Time to start taking European Convention on Human Rights more seriously
Opinion: there is significant official resistance in the Republic to international human rights norms
The first case decided by the European Court of Human Rights in Strasbourg involved Ireland. Photograph: Olivier Morin/AFP/Getty Images
It has been 10 years since we gave further effect in Irish law to the European Convention on Human Rights (ECHR) and tomorrow is the 60th anniversary of the coming into force of that convention.
The ECHR was part of an elaborate peace settlement in Europe in the immediate aftermath of the second World War. The drafters of this international treaty – animated by the idea that individual human rights protections were an essential bulwark against totalitarianism and necessary indicators of democracy – set about codifying civil and political rights and establishing the European Commission and Court of Human Rights to consider complaints taken by individuals against states, and by states against other states.
Ireland engaged with this radical experiment in internationalism, but with a decidedly nationalistic purpose. Participation in such international initiatives was seen as a useful way of venting the ‘problem’ of partition of the island of Ireland and this particular initiative might one day allow issues arising from that ‘problem’ to be litigated internationally. The high-powered Irish delegation that took part in the drafting of the convention included the likes of Éamon de Valera and Seán MacBride. Ireland accepted the compulsory jurisdiction of the new court in Strasbourg and the right of individual petition. In fact, the first case decided by the European Court of Human Rights was one involving Ireland.
The Irish experience under the convention has been generally positive. Fewer complaints are made against Ireland than against other European states. This may be explained by reference to the extensive range of rights protections afforded by the Irish Constitution of 1937, but there are, perhaps, other factors at play.
Among the cases taken successfully against Ireland were the Airey case on access to courts; the Norris case on criminalisation of male homosexual conduct; the Keegan case on fathers’ rights in adoption situations; the Open Door case on abortion information and, more recently, the A, B & C case on access to abortion services.
In 2003 the Oireachtas passed the ECHR Act to give further effect to the ECHR in Irish law, subject to the Irish Constitution.
This was done on foot of a political undertaking in the Belfast Agreement requiring an equivalent level of rights protection in the Republic of Ireland to that in Northern Ireland. Equivalence, in the legal sense, may not have required incorporation of the ECHR into domestic law but the symbolism of incorporation or “giving further effect” could not be dismissed.
The Act followed the model that had been used in the UK and Northern Ireland in 1998 providing for what is called interpretative incorporation. In other words, courts were obliged (subject to the Irish Constitution) to interpret domestic law in a manner compatible with the ECHR. If this was not possible, a litigant would be entitled to a “declaration of incompatibility”.
Public bodies or “organs of the State” would also be obliged – subject to other statutory obligations – to carry out their duties in a manner compatible with the State’s obligations under the ECHR. All of this was heavily qualified, especially in the provision of effective legal remedies.