James Rooney (Trinity College (Dublin), Students) has posted International Human Rights as a Source of Unenumerated Rights: Lessons from the Natural Law on SSRN. Here is the abstract:
This paper discusses a recent and underreported trend in Irish unenumerated rights reasoning, whereby members of the High Court theorise about the existence of unenumerated rights within the Irish constitutional order due to their inclusion within international human rights texts. First, I discuss three significant constitutional rights claims that have been adjudicated upon with regard given to their reference within international human rights law – the right to secondary and higher education, to housing, and to a clean environment. This reasoning is then critiqued. I argue the assertion that the citation of rights within international human rights texts implies their latent existence within the Irish constitutional order gives a problematically expansive discretion to the Courts to engage in unenumerated rights reasoning. Noting how in the 20th Century, Irish judicial attachment to natural law reasoning led first to the development of a considerable corpus of unenumerated constitutional rights, and then ultimately to a reaction against judicial rights adjudication generally, I posit that attachment to the form of unenumerated rights reasoning under review in this paper may cause a similar retrenchment away from rights adjudication generally to occur in the future. Given this, this form of rights reasoning should be treated with suspicion, if not be rejected outright.