The new Irish Human Rights and Equality Commission should be mandated to monitor ICCPR rights
This is Yuval Shany of the UN Human Rights Committee, during the Committee’s questioning of Ireland in Geneva in July.
He is challenging the Irish State’s reasons for not mandating the new Irish Human Rights and Equality Commission to monitor human rights under the International Covenant on Civil and Political Rights.
Starting with the new Human Rights Commission, I appreciate the clarifications provided by Mr Briain on the reasons underlying the decision not to invest the Human Rights and Equality Commission with an enforcement mandate that includes the Covenant as well as other international treaties.
I find however the explanation provided not fully convincing, and I will explain why.
First, the fact that Ireland is a dualist country does not negate the need for inclusion of such language in the Bill. In fact, requiring public bodies to comply in their policies with the Covenant, and authorising the Commission to monitor such compliance, could serve as a form of incorporation by other means, as required under Article 2.2 of our Covenant,* in ways which are somewhat similar to the way in which the EC Charter has been incorporated in a relatively soft manner in the 2003 Bill. So dualism is not a reason why not to incorporate it. It is actually a reason why to incorporate the Covenant into domestic law.
Second, the fact that the Covenant has not been incorporated does put the State in a tight spot with respect to the duty to provide effective remedies, under Article 2.3 of our Covenant.* And again, the exclusion of the Covenant from the mandate of the Commission does limit the ability of the State to provide, through that channel, effective remedies at least for certain violations of our Covenant. Other dualist countries that have not incorporated the Covenant did find it proper to introduce, within the mandates of their Human Rights Commission, such a possibility. Take Australia, for example.
And finally, I do not see the strength of the argument that the dualist nature of the country would bar the Commission from investigating or inquiring into situations of alleged violations of non-incorporated human rights, or develop codes of practice as part three authorises it, in the same way that it may provide Amicus Curia briefs involving the Covenant in other parts. So I appreciate that non-incorporation may limit the possibility of providing legal redress within Irish law at the present moment in time, but I don’t see why it should serve as a bar against allowing the Commission to fully function in ways that involve non-remedial powers in this sphere.
So I would appreciate the continuation of the engagement on this point.
* Articles 2.2 and 2.3 of the Covenant
2.2 Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.
2.3 Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted.