Donncha OConnelloutlines the history of the convention
NEXT THURSDAY will see the sixtieth anniversary of the signing in Rome of the European Convention on Human Rights (ECHR) by 10 states, including Ireland. The convention, containing an extensive catalogue of civil and political rights, was hastily drafted and agreed following the somewhat turbulent establishment of the Council of Europe in 1949.
The negotiations leading to the establishment of the council were marked by quite an amount of tension between the Irish and British delegations over what became known as Ireland’s “sore thumb policy”. This involved using international fora to raise, on a repeated basis, the question of the partition of Ireland and Northern Ireland.
The sore thumb policy had everything to do with how these matters were playing on the domestic front where, at the time, there was intense competition for the irredentist nationalist vote between Fianna Fáil and Clann na Poblachta. Thus there was competitive harmony in the signing of the policy within the Irish delegation that included the likes of Seán Mac Bride, Éamon de Valera and William Norton.
This harmony was not music to the ears of those other states participating in the difficult negotiations leading to the establishment of the council of Europe where the issue of Irish partition was simply not seen as the egregious violation of a states rights so strongly protested by the Irish.
The controversy caused by the sore thumb policy distracted somewhat from a surprising degree of agreement between the Irish and British delegations on other issues, including the text of the proposed European Convention on Human Rights in the period between 1949 and 1950.
The Irish delegation was enthusiastic about the adoption of a convention and was prominent in moves to include rights such as the right to private property, the right to parental choice in education and the right to marry and found a family. De Valera, who had authored Bunreacht na hÉireann 1937, in which each of these fundamental rights were guaranteed in strong terms, was a particularly keen advocate of the inclusion of such rights and proved quite effective in negotiations.
In the UK, the post-War Labour Government of Clement Attlee and the Foreign Office took some persuading as to the merits of a convention but the document that eventually emerged from an impressively swift drafting process was quintessentially British. This was no real surprise as the inspiration for such an instrument could be traced directly to the famous “Iron Curtain” and Hague Congress speeches of Winston Churchill who had argued that a pan-European codification of common law civil and political values was a necessary bulwark against totalitarianism (in the forms of Fascism and Communism) in Western Europe. No doubt, the irony of de Valera championing a Churchillian plan was not lost on some at that time.
Ireland was the first State to have a case taken against it (Lawless v. Ireland) decided by the European Court of Human Rights. It was party to the first inter-state complaint heard by the court (Ireland v. UK) arising from allegations of torture and inhuman or degrading treatment or punishment in interrogation centres in Northern Ireland.
Although the total number of cases involving Ireland before the European Court of Human Rights has been small some Irish cases have been significant in the development of the courts jurisprudence on such issues as: the status of “illegitimate” children, States positive obligations in areas like access to justice, gay rights and jurisdictional complementarities with the European Court of Justice.
Sixty years later a good degree of Anglo-Irish harmony on the ECHR resonates. Both states gave domestic effect to the Convention rather late in the day, with the UK “incorporating” it in 1998 and Ireland doing so in 2003 as part of a package of undertakings arising from the Belfast/Good Friday Agreement.
In the UK, the initial enthusiasm of New Labour for the ECHR was followed, fairly quickly, by remorse once the judiciary started to make decisions – most of which were predictable – that were not to the liking of government and, more importantly, the security services. The Tories under David Cameron, who were always cool on the convention anyway, vowed to replace the Human Rights Act 1998 with a “British Bill of Rights”. This promise is probably now on the long finger as Cameron is sharing power with the Lib Dems and, no less importantly, Ken Clarke.
In Ireland the sceptical position on things like the ECHR has been cloaked in defensiveness about the 1937 Irish Constitution that, at times, sounds chauvinistic and a bit over-excited. This is, occasionally, matched by over-optimism on the part of rights enthusiasts about the added-value, in terms of substantive rights protections, afforded by the convention and other international human rights instruments.
In national debates, the ECHR and the European Court of Human Rights are criticised both for going too far and not going far enough. This no-win situation is compounded by very real pressures on the Strasbourg system arising from the sheer weight of its caseload which has grown massively as membership of the Council of Europe has expanded.
Member states, despite various efforts in the form of protocols reforming the courts procedures, have not acted effectively to protect the ECHR system that has achieved so much in its 60 year existence. This existential challenge may be deepened by EU accession to the convention and the growing importance of the EU Charter of Fundamental Rights.
Donncha O'Connell lectures in the School of Law, NUI Galway. He is the editor of theIrish Human Rights Law Review published by Clarus Press.