What Human Rights Law Could Do: Lamenting the Absence of an International Human Rights Law Approach in Boumediene & Al Odah

In December 2007 the U.S. Supreme Court heard oral arguments in its latest Guantánamo Bay cases, Boumediene v. BushandAl Odah v. United States.Interestingly, the argumentation offered in this litigation was almost exclusively domestic—international human rights law did not feature in spite of its capacity to add significantly to the weight and persuasiveness of the arguments petitioners' In respect of both the geographic scope and the content of constitutional standards, international human rights law has a well-developed body of jurisprudence that, this Article argues, ought to have been advanced by counsel for the petitioners. This Article both exposes the potentially significant international human rights law arguments that could have been advanced, and explores some possible reasons for the marginalization of this body of law. The Article concludes that this strategic decision on the part of counsel for the petitioners robbed the U.S. Supreme Court of an opportunity to assert the relevance of human rights law to the “War on Terrorism,” and to expand on the relationship between international and domestic constitutional standards and, for those reasons, is to be lamented.</jats:p

Neither Herald nor Fanfare: the Limited Impact of the ECHR Act 2003 on Rights Infrastructure in Ireland

With neither herald nor fanfare, the European Convention on Human Rights Act 2003 entered into force on 31 December 2003 and so, after decades of discussion, the European Convention on Human Rights had become transposed into Irish law and capable of use—through the prism of the Act—in domestic litigation. It is well known that the Act has had nothing close to the impact of its close cousin the Human Rights Act 1998 in the United Kingdom. Nor has it attracted the vitriol and political attention directed to that Act. Rather it has slid quietly and somewhat unspectacularly onto the statute books and into the legal system. More than ten years after it came into force it is opportune to ask what, if any, impact the European Convention on Human Rights Act 2003 has actually had in Ireland

The new sovereigntism: what it means for human rights law in the UK

Brexit relates to a new sovereigntism that has alarming implications for the rule of law, argues Fiona de Londras (University of Birmingham). Although the European Convention on Human Rights is not an EU law - and therefore unaffected by leaving - there are striking parallels between pro-Brexit and anti-ECHR arguments. The prisoner voting saga is one area where Westminster has decided ..

Repeal the 8th amendment to allow abortion in Ireland – this constitutional experiment has failed

On 25 May, the Republic of Ireland votes in a referendum to decide whether to repeal the 8th amendment of its constitution, which effectively outlaws abortion. Fiona de Londras explains how the 8th amendment works, and what the proposed legal changes are

Constitutionalizing Fetal Rights: A Salutary Tale from Ireland

In 1983, Ireland became the first country in the world to constitutionalize fetal rights. The 8th Amendment to the Constitution, passed by a referendum of the People, resulted in constitutional protection for “the right to life of the unborn,” which was deemed “equal” to the right to life of the “mother.” Since then, enshrining fetal rights in constitutions and in legislation has emerged as a key part of anti-abortion campaigning. This Article traces the constitutionalization of fetal rights in Ireland and its implications for law, politics, and women. In so doing, it provides a salutary tale of such an approach. More than thirty years after the 8th Amendment, it has become clear that Ireland now has an abortion law regime that is essentially “unliveable.” Not only that, but it has a body of jurisprudence so deeply determined by a constitutionalized fetal-rights orientation that law, politics, and medical practice are deeply impacted and strikingly constrained. This is notwithstanding the clear hardship women in Ireland experience as a result of constitutionalized fetal rights and the resultant almost-total prohibition on accessing abortion in Ireland. This Article argues that, wherever one stands on the question of whether legal abortion ought to be broadly available in a particular jurisdiction, constitutionalizing fetal rights leaves no meaningful space for judgment at either political or personal levels. Furthermore, constitutionalizing fetal rights can have unforeseen implications across jurisprudence and medical practice, creating a situation in which there is essentially no space for more liberal interpretations that respect women’s reproductive autonomy. While this may be desirable from an ideological perspective for those who hold a firm anti-abortion position, it is distinctively problematic for women and for politics

Can counter-terrorist internment ever be legitimate?

Counter-terrorist internment is generally rejected as illegitimate from a human rights perspective. However, while the practice of counter-terrorist internment has long resulted in the infringement of human rights, this article argues that the concept of internment holds some potential for legitimacy. This potential can only be realized if four legitimacy factors are fully embraced and complied with: public justificatory deliberation, non-discrimination, meaningful review, and effective temporal limitation. Outlining these factors, this article imagines a system of internment that is legitimate from a human rights perspective and can serve both real and pressing security needs, and rights-based legitimacy needs