The Oireachtas and Human Rights Treaties
As we head into 2010 it is worth taking stock of the status of international treaties in Ireland in general and the current status of numerous international human rights treaties in particular. Article 29.6 of the Irish Constitution marks Ireland clearly as a dualist jurisdiction when it comes to international law, providing:
No international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas.
As a result, for international treaties to become binding in domestic law they must be expressly incorporated by means of legislation, giving the Oireachtas an important role in relation to human rights treaties. Of course, once Ireland has ratified those treaties they are binding in international law; simply not in domestic law. This, of course, is the basic (and admittedly very simplified) principle of dualism: that there are two sphere of legal operation—the domestic and international—and that what a state becomes bound by in the international sphere overlaps with the domestic sphere only inasmuch as it is either expressly incorporated or forms part of the general principles of international law (a.k.a. customary international law).
In the context of human rights law, the fact that Ireland has signed a treaty but not incorporated it into domestic law does not necessarily mean that it is of no recourse to the individual who wishes to avail of the rights and protections within it. There are a number of ways in which unincorporated treaties can be useful in domestic litigation, including as interpretive aids or persuasive precedents. In addition, many human rights treaties have individual complaints mechanism that operate in international adjudicatory bodies like the European Court of Human Rights, the UN Human Rights Committee etc… Once someone has exhausted all domestic remedies (or established that there is no reasonable prospect of success in domestic law) they might avail of those adjudicatory mechanisms as a method of dispute resolution. Importantly, however, and as the case of Kavanagh v Governors of Mountjoy Prison demonstrated with some force, the decisions of those international bodies are not binding on the domestic courts. Thus, one might get a favourable decision in an international treaty body but if one returns to a domestic court the finding of that international body is merely persuasive authority in the absence of an incorporating act for the treaty in question.
Much of the capacity of international treaties to which we are a party, then, depends on legislative willingness to debate the incorporation of these treaties. Even where incorporation is brought about, the success of that incorporation is likely to depend to a very great extent on the design of those incorporating acts as we are learning with the ECHR Act 2003 (see our blog symposium on Carmody v Minister for Justice for a case study of difficulties with legislative design) and on whether there is a cultural willingness within the legal profession to engage with international law (see my forthcoming article on nurturing a culture of internationalisation and a rule of international law in dualist states).
So, how did 2009 fare as a year for the incorporation of international human rights treaties in Ireland? Not particularly well, I’m afraid. First of all it is worth noting that the legislative agenda was overwhelmingly financial between budget adjustments and the establishment of NAMA there was relatively little time left for others items. On top of that, the agenda was of course dominated for quite some time by the Lisbon Treaty Referendum and by the expenses scandal. Legislative time for other matters was, therefore, relatively straightened. Within that straightened time a number of pieces of legislation were passed which have caused considerable concern from a rights-protection perspective with limited discussion of the importance (not to mention incorporation) of international human rights law. In particular, criminal justice legislation was passed that is thought to endanger fundamental principles of fair trial—the Criminal Justice (Surveillance) Act 2009 and the Criminal Justice (Miscellaneous Provisions) Act 2009, about which Liz blogged here. Furthermore a new Defamation Act 2009 was passed, which has raised serious rights-based concerns particularly around the criminalisation of blasphemy. As reported by Eoin O’Dell here, the Act will commence on 1 January 2010. Colin blogged about the Act here; Rossa McMahon reflected on the under-discussed provision allowing a company to sue for defamation here as did Eoin O’Dell here. Eoin also considered the constitutionality of the Act in this post.
It is difficult to tell whether 2010 will see a more rights-focused legislative agenda remains to be seen, but here at HRinI we hope to bring you commentary and analysis of any pertinent legislative actions.