Last week, the ministers of justice of all 46 Council of Europe states met in Strasbourg to discuss the application of the European Convention on Human Rights to migrants and refugees. While all 46 initially committed to working together to consider these issues further at a full summit next May, that is not what happened.
Instead, a group of 27 States, led by Denmark, broke away and issued a separate position, expressing a hardline commitment to push for changes to the convention and how it is interpreted. Minister for Justice Jim O’Callaghan participated in this meeting and signed Ireland up to the Danish-led statement.
This is a significant and worrying development.
The substance of the Danish statement could well lead to a fundamental weakening of the protection of human rights for everyone in Europe. But for Ireland, our new alignment with Denmark and Britain – not to mention Hungary and Slovakia, both vocal far-right supporters of Putin’s Russia – marks an important shift in our relationship with the Council of Europe and the convention.
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Ireland has a proud history of championing the European Convention. The first case decided by the European Court was an Irish case concerning internment. The first inter-state case before the court was also initiated by Ireland, concerning the practice of torture and inhuman and degrading treatment against detainees in Northern Ireland. Over the years, key Irish cases concerning the right to legal aid, the decriminalisation of homosexuality and access to information about healthcare have helped shape the jurisprudence of the court and revolutionised the protection of human rights for Irish people.
In May 2023, then-Taoiseach Leo Varadkar described the convention and the Court as “the conscience of Europe” and core to the peace process and the Belfast Agreement. The agreement makes clear that the key guarantee for the human rights of all people living in Northern Ireland would be that Westminster and the Northern Assembly would have to legislate in line with the requirements of the convention.
When British governments have suggested dissatisfaction with the convention or sought to weaken those protections, especially since Brexit, successive Irish governments remained steadfastly against diminution of rights. Last year, Ireland initiated another inter-state case against Britain on the right to an effective investigation of killings during the Northern Ireland conflict.
Against that backdrop, last week’s statement threatens to cause irreversible damage to the wider system of rights protections in Europe and marks a seismic shift in Ireland’s relationship with the convention.
On the substance, the group of states led by Denmark have said that Article 8, which protects private and family life, should be “re-balanced” and the scope of “inhuman and degrading treatment” under Article 3, should be “constrained”. They cite, in particular, removing barriers to the deportation of migrants in certain instances. In subscribing to this view, O’Callaghan has not cited in which instances he believes the European Court has “gone too far” or made significant errors. We are not aware that the Irish Government has made any such claim before now.
The statement also calls for states to be empowered to enter into agreements with “third countries” to process asylum claims outside of Europe. This was precisely the type of arrangement Britain tried to establish with Rwanda, and which the Northern Ireland Courts found violated the Windsor Framework of rights protections post Brexit. Ireland has previously stated that it does not intend to establish any such system, so why is Ireland subscribing to such a legal position now?
The precedent being set here may have far-reaching consequences. In this instance, governments want to create a hierarchy of rights between migrants and others, but who is to say that on the next occasion a coalition of hostile states might not call for the weakening of respect for family life of gay citizens, or for an expansion of state power in the area of surveillance, or restrictions on the right to peaceful assembly? Are we now in the territory that rights be negotiated away by a group of ministers when they are politically expedient? This should be exceptionally worrying for everyone within the Council of Europe.
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No aspect of law should be set in stone and we should not be afraid to review and strengthen legislation. But there is a fundamental difference between reviewing core international treaties through the international system of law and trading away hard-won protections for short-term political aims.
It is notable that not all governments chose this path. France, Germany, Spain, Portugal, and Belgium all face serious political challenges around migration and international protection. However, this week they all refused to sign the Danish statement. Those states felt it was more important to defend the convention, or at least to ensure that consideration of reforms stayed within the tried-and-tested multilateral system.
Up to now, Ireland has consistently been one of the leading champions of the multilateral approach and has been recognised as one of the strongest advocates for human rights in Europe, not least because of the strong principled position Ireland has taken on the genocide in Gaza.
All of which makes the decision to break ranks with France, Germany and Spain and align with countries seeking to weaken rights even more disappointing. Given the central importance of the convention to the Irish people and to the agreement, we are left with many unanswered questions about how Ireland made such a dramatic shift in policy and approach. For example, it is not clear how this abrupt change in policy came about, or if the Government has carried out an assessment of the impact of this new position on the protection of human rights in Ireland, including in Northern Ireland, or its impact on Ireland’s international standing.
What is clear is that important choices about the future of the European system of human rights will be determined between now and the summit of Council of Europe Foreign Ministers next May. Ireland is faced with some serious questions about our commitment to the system of rights we have championed – and whether we are now going to align with those with a much more destructive agenda.
Liam Herrick is chief commissioner of the Irish Human Rights and Equality Commission
