The Gazette 1973

THE ENFORCEMENT OF HUMAN RIGHTS S.A.D.S.I INAUGURAL

In the course of his Inaugural Address, the Auditor, Mr. Sheridan, continued as follows : The Convention as domestic law In Austria, Belgium, West Germany, Italy, Luxem- bourg, and the Netherlands, the provisions of the Con- vention form part of the domestic law of the country and can be iuvoked in national Courts, but only those provisions which are "self executing"—that is sufficiently detailed not to require further legislation. Of the re- maining countries all but Malta, Cyprus and Turkey have accepted the right of petition and the jurisdiction of the Court. But in these three countries the only enforcement of the Convention would be a complaint by another State and as we have seen these are seldom lodged. Whether they do so by internal legislation to bring their laws into line with the Convention, or by direct incorporation is left to themselves, but the Commission and Court have assumed the provisions of the Conven- tion to be obligatory and fully binding on States. Among the direct effects of the Convention are the changes in the laws of countries brought about because of actual proceedings before the Commission and Court, commencement of proceedings and fear of proceedings. Ireland has not since reintroduced internment. A Bill to amend the law involved in the De Becker case was introduced in 1957 but was still pending in 1961 when the hearing before the Court was to take place on Monday, July 3rd. On Friday, June 30th, the Bill was enacted and on Saturday, July 1st, it was published in the Official Gazette which had never before appeared on a Saturday. Norway changed its Constitution to remove a prohibition on Jesuits. Since we signed the Convention with a reservation as to legal aid it is likely that our Criminal Justice (Legal Aid) Act 1962 was to bring our law into line with the Convention. Belgium amended her law on Vagrancy, as did Austria her law on criminal appeals, and Germany those on remand and detention. There must be added to these the num- ber of administrative practices discontinued in member States. Influence of the European Convention Indirectly the Convention influenced countries such as Nigeria whose constitutions are based on it as are those of many former British colonies which enjoyed the protection of the Convention under Britain and on losing this on independence wrote the rights guaranteed into their constitutions. It has served as an example of the acceptance of international control over the actions of national governments and particularly of the effectiveness of regional arrangements on human rights. While univer- sal enforcement of human rights remains the ideal, regional agreements represent both a step towards this and it must be admitted, the most realistic hope in the immediate future. The advantage of the common back- ground possessed by parties in a regional arrangement is obvious. So far only Central and Southern American States of the Organisation of American States have followed with the American Convention on Human Rights signed

in 1969 on behalf of twelve countries. While there had been various noises from Africa and South-East Asia nothing concrete has emerged from there. On the world level, in 1966 the United Nations General Assembly finally ratified the second part of their Bill of Rights, namely the International Covenants. In the end there emerged two covenants, one on Econo- mic, Social and Cultural Rights, the other on Civil and Political Rights. The latter had also an optional Protocol attached to it containing measures of implementation of sorts. I do not propose to deal with Economic, Social and Cultural Rights. While they are a feature of ever-increasing importance, the method of their enforce- ment is different and it is even doubtful if some are "rights" in the sense we would understand at all. At European level they are dealt with by the European Social Charter of 1961 and the International Court of Justice has stressed the importance of human rights. While the rights guaranteed in the Covenant on Civil and Political Rights are more detailed than those in the European Convention, the machinery for en- forcement is, to put it mildly, modest. A Human Rights Committee is established which can request State parties to submit reports on the implementation of their obli- gations. But its recommendations have nothing but moral force. Even the optional Protocol which allows for a right of individual petition provides only for friendly settlements, if these are not achieved the Committee is powerless. There is no equivalent to the Committee of Ministers in the European Convention to enforce findings. While not wishing to dismiss the United Nations Covenants, while they do represent a significant achievement in an organisation of 180 odd member States and have not been ratified long enough to have their effects properly appreciated, they do seem to be far from an immediate step to the sort of Universal Charter of Human Rights envisaged by Mr. Sean Mac- Bride. He put forward to the seventh Nobel Symposium on Human Rights in Oslo in 1967 the idea of Regional Systems with appeals from the National to the Regional Courts and in some circumstances from the Regional Courts to the Universal Court of Human Rights at the United Nations. This should be the aim of all who believe in the international enforcement of Human Rights. To that end the Government of Ireland should work at the United Nations. Final suggestions Finally I would make the following points : (1) The new Irish Government should, in accordance with the resolution of the Parliamentary Conference at Vienna in 1971, incorporate the provisions of the Con- vention into our domestic law. Further they should ratify the United Nations Covenants and the optional Protocol. This would end the hypocrisy of our position internationally, where we voted for the Covenants in the General Assembly and then refused to ratify them despite another recommendation of the Vienna Confer- ence. (2) At this stage, twenty years after the European Convention came into force, the acceptance of the right of individual petition and the jurisdiction of the Court 148