Ireland participation in International Human Rights Law and Institutions

’Ireland participation in International Human Rights Law and Institutions’ was a three year Irish Research Council for Humanities and Social Sciences funded research project. It commenced in March 2005, the research was completed in February 2008 and the project is currently at the write-up stage. The project director is Professor William Schabas and the principal researcher is PhD Candidate, Aisling O’Sullivan.

Its objective is to document and analyze Irish foreign policy towards the development and evolution of International Human Rights Law during its formative stage. It sub-divides into an analysis of Ireland’s involvement in human rights law-making and Ireland’s engagement in international human rights institutions.

From the beginning, the Project Director decided to examine Ireland’s role in the development of International Human Rights Law within the Council of Europe from 1949-1978. Hence, the project researched Ireland’s role in three seminal events in the early formative period; the drafting of the European Convention on Human Rights (1949-1950), the case of Lawless v. Ireland (1957-1961) and the inter-State case of Ireland v. United Kingdom (1971-1978).

Primary sources

In examining Ireland’s involvement, the research primarily concentrated on material available in the Irish government papers housed in the National Archives of Ireland, Bishop St., Dublin. This research focused on the Departments of the Taoiseach, Justice, Foreign Affairs and the Attorney General’s Office. However, relevant material from the British National Archives has also been collected and analyzed. Here, the papers on the ’Irish State Case’ span the Prime Minister’s Office, the Home Office, the Foreign Office, the Attorney General’s Chambers (and Law Officers Department) and from 1972 onwards the Northern Ireland Office).

Additionally, the Researcher, Aisling O’Sullivan, has collected all the inadmissible applications against Ireland submitted to the European Commission of Human Rights, with the kind and helpful assistance of the Archives of the European Court of Human Rights. Finally, interviews have been conducted with the kind agreement of numerous interviewees over the course of the project term.

Final Monograph

In light of the material collected, the final monograph will principally focus on a detailed and comprehensive behind-the-scenes narrative of Ireland’s involvement in one of the most significant cases in international human rights law, the case of Ireland v. United Kingdom (1978). As a significant prelude to the inter-State case, the monograph will narrate and document Ireland’s involvement in the drafting of the European Convention of Human Rights (1949) and its role in first application before the European Court of Human Rights, the case of Lawless v. Ireland (1961).

Publications

William Schabas, Ireland, the European Convention of Human Rights and the personal contribution of Sean MacBride in John Morison, Kieran McEvoy and Gordon Anthony (ed.), Judges, Transition and Human Rights (Oxford, Oxford University Press 2007).

William Schabas and Aisling O’Sullivan, Politics and Poor Weather: How Ireland sued the United Kingdom under the European Convention on Human Rights, (2007) 2 Irish Yearbook of International Law [forthcoming]

"(A) Convention on Human rights, which did not grant any right of redress to individuals, was not worth the paper it was written on." Seán MacBride, Minister for External Affairs, Fifth Session of the Committee of Ministers (August 1950)

Drafting of the European Convention on Human Rights (1949-1950)

Under the Statute of the Council of Europe, signed in May 1949, Britain, France, Belgium, the Netherlands, Luxembourg, Sweden, Denmark, Norway and Ireland founded an organisation for European political, economic and cultural co-operation, inaugurated as the Council of Europe, with two institutional bodies called the Consultative Assembly, composed of national parliamentarians, and the Committee of Ministers, composed of Foreign Ministers of the Council of Europe’s Member States.

Ireland’s involvement in the early period of the Council of Europe proved significant both from a foreign policy and a human rights perspective. Until 1955 and its membership of the United Nations, Ireland was a member of a limited number of international organisations; the International Labour Organisation, the World Health Organisation and the Organisation of European Economic Co-operation. The Council of Europe offered Ireland one of the few international forums in which it could attempt to influence regional policy on a range of political, economic and social debates. Most importantly for this project, membership of the Council of Europe provided Ireland with the capacity to impact on one of the greatest achievements in the organisation’s history; the negotiation and conclusion of the European Convention of Human Rights (1950).

With Irish ratification on the 26 ^th February 1953, the European Convention of Human Rights proved progressively to have an immensely prominent influence on Ireland’s human rights development, consequent to numerous crucial applications against Ireland before the European Commission of Human Rights and the European Court of Human Rights.

’…a real instrument of co-operation and not merely a façade’ is being created.

Sean MacBride (Minister for External Affairs) addressing the Washington Writers Club quoted in Irish Times, 13th April 1949

In the National Archives, the Researcher, Aisling O’Sullivan, collected material from 40 files on the drafting of the European Convention of Human Rights and part of this work provided the basis for a paper by the Project Director, Professor William Schabas, entitled ’ Ireland, the European Convention of Human Rights and the personal contribution of Sean MacBride’ in John Morison, Kieran McEvoy and Gordon Anthony (ed.), Judges, Transition and Human Rights (Oxford, Oxford University Press 2007).

For relevant general bibliographies:

Irish History Online
British History Online
CAIN

Further informatio

" The court exists only to serve the cause of justice" The final statement of Justice Rene Cassin, President of the European Court of Human Rights, after reading the first judgement delivered by the Court (Lawless v. Ireland)

The case of Lawless v. Ireland

The case of Lawless v. Ireland (1957-61) was the first international court decision, interpreting and applying international human rights law, and the first dispute between an individual and a State to be tried by an international tribunal. More particularly, it was the first complaint brought by an individual against a State to be referred to the European Court of Human Rights. The latter, established under the European Convention of Human Rights, is empowered to adjudicate both inter-State [Article 24] and individual complaints [Article 25] on alleged violations of human rights, as defined by the European Convention, committed within the jurisdiction of the States parties.

’It is inconceivable that a Government acting in good faith should be held to be in breach of their obligations under the Commission merely because their appreciation of the circumstances which constitute an emergency, or of the measures necessary to deal with the emergency, should differ from the views of the Commission or of the Court’.

Counter-Memorial submitted by the Government of Ireland, dated 27th August 1960

The applicant Gerard Richard Lawless accused Ireland of breaching its obligations to respect and protect the rights to liberty and security of the person (article 5), to a fair trial (article 6) and to non-retroactive application of the law (article 7) as a result of the Irish government’s decision to detain Mr. Lawless without trial on the basis of an order issued the Minister for Justice alleging Mr. Lawless was engaged in activities which, in his opinion, were prejudicial to the preservation of public peace and order or to the security of the State’. In its defence, the Irish government claimed that detention without trial was not a violation of the said articles of the European Convention on Human Rights, but if it was considered a violation, the Irish government had derogated from its obligations under article 15 of the European Convention of Human Rights.

The final judgement of the European Court of Human Rights held against Lawless, sharing the legal opinion of the majority of the European Commission of Human Rights. Thus, the European Court of Human Rights held that there was in 1957, on the territory of the Republic of Ireland, a public emergency under the terms of Article 15. Further, the letter of the 20th July 1957, claimed by the Irish government to be a letter of derogation, met the legal conditions of Article 15(3) and was a valid letter of derogation. Finally, the measure of detention without trial, while a violation of articles 5 and 6 per se, was ’strictly within the exigencies of the situation’ according to the powers of derogation under article 15 of the European Convention of Human Rights. This led to the overarching finding that Ireland had not breached its obligations. The final judgement, the first of its kind in international legal history, was delivered on the 1st July 1961 by Rene Cassin, President of the European Court of Human Rights, attracting an immense media interest both in Ireland and abroad.

’No violation of Human rights in Lawless case’
Irish Times 3rd July 1961

’Lawless Loses case’
Irish Independent 3 ^rd July 1961

’… the right of enquiry into the internal affairs of a State, forbidden by the Charter of the UN – has been shown to be possible amongst the ’like-minded’ nations of free Europe by virtue of the Human Rights Court’.
Council of Europe Directorate of Information (Aug 1961)

In the National Archives of Ireland, the Researcher collected material from 52 Files within the Department of Justice, Foreign Affairs and the Attorney General’s Office. The Lawless Papers in the National Archives constitute the preparatory work for the submissions to the European Commission and European Court of Human Rights, in addition to internal minutes of Attorney General Andrias O’Caoimh.

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment." Article 3—European Convention of Human Rights

The case of Ireland v. United Kingdom

The Ireland v. United Kingdom case was the first inter-State case brought before the European Court of Human Rights and as such, was the first ever legal proceedings between States before an international human rights tribunal.

The Northern Ireland Stormont administration took the immensely controversial step of introducing internment or detention without trial on the 9 ^th August 1971. Under the first operation, Operation Demetrius, 342 members of the nationalist community were detained in different detention centres across Northern Ireland. Many of those detained were released within the first 48 hours. However, allegations quickly emerged, from released detainees or relatives of those still detained, that detainees were being subjected to severe ill-treatment.

The most infamous allegations were those relating to a particular number of detainees, who had been subjected to what would later be termed, ’the five techniques’ – hooding, wall-standing, continuous white noise, sleep deprivation and the bread and water diet. The allegations of the ’five techniques’ were found to be substantiated by the Compton Report (November 1971), which declared the ’five techniques’ to be physical ill-treatment but not physical brutality (based on a definition of ’brutality’ drafted by the Compton Committee).

Ireland submitted its application in December 1971 to the European Commission of Human Rights after a covert investigation by the Department of Foreign Affairs, deliberation by a legal team assembled by the Attorney General Colm Condon and intense political pressure on all fronts. The application alleged that the United Kingdom Government had breached its obligations, as a result of an ’administrative practice’ violating the following rights: article 2 (right to life), article 3 (right to freedom from torture, inhuman or degrading treatment or punishment), article 5 (right to liberty and security of the person) and article 6 (right to fair trial) in the context of article 15 (right of State parties to derogate in times of war or emergency threatening the life of the nation), article 14 (right to equality and non-discrimination) in the context of article 15 (power to derogate) and article 8 (right to private and family life) in the context of article 14 (right to equality). The application also alleged that article 1 (duty to secure the rights and freedoms under the Convention) constituted a separate breach of the European Convention on Human Rights to the rights under Section I, arising from the existence of legislative enactments inconsistent with the duty to respect and protect human rights.

The European Commission of Human Rights delivered its decision on admissibility in October 1972. It ruled that the Irish Government had successfully submitted ’substantial evidence’ of an administrative practice violating articles 3 (right to freedom from torture….), articles 5 (right to liberty…) and 6 (right to fair trial) in the context of article 15 (right of State parties to derogate) and article 14 (right to equality) in the context of article 15. Article 1 (secure the rights and freedoms) was also joined to the merits. It dismissed the claim on article 2 (right to life), considering the allegation of an administrative practice as unsubstantiated, and the claim on article 8 (right to private and family life), considering the allegation, which has not been pleaded by the Irish Government in the oral hearings, as withdrawn.

The merits stage before the European Commission of Human Rights extended from October 1972 to December 1975. Along with the written pleading, witness hearings were held on various dates during the period 1973 to 1975 at Strasbourg (Irish witnesses), Stavanger Military Base in Norway (British Military and R.U.C. witnesses) and in a closed Commission session in London (British policy witnesses). In total, 119 witnesses testified before the Sub-Committee of the European Commission of Human Rights of Messrs Opsahl (Norway), Frowein (Germany) and Norgaard (Denmark).

In January 1976, the European Commission of Human Rights adopted its lengthy and significant Report with the following findings. Regarding article 3 (freedom from torture, inhuman or degrading treatment or punishment), the Commission ruled unanimously that the ’combined’ use of the five techniques ’constituted a practice of inhuman treatment and torture in breach of article 3 of the Convention’. On the other acts of ill-treatment, the Commission determined that in the illustrative cases of the unknown interrogation centre, Palace Barracks and ’various places’ during the Autumn of 1971, the ill-treatment by security forces constituted inhuman treatment as a violation of article 3. In the context of individual detention centres, it found a practice of inhuman treatment violating article 3 in Palace Barracks but found no practice in violation of article 3 in Girdwood Park or Ballykinler.

Regarding article 5 (right to liberty..) in the context of article 15 (power of derogation), the Commission unanimously held that, while the measures of detention without trial during each legislative phase were not in conformity with article 5, they were measures ’strictly required by the exigencies of the situation’. Regarding article 14 (right to equality), the European Commission of Human Rights considered that the measures did not discriminate on the grounds of political opinion as, it argued, there were a number of possible factors why the security forces approach towards violence within the nationalist and unionist community differed during the relevant periods. It listed following possible factors based on the evidence before the European Commission of Human Rights: (i) objective of phasing out of internment in 1972 resulting in greater focus on mounting criminal prosecutions before the ordinary courts, (ii) albeit difficulties in securing evidence, the ability of the Police to enter unionist areas with greater ease than nationalist areas, (iii) the ’more highly organized and larger campaign of terrorism’ on the IRA side than on the Loyalist side (as an appreciation judged by the security forces at the relevant time); (iv) the estimation of a serious threat of a ’severe’ Loyalist campaign in response to internment and (v) the larger scale of the IRA campaign.

Finally, the Commission disagreed that article 1 (duty to secure rights and freedoms) constituted a separate liability for the State parties to the Convention. It determined that article 1 did not give rise to rights, additionally to Section I of the Convention, justiciable before the European enforcement procedures.

The European Commission of Human Rights Report was forthwith transmitted to the States parties, namely Ireland, the United Kingdom and all other members of the Council of Europe. However, on March 10 ^th 1976, the Irish Government decided to submit the inter-State case to the European Court of Human Rights and as a result, on September 2 ^nd 1976, the European Commission of Human Rights (Confidential) Report was published to the wider public.

The hearings before the European Court of Human Rights were held in February and April 1977 and its judgment was delivered on January 18 ^th 1978. Famously and controversially, the European Court of Human Rights ruled (by sixteen votes to one) that the combined ’five techniques’ constituted a practice of inhuman and degrading treatment in violation of article 3. Famously and controversially, the Court further ruled (by fourteen votes to three) that ’five techniques’ did not constitute a practice of torture in violation of article 3. On the other allegations, it concurred with the findings in the European Commission’s Report.

Research

The Researcher completed the collection of all available material in the National Archives of Ireland and the British National Archives. The material from the Irish government papers constitutes 294 files from recently released archival documents from the Department of the Taoiseach and Foreign Affairs, including transcripts of meetings between Heads of Government and other senior officials, correspondence between department officials and the legal team, correspondence with the Strasbourg institutions, legal opinions, drafts legal pleadings and press cuttings.

Of the 294 files relevant to the case, 46 are restricted on the grounds of section 8 of the National Archives Act 1986. All of the non-restricted files were accessed and the relevant material collected in the second year. Unfortunately, the estimated 80-100 case files from the Attorney General’s Office have not been released. A request was made in February 2006 for special access to these Attorney General papers, which remains pending.

The material includes nearly 1,700 pages of witness testimony before the Sub-Commission of the European Commission of Human Rights, which, under the European Convention on Human Rights, were tasked with the investigation and fact-finding element of the European Commission’s proceedings. Such testimony, in keeping with the European Commission procedures, was taken in camera and hence, has not been disclosed publicly before.

A number of interviews of members of the Irish legal team and department officials, who were involved in the case, have been conducted. Thus far, nine interviews have been undertaken (October 2006-July 2008).

Published:

William A. Schabas and Aisling O’Sullivan, Politics and poor weather: How Ireland sued the United Kingdom before the European Convention on Human Rights, (2007) 2 Irish Yearbook of International Law.

Current research papers:

Aisling O’Sullivan, The right of petition under the European Convention on Human Rights: a view from the drafting history and the Irish State papers.

Future research papers:

Aisling O’Sullivan and William A. Schabas, Friendly settlement (March-December 1973) in the Ireland v. United Kingdom case (1978)?

Aisling O’Sullivan, Ireland ’s involvement in the drafting of the First Protocol to the European Convention of Human Rights (1950-52).

Final Monograph:

The final monograph on the Ireland v. United Kingdom case (1978), supplemented with Ireland’s early policy during the drafting of the European Convention on Human Rights (1950) and Lawless v. Ireland (1961), will be in write up stage in late 2008. The write up will be completed in 2009.

Lectures

William Schabas and Aisling O’Sullivan, Diplomacy and Ireland v. United Kingdom case at the European Court of Human Rights, at the Diplomacy of Human Right Conference, Irish Cultural Institute, Paris, 7 ^th December 2007.

Aisling O’Sullivan, ’ Sean MacBride and the drafting of the European Convention of Human Rights’ at the ACAT seminar on Ireland and International Human Rights Law in the Irish Centre for Human Rights on the 11 ^th July 2006.

William A. Schabas, Sean MacBride, St. Angela’s College, Sligo, in November 2007

Searchable Archive

Melissa Ruggiero, an LLM student from the Cross-border LLM in Human Rights and Criminal Justice 2006/07, diligently assembled a searchable database of the principal papers collected in the National Archives of Ireland. This work was completed in December 2007 and will be a highly useful tool for researchers interested in Ireland, human rights and the Council of Europe.

Irish Centre for Human Rights PhD student project

Several of ICHR PhD students are researching material available in State Archives in Ireland, Britain and US on government foreign policy and human rights, primarily during the formative period of international human rights law. This PhD project will produce a collection of papers to publish the results of the research. This project has been developed by the researcher Aisling O’Sullivan and the final collection, edited by Aisling O’Sullivan and William Schabas, will be published by the Irish Centre for Human Rights.

The collection of papers envisaged in the project:

Aisling O’Sullivan and William Schabas (ed), Human rights and foreign policy: a view from State Archives, (Irish Centre for Human Rights, National University of Ireland, Galway) [tentative title]

The diplomacy of human rights
Ireland’s ratification of the Genocide Convention
Ireland and the abolition of the death penalty
Ireland and International humanitarian law
United States foreign policy and international criminal justice
Britain and the prohibition against propaganda for war
Ireland and the Declaration against Torture (1975)
Irish foreign policy and the Occupied Territories
Ireland and the Convention on the Status of Refugees (1951)
Ireland and the UN Commission on the Status of Women
Minority rights in Fiji: the question of British foreign policy
Self-determination and Cyprus [1956-58]: a view from the British State papers

Testing inter-State human rights litigation: the case of Ireland v. United Kingdom [1971-1978]

Ireland:

National Archives of Ireland: http://www.nationalarchives.ie/

The Women’s History Project (National Archives of Ireland): http://www.nationalarchives.ie/wh/

National Library of Ireland: http://www.nli.ie/en/homepage.aspx

University College Dublin Archives Department: http://www.ucd.ie/archives/

Trinity Manuscripts Room: http://www.tcd.ie/Library/libraries/manuscripts.php

National University of Ireland, Galway Special Collections:http://www.library.nuigalway.ie/resources/special_collections/Special_Collections_University_Collections.html

University of Limerick Special Collections: http://www.ul.ie/rarebooks/

University College Cork: http://booleweb.ucc.ie/search/subject/speccol/speccol.htm

National University of Ireland Maynooth Special Collections: http://library.nuim.ie/services/collections/special_collections.shtml

Archdiocese of Dublin Archives: http://dublindiocese.ie/index.php?option="com_content&task="view&id="72&Itemid=37" "

Historical Text Archive: http://historicaltextarchive.com/links.php?op="viewslink&sid="45 "

Irish History Documents: http://larkspirit.com/history/documents.html

For information and contact details of private and public archives in Ireland, see Seamus Helferty (ed), Directory of Irish Archives, 4 ^thEdition (Four Courts Press, Dublin, 2003).