International Human Rights Day, is a day to celebrate the fact that human rights are recognised as s a fundamental part of the law of every civilised state, But inin Ireland today is also a frustrating reminder of a gap that makes some of these rights almost impossible for people in Ireland to enforce.
Through international treaties, our government is committed to guaranteeing human rights at home. Like all laws, there have to be ways of ensuring that treaties are respected. Therefore, there needs to be oversight and, for most of them, Ireland has signed up to a mechanism that allows individuals to complain to the United Nations of a violation of their rights. Those who believe that the state has violated their right to be free from torture or racial discrimination, for example, may bring a complaint either domestically or to the UN. But no such system exists in Ireland for rights guaranteed under the International Covenant on Economic, Social and Cultural Rights. Our government insists that it does recognise these rights, including the rights to housing, health, and an adequate standard of living. This government even signed up in 2012 to putting a complaints mechanism in place. It hasn't happened yet.
For the most part, economic, social and cultural rights are not considered constitutional rights to be protected, especially those where the government’s duty arises under international law. So for those who suffer violations of their economic, social or cultural rights, the Irish courts are rarely a solution. Nor is there any alternative system. Monitoring and redress for economic, social and cultural rights is not the job of the Ombudsman or any other dispute mechanism.
There is no domestic oversight of how the treaty is being implemented. The only Oireachtas sub-committee with a human rights brief has a limited scope which does not cover this Covenant. And so we must rely solely on very occasional reporting by the government to the UN to see what progress our government is making in protecting our rights in these vital areas.
The net result for people in Ireland is that there is no effective way of highlighting or righting wrongs if they happen. There is no way to propose a remedy for a person whose rights have been violated or where the failure to protect those rights has resulted in harm.
This does call into question how seriously our state takes economic, social and cultural rights into account. Over 40 years ago, in a case about legal aid taken against the Irish State by Cork woman Josie Airey, the European Court of Human Rights, in a practical statement about the function of law, stated that the European Convention on Human Rights had been designed to protect rights which were 'real and effective', not 'theoretical and illusory'.
If there is no way to provide oversight of how the Government implements the International Covenant on Economic Social and Cultural Rights; if a person cannot even confront the State on its failures, then these rights run a very real risk of being observed in theory only. The government is free to give whatever priority it likes to implementing the Covenant. We can see that even the obligation of occasional reporting to the UN is given a low priority. While this is supposed to happen every 5 years, when Ireland reported in 2014, it had been 12 years since its previous report.
In most areas in which FLAC works, we see that the legal systems for addressing wrongs are inaccessible to many people because of cost, complexity, or delay - but at least systems exist. What is unusual and frustrating about the economic, social and cultural rights guaranteed by the International Covenant is that there is not even a mechanism to allow for enforcement or complaint in Ireland. Must we conclude that the government is not committed to protecting and respecting those rights? Are they even on the agenda for our public representatives?
In our call to politicians ahead of the next election, FLAC will ask for a commitment to implementing these laws that the state has promised to respect. We will ask them to confirm that these fundamental and truly important rights - shelter, dignity, basic health, labour and education - are a priority and worthy of being implemented. The response will be a test of whether those politicians see these rights as real and effective, or just theoretical, illusory.
Noeline Blackwell is Director General of FLAC (Free Legal Advice Centres).