in the Irish justice system. Ms Blackwell is the Chief Executive of the Dublin Rape Crisis Centre, and previously worked as the Director of FLAC. This was a very topical event, given the prominence of the #MeToo movement in recent years, the ‘Belfast rugby rape trial’ that gained considerable attention last year, and the growing concern with how the justice system handles cases of rape and sexual assault.

Ms Blackwell started her talk by discussing the recent highly-publicised rape case brought against four famous Irish rugby players. This trial, she noted, convulsed us as a people. It was a trial about which everyone had something to say. She commented The Eagle Gazette Volume 5 Issue 2 · 19

that, whatever about the trial and the verdict itself, the WhatsApp messages sent by the accused showed that there is a more general problem with some young men treating women as objects. Something must be done about this abhorrent approach, she argued.

On a broader note, Ms Blackwell highlighted the disparity between the rights of the accused and the rights of the victim in the criminal trial process.

While this has seen an improvement in recent years, she noted that there are still huge steps to be made before victims of rape and sexual assault are treated in a way that ensures access to justice for all.

Ms Blackwell spoke on the definition of both rape and sexual assault which is used in Irish courtrooms.

Sex without consent is rape, and sexual activity without consent is sexual assault. A person consents when he or she freely and voluntarily agrees to engage in that act. Ms Blackwell drew attention to the fact that this description forms the basis of the definition of rape and sexual assault in just eight European states, among them the UK and Ireland.

Other countries are only inching towards a nonconsensual understanding of rape, she noted, with physical force being necessary to prove rape in a large number of jurisdictions.

Most victims of rape and sexual assault do not report the crime. In fact, a mere 8% of victims of sexual violence will report it to the Gardaí. Furthermore, the drop-off rate between reporting the assault and the trial is very high, higher in Ireland than in many other jurisdictions. Ms Blackwell highlighted the challenges that victims face right from the moment of reporting the assault. While some Gardaí are trained to deal with victims of sexual violence, others can be insensitive when a victim is reporting a sexual crime. This can immediately discourage the victim from continuing on the course towards a trial. Delay is also a massive issue in the criminal justice system, and Ms Blackwell spoke of the fact that it is very hard to move on from the abuse or assault when the victim still has the prospect of the trial hanging over her head. She noted that many complainants can wait for two or three years, or indeed longer in some cases, between reporting the crime and the trial eventually taking place, if indeed this even happens.

Ms Blackwell highlighted the prevalence of rape myths and victim-blaming attitudes among the public, and noted that this plays a large part in the drop-off rate after reporting. These myths need to be tackled by society at large, and she encouraged everyone in the room to do their bit to make this happen.

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Returning to the Belfast rugby rape trial, Ms Blackwell spoke of the strong sense that the complainant in the case was on her own in the courtroom. There were twelve experienced, expert lawyers on the defence team who worked as a group, which, as she noted, is of course well within the rights of the defendants. However, she questioned where the fairness was in putting the complainant in a position where she knew nothing other than her own statement and had no legal support. This led Ms Blackwell onto one of her key recommendations for improvements to the justice system to aid victims of rape and sexual assault. She recommended that the Gardaí and the DPP keep complainants properly informed as to the progress of the investigation and trial, and that the complainant should be able to speak to the prosecution barristers regarding her testimony at trial. This would not equate to coaching of complainants, as Ms Blackwell was keen to make clear, but would allow the complainant to tell her account of the events in the clearest way possible.

This is the right of the accused in a trial, and Ms Blackwell questioned why the complainant should not be entitled to the same right.

There was a lively questions and answers session at the end of the talk. Students questioned Ms Blackwell as to what more could be done on college campuses to reduce the prevalence of sexual assault and to increase reporting of it, and as to her knowledge of good practices that exist in other jurisdictions in rape and sexual assault trials. In response to this, Ms Blackwell highlighted the case of Scotland, where various measures have been put in place for vulnerable witnesses, especially younger people, and where there are protocols about level and nature of questioning that can occur. The range of questions showed the audience’s engagement with the topics that had been discussed and their interest in what Ms Blackwell had to say on the matter of sexual assault and rape cases in the Irish justice system.

By Caoilainn McDaid

A Layman’s View of FLAC As I don’t study law, my understanding of it doesn’t stretch much further than a list of things I can’t do, and a list of things I shouldn’t do, but do anyway. I hail from the Hamilton end of campus, so my semifrequent attendance of FLAC events is probably rather odd. However, FLAC gives me an opportunity to see topical socio-political matters through a lense that I’m unfamiliar with. One major thing FLAC’s guest speakers have taught me is that while culturally we are making huge progressive strides, that is not always reflected in our laws, which can often lag behind. You really don’t need to go very far back in history to come across some rather bonkers legislation, regarding for example, divorce, gay rights, abortion, or rape. This inertia is probably in part caused by our constitution which had a lot to say about many different things, and politicians’ fear of calling referendums to change it, as cultural progress has a habit of leaving the core voter base behind.

FLAC also enabled me to dabble in activism. It’s becoming increasingly clear that activism through a variety of methods will soon be, if it’s not already, the sole way for individuals to attempt to bring about political change here. We’ve already seen the power of large scale movements like Repeal and more recently the nurses strike. Going forward these movements will be more and more commonplace as we start to

realise our ballot papers are about as consequential as a counterfeit punt note. Our political system has stagnated under a confidence and supply agreement that operates with the veneer of avoiding the chaos of an election while our nearest neighbours attempts to gnaw its own arm off, simultaneously plunging us into the chaos of a half-baked parliament run by hacks who would struggle to organise a sesh in the Dáil bar, with no real political force to hold them accountable for endless acts of bare faced neglect of the most vulnerable members of society.

To meander back on topic, a great example of FLAC activism is the Sleepout. There are over 10,000 people homeless, no matter how many times they’ve been reclassified in order to escape the official statistics.

Every year FLAC sleep out near front arch to raise both awareness and money for the Peter McVerry Trust. I hope that as other students left campus for the night and saw people their age at front arch in sleeping bags it at least got them thinking about the issue of homelessness and got some of them donating. Highlighting these issues is a crucial task, as the media has a habit of sweeping them away as quickly as they bring them up. FLAC is one of those positive forces on campus, that doesn’t need to rely on the promises of cans to prompt student involvement, looks out for the most vulnerable among us and provides genuinely interesting discussions, even for people who have no idea what jury prudence means.

By Eoin Roche

The Eagle Gazette Volume 5 Issue 2 · 21

Annual Law Ball: Review The annual TCD Law Society Ball, the highlight of many Law students’ social calendar, was held on February 5th in the Knightsbrook Hotel in Meath.

Generously sponsored by Maples law firm, it was a night of glitz and glamour, worth every penny of the €50 ticket price- and every minute of the crippling post-ball Fear the next day.

With the Knightsbrook Hotel situated just off the M50, the bus journey from Trinity to the hotel took roughly an hour, meaning everyone arrived to the venue (relatively) fresh and eager to start the night. A prosecco reception on arrival was the perfect prelude to the main event: the three-course meal. After being shown to the ballroom, a starter of vegetable soup was served, followed by turkey and ham Christmas Dinner 2.0. Dessert was meringue and there were three bottles of wine per table to wash everything down. The awards (some perhaps more dubious than others) began after the meal, with Hugh Fitzgibbon hilariously presenting the awards with a few witty comments and opinions of his own.

With the awards over, it was on to the dancing.

The Bentley Boys provided live music for the first portion of the evening and they had everyone on the dancefloor in no time with their amazing covers of some of the best dancefloor-fillers. Playing long into the night, a DJ eventually took over and the music moved firmly into techno territory. Whilst the music was undoubtedly the star attraction of the night, a special mention must go to the photobooth, which provided yet another source of entertainment as people queued to take pictures they would (probably) not like quite as much the following morning.

All good things must come to an end, however, and for those that had not booked a room in the hotel, buses arrived at 2.30am to take some rather worse-for-wear students back to Trinity. Overall, I think it is fair to say that Law Ball 2019 was worth every second of the sore heads, sick stomachs and hangover-induced Fear the following day. Only another 11 months until Law Ball 2020!

By Kate Nolan

Barbri International Talk on Qualifying as a U.S Attorney: Review On Thursday, February 21st, Trinity FLAC welcomed Noeline Blackwell to give a talk on the experience of victims of rape and sexual assault in the Irish justice system. Ms Blackwell is the Chief Executive of the Dublin Rape Crisis Centre, and previously worked as the Director of FLAC. This was a very topical event, given the prominence of the #MeToo movement in recent years, the ‘Belfast rugby rape trial’ that gained considerable attention last year, and the growing concern with how the justice system handles cases of rape and sexual assault.

Ms Blackwell started her talk by discussing the recent highly-publicised rape case brought against four famous Irish rugby players. This trial, she noted, convulsed us as a people. It was a trial about which everyone had something to say. She commented that, whatever about the trial and the verdict itself, the WhatsApp messages sent by the accused showed that there is a more general problem with some young men treating women as objects. Something must be done about this abhorrent approach, she argued.

On a broader note, Ms Blackwell highlighted the disparity between the rights of the accused and the rights of the victim in the criminal trial process.

While this has seen an improvement in recent years, she noted that there are still huge steps to be made before victims of rape and sexual assault are treated in a way that ensures access to justice for all.

Ms Blackwell spoke on the definition of both rape and sexual assault which is used in Irish courtrooms.

Sex without consent is rape, and sexual activity without consent is sexual assault. A person consents when he or she freely and voluntarily agrees to engage in that act. Ms Blackwell drew attention to the fact that this description forms the basis of the definition of rape and sexual assault in just eight European states, among them the UK and Ireland.

Other countries are only inching towards a nonconsensual understanding of rape, she noted, with physical force being necessary to prove rape in a large number of jurisdictions.

Most victims of rape and sexual assault do not report the crime. In fact, a mere 8% of victims of sexual violence will report it to the Gardaí. Furthermore, the drop-off rate between reporting the assault and the trial is very high, higher in Ireland than in many

22 · The Eagle Gazette Volume 5 Issue 2

other jurisdictions. Ms Blackwell highlighted the challenges that victims face right from the moment of reporting the assault. While some Gardaí are trained to deal with victims of sexual violence, others can be insensitive when a victim is reporting a sexual crime. This can immediately discourage the victim from continuing on the course towards a trial. Delay is also a massive issue in the criminal justice system, and Ms Blackwell spoke of the fact that it is very hard to move on from the abuse or assault when the victim still has the prospect of the trial hanging over her head. She noted that many complainants can wait for two or three years, or indeed longer in some cases, between reporting the crime and the trial eventually taking place, if indeed this even happens.

this, Ms Blackwell highlighted the case of Scotland, where various measures have been put in place for vulnerable witnesses, especially younger people, and where there are protocols about level and nature of questioning that can occur. The range of questions showed the audience’s engagement with the topics that had been discussed and their interest in what Ms Blackwell had to say on the matter of sexual assault and rape cases in the Irish justice system.

By Lucy Mockler

Ms Blackwell highlighted the prevalence of rape myths and victim-blaming attitudes among the public, and noted that this plays a large part in the drop-off rate after reporting. These myths need to be tackled by society at large, and she encouraged everyone in the room to do their bit to make this happen.

Returning to the Belfast rugby rape trial, Ms Blackwell spoke of the strong sense that the complainant in the case was on her own in the courtroom. There were twelve experienced, expert lawyers on the defence team who worked as a group, which, as she noted, is of course well within the rights of the defendants. However, she questioned where the fairness was in putting the complainant in a position where she knew nothing other than her own statement and had no legal support. This led Ms Blackwell onto one of her key recommendations for improvements to the justice system to aid victims of rape and sexual assault. She recommended that the Gardaí and the DPP keep complainants properly informed as to the progress of the investigation and trial, and that the complainant should be able to speak to the prosecution barristers regarding her testimony at trial. This would not equate to coaching of complainants, as Ms Blackwell was keen to make clear, but would allow the complainant to tell her account of the events in the clearest way possible.

This is the right of the accused in a trial, and Ms Blackwell questioned why the complainant should not be entitled to the same right.

There was a lively questions and answers session at the end of the talk. Students questioned Ms Blackwell as to what more could be done on college campuses to reduce the prevalence of sexual assault and to increase reporting of it, and as to her knowledge of good practices that exist in other jurisdictions in rape and sexual assault trials. In response to The Eagle Gazette Volume 5 Issue 2 · 23

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The Eagle: Trinity Law Gazette Volume 5, Issue 2 28 · The Eagle Gazette Volume 5 Issue 2