1. International human rights instruments
a) Treaty standards
b) Non-treaty standards
2. The nature of the obligation on the State
C. Human rights policy in Ireland
2. An holistic approach to human rights policy
3. The substance of the Government’s human rights policy
D. The scope of the audit and its recommendations
Since the publication of the 1996 White Paper on Foreign Policy the Government has undertaken a number of initiatives aimed at establishing a central place for human rights in Ireland’s foreign and domestic policy.[1] Foremost among these initiatives was the establishment of a Human Rights Unit within the Department of Foreign Affairs, charged with taking “an overview of Ireland’s approach to international human rights issues so that they are given full attention in all aspects of our foreign policy”.[2] More recently, under the Good Friday Agreement, the Government pledged to take further steps to strengthen the protection of human rights within its jurisdiction.[3] These steps have included the establishment of a national human rights commission and an undertaking to incorporate the European Convention on Human Rights and Fundamental Freedoms. Further, the Government has expressed a commitment to afford human rights a high priority in the formulation of policy.[4] Amnesty International has warmly welcomed these developments.
The protection and promotion of human rights should be an integral element of both foreign and domestic policy. The role of the Irish Government in this respect is clearly defined in international agreements freely entered into by the State. As a member of the United Nations, Ireland undertakes to pursue the purposes of the UN, as defined in the UN Charter, including “promoting and encouraging respect for human rights and fundamental freedoms for all”.[5] The Government’s human rights policy must therefore, at a minimum, be capable of rendering the State compliant with its obligations under international human rights law.
This audit, which is the first prepared by the Irish Section of Amnesty International, has been produced in the context of the Section’s work to promote human rights protection in Ireland. It assesses both the substantive content and the implementation of human rights policy in Ireland. The assessment is based on an examination of compliance by Ireland with international obligations in respect of foreign and domestic policy and practice falling within the mandate of Amnesty International.
In its examination of domestic policy, the audit assesses the protection of fundamental human rights in Ireland against the benchmark of clearly defined and applicable international human rights law and standards. The degree to which domestic law and practice comply with international human rights law is evaluated, with a view to informing future policy development and improving mechanisms for the implementation of ‘human rights compliant’ domestic policy.
As regards foreign policy, the audit clearly identifies the nature of the State’s obligation to protect and promote human rights. In the light of Ireland’s membership of the United Nations Security Council from 2001 to 2003, and taking into account the limitations on the influence of small states in their bilateral relations, the audit focuses on the State’s participation in intergovernmental organisations. Membership of such organisations presents the State with the opportunity to exercise increased leverage or to “punch above its weight” as regards the promotion of human rights standards in other regions or states. Recent participation in an intergovernmental organisation is evaluated with a view to informing future policy formulation, particularly in respect of Ireland’s tenure on the UN Security Council.
Finally the audit makes a number of recommendations which address the management of domestic and foreign human rights policy in Ireland.
Amnesty International works with governments worldwide to support the development of human rights policies based on international human rights law and standards. In the context of this work, the organisation has carried out audits on human rights policy in a number of countries.
Amnesty International works to promote the rights contained in the Universal Declaration of Human Rights and campaigns throughout the world to:
· free all prisoners of conscience;
· ensure prompt and fair trials for political prisoners;
· abolish the death penalty, torture and other cruel treatment of prisoners;
· end extrajudicial executions and “disappearances”;
· stop abuses of human rights by armed opposition groups.
Amnesty International uses the standard international definitions of human rights as set out in the Universal Declaration of Human Rights (UDHR) and subsequently in the laws and standards detailed in international treaties such as the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the European Convention on Human Rights (ECHR) and in the Geneva Conventions and other instruments of humanitarian law. These international standards clearly identify individuals’ human rights and circumscribe the role and responsibilities of governments in protecting them.
Amnesty International is independent of any government, political persuasion or religious creed. It does not support or oppose any government or political system, nor does it support or oppose views of the victims whose rights it seeks to protect. Amnesty International is financed by subscriptions and donations from its worldwide membership and no funds are sought or accepted from governments for its campaigning work.
The State must comply with the provisions of international treaties to which it is a party. The covenants, conventions, charters and protocols cited in this audit are examples of such treaties. To become a party to treaty, a state can either directly accede to it or use the two-step process of signature and subsequent ratification of the treaty; Ireland employs the latter method. Once it has signed a treaty, the State must not engage in acts inconsistent with the object and purpose of that treaty. Once it has ratified a treaty, the State must abide by all the provisions contained in the treaty and fulfil its obligations under the treaty.
Non-treaty standards represent the consensus of the international community on standards to which states should aspire. They include the declarations, principles and rules referred to in this audit. Some non-treaty standards are so widely accepted that states consider them to be a part of customary international law and thus binding on states, for example, the Universal Declaration of Human Rights (UDHR). Other non-treaty standards such as the UN Body of Principles for the Protection of all Persons under Any Form of Detention or Imprisonment technically do not have the legal power of treaties or customary international law, but do have the persuasive force of having been negotiated by governments over many years and subsequently adopted by political bodies such as the UN General Assembly, usually by consensus. Because of this political force, they are often considered to be as binding on states as treaties. Non-treaty standards sometimes reaffirm principles which are already considered to be legally binding on all states under customary international law.
In order to comply with treaty obligations and to follow international standards, the State must ensure that legislation, policy and practice operate to protect the human rights of individuals as enumerated in the text of a treaty or non-treaty standard. Ensuring compliance involves two types of obligation: a negative obligation to refrain from abusing human rights and a positive obligation to take measures to protect human rights.
At the heart of the White Paper was a recognition of the need for coherence between foreign and domestic policy. It stated that there was no absolute dividing line between foreign and domestic policy and that foreign policy was often implemented both by external and internal action.[7] Further, the White Paper recognised that policy must be aimed at the implementation of human rights instruments both at home and abroad and it stated: “there is wide agreement that the international community should now concentrate on the implementation of the provisions of these instruments”.[8]
2 An holistic approach to human rights policy
Responsibility for the formulation and implementation of Irish human rights policy is divided between the Department of Foreign Affairs and other Government Departments. In many instances, the “division of labour” involved is relatively straightforward, for example, as regards international human rights treaties, it is usually the Department of Foreign Affairs which makes preparations for the signature of treaties while other “operational” Government Departments prepare legislation to implement such treaties at domestic level. However, there are also a number of tasks which are not obviously the sole responsibility of any one department, including:
·
preparing
periodic state reports on the implementation of human rights treaties
at national level for submission to the United Nations or the Council
of Europe;
·
promoting
the ratification of international instruments on a global scale;
·
monitoring
compliance with the State’s international human rights
obligations.
3 The substance of the Government’s human rights policy
Sourcing the substance of the Government’s human rights policy is not a straightforward task. Arguably, this could be positive, were it to reflect a situation where human rights policy has already been mainstreamed into all governmental agencies and departments and has come to permeate all activities and strategic objectives. In the White Paper, the Government stated: “there is no such thing … as a self-contained policy on Development Co-operation or Human Rights. The approach to be adopted by the Government in these areas must, if it is to be effective, inform the full range of Government policy”.[9]
The basic elements upon which human rights policy was to be based were enumerated in the White Paper. These included:
· ensuring a continuing strong profile for human rights issues in foreign policy;
· highlighting and pursuing identified human rights priorities within international organisations, such as the United Nations;
· recognising the State’s responsibility for promoting awareness of the provisions of international human rights instruments;
· promoting the right to development;
· implementing human rights instruments at domestic level.
These basic elements were updated in the Strategy Statement of the Department of Foreign Affairs for 1998–2000, which stated that action would be taken “to ensure that Ireland’s commitments in the field of human rights are implemented”.[10] The Strategy Statement set out eight primary goals for the Department; the first of which was to “pursue Ireland’s foreign policy in accordance with the ideal of peace and friendly co-operation amongst nations founded on international justice and morality, while paying particular attention to the role of the United Nations and the protection of human rights”. As regards Civil and Political Rights, in its September 2000 Strategy Statement Progress Report, the key operational department, the Department of Justice, Equality and Law Reform, also detailed its objectives, as regards ensuring compliance with international law in the elaboration of domestic legislation. In addition, the Government has publicly elaborated on the detail of its human rights policy in speeches by Government Ministers, reports to treaty bodies, Dáil[11] debates and other public documents.
The Government has employed stronger language regarding the prioritisation of human rights concerns in relation to its participation in intergovernmental organisations. For example, the Government’s commitment to the objectives of the United Nations has been described as a “cornerstone of Irish foreign policy”[12] and Ireland’s Presidency of the Council of Europe was described as a “foreign policy priority”.[13] The significance of multilateral fora such as the UN for Ireland and the enhanced opportunities which they present for Ireland to exercise influence in its foreign policy will be examined in Section II B 3 above.
Rather than attempting a full description of the content of the Government’s human rights policy, specific aspects of that policy which merit closer scrutiny will be examined in the context of the audit’s assessment of domestic and foreign policy.
In the audit which follows, Amnesty International assesses the State’s compliance with its international obligations in respect of domestic law and practice and foreign policy. Domestic law and practice are examined with reference to the protection by the State of the following fundamental rights: the right to freedom from ill-treatment, the right to seek asylum and the right to a fair trial. In its assessment of foreign policy, the audit evaluates the State’s recent participation in a selected intergovernmental organisation with a view to informing future policy formulation, particularly in respect of Ireland’s tenure on the UN Security Council.
These aspects of domestic and foreign policy have been selected, firstly, having regard to Amnesty International’s mandate (see above), and secondly to remain within the time and resource limitations of this particular auditing exercise. It is axiomatic that effectively to audit Ireland’s compliance with the full spectrum of human rights obligations which the State has undertaken would be an exercise requiring a far greater investment of time, and considerably more human and financial resources than are presently available. It is hoped, however, that this “sampling approach” will both highlight some issues of acute and immediate concern, and demonstrate the merit of such auditing activities.
On the basis of the audit’s findings Amnesty International presents specific recommendations for action the State should take in order to comply with its international obligations. It also proposes recommendations aimed at the improvement of the mechanisms charged with ensuring compliance with international obligations at domestic and international level.
[1] Government of Ireland, White Paper on Foreign Policy, “Challenges and Opportunities Abroad”, 1996.
[2] Ibid at Chapter 8 page 225.
[3] Good Friday Agreement (the Multi-Party Agreement), April 10 1998, Chapter ‘Rights, Safeguards and Equality of Opportunity’ para 9.
[4] “ With my appointment by the Government
as Minister of State with Special Responsibility for Human Rights, a
signal was sent out, both at home and abroad, that human rights were
to be given a high priority in the formulation of policy”.
Foreword by Ms Liz O’Donnell, T.D., Minister of State with
Special Responsibility for Overseas Development Assistance and Human
Rights, Report of the DFA Inaugural NGO Forum, 7 March
1998.
[5] Charter of the United Nations, Chapter 1, Article 1(4).
[6]
Customary international law is composed of norms which carry
the force of law. When states generally and consistently follow a
norm, due to a sense of legal obligation, that norm can be said to
form part of customary international law. For example, the UDHR has
been so widely accepted by states that it is considered to be part of
customary international law and binding on states. See further, T.,
Meron (ed.) Human Rights and
Humanitarian Norms as Customary International Law, Oxford University Press,
1989.
[7] The White Paper on Foreign Policy, ibid at 2.4.
[10] Department of Foreign Affairs Strategy Statement 1998-2000, Objectives and Actions for the Period 1998-2000, 3(E) Human Rights.
[11] The lower house of the Irish Parliament.
[12] “Ireland: Security Council Candidate 2000”, published by the Department of Foreign Affairs.
[13] See further, Ireland’s Chairmanship of the Committee of Ministers of the Council of Europe, Programme presented to the Committee of Ministers by the Minister for Foreign Affairs of Ireland, Mr D. Andrews T.D., 4 November 1999, CM/Inf(99)73 (unclassified 15 November 1999).