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.

The Julian Assange Case

Yesterday afternoon I did short interviews on BBC Ulster, BBC Solent, BBC Newcastle, 3CR, BBC Merseyside, BBC Nottingham, BBC Wiltshire, BBC Derby, BBC Humberside, BBC Wales, BBC Scotland about the Julian Assange case. The interviews, of course, related to the opinion just released by the UN Working Group on Arbitrary Detention, finding that Mr Assange is suffering from arbitrary detention. Naturally, every interview was a little different, but some recurring aspects are noted here.

The Opinion

The opinion, which can be downloaded here, is well worth reading, not least for its curious reasoning. The key is the claim, within the opinion, that Mr Assange’s time in the Ecuadorian Embassy can be seen as a continuation, in effect, of his time in “house arrest” and his short period of detention before that in a police station. Here both the claim of continuity (through which the element of coercion is at least implied into his decision not to leave the embassy), and the characterisation of his time on bail conditions while he challenged the European Arrest Warrant in the British courts as “house arrest” are surprising. These are fundamental to the overall decision, of course, as they ground the conclusion that there is a deprivation of liberty which is then characerised as arbitrary detention.

Should the finding that Mr Assange’s liberty is deprived be correct, then I think it arguable to say the detention is arbitrary. However, the opinion makes a leap of fact and law that seems unsubstantiated by either to reach that conclusion of detention in the first place. Herein lies the fundamental difficulty with the opinion. The procedures of the working group provide that it may review its opinion if, inter alia, a government that conformed with the time limits to respond to complaints requests it to (Part D of revised working group methods, available here). I would expect that the UK and/or Sweden will do this, zeroing in on this part of the reasoning.

What is the Legal Value of this Opinion?

The WGAD is part of the UN’s special procedures, thematic human rights protections established by the Human Rights Council (and previously Commission). Its mandate is, among other things, to consider individual complaints regarding detention (as it did here) but it does not have a mandate to make authoritative interpretations of any treaty, or to issue “judgments” (the mandate is outlined in Part III of the working group methods, available here). One might expect that states would take notice of its opinions, but a state is not obliged to implement them. The opinion holds little weight in a domestic court, and is likely to hold little weight in the European Court of Human Rights or the Court of Justice of the European Union. While all courts would take notice of it, none would–in my view–consider it binding (because in a broader sense it is not). Thus, Mr Assange’s chances of having this opinion “enforced” (including receiving the recommended compensation) are extremely slim.

So why did Assange go to the WGAD?

One is reduced to speculation on this point, of course, but it is certainly remarkable that Mr Assange decided that the next step in his challenge was to go to the WGAD rather than the European Court of Human Rights or the Court of Justice of the European Union. I concede that in the latter–where he would have been challenging the European Arrest Warrant issued by Sweden–he is unlikely to have succeeded. The Court takes seriously the underlining mutual trust of EAWs (see Steve Peers on this), and there is nothing to suggest that Sweden’s approach to criminal investigations and trials is incompatible with, for example, Article 6 ECHR in a general sense. Furthermore, the UK Supreme Court had already upheld the legality of the Warrant. He may have had more success in Strasbourg, particularly on Article 6 grounds (bearing in mind it’s unlikely Article 5 would have been engaged). But instead he went to this Working Group. Why?

One reason may be the likelihood of success: this is not a Court, thus the same considerations of proof and the same rigour as to law may not always be present. Another reason might be the value that a positive opinion from his perspective might have beyond its legal value. With this opinion, Mr Assange can now make analogies between himself and many political prisoners who have received such opinions from this group, such as Aung San Suu Kyi (indeed, some are already doing so). This bolsters the authority of his arguments to be allowed to leave the embassy without arrest and to enjoy fully the asylum granted to him by Ecuador.

So, What Happens Now?

In truth, this is unlikely to change anything in a substantive way. Assange still has a case to answer in Sweden, the EAW remains in place, and the UK remains obliged to execute it. The finding of the WGAD is puzzling, and the reasoning flawed. I would expect it to be reviewed, although whether that will lead to a different outcome is difficult to predict. In any case, it serves as a distraction in some ways from the troubling delays on the part of Sweden to progress this case, which do need to be addressed. This opinion may be just the catalyst to finally get the Swedish investigators to come to the UK and interview Mr Assange here, to progress the investigation to the point where it can be decided whether a charge is brought (bearing in mind that charging happens much later in the Swedish process than we are accustomed to in the UK), and the matter of guilt or innocence determined in respect of the rape allegations should a charge be made. In the meantime, however, I predict that Assange will remain in the embassy, police officers will remain at the gate, and the European Arrest Warrant will remain in place.

Call for Papers: Irish Yearbook of International Law

41EzgISTpZL._SY344_BO1,204,203,200_Siobhán Mullally and I, who edit the Irish Yearbook of International Law, now invite submissions for publication in the Yearbook.

Articles should not be published or under consideration for publication elsewhere.

An annual, peer reviewed publication, the Irish Yearbook of International Law is committed to the publication of articles of general interest in international law as well as articles that have a particular connection to, or relevance for, Ireland. Articles are usually 10,000 to 12,000 words in length, although longer submissions will be considered. The Yearbook also publishes a small number of shorter articles and notes, which should not exceed 6,000 words.

Submissions, comprising a brief 100-word abstract, article and confirmation of exclusive submission, should be sent to both Professor Siobhán Mullally (s.mullally@ucc.ie) and Professor Fiona de Londras (fiona.de-londras@durham.ac.uk) by 30 June 2015. (Submissions are also accepted on a rolling basis).

Anyone wishing to review a particular title in the Yearbook’s book review section is also invited to contact the editors. Further information on the Yearbook (including style guide) is available at the IYIL website. The Irish Yearbook of International Lawis published by Hart-Bloomsbury and is also available on HEIN Online.

Genest Memorial Lecture, Osgoode Hall, January 7

osgoodI am delighted to be going to Osgoode Hall Law School in Toronto next month to deliver the Genest Memorial Lecture and a number of seminars, as well as to meet and work with some graduate researchers there and colleagues on the Faculty. My Genest Lecture, the poster for which is attached, will take place at 12:30 on January 7th and is entitled ‘Counter-Terrorism, Transnationalism, and Human Rights’. The abstract is below and the poster for the lecture is attached here.

Much of contemporary terrorism uses the products of globalisation in recruitment, financing and other operations. The transnationalism of terrorism, together with the cross-border connectedness of people, capital, communication infrastructure and politics, have combined so that states now act in concert on a wide variety of issues, one of which is counter-terrorism. In this lecture, Professor de Londras outlines institutional, multi- and bi-lateral forms of transnational counter-terrorism, arguing that ‘external actors’ are deeply involved in directing counter-terrorism. This has serious implications for constitutonalism and human rights, raising questions as to accountability, autonomy, legitimacy and the effective protection of human rights.