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How Ireland Sued the United Kingdom Under the European Convention on Human Rights

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How Ireland Sued the United Kingdom Under the European Convention on Human Rights View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Sussex Research Online Politics and poor weather: how Ireland sued the UK under the European Convention on Human Rights Article (Unspecified) O'Sullivan, Aisling and Schabas, William A (2007) Politics and poor weather: how Ireland sued the UK under the European Convention on Human Rights. Irish Yearbook of International Law, 2. pp. 3-30. ISSN 1757-8108 This version is available from Sussex Research Online: http://sro.sussex.ac.uk/50849/ This document is made available in accordance with publisher policies and may differ from the published version or from the version of record. If you wish to cite this item you are advised to consult the publisher’s version. Please see the URL above for details on accessing the published version. Copyright and reuse: Sussex Research Online is a digital repository of the research output of the University. Copyright and all moral rights to the version of the paper presented here belong to the individual author(s) and/or other copyright owners. To the extent reasonable and practicable, the material made available in SRO has been checked for eligibility before being made available. Copies of full text items generally can be reproduced, displayed or performed and given to third parties in any format or medium for personal research or study, educational, or not-for-profit purposes without prior permission or charge, provided that the authors, title and full bibliographic details are credited, a hyperlink and/or URL is given for the original metadata page and the content is not changed in any way. http://sro.sussex.ac.uk Working Paper: Pre-Edited Version for publication in (2007) 2 Irish Yearbook of International Law Politics and Poor Weather: How Ireland Sued the United Kingdom under the European Convention on Human Rights by William A. Schabas* & Aisling O’Sullivan** ‘ wish to inform the House that an application concerning breaches in the Six counties by the British Government of the Convention for the Protection of ‘I Human Rights and Fundamental Freedoms is being lodged with the Secretary General of the Council of Europe this afternoon’, declared the late Paddy Hillery, Minister for Foreign Affairs, in the Dáil (lower house of Parliament) on 16 December 1971.1 So began the Ireland v. United Kingdom case.2 In light of recent releases of the Irish and British State papers , it is timely to examine the behind-the-scenes deliberations by both sides during the lengthy proceedings, which culminated in a celebrated judgment of the European Court of Human Rights in January 1978 that is still cited as authority for the interpretation of article 3 of the European Convention on Human Rights.3 This paper, which has been prepared as part of a larger research project, examines the deliberations of the Irish Government from the time internment in Northern Ireland was introduced, on 9 August 1971, to the submission of the application by the Irish * OC, MRIA, Professor of Human Rights Law, National University of Ireland, Galway and Director, Irish Centre for Human Rights; Global Legal Scholar, University of Warwick School of Law; Visiting Professor, Queen’s University Belfast School of Law; Visiting Fellow, All Souls College, University of Oxford (2008). The financial support of the Irish Research Council for Humanities and Social Sciences is acknowledged.. ** LLB (Limerick), LLM (Dunelm), PhD Candidate, National University of Ireland Galway; principal researcher on project entitled ‘Ireland’s Participation in International Human Rights Law and Institutions’. 1 Dáil Debates, Volume 257, col. 2354-5 (16 December 1971). 2 Ireland v. the United Kingdom, 18 January 1978, Series A, No. 25. See also Ireland v. theUnited Kingdom, (App. 5310/71) (1976) 19 Yearbook 512 (E.Comm.H.R.), p. 512 and Ireland v. United Kingdom (App. 5310/71 and 5151/72), (1972) 41 CD 3. 3 e.g., Saadi v. Italy, 28 February 2008, Application no. 37201/06, para. 127. Schabas and O’Sullivan Page 2 government on 16 December of that year. It considers how the decision to submit an application to the European Commission of Human Rights became an increasing inevitability; and appears to have been recognised as such by British Prime Minister Edward Heath. With the decision of the British Government to establish the Compton Committee, in September 1971, the arena turned to bilateral consultations between Taoiseach (Prime Minister) Jack Lynch and British Prime Minister Edward Heath. When these broke down, the Irish Government let Heath know it was ‘seriously considering’ submitting an inter-State application. A final decision was taken by the Irish Cabinet on 30 November 1971 and the filed two weeks later. Inter-State Petitions under the European Convention on Human Rights Both Ireland and the United Kingdom were founding members of the Council of Europe, in 1949, and both countries were deeply engaged in the drafting of the European Convention on Human Rights.4 Ireland’s foreign minister at the time, Seán MacBride, hoped to use the institution as a forum to advance the central theme in Irish foreign policy, the campaign against partition of the island, although he soon learned that there was little patience for the debate within a post-war Europe anxious to discourage manifestations of nationalism and to promote greater political and cultural cohesion.5 The two States ratified the Convention shortly after its adoption in November 1950. In addition to setting out a catalogue of human rights norms, which was largely inspired by provisions in the Universal Declaration of Human Rights,6 the Convention also set out implementation mechanisms and provided for the creation of institutions where these could be invoked. Two bodies were to be established, the European Commission on Human Rights and the European Court on Human Rights.7 In a very general sense, the two had a hierarchical relationship, with applications going first to the 4 European Convention on Human Rights, (1955) 213 UNTS 221, ETS 5. 5 William Schabas, ‘Ireland, the European Convention on Human Rights and the Personal Contribution of Seán MacBride’, in John Morison, Kieran McEvoy & Gordon Anthony, eds., Judges, Transition, and Human Rights, Oxford: Oxford University Press, 2007, pp. 251-274. 6 GA Res. 217 A (III), UN Doc. A/810 7 European Convention on Human Rights, (1955) 213 UNTS 221, ETS 5, art. 19. Schabas and O’Sullivan Page 3 Commission and subsequently to the Court. The Commission was eventually abolished, in 1998, as part of a restructuring of the Convention organs. Under the original Convention, the Commission and the Court were each authorised to consider individual petitions, although only if contracting States made a special declaration accepting jurisdiction in this regard. Ireland had the distinction of being the first State to accept the individual petition mechanism both to the Commission and the Court. Perhaps as a result, it was on the receiving end of the first case to come before the Court, in an application initiated by Seán MacBride himself, by then a private citizen.8 The Convention also allowed for inter-state applications. Under article 24, ‘Any High Contracting Party may refer to the Commission, through the Secretary-General of the Council of Europe, any alleged breach of the provisions of the Convention by another High Contracting Party.’9 Jurisdiction of the Commission to hear inter-State applications was an automatic consequence of ratification of the Convention, and in contrast with the situation of individual petitions, no supplementary declaration was required. Once the Commission had issued its report, the inter-State case could then be referred to the European Court of Human Rights by the Commission itself, or by one of the parties10 where both States had recognised the compulsory jurisdiction of the Court.11 This was the situation for both Ireland and the United Kingdom. The first inter-State applications were filed by Greece against the United Kingdom. They concerned repressive measures adopted by the British to suppress the independence struggle in Cyprus.12 They were dropped as negotiations for Cypriot independence advanced. Austria filed an application against Italy concerning treatment of 8 Lawless v. Ireland, Series A, No. 3. 9 Following the entry into force of Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, restructuring the control machinery established thereby, ETS 155, in 1998, the provision has been renumbered as article 33. 10 European Convention on Human Rights, (1955) 213 UNTS 221, ETS 5, art. 48. The provision was repealed by Protocol No. 11. 11 Ibid., art. 46. The provision was repealed by Protocol No. 11. 12 Greece v. United Kingdom (App. No. 176/56), (1955-1956-1957) 1 Yearbook of the European Convention on Human Rights 128; Greece v. United Kingdom (App. No. 176/56), (1958-59) 2 Yearbook of the European Convention on Human Rights 186. Also: Greece v. United Kingdom (App. No. 299/57), (1958-59) 2 Yearbook of the European Convention on Human Rights 178. On the Greek applications, see: A.W. Brian Simpson, Human Rights and the End of Empire, Britain and the Genesis of the European Convention, Oxford: Oxford University Press, 2001, pp. 924 ff. Schabas and O’Sullivan Page 4 the German-speaking minority in the Alto Adige.13 Applications were also filed against Greece by several European States following the military coup d’état in 1967,14 but they were struck from the list following the return of democracy to Greece in 1974.15 Until the Irish case, however, no application was considered by the Commission and then adjudged by the European Court of Human Rights. Indeed, until the Cyprus v. Turkey case, in 2001,16 the Irish case remained the only inter-State proceeding before the European Court of Human Rights since its establishment in 1959.
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