The Hitch Hiker's Guide to the New United Nations Human Rights Council

(2007) 10 Flinders Journal of Law Refrm 241

The United Nations established the Commission on Human Rights in 1946, to protect and promote human rights but, the history of the last 60 years, demonstrates all too clearly that this body has failed in its aims. Words like 'Rwanda', 'Darfur', 'Srebrenica', 'Abu Ghraib', and 'Pinochet' immediatelty evoke images of grave human rights abuses that the Commission failed to respond to. It was the Commission's failures which motivated the UN General Assembly to pass a historic resolution on 15 March 2006, dismantling the Commission and replacing it with a new body - the Human Rights Council. This abolition of the Commission and creation of the Council is, without doubt, one of the most significant reforms regarding the way in which human rights are promoted and protected, within the history of the UN.

This article considers why there was a need for such dramatic change and, the exact nature and extent of the change. It provides an overview of the reforms by examining five specific aspects of the Commission that were widely criticised, namely: its membership and size; the complaint processes; the abuse of the no-action procedure; the role of non-governmental organisations; and the operation of special procedures.

“Human Rights in Ireland 2007”

Mullally, S. & Allain, J. (eds.) [2008] Irish Yearbook of International Law 2007 175

“Human Rights in Ireland 2006”

Mullally, S. & Allain, J. (eds.) [2007] Irish Yearbook of International Law 2006,  313 (with De Londras, F., O’Donovan, D. &  Mullally, S.)

Internet Filtering: Rhetoric, Legitimacy, Accountability and Responsibility

Co-authored with Prof. Colin Scott. Published in Brownsword, R. and Yeung, K., Regulating Technologies (Oxford: Hart Publishing, 2008)

This paper argues that the automatic and opaque nature of internet filtering, together with the fact that it is generally implemented by intermediaries, raises new problems for the law and in particular may tend to undermine aspects of freedom of expression.

The paper starts by challenging the rhetoric underlying the use of the term “filtering” and suggests that the use of other terms such as "blocking" or "censorware" may be more appropriate.

It then considers where filtering fits into the modalities of governance and the resulting issues of legitimacy and accountability. As regards legitimacy it argues that the use of technology to exert control over internet speech frequently undermines aspects of the rule of law concerning both the process for and content of norms governing behaviour. In relation to accountability, the paper argues that where it is not clear what is being blocked, why, or by whom, the operation of mechanisms of accountability – whether by way of judicial review, media scrutiny, or otherwise – is greatly reduced.

Finally the paper suggests that, as compared with control through legal instruments, filtering may rob users of moral agency or responsibility in their use of the internet, with the implication that they may freely do whatever it is technically possible to do, with no necessity of moral engagement in their activities.

Alienated Radicals and Detached Deviants: What do the lessons of the 1970 Falls Curfew and the alienation-radicalisation hypothesis mean for current British approaches to counter-terrorism?

published in 'Policy Studies', 2009

British counter-terrorism policy-makers are at the centre of two inherently problematic debates. First, there is the debate regarding the worthiness of incorporating theoretical and historical discussions into the policy-making process, and second, there is the discourse surrounding the nature of alienation and how this affects counter-terrorism as a whole. This article seeks to demonstrate how the empirical base provided by theoretical and historical discussions is not only of benefit to but also a necessity in the policy-making process. Although critical theoretical discussions and 'problem-solving' techniques may appear to be polar opposites, the observations of theorists such as Dryzek (1987) suggest that in reality the two approaches are often interdependent. Comparing the alienation-radicalisation hypothesis with the 1970 Falls Curfew, this discussion suggests that current approaches to counter-terrorism need to take into account the radicalising affect of alienation both for communities and for state forces. By learning the lessons of the Falls Curfew, we can see that making communities the focus of counter-terrorist initiatives is not enough and that there needs to be a partnership process between state and non-state actors. Looking at the Curfew through this framework, this article critiques current counter-terrorist policies and shows that if integration is the ultimate aim of these policies then it needs to come from both sides that and discussions of counter-terrorism, both academic and political, need to recognise this.

Collateral Challenges to a Declaration of Unconstitutionality: A v Gov of Arbour Hill Prison

(2006) Irish Student Law Review

A Comparative Assessment of the Supreme Court and House of Lords in the War on Terror

Draft only

The period since the terrorist attacks of September 11, 2001 has witnessed the implementation of aggressive counterterrorism measures around much of the Western world. This is exemplified by the two jurisdictions with which this paper is concerned: the United States and the United Kingdom. Since 9/11, both states have, for example, detained terrorist suspects indefinitely without trial, and created a plethora of new counterterrorism laws. These measures raise questions about the appropriate boundaries of state power and have serious implications for individual liberty. As affected individuals have sought to challenge the legality of their treatment, the United States Supreme Court and the House of Lords, the highest courts in their respective jurisdictions, have been forced to grapple with these difficult issues.

This paper is an attempt to situate the major decisions of the Supreme Court and the House of Lords concerning aspects of the war on terror in the historical context of judicial behaviour in times of war. The conventional account of judicial behaviour during such times posits that courts are ineffective guarantors of individual liberty because they inevitably defer to executive claims of national security. Only after the period of war has passed do the courts re-assert themselves, resulting in a cyclical pattern of contraction and expansion of liberty.

How do the relevant post-9/11 decisions of the Supreme Court and House of Lords fit within this pattern, if at all? This paper considers five possible ways of understanding the relevant decisions in light of the conventional account of judicial behaviour described above. First, the conventional account may simply be incorrect or incomplete. Second, the decisions of the Supreme Court and House of Lords post-9/11 may represent a break in the historical pattern of judicial deference in times of war. The three other explanations are consistent with the conventional account. First, these cases may be sufficiently remote in time from the relevant events such that courts feel confident in reasserting their authority. Second, the courts may view the current war on terror as being in some way qualitatively different from traditional war. The final explanation is that the relevant post-9/11 decisions may have had less impact than first thought, and as such, ultimately represent a form of disguised deference consistent with the conventional account of judicial behaviour in times of war.

Two Narratives of Torture

Published in Northwestern University Journal of International Human Rights, Vol. 7, No. 1, p. 35, 2009

This article is about two different narratives or accounts of torture. Each narrative signifies a certain view about the legality and wisdom of employing torture and coercion in interrogation. Since the terrorist attacks of September 11, 2001, the use of torture and coercion has become a topic of genuine debate, despite a sizable corpus of domestic and international law prohibiting those very practices.

The first narrative of torture is centered on the ticking bomb scenario, the hypothetical that has frequently been deployed in the academic arena to overcome the absolutist nature of the legal prohibition on torture. Since 9/11, the ticking bomb scenario has also appeared in various official government documents and statements that assert the legality of torture and coercive interrogation techniques. It has also been replicated in popular culture, the most notable example being Fox's counterterrorism drama, 24.

A second narrative of torture challenges the validity and usefulness of the ticking bomb scenario. Various academic commentators have unpacked the assumptions underlying the scenario. Certain government actors, most notably the Federal Bureau of Investigation and military lawyers, have consistently rejected the logic of the ticking bomb scenario, and opposed the use of torture and coercion in interrogation. This second narrative also has a popular culture representative in the form of Sci-Fi Channel's Battlestar Galactica. Thus, the same battles that have been fought over the treatment of detainees in the "war on terror" in the legal and political arenas by real world actors since 9/11 are also being fought at a discursive level in popular culture.

The Rise and Spread of the Special Advocate

Published in Public Law, pp. 717-741, 2008

This article critically examines the special advocate procedure, a means devised to reconcile the use of secret evidence with principles of due process or natural justice. The special advocate is a lawyer who is appointed to represent the interests of a person during proceedings in which the state relies on sensitive material that cannot be disclosed to that person.

The article traces the origins of the idea of the special advocate procedure, its establishment in the United Kingdom, and its eventual spread to Canada and New Zealand. It then considers: (1) whether special advocates can be effective in ensuring fairness, given the constraints under which they operate; and (2) whether other issues related to their increased use militate against wider adoption.

Comparative Perspectives on the Detention of Terrorist Suspects

Published in Transnational Law & Contemporary Problems, Vol. 16, p. 773, 2007

The detention of terrorist suspects by the United States at various locations around the world, most notably Guantanamo Bay Naval Base, is one of the most obvious results of the war on terror. The detention of terrorist suspects at Guantanamo is an example of detention outside the criminal justice paradigm. The United States, however, is not alone in doing this.

This article examines the different approaches taken by the United States, the United Kingdom, Canada and New Zealand in relation to the detention of terrorist suspects. Whereas the United States detains terrorist suspects using a detention model that selectively utilises law of war concepts, the other jurisdictions surveyed employ a model based on immigration law. Both models permit detention with fewer due process protections. Both models have, in practice, also resulted in the differential treatment of foreign terrorist suspects. The article concludes by discussing how the courts in each jurisdiction have dealt with the cases concerning the detention of terrorist suspects.

Abolishing Marriage - Can Civil Partnership Cover it?

Liverpool Law Review. Volume 30, Issue1 (2009), Page 1

This paper argues that all adult intimate relationships should be regulated under one single statute. This statute should be the Civil Partnership Act 2004 (which currently applies to same sex couples). The Matrimonial Causes Act 1973 (which applies to opposite sex couples), should be repealed; it should not be amended to include same sex couples. There would, as a consequence, be no such thing as (legal) marriage. Marriage as a legal construct is a heterosexual and patriarchal institution and is therefore so fundamentally flawed it is beyond the possibility of successful reform or repair. The present system of having two distinct legal means of relationship recognition is akin to sexual apartheid and is therefore unsustainable in the long term. Having a legal system which recognises only one form of legal partnership would therefore formally end a discriminatory system. Despite its drawbacks, Civil Partnership does not have the same extent of symbolic and practical degree of flaws as Marriage.

Legitimacy and Non-State Political Violence

Published in the 'Journal of Political Philosophy', 2009 (early online).

Regulatory Crime: History, Functions, Problems, Solutions

Revised version is to appear in an edited volume on crime and regulation

This paper offers a response to concerns that have been expressed in Ireland about the growth in the use of criminal law as an instrument for empowering state agencies to investigate and prosecute breaches of regulatory rules. The criticism appears to be concerned not only with the diffuse enforcement of regulatory crime but also with the risks to the essential character of criminal law associated with the growth of strict liability offences. I argue in the paper that diffuse criminal law enforcement goes back many centuries and pre-dates modern attempts to centralise the enforcement of crimes against person and property in the office of the Director of Public Prosecution. Similarly the emphasis on the mental element in contemporary criminal law is relatively modern. This argument does not take away from real concerns that the bifurcation of criminal law between ‘regulatory’ and ‘real’ crime creates problems. I discuss the potential for greater use of administrative penalties for breaches of regulatory rules, but conclude that such an approach is never likely to offer a complete solution to enforcement within regulatory regimes. Whatever may happen with the development of administrative penalties we are likely to be stuck with the presence of a range of serious strict liability offences, policed by specialized agencies. Accordingly a richer mutual understanding of the traditional and regulatory worlds of criminal law will be required.

A Cultural Analysis of Administrative Justice

Co-authored with Simon Halliday, a revised version of this paper will appear in a volume edited by Mike Adler entitled Administrative Justice in Context (Hart Publishing, 2010)

n recent years we have seen rapid change in the organisation of public management. Various developments, sometimes captured in the notion of the ‘new public management’, have significantly altered the character of public administration. This presents quite a challenge for theorists of administrative justice. The values and processes which infuse new public management sit in some tension with traditional conceptions of administrative justice, particularly within legal theory. To what extent should the concept be extended to embrace these real-world developments? Further, is there more to be said about administrative justice than is not captured by existing theory, even including a focus on new public management? These questions form the background to this article in which we develop a typology of administrative justice – an analytical framework which captures the variations in how ‘administrative justice’ might be conceived. Our analysis re-works the typologies of Mashaw, Adler and Kagan and places them in a wider framework developed from grid-group cultural theory. The analysis also draws attention to conceptions of administrative justice not previously discussed in the literature: decision-making by lottery, and decision-making by consensus.

Choice, Culture and the Politics of Belonging: The Emerging Law of Forced and Arranged Marriage

Modern Law Review, 2009

The article discusses recent legal and policy initiatives aimed at preventing forced marriage, placing them in the broader context of the exclusionary governance of British Muslim cultural difference. It argues that forced marriage is understood almost entirely as a product of cultural difference. Thus, attempts to prevent forced marriage focus on the control of cultural pressures at the point of marriage. This near-exclusive focus on culture has two consequences for women. First, inadequate attention is paid to the social and economic problems which intersect with and aggravate cultural factors restricting women's marital choice. Second, this problematisation of culture has generated paternalistic legislation with the consequence that young women who wish to follow cultural practice and fully consent to an arranged marriage may be prevented from marrying as they choose.

Ordering Things: Classifying Agencies to Understand the Changing Structure of the Central State

Co-authored with Niamh Hardiman, UCD Geary Institute Working Paper