Using International Standards Beyond the ECHR. UN and Council of Europe Human Rights Instruments

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1 PILS Project/PILA Annual Conference, June Using International Standards Beyond the ECHR UN and Council of Europe Human Rights Instruments Michael Farrell Senior Solicitor Free Legal Advice Centres, Member European Commission Against Racism and Intolerance In this paper I want to give a brief overview of the wide array of international and regional human rights instruments which are not justiciable or binding on the domestic courts in either jurisdiction on this island, but which can be very useful to NGOs seeking to change law or policy affecting marginalised or disadvantaged people. And they can be useful to legal practitioners as well if they are taking strategic or test cases or have secured a declaration that domestic law provisions are incompatible with the European Convention on Huamn Rights (ECHR) and are seeking to implement that declaration. Leaving aside, for the purposes of this conference, the ECHR, which has been given a degree of legal effect in both the UK and the Republic of Ireland, and the EU Charter of Fundamental Rights, which is legally binding in areas governed by EU law 2, I want to look briefly at the main human rights mechanisms developed by the United Nations and the Council of Europe. And I want to apologise in advance to some very seasoned and experienced campaigners in the audience to whom all this will be only too familiar. Broadly speaking, these mechanisms divide into three types: quasi-judicial bodies which examine and adjudicate upon complaints about violations of human rights; monitoring bodies which require states to submit periodic reports on their implementation of human rights standards, which are then examined in public by a committee of experts; and monitoring bodies or individuals who visit the states which are parties to the relevant human rights Convention and interview government officials, National Human Rights Institutions (NHRIs) and NGOs before compiling reports on the state s human rights record. Again broadly speaking, the UN bodies tend to examine country reports at their headquarters in Geneva or New York, questioning government representatives in public 1 This paper was finalised in August 2012 and contains some references to events that occurred after the PILS/PILA conference in June The Geneva Convention Relating to the Status of Refugees has also been given legal effect through the refugee legislation in each jurisdiction. 1

2 about the reports they have submitted and then adopting Concluding Observations, while the Council of Europe bodies send delegations to visit the countries in question and then compile their own detailed reports. However, both systems have grown up in a haphazard way since the foundation of the UN and the Council of Europe (COE) after the second world war and not all the UN or the COE bodies work in the same way. The UN also has Special Rapporteurs in a number of areas, who visit states in the same way as the COE bodies. And a number of the UN Treaty Monitoring Bodies also consider and adjudicate upon individual complaints where the state in question has accepted their jurisdiction to do so. The COE Committee on Social Rights, which monitors the European Social Charter, also adjudicates upon complaints against states that have accepted this procedure as well as examining regular reports by countries which have ratified the Charter. The UN Human Rights Mechanisms The main UN human rights instruments or treaties are: International Covenant on Civil and Political Rights (ICCPR), monitored by the UN Human Rights Committee; International Convention on the Elimination of all Forms of Racial Discrimination (CERD), monitored by the Committee on the Elimination of Discrimination: Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), monitored by the Committee Against Torture; Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), monitored by the Committee on Discrimination Against Women; Convention on the Rights of the Child (CRC), monitored by the Committee on the Rights of the Child; International Covenant on Economic, Social and Cultural Rights (ICESCR), monitored by the Committee on Economic, Social and Cultural Rights; Convention on the Rights of Persons with Disabilities (CRPD), monitored by the Committee on the Rights of Persons with Disabilities; 2

3 Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (CMW), monitored by the Committee on Migrant Workers. Of these eight Treaties or Conventions, neither the UK nor Ireland has ratified the Convention on Migrant Workers 3, and Ireland, quite disgracefully, has not yet ratified the Disabilities Convention. Both states have ratified the remaining six Conventions but only four of these currently have individual complaints mechanisms: the Conventions on Civil and Political Rights (ICCPR), Racial Discrimination (CERD), Torture (CAT), and Discrimination Against Women (CEDAW). Protocols have been developed establishing individual complaints mechanisms for the Children s Rights Convention (CRC) and the Convention on Economic, Social and Cultural Rights (ICESCR) but they have not yet come into force. Individual Complaints Ireland has ratified the complaints mechanisms under ICCPR, CERD and CEDAW, but not under CAT, while the UK has ratified the mechanisms under CEDAW, CAT and the Disabilities Convention, but not the ICCPR or CERD. Of the various individual complaints mechanism, that under the ICCPR is much the most widely used, mainly because it covers a very broad spectrum of rights, similar to the European Convention on Human Rights (ECHR). For many countries outside Europe, the ICCPR and its monitoring body, the Human Rights Committee, play a similar role to the ECHR and the European Court of Human Rights. They provide an internationally accepted standard of human rights and an international tribunal to which individuals can complain if they cannot obtain justice in their own country. Although the Human Rights Committee members are not judges and their main role is to examine country reports under the ICCPR, the Committee has endeavoured to raise the standard of its jurisprudence in recent years to command more respect from the governments against whom complaints are made. Its decisions are now well regarded and carry considerable weight. Complaints are regularly made from common law countries like Australia, Canada and New Zealand and even from Western European countries which are parties to the ECHR some of the provisions of the ICCPR are more widely drawn than their ECHR equivalents and some of its rules and procedures are more flexible. 3 This appears to be a common position by all member states of the European Union, none of whom have ratified the Convention. 3

4 There have been six complaints from Ireland so far under the ICCPR, one of which, Kavanagh v. Ireland 4, led to a finding of a violation of the Covenant. It concerned the trial of a non-paramilitary case before the Republic s non-jury Special Criminal Court. One of the drawbacks of the ICCPR system, however, is the lack of an effective enforcement mechanism for its decisions and in the Kavanagh case, the domestic courts held that the Human Rights Committee s decision was not binding upon the state 5. Nonetheless, it is arguable that the decision did help to restrain the state from more widespread use of the Special Criminal Court for non-paramilitary cases. The UK, of course, has not accepted the competence of the Human Rights Committee to hear individual complaints and no complaints appear to have been taken from either the UK or Ireland to the other UN bodies whose competence to deal with such complaints they have accepted. This is probably due to the general ease of access to the European Court of Human Rights, the difficulty in enforcing the decisions of the UN bodies, and lack of awareness of these mechanisms among lawyers and NGOs. Nevertheless, it is important to know that these mechanisms are there and could be used in conjunction with the country reporting system. Thus if an individual complaint was successfully taken against either the UK or the Republic and the government refused to act upon the decision, this could be raised during the examination of the country s periodic reports. And this mechanism could become more significant if either or both governments ratify the new Optional Protocol establishing an individual complaints mechanism for the Covenant on Economic, Social and Cultural Rights (ICESCR), as it covers rights not fully protected under the European Convention. The Country Monitoring System Undoubtedly, however, the most important aspect of the UN human rights system is the country reporting mechanism. Each state must submit a report every four/five years and undergo an examination in public before the relevant UN Committee, where a government delegation is required to answer questions from the Committee members. NGOs and National Human Rights Institutions can submit shadow reports setting out their concerns and the UN Committees rely quite a lot on these submissions to counter-balance the more rose-tinted government reports. National Human Rights Institutions (NHRIs) are generally allowed to address the UN Committees directly during these examinations and some of the Committees allow NGOs to address them as well, while all the Committees are very open to informal lobbying or 4 Joseph Kavanagh v. Ireland, Communication No. 819/1998, 4 th April Kavanagh v. Governor of Mountjoy Prison [2002] 3 I. R. 97 4

5 briefing sessions by NGO representatives during the hearings. Many of the NGO members here will be familiar with this process and I would like to pay tribute to CAJ, from whom I first learned about this whole system, and who were pioneers in these islands in using international human rights mechanisms to ventilate issues where it was impossible or very difficult to make any progress through the domestic system. Well informed questioning of government representatives by Committee members at these hearings can be very effective and can sometimes lead to policy changes being announced at the hearing or pledges given that the government in question can be held to afterwards. And where issues or concerns are included in the Committee s Concluding Observations, the government side will know that they will be questioned as to what they have done about these matters at the next periodic examination or asked to respond to the committee within a shorter period where the Committee decides to prioritise the issue. Several of the Committees now select a smaller number of issues or recommendations and require the government to report within 12 months on the actions they have taken to meet the Committee s concerns. Meanwhile, NGOs can raise the issues in the domestic arena with the validation and added weight given by criticism from a UN Committee and, where appropriate, the issue can be raised before other UN Committees, Council of Europe (COE) bodies, or UN Special Rapporteurs to keep the pressure up. A frustrating factor can be the long delay between the periodic reports and examinations, which can sometimes stretch to five or six years and a concern that governments will not feel under pressure to do anything about the issues raised until shortly before the next report is due. It is to counteract that tendency that the Committees have begun to seek follow-up reports on key issues within a much shorter timeframe. And given the number of human rights instruments now in existence and the fact that there are overlaps in their coverage, both between the UN and COE systems, and between the UN and COE bodies themselves, it should be possible, with some strategic planning, to keep particular issues or the failure of government to implement Committee recommendations before one or other international body fairly constantly in the intervening period. Other UN Mechanisms Two other UN mechanisms can help to maintain pressure on governments to implement change: Special Rapporteurs or Independent Experts, already referred to above, and the Universal Periodic Review system. There are number of Special Rapporteurs or Independent Experts appointed by UN bodies to examine specific issues or areas of concern 5

6 and they can prove to be a very effective means of raising awareness and applying pressure on particular issues. Some people here will remember Mr Param Cumaraswamy, Special Rapporteur on the Independence of Judges and Lawyers, who played an important part in pressuring the British government for an investigation into the murder of Belfast solicitor Pat Finucane, and who also protested to the authorities here about their failure to take measures to protect Lurgan solicitor Rosemary Nelson. And in the Republic, FLAC and other NGOs last year met with and made submissions to Ms Magdalena Sepulveda Carmona, UN Independent Expert on Human Rights and Extreme Poverty. She subsequently produced a very powerful report on the disproportionate effect of current austerity measures on vulnerable and marginalised groups. The Universal Periodic Review process is a relatively new (2008) mechanism whereby UN member states have their record across the entire human rights spectrum examined in public every four years by the UN Human Rights Council, a Committee of 47 member states elected by the UN General Assembly. The country under examination must submit a report on its record and each Council member can ask questions and make recommendations at an open session of the Council in Geneva. NHRIs and NGOs can make submissions outlining their concerns and will be given a brief opportunity to address the Council during the country examination. And the secretariat of the Council compiles briefing papers for the Council members drawing heavily on the Concluding Observations of the various human rights Treaty Monitoring Bodies, Special Rapporteurs etc. There were concerns initially that this new process would be too politicised because it involves representatives of governments rather than independent experts like the members of the Treaty Monitoring Bodies, but despite some point-scoring by countries whose own human rights records are highly dubious, the initial examination of both the UK and the Republic was both serious and searching and covered the whole spectrum of human rights issues. And, because of their more political nature, the country examinations have attracted a lot more attention than the hearings before the Treaty Monitoring Bodies. There is also a follow-up process some months after the first hearing where the state party under examination has to indicate to the Human Rights Council which of the recommendations made to it are accepted and what it intends to do about them. 6

7 The Council of Europe Mechanisms Those are some not all of the main UN mechanisms for holding states to account on human rights issues. Then there are the Council of Europe (COE) mechanisms, in addition, of course to the European Court of Human Rights. The European Social Charter A potentially quite important but under-used and not very well known mechanism is the (Revised) European Social Charter, monitored by the European Committee on Social Rights 6. Social and economic rights have for a long time been the poor relations of civil and political rights in both the UN and COE systems. The COE tried to remedy that imbalance by the adoption of the Social Charter and the more comprehensive Revised Social Charter in 1996, together with an Optional Protocol providing for Collective Complaints. Ireland has ratified both the Revised Charter and the Optional Protocol but the UK has not. It is still bound by the original Charter, however. The Charter s provisions are divided into four thematic groups: Employment, Training and Equal Opportunities; Health, Social Security and Social Protection; Labour Rights; and Children, Families and Migrants. Each member state is expected to report on its implementation of one of these groups of rights every year, so that all of them are covered in a four-year cycle. The Committee of Social Rights reviews the reports but they are not examined in public session, like the UN Committee hearings, though the Committee s conclusions are published. The Collective Complaints procedure is somewhat different from the systems used by the UN Committees or the European Court of Human Rights. The Committee of Social Rights does not consider individual complaints, only complaints that concern groups or categories of people, and complaints must be made by one of a number of international or regional NGOs recognised by the Committee. In practice this does not cause much difficulty. Among the NGOs recognised by the Committee are the International Federation of Human Rights (FIDH), Interrights, the European Roma Rights Centre and some trade union bodies, and they are often willing to help local NGOs to take a case that may have wider implications. And the fact that the 6 The Charter was adopted in 1961 and revised and strengthened in Some states, including the UK, which are parties to the original Charter, have not ratified the Revised Charter so the two versions still exist side by side and countries are monitored in respect of the obligations contained in the version they have ratified. To make things a little more complicated, states which are parties to either version of the Charter are not required to sign up to all its articles, so that it is necessary to check which articles have been accepted before lodging a complaint. 7

8 Committee does not consider individual cases can be an advantage as it means it is not necessary to exhaust domestic remedies first and it avoids the stress that taking an international case can cause for an individual client. The FIDH facilitated FLAC in taking a case under the Social Charter in 2006 concerning the refusal of the Irish authorities to allow recipients of Irish pensions who are resident in the UK to avail of the free travel scheme for pensioners when they are visiting the Republic 7. We did not win the case but I can still recommend making use of this mechanism in appropriate cases as it was easy to use and produced a decision within two years, which is very quick by the standards of other international and regional complaints procedures The Social Charter mechanism has been used very successfully in recent years in relation to the treatment of Roma and Travellers in a number of European countries 8. The fact that there are no public hearings for the country reviews under the Social Charter and the rather technical nature of some of its provisions has meant that the work of the Committee of Social Rights has not got very much publicity over the years. However, in a period of increased interest in the justiciability and enforceability of social and economic rights it is surprising that more attention has not been paid to the Social Charter. Other Monitoring Bodies The Council of Europe has three other major instruments in the human rights field: The European Convention for the Prevention of Torture (CPT), monitored by the European Committee for the Prevention of Torture; The European Commission Against Racism and Intolerance (ECRI), which is governed by a statute of the Council of Europe rather than a Convention; and The European Framework Convention for the Protection of National Minorities (FCNM), monitored by the Advisory Committee of the Framework Convention. Both the UK and the Republic are parties to all three instruments. All three mechanisms work by way of monitoring visits to the member states in five year cycles. A delegation visits the State in question, meeting government officials, NHRIs and 7 International Federation for Human Rights v. Ireland, Case No. 41/ An important decision on Traveller accommodation in Belgium was given as this paper was being corrected: International Federation of Human Rights v. Belgium, Case No. 62/2010 8

9 NGOs, and making on-site, and often unannounced, visits to prisons, police stations, mental hospitals, asylum-seekers accommodation and Traveller halting sites. Some years ago a CPT delegation caused consternation when they visited a Garda station in the Republic and insisted on inspecting the lockers of individual Gardai. The delegation visits do not attract the level of public attention that the hearings by the UN Committees can generate but they can be very effective in enabling the COE bodies to examine the actual conditions on the ground and in bringing home to frontline officials that they are under scrutiny from European human rights bodies. The monitoring bodies welcome submissions before their visits from NHRIs and NGOs and most people who have met the delegations will have been impressed at how well-briefed they have been. Their reports in turn are very thorough and comprehensive and can be quite critical of the governments in question. As a recently appointed member of ECRI, I have been struck by the level of preparation put into the country visits and how seriously they take their task. ECRI and the Advisory Committee of the Framework Convention also sometimes organise follow-up meetings in the countries they have visited to discuss their reports. Of the three bodies, the CPT s remit includes anywhere where people may be detained involuntarily, including prisons, police stations and mental health institutions. ECRI covers the position of immigrants, asylum-seekers and ethnic minorities and seeks to prevent discrimination against them. It places a particular emphasis on integration of minorities and prevention of incitement to hatred. The Framework Convention was originally designed to deal with the question of ethnic/national minorities mainly in Central and Eastern European countries, but it has also taken a particular interest in the situation of Roma minorities throughout Europe and the position of Travellers in Ireland, Britain and some other countries. There is an obvious overlap between ECRI and the Framework Convention in relation to Roma and Travellers and in February this year (2012) they made their first ever joint country visit to the Republic. ECRI has now completed its draft report on that visit, which will be sent to the government to give it an opportunity to respond and will then be finalised for sending to the Committee of Ministers of the Council of Europe and for publication. It is worth noting that the European Court of Human Rights has recently referred to reports by the COE bodies in a number of its judgments and that the Committees in turn, and particularly the Committee of Social Rights, often refer to judgments of the Strasbourg Court. 9

10 The European Commissioner for Human Rights Finally, the Council of Europe in 1999 created the position of European Commissioner for Human Rights and Thomas Hammarberg, who completed his term of office earlier this year (2012), developed this into a very substantial role, making periodic visits to all the member states of the COE. During these visits he met with government representatives, NHRIs and NGOs and made on-site visitations, like the three bodies already mentioned, but with a remit that covered the whole spectrum of human rights issues. He also gave special attention to issues of sexual orientation and gender identity, disability, and mental health, which are not specifically covered by the other COE bodies. Commissioner Hammarberg s reports on his country visits were thorough, comprehensive, and made specific criticisms and recommendations where appropriate. They provided very powerful support and endorsement of issues raised by NGOs. His successor, Nils Muiznieks, has promised to continue in the same vein and has already issued some quite robust reports in the short time since he took up office in April Conclusion The relevance of these UN and COE mechanisms is obvious for NGOs seeking to change government policies or practice, but they can be useful to legal practitioners as well. The bodies that consider individual or collective complaints can provide another possible avenue of redress where the domestic courts have rejected a client s case or where it raises issues that the courts have already made clear that they will not deal with. Normally, in such circumstances, a practitioner might turn to the European Court of Human Rights in Strasbourg and certainly the decisions of the Strasbourg Court are more readily enforceable than those of the other mechanisms discussed. However, there can be occasional cases where the scope of the ECHR or the rules of the Strasbourg Court may rule out a complaint to it, but where one or the other complaints handling mechanisms might be appropriate. And the non-adjudicative bodies could have another role to play, helping to enforce a decision that is not enforceable through the domestic courts. To take a very contemporary example: FLAC has represented Lydia Foy, a transgender woman, in a long legal battle for recognition in her female gender. There was and is - no legal provision for recognising transgender persons in Irish law. 10

11 The High Court in 2007 granted the Republic s first ever declaration of incompatibility with the ECHR in the Foy case 9. The State promptly appealed and our client faced a possible wait of four or more years for a hearing in the Supreme Court, despite the fact that the breach of her rights under the ECHR was incontrovertible. The COE Commissioner for Human Rights Thomas Hammarberg was visiting the Republic in November 2007 and we raised the issue with him. In his report in April 2008, he referred to the Foy case and said he expected to see legislation very soon. Later in 2008 FLAC and other NGOs, and the Irish Human Rights Commission, raised this issue at the State s examination by the UN Human Rights Committee under the ICCPR and the Committee also recommended transgender legislation. Some months later the EU Fundamental Rights Agency also highlighted the case and Commissioner Hammarberg returned to the issue in a Viewpoint on transgender issues in The government eventually dropped its appeal in 2010, the declaration of incompatibility was finalised and an Inter-Departmental Committee was set up to recommend legislation. Unfortunately, there is still no happy ending, however. The law has not yet been changed and we have had to start out again on the lobbying trail, but we would not have got this far without using the UN and COE mechanisms to push the case on. The core message of this paper is that there is - in addition to, and not instead of, the domestic courts and the European Court of Human Rights a broad range of human rights treaties and instruments out there, at both UN and COE level, that can be used to try to secure changes in law and practice in the interests of marginalised and disadvantaged people. The broad array of treaties and instruments may appear a little daunting but the staff of the implementing bodies are generally very helpful and cooperative and there are organisations like Interrights, the Aire Centre, and British-Irish Rights Watch, who have long experience of working with these bodies and who are very willing to give advice and assistance. The time span between the periodic reviews by the various bodies may seem too long drawn out to have any practical effect, but as indicated above, many of the bodies now require interim progress reports between their reviews. And the proliferation of international monitoring mechanisms means that scarcely a year will go by without the UK and Irish governments having to report to or be examined by one or other of these bodies. With a 9 Foy v. An t-ard Chlaraitheoir & Others [2007] IEHC

12 little planning and ingenuity, it should be possible to ensure that any particular human rights issue is never allowed to slip off the government s agenda for very long. Michael Farrell 9 th August