Papers by Aisling O'Sullivan
Irish Studies in International Affairs, 2018
The Ireland v United Kingdom case concerns the treatment of detainees by British security forces ... more The Ireland v United Kingdom case concerns the treatment of detainees by British security forces in Northern Ireland and the implementation of internment or detention without trial, introduced in Northern Ireland in 1971. By reading human rights ‘as a language’ and ‘an endless semantic battlefield’, we explore how the Irish Government in the Ireland v United Kingdom case sought to use the European Convention of Human Rights strategically to secure its own political assessment towards internment and the controversial interrogation methods as a legal outcome before a regional human rights institution. In this sense, the Irish legal team re-described and reframed the Irish Government’s political position on the use of internment and of interrogation methods in the language of Convention and according to concepts developed within the European Commission of Human Rights jurisprudence. We focus on two strategic moves that the Irish legal team pursued at the admissibility and merits stages of the European Commission of Human Rights proceedings, namely, submitting a wider range of allegations, alongside article 3 allegations, as an administrative practice and advocating for the hearing of expert testimony on the use of the interrogation methods (the ‘five techniques’). We explore these strategic moves in order to illustrate the semantic battlefield in operation and the potential limits of the strategic use of human rights as a language.
Irish Jurist, 2015
Brian Simpson argued that any general explanation for why states accede to international humanita... more Brian Simpson argued that any general explanation for why states accede to international humanitarian treaties can only be valuable if based empirical case studies. His meticulous study of the British Government papers on the Genocide Convention reveal the “hidden practices” behind the British Government’s time lag in acceding to the Genocide Convention, a treaty negotiated only a few years after British involvement in the Trial of the Major War Criminals, better known as the Nuremberg Trials. As Carty notes, political events involve a powerful blend of counter-positions and political spin and consequently, given the rhetoric used by states, the hidden practices are challenging to deduce or construct as they are ‘largely secret and one obtains only sporadic glimpses of [them]’.Therefore, studies on contemporaneous state conduct are hampered by the very fact that the events are ongoing. However, when state archives reveal those hidden practices, they permit wonderfully rich empirical studies of state conduct during critical historical moments.
Inspired by Simpson’s investigation, this paper provides an empirical case study of Irish Government papers on the Genocide Convention. Its purpose is to investigate why Ireland delayed accession to the Genocide Convention for over two decades, why the Irish Cabinet eventually decided to accede in 1968 and why there was a continuing delay until ratification in 1976. It demonstrates how each of the critical elements, identified in Simpson’s study, varies in significance in the Irish case study. Here, in contrast to their British counterparts, Irish Government departments were more cohesive on issues of doctrinal law and on their political analysis of the Convention. Status-oriented concerns were acutely influential for External Affairs and over time, its officials persuaded Justice and the Attorney General’s Office that Ireland’s standing within regional and global communities was critical and dependent on a more positive human rights treaty image. Although domestic pressure among Irish parliamentarians and NGOs was very limited until the early 1970s, it provided Foreign Affairs with useful incentive for in their deliberations with other departments. Finally, similar to the British engagement, bureaucracy, political leadership and doctrinal law were all significant factors.
International Journal of Human Rights, 2009
This paper examines the recent Irish High Court case of Zappone and Gilligan v. Revenue Commissio... more This paper examines the recent Irish High Court case of Zappone and Gilligan v. Revenue Commissioners and others, a challenge to the constitutionality of the state’s interpretation of the Irish Tax Code vis-à-vis the foreign marriage of a same-sex couple and their right to marry each other under Irish law. The right to marry and the nature of marriage are undefined in the Irish Constitution. Thus, a progressive interpretation may take into account contemporary knowledge of sexuality and sexual orientation and norms of equality and non-discrimination. This paper also discusses the ‘living document’ approach to constitutional interpretation and argues that the High Court misapplied the methodology of Supreme Court Justice Murray in Sinnott v. Minister for Education, which may offer the means to interpreting the Irish Constitution as protecting the right to marry another person of the same sex.
Irish Yearbook of International Law, 2007
This paper, which has been prepared as part of a larger research project, examines the deliberati... more This paper, which has been prepared as part of a larger research project, examines the deliberations of the Irish Government from the time internment in Northern Ireland was introduced, on 9 August 1971, to the submission of the application by the Irish government on 16 December of that year. It considers how the decision to submit an application to the European Commission of Human Rights became an increasing inevitability; and appears to have been recognised as such by British Prime Minister Edward Heath. With the decision of the British Government to establish the Compton Committee, in September 1971, the arena turned to bilateral consultations between Taoiseach (Prime Minister) Jack Lynch and British Prime Minister Edward Heath. When these broke down, the Irish Government let Heath know it was ‘seriously considering’ submitting an inter-State application. A final decision was taken by the Irish Cabinet on 30 November 1971 and the filed two weeks later.
Nottingham Law Journal, 2006
This paper focuses on the various references to natural law within the Irish Constitution and the... more This paper focuses on the various references to natural law within the Irish Constitution and the use of natural law theory as an interpretative tool within Irish constitutional jurisprudence. In Part I, the background to the drafting of the Irish Constitution will be discussed, followed by an account of the various canons of constitutional review and modes of constitutional interpretation. In Part II, the conflicting constitutional jurisprudence on the relationship between the Constitution and natural law will be dissected.
Books by Aisling O'Sullivan
Routledge, 2018
The debate that envelops the principle of universal jurisdiction draws out a ‘dark side’ of the i... more The debate that envelops the principle of universal jurisdiction draws out a ‘dark side’ of the international criminal law project. This remark refers to the fact that the commitment by the international community to individual criminal accountability as universal has not produced its corollary, the ‘court of humanity’ that will never adjourn. Rather, the debate on universal jurisdiction illustrates a swing between the projects of preventing impunity and of avoiding abuse. Theoretically, universal jurisdiction endeavours to fill a jurisdictional lacuna and therefore is considered as an essential complementary mechanism for accountability. At the same time, there is a significant emphasis on avoiding the principle’s ‘manipulation for political ends’ and the need for compliance with recognized rules of international law.
Disrupting the notion of international law as located within a fixed political culture underpins the approach this chapter will take when examining the contentious debate on the concept of universal jurisdiction in absentia. This debate concerns a controversy over whether the alleged offender must be voluntarily present within the territory of the prosecuting state in order to justify exercising jurisdiction over the accused. In particular, this chapter draws on the themes of indeterminacy and hegemonic technique as developed in Martti Koskenniemi’s work and therefore, this chapter addresses the debate as bounded by a tension between competing political preferences labelled moralist (fight impunity) and formalist (avoiding abuse). This illustrates the competing logics as overarching themes at surface level.
The moralist approach challenges what its proponents perceive as the injustice of impunity, privileging the moral value of criminal accountability, while champions of the formalist approach challenge what they believe is the injustice of politically motivated or show trials, privileging the moral value of maintaining order. As we observe, indeterminacy illustrates how both moralist/formalist logics are in each approach and in this sense, merge into one another. A moralist approach that privileges the moral naturalism of the crimes (normativity) is considered simultaneously to be concrete (consent to extraterritorial jurisdiction) while a formalist approach that privileges consent to extraterritorial jurisdiction (concreteness) is considered normative (avoid arbitrary and unfettered state interference).
In this chapter I primarily investigate the separate and dissenting opinions in the Arrest Warrant case on the question of universal jurisdiction in absentia in order to draw out the descending (more normative, less concrete) and ascending (more concrete, less normative) patterns of argument within each opinion and to identify the hegemonic and counter-hegemonic positions in the pre- and post-Arrest Warrant debate. I observe how Van den Wyngaert, Guillaume and the Joint Separate Opinion are archetypal of the competing moralist and formalist approaches and the move to the “middle ground” with recourse to reasonableness. It is evident that this debate on in absentia trials is caught within the tension between the moralist (fighting impunity) and formalist (avoiding abuse) approaches that underpin a broader debate on the principle’s justification and content. As will be observed, this struggle for hegemonic control illustrates how each legal outcome within the debate is not ‘natural’ and ‘inevitable’. Rather it is a series of strategic moves that are historically contingent and accord with structural bias.
Routledge, 2017
With the sensational arrest of former Chilean dictator Augusto Pinochet in 1998, the rise to prom... more With the sensational arrest of former Chilean dictator Augusto Pinochet in 1998, the rise to prominence of universal jurisdiction over crimes against international law seemed to be assured. The arrest of Pinochet and the ensuing proceedings before the UK courts brought universal jurisdiction into the foreground of the "fight against impunity" and the principle was read as an important complementary mechanism for international justice –one that could offer justice to victims denied an avenue by the limited jurisdiction of international criminal tribunals. Yet by the time of the International Court of Justice’s Arrest Warrant judgment four years later, the picture looked much bleaker and the principle was being read as a potential tool for politically motivated trials.
This book explores the debate over universal jurisdiction in international criminal law, aiming to unpack a practice in which international lawyers continue to disagree over the concept of universal jurisdiction. Using Martti Koskenniemi’s work as a foil, this book exposes the argumentative techniques in operation in national and international adjudication since the 1990s. Drawing on overarching patterns within the debate, Aisling O’Sullivan argues that it is bounded by a tension between contrasting political preferences or positions, labelled as moralist ("ending impunity") and formalist ("avoiding abuse") and she reads the debate as a movement of hegemonic and counter-hegemonic positions that struggle for hegemonic control. However, she draws out how these positions (moralist/formalist) merge into one another and this produces a tendency towards a “middle” position that continues to prefer a particular preference (moralist or formalist). Aisling O’Sullivan then traces the transformation towards this tendency that reflects an internal split among international lawyers between building a utopia (“court of humanity”) and recognizing its impossibility of being realized.
Routledge, 2010
This book chapter examines the recent Irish High Court case of Zappone and Gilligan v. Revenue Co... more This book chapter examines the recent Irish High Court case of Zappone and Gilligan v. Revenue Commissioners and others, a challenge to the constitutionality of the state’s interpretation of the Irish Tax Code vis-à-vis the foreign marriage of a same-sex couple and their right to marry each other under Irish law. The right to marry and the nature of marriage are undefined in the Irish Constitution. Thus, a progressive interpretation may take into account contemporary knowledge of sexuality and sexual orientation and norms of equality and non-discrimination. This paper also discusses the ‘living document’ approach to constitutional interpretation and argues that the High Court misapplied the methodology of Supreme Court Justice Murray in Sinnott v. Minister for Education, which may offer the means to interpreting the Irish Constitution as protecting the right to marry another person of the same sex.
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Papers by Aisling O'Sullivan
Inspired by Simpson’s investigation, this paper provides an empirical case study of Irish Government papers on the Genocide Convention. Its purpose is to investigate why Ireland delayed accession to the Genocide Convention for over two decades, why the Irish Cabinet eventually decided to accede in 1968 and why there was a continuing delay until ratification in 1976. It demonstrates how each of the critical elements, identified in Simpson’s study, varies in significance in the Irish case study. Here, in contrast to their British counterparts, Irish Government departments were more cohesive on issues of doctrinal law and on their political analysis of the Convention. Status-oriented concerns were acutely influential for External Affairs and over time, its officials persuaded Justice and the Attorney General’s Office that Ireland’s standing within regional and global communities was critical and dependent on a more positive human rights treaty image. Although domestic pressure among Irish parliamentarians and NGOs was very limited until the early 1970s, it provided Foreign Affairs with useful incentive for in their deliberations with other departments. Finally, similar to the British engagement, bureaucracy, political leadership and doctrinal law were all significant factors.
Books by Aisling O'Sullivan
Disrupting the notion of international law as located within a fixed political culture underpins the approach this chapter will take when examining the contentious debate on the concept of universal jurisdiction in absentia. This debate concerns a controversy over whether the alleged offender must be voluntarily present within the territory of the prosecuting state in order to justify exercising jurisdiction over the accused. In particular, this chapter draws on the themes of indeterminacy and hegemonic technique as developed in Martti Koskenniemi’s work and therefore, this chapter addresses the debate as bounded by a tension between competing political preferences labelled moralist (fight impunity) and formalist (avoiding abuse). This illustrates the competing logics as overarching themes at surface level.
The moralist approach challenges what its proponents perceive as the injustice of impunity, privileging the moral value of criminal accountability, while champions of the formalist approach challenge what they believe is the injustice of politically motivated or show trials, privileging the moral value of maintaining order. As we observe, indeterminacy illustrates how both moralist/formalist logics are in each approach and in this sense, merge into one another. A moralist approach that privileges the moral naturalism of the crimes (normativity) is considered simultaneously to be concrete (consent to extraterritorial jurisdiction) while a formalist approach that privileges consent to extraterritorial jurisdiction (concreteness) is considered normative (avoid arbitrary and unfettered state interference).
In this chapter I primarily investigate the separate and dissenting opinions in the Arrest Warrant case on the question of universal jurisdiction in absentia in order to draw out the descending (more normative, less concrete) and ascending (more concrete, less normative) patterns of argument within each opinion and to identify the hegemonic and counter-hegemonic positions in the pre- and post-Arrest Warrant debate. I observe how Van den Wyngaert, Guillaume and the Joint Separate Opinion are archetypal of the competing moralist and formalist approaches and the move to the “middle ground” with recourse to reasonableness. It is evident that this debate on in absentia trials is caught within the tension between the moralist (fighting impunity) and formalist (avoiding abuse) approaches that underpin a broader debate on the principle’s justification and content. As will be observed, this struggle for hegemonic control illustrates how each legal outcome within the debate is not ‘natural’ and ‘inevitable’. Rather it is a series of strategic moves that are historically contingent and accord with structural bias.
This book explores the debate over universal jurisdiction in international criminal law, aiming to unpack a practice in which international lawyers continue to disagree over the concept of universal jurisdiction. Using Martti Koskenniemi’s work as a foil, this book exposes the argumentative techniques in operation in national and international adjudication since the 1990s. Drawing on overarching patterns within the debate, Aisling O’Sullivan argues that it is bounded by a tension between contrasting political preferences or positions, labelled as moralist ("ending impunity") and formalist ("avoiding abuse") and she reads the debate as a movement of hegemonic and counter-hegemonic positions that struggle for hegemonic control. However, she draws out how these positions (moralist/formalist) merge into one another and this produces a tendency towards a “middle” position that continues to prefer a particular preference (moralist or formalist). Aisling O’Sullivan then traces the transformation towards this tendency that reflects an internal split among international lawyers between building a utopia (“court of humanity”) and recognizing its impossibility of being realized.
Inspired by Simpson’s investigation, this paper provides an empirical case study of Irish Government papers on the Genocide Convention. Its purpose is to investigate why Ireland delayed accession to the Genocide Convention for over two decades, why the Irish Cabinet eventually decided to accede in 1968 and why there was a continuing delay until ratification in 1976. It demonstrates how each of the critical elements, identified in Simpson’s study, varies in significance in the Irish case study. Here, in contrast to their British counterparts, Irish Government departments were more cohesive on issues of doctrinal law and on their political analysis of the Convention. Status-oriented concerns were acutely influential for External Affairs and over time, its officials persuaded Justice and the Attorney General’s Office that Ireland’s standing within regional and global communities was critical and dependent on a more positive human rights treaty image. Although domestic pressure among Irish parliamentarians and NGOs was very limited until the early 1970s, it provided Foreign Affairs with useful incentive for in their deliberations with other departments. Finally, similar to the British engagement, bureaucracy, political leadership and doctrinal law were all significant factors.
Disrupting the notion of international law as located within a fixed political culture underpins the approach this chapter will take when examining the contentious debate on the concept of universal jurisdiction in absentia. This debate concerns a controversy over whether the alleged offender must be voluntarily present within the territory of the prosecuting state in order to justify exercising jurisdiction over the accused. In particular, this chapter draws on the themes of indeterminacy and hegemonic technique as developed in Martti Koskenniemi’s work and therefore, this chapter addresses the debate as bounded by a tension between competing political preferences labelled moralist (fight impunity) and formalist (avoiding abuse). This illustrates the competing logics as overarching themes at surface level.
The moralist approach challenges what its proponents perceive as the injustice of impunity, privileging the moral value of criminal accountability, while champions of the formalist approach challenge what they believe is the injustice of politically motivated or show trials, privileging the moral value of maintaining order. As we observe, indeterminacy illustrates how both moralist/formalist logics are in each approach and in this sense, merge into one another. A moralist approach that privileges the moral naturalism of the crimes (normativity) is considered simultaneously to be concrete (consent to extraterritorial jurisdiction) while a formalist approach that privileges consent to extraterritorial jurisdiction (concreteness) is considered normative (avoid arbitrary and unfettered state interference).
In this chapter I primarily investigate the separate and dissenting opinions in the Arrest Warrant case on the question of universal jurisdiction in absentia in order to draw out the descending (more normative, less concrete) and ascending (more concrete, less normative) patterns of argument within each opinion and to identify the hegemonic and counter-hegemonic positions in the pre- and post-Arrest Warrant debate. I observe how Van den Wyngaert, Guillaume and the Joint Separate Opinion are archetypal of the competing moralist and formalist approaches and the move to the “middle ground” with recourse to reasonableness. It is evident that this debate on in absentia trials is caught within the tension between the moralist (fighting impunity) and formalist (avoiding abuse) approaches that underpin a broader debate on the principle’s justification and content. As will be observed, this struggle for hegemonic control illustrates how each legal outcome within the debate is not ‘natural’ and ‘inevitable’. Rather it is a series of strategic moves that are historically contingent and accord with structural bias.
This book explores the debate over universal jurisdiction in international criminal law, aiming to unpack a practice in which international lawyers continue to disagree over the concept of universal jurisdiction. Using Martti Koskenniemi’s work as a foil, this book exposes the argumentative techniques in operation in national and international adjudication since the 1990s. Drawing on overarching patterns within the debate, Aisling O’Sullivan argues that it is bounded by a tension between contrasting political preferences or positions, labelled as moralist ("ending impunity") and formalist ("avoiding abuse") and she reads the debate as a movement of hegemonic and counter-hegemonic positions that struggle for hegemonic control. However, she draws out how these positions (moralist/formalist) merge into one another and this produces a tendency towards a “middle” position that continues to prefer a particular preference (moralist or formalist). Aisling O’Sullivan then traces the transformation towards this tendency that reflects an internal split among international lawyers between building a utopia (“court of humanity”) and recognizing its impossibility of being realized.