The JCHR Enquiry on Derogation from the ECHR: My Written Evidence

The Joint Committee on Human Rights has now published all of the written evidence it received about the proposed derogations by the UK from the ECHR in situations of conflict abroad. My submission is available here, and the executive summary is as follows: Continue reading The JCHR Enquiry on Derogation from the ECHR: My Written Evidence

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Can infringement proceedings ‘solve’ the ECtHR’s non-execution problem?

The final version of new article, written with Kanstantsin Dzehtsiarou, is now published in the International and Comparative Law Quarterly. The article, entitled (rather pessimistically) “Mission Impossible? Addressing Non-Execution through Infringement Proceedings in the European Court of Human Rights”, picks up on a recent proposal that Article 46(4) of the ECHR would be used to address non-execution. This allows the Committee of Ministers to refer a case back to the Court in the case of non-execution by the contracting state. In short, we argue that such an approach is misguided on three grounds: practicality, futility, and backlash. Fundamentally, we say, the proposed solution does not ‘fit’ the problem of non-execution properly understood. Continue reading Can infringement proceedings ‘solve’ the ECtHR’s non-execution problem?

New blog: Ireland’s Abortion Ban: Subjecting Women to Suffering and Discrimination

As an associate of the Oxford Human Rights Hub, I occasionally provide posts for the Hub’s excellent blog. Yesterday my latest contribution was published. In “Ireland’s Abortion Ban: Subjecting Women to Suffering and Discrimination“, I consider the challenges posed by Mellet v Ireland and how the government might respond to them. I also argue against taking a narrow approach of addressing access to abortion in cases of fatal foetal abnormality only, and leaving the remainder of the 8th Amendment regime changed. The full post can be accessed here, and closes thus:

The Irish people voted on abortion in 1983, 1992 and 2002, but no referendum has ever offered the opportunity to liberalise abortion law. The Taoiseach (Prime Minister) has committed to convening a ‘Citizens’ Assembly’ to consider inter alia revisiting the 8th Amendment, and the UNHRC’s decision is expected to expedite this. However, to take the UNHRC’s decision as outlining ‘all’ that has to be done to make Irish abortion law compliant with human rights law and basic conceptions of bodily integrity, autonomy and self-determination, would be to mitigate the cruelty of the 8th Amendment only in a very particular kind of circumstance (FFA) without addressing the overall dilemma for pregnant women in Ireland. Thus, it is imperative that the terms of reference for the Citizens’ Assembly are expansive and allow for every option to be considered, including placing a positive statement of the right to self-determination in all medical matters into the Constitution.

The likelihood of that happening, however, seems low as long as the Government seems unwilling to have ‘big’ and difficult conversations about the status of the foetus, autonomy and self-determination, choice, medical care and medico-legal culture, belief, and morality. While decisions like the UNHRC’s can prompt political action, they cannot compel this difficult, uncomfortable, but necessary national conversation. Only political leadership and courage can do that. We wait to see whether that will be the legacy of the promised Citizens’ Assembly.

Mellet v Ireland and the need to comply

In yesterday’s Irish Times a group of 61 lawyers and others (including me) co-authored a letter outlining six reasons why Ireland should comply with Mellet v Ireland, the UNHRC’s recent decision. We put these reasons thus:

1) In 1989, Ireland voluntarily ratified the ICCPR. Under international law, it must now comply with the treaty in good faith. It cannot invoke its Constitution, or any other domestic law as rationale for failure to comply (Articles 26 and 27 of the Vienna Convention on the Law of Treaties).

2. Although the UN Human Rights Committee does not have the status of an international court, Ireland has accepted its competence to hear individual complaints and to give authoritative interpretations of the ICCPR. Its members are impartial and independent. Ireland recognised the committee’s competence to issue determinative interpretations of the convention when it ratified the ICCPR and its optional protocol.

3) When Ireland subjected Ms Mellet to cruel, inhuman or degrading treatment, it committed an internationally wrongful act. International law, including the ICCPR, requires it to remedy this wrongful act, provide reparations and guarantee non-repetition. Ireland cannot invoke provisions of its domestic law as rationale for a failure to do so (Article 2 of the International Covenant on Civil and Political Rights; Articles 1, 3, 30-32 of the Principles on Responsibility of States for Internationally Wrongful Acts).

4. It is immaterial to Ireland’s responsibility under international law that the relevant treaties have not been incorporated into domestic law or that as such the decisions of the committee are not necessarily enforceable in Irish courts. Under international law a lack of enforcement options under domestic law, or the fact that under domestic law the committee’s decision is not binding, can never be used as justification for non-compliance.

5) If Ireland does not remedy the harm suffered by Ms Mellet and guarantee non-repetition it will place Irish medical professionals in profoundly difficult ethical situations and place them at risk of complicity in cruel, inhuman or degrading treatment.

6) If Ireland does not remedy the harm suffered and guarantee non-repetition it will leave itself open to repeated future litigation against the State before the UN committee or other international bodies, including the European Court of Human Rights.

In response Rev. Patrick G Burke–a prolific letter writer to the Irish Timesargues today:

However, as the signatories note, the UN committee is not a court of law. Its function is to assess Ireland’s compliance with the covenant as it is written, not to interpret the covenant in such as way as to apply a particular article of it to a situation for which it was not intended. When it attempts to do so it acts outside its authority and its findings are not and can not be binding.

This is the opinion of our Taoiseach, based on the legal advice taken from those whose primary concern is the best interests of this nation rather than advancing some particular agenda or another. These legal experts, I would suggest, should see the bigger picture here – the importance of asserting Ireland’s sovereignty and our right as a people to make our own decisions democratically.

In his response Rev Burke both misses the point of our argument (i.e. that the question of ‘bindingness’ is not determinative of the question of whether Ireland ought to comply) and the ‘point’ of being part of international legal institutions, i.e. that sovereignty is not all that matters. Rather, sovereignty can result in rights violations and, where that happens, international institutions can helpfully step in and illustrate the rights-related damage that our “sovereignty” has done, as was the case for Amanda Mellet. If what is needed to respond effectively to the rights violations that result from the Irish abortion law regime is a referendum (and it is), and if a referendum is the expression of sovereign will (which in Irish constitutional doctrine it is construed to be), then what is the problem, in any case, with holding another referendum?

Rev. Burke also suggests that the Committee has applied the ICCPR to a situation to which it was never intended to apply. One wonders how he reaches such a conclusion. The rights protected in the ICCPR apply to all situations. We cannot carve out exclusionary zones in which the Covenant somehow does not apply (there are no relevant reservations or derogations in place here). Rev. Burke may not like the Committee’s findings, but it is in no way illegitimate for the Committee to apply the standards of the ICCPR to a situation such as that of Ms. Mellet. Under international human rights law, after all, she is a rights-bearer when pregnant, just as she is when she is not.