Human Rights Treaties

Table of Contents

Human Rights

Human rights are often referred to in terms of human dignity. Equality is a basic human right. Persons should be entitled to the same opportunities and conditions without discrimination. Rights are universal. They should not be lost or forfeited. Generally, rights belong to individuals and can be enforced by them against states and state bodies and agents. Some rights are absolute. Other rights may be restricted for legitimate governmental interest.

A feature of human rights is that they limit governmental authority. Governments should not be entitled to interfere with human rights. A fundamental feature of human rights is respect for the rule of law by government and governmental authorities.

Human rights are protected by international treaties and the bodies established under them.

English Milestones

Magna Carta 1215 was an agreed limitation on the powers of the English King entered with his chief lords/ barons. It is seen as an important document in that it recognised that the King\’s powers were not unlimited and arbitrary. He was subject to the rule of law. See generally the sections on constitutional history.

The Bill of Rights in 1689, declared after the ousting of James II and the alleged abuses of power on the part of the Stuart kings, provided for a more formal and thoroughgoing limitation of the king’s powers. It reaffirmed some of the basic principles found in modern constitutions.

However, it could not be described as embodying human rights as such. It did reaffirm, in strong terms, the powers of parliament and institutions over arbitrary monarchical rule.

Enlightenment

The 17th and 18th centuries saw the so-called age of enlightenment and reason. Influential political philosophers Locke and Rousseau developed the concept of natural rights, which were inalienable. Their works set out the idea of a social contract in which persons surrendered some of their natural rights in return for the protection and assistance of the state.

The late 18th century saw two key revolutions which propounded human rights based on the ideas of the enlightenment. The American Declaration of Independence commenced with a declaration of equality and asserted the existence of inalienable rights.

“We hold these truths to be self-evident that all men are created equal, that they are endowed by their Creator with certain inalienable rights and among those are life, liberty, and the pursuit of happiness. .. that to secure these rights governments are instituted among men deriving just powers from the consent of the governed.”

The declaration was given effect in a more tangible form in the Bill of Rights by way of the first ten amendments to the U.S. Constitution in 1781.

The French revolutionaries who deposed the monarchy in 1789 adopted the Declaration of the Rights of Man and the Citizen. Reflecting the secular nature of the revolution, it declared that sovereignty resided in the nation and that no body or individual can assert authority which does not emanate expressly from it.

Irish Free State

The Irish Free State Constitution (1922) embodied provisions for the protection of human rights. However, the Constitution was capable of amendment by ordinary legislation, so the protections had little real effect.

A notable judgment which asserted the principle of inalienable rights was that of Chief Justice Kennedy in the State (Ryan) v Lennon. His dissenting minority opinion held took that internment provisions, which had themselves been supplanted in the Constitution, were contrary to basic natural law (human rights in modern terms) and thereby void.

United Nations

The UN Commission on Human Rights was established after World War II and drafted the Universal Declaration of Human Rights. This was adopted by the UN Assembly in 1948. Endorsement of the Convention by a state is necessary for membership of the United Nations.

Human rights are basic rights and freedom to which all persons are entitled, irrespective of nationality, race, religion, language, ethnic origin or another status.

The UN Convention was supplemented by the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights in 1966. They provide more detailed provisions for rights than the initial Universal declaration. The dual covenants reflected the different political and economic approaches of countries during the Cold War.

ECHR

The Council of Europe established the European Convention on Human Rights in 1953. Within the last 20 years, the European Union has promulgated a Charter of Fundamental Rights, which is now specifically incorporated in the EU Treaties.

The European Convention on Human Rights was incorporated directly into Irish law under the European Convention on Human Rights Act 2003. The Convention had been ratified by the State and was binding on it since 1953.

The making of the Convention part of domestic law was largely motivated by the desire that there should be a single human rights standard in Northern Ireland and the Republic of Ireland. The Northern Ireland government is bound by the Human Rights Act (which makes the ECHR part of UK domestic law), and the Parliament and Assembly are subordinated to it in its law.

ECHR in Irish Law

The Act applies to all organs (bodies and agencies) of the Irish State. They must perform their duties in a manner which is compatible with the convention. Where a person suffers loss or damage as a result of failure to do so, he has a remedy in damages. Organs of the State cover the institutions of government and all other bodies established through law or through which any of the functions of the State are exercised.

The courts must take judicial notice of the Convention, declarations, advisory opinions and judgments of the European Court of Human Rights in applying and interpreting the Convention. They are to take account of the principles laid down in those declarations, decisions, and judgments etc.

The High Court, Court of Appeal and Supreme Court may make a declaration that any common law or statutory rule is incompatible with the Convention. Unlike a finding of unconstitutionality, this does not render the law automatically invalid.

A procedure applies by which the Taoiseach is obliged to make a declaration before the houses of the Oireachtas within 21 days. No action needs to be taken. There have been instances where a declaration has been made, but there has been no consequences or change in the legislation. However, in almost all cases, the State changes the law or practice so that it conforms to the Convention.

In order for the entitlement to damages to arise, an application must be made to the Attorney General, pursuant to a declaration of incompatibility. The government then considers, at its discretion to make an ex gratia payment. If these conditions are met, the government may appoint an adviser to advise on the amount of compensation if any. The payment remains discretionary.

Council of Europe

The Council of Europe was established in 1949 and adopted the European Convention on Human Rights in 1950. The Council of Europe has been largely eclipsed by other institutions including in particular the EEC, later the EC, and now European Union. The institutions responsible for the Convention include the European Commission of Human Rights (limited until 1998), the European Court of Human Rights and the committees of ministers of the Council of Europe.

The court was re-established in 1998 as a single full-time court. Its procedures were simplified, and the Commission no longer undertakes a role in determining admissibility of claims. Further reforms of the court have been proposed, to deal with the enormous backlog of cases

The court comprises judges equal to the number of states. Judges are elected by the Council of Europe Parliamentary Assembly and serve for six years. They do not represent their state. Judges sit in committees of three or chambers of seven or grand chambers of seventeen.

ECHR Process

A state or individual who claims that he has been subjected to a violation of the Convention may lodge a complaint directly with the court. He must first exhaust domestic remedies where available. He may not apply to the court if there are further avenues of appeal available unless they are almost certain to fail due to existing practice, precedents or laws.

The application is registered with the court. It must be lodged within six months. It is examined by a judge rapporteur, who considers its admissibility. The application is decided by a committee or the chamber.

The chamber may transmit the matter to a full grand chamber where there is a serious question of interpretation, or there is likely to be a change in existing law. The judgments and declarations of the court bind state parties to the Convention as a matter of international law.

The courts, in its decisions, allow a considerable margin of appreciation/discretion to states. It is recognised that different states may have different approaches to human rights issues.

EU Charter

The institutions of the European Union, in practice, adheres to the principles in the European Convention on Human Rights. In 1999, the European Charter on Human Rights was proclaimed. It became part of the EU treaties in December 2009 under the Treaty of Lisbon. The role of the Charter is to protect and enhance EUs existing obligations in respect of fundamental rights.

The Charter rights are largely recognised already by the European Convention on Human Rights, the Social Charter of the Council of Europe, the constitutional traditions of states, and the Community Charter of the Fundamental Social Rights of Workers. The European Court of Justice had long since recognised these principles in its interpretation of European Union laws.

The Charter was not intended to create new laws or principles but to affirm and consolidate those already recognised. It is addressed to the institutions and bodies of the European Union and to member states, but only when they are implementing EU law. The Charter also embodies a number of economic rights reflecting the nature of the EU, initially and primarily as an economic common market and later an economic and commercial union.

The Charter provides that the rights correspond to those granted by the Convention for the protection of human rights and fundamental freedoms. They are to be the same as those in the Convention. Where the EU law provides more extensive rights, effect may be given to them.

The Charter on Fundamental Rights is not to be interpreted as restricting or adversely affecting human rights and fundamental freedoms recognised by EU Law, international law, or international agreements, including the European Convention on Human Rights and member states’ constitutions.

Other Key Conventions

Ireland has ratified a number of other conventions. Under the Constitution, conventions and international agreements do not become part of the law of the state internally until so determined by the Oireachtas. Accordingly, such conventions are binding on the State but are not directly enforceable by citizens. This was the position in respect of the European Convention on Human Rights until 2004.

Ireland has ratified a number of international human rights conventions which are not directly translated into Irish law. They include the

International convention on the elimination of all forms of racial discrimination, 1965.
International covenant on civil and political rights 1966.
International covenant on economic, social and cultural rights 1966.
Convention on the elimination of all discrimination against women 1979.
Convention against torture and other cruel, inhuman and degrading treatment 1984.
Convention on the rights of the child, 1989.
Convention on the protection of rights of migrant workers and families 1990.
Convention on the protection of all persons from enforced disappearance 2006.
Convention on rights of persons with disabilities, 2006.

The latter conventions have been signed by the states that have not yet ratified it. On ratification, they become binding on the state. The manner of ratification is laid down by the treaty.

The Convention on torture, cruel and inhuman degrading treatment has become law by the Criminal Justice (United Nations Convention Against Torture) Act, 2000.

Human Rights Reporting

The state must submit a human rights report to the UN Human Rights Council every four years. It is reviewed by working parties of a number of states. The UN compiles its own reports on each state.

States can question or make recommendations in relation to another state’s activities. The outcome is adopted by the Human Rights Council in plenary sessions, which may raise questions or make recommendations to the relevant state.

Under most of the various treaties, there are provisions for an individual complaint to be made to the relevant bodies established by them. If found admissible, the complaint may either be upheld or rejected.