Archive

Posts Tagged ‘politics and rights’

The Oireachtas and Human Rights Treaties

December 27, 2009 Leave a comment

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.

Read more…

Advertisements