Following the UN Human Rights Committee’s decision in Mellet v Ireland, handed down on June 9th 2016, a number of questions have been raised as to the legal status of the Committee’s views. The Taoiseach Enda Kenny has noted that the Committee is not like the ‘European Court’. On this, he is, of course, correct. On his comment that the Committee’s views are ‘non-binding’ – it’s a bit more complicated.
This short post focuses on the questions raised as to the legal status of the Committee’s views, and the obligations that they give rise to for the State. While this may seem to be a point of limited interest to international lawyers, it is in fact a critical issue for the enforcement and implementation of international human rights law. Challenges to the competence of UN bodies, and the status of their findings in the human rights domain, are not infrequent. This challenge, and the consequent enforcement gap, is one that has been recognised by the UN Human Rights Committee.
Its General Comment no.33 “The Obligations of States Parties under the Optional Protocol to the International Covenant on Civil and Political Rights” specifically addresses this challenge. As the Committee notes, its functions in considering individual communications are “not that of a judicial body,” However, they go on to point out that the views issued by the Committee under the Optional Protocol exhibit some important characteristics of a judicial decision, and are ‘arrived at in a judicial spirit’. That ‘judicial spirit’ includes, ‘the impartiality and independence of Committee members, the considered interpretation of the language of the Covenant, and the determinative character of the decisions.’ (para.11)
The legal basis for the Committee’s competence to issue ‘views’ on individual communications and State’s compliance, or lack thereof, with the Covenant, derive from the Covenant and the Optional Protocol themselves. On this, it is of interest to note that the Protocol is an optional extra. Ireland, has chosen not only to ratify the Covenant itself, but also the Optional Protocol, thereby specifically recognising the competence of the UN Human Rights Committee to give an authoritative interpretation of the State’s obligations under the ICCPR. Specifically, as noted by the Irish Supreme Court in Kavanagh v Governor of Mountjoy Prison,  IESC 13 (01 March 2002),the Optional Protocol enables the Human Rights Committee “to receive and consider …communications from individuals claiming to be victims of violations of any of the rights set forth in the Covenant …..” Article 1 of the Protocol provides that a “State Party that becomes a party to the …. Protocol recognises the competence of the Committee…” in respect of such individual claims.
The status of the Committee’s views and the competence of the Committee are linked to wider principles of international law, including those stated in the Vienna Convention on the Law of Treaties. The principle of pacta sunt servanda is enshrined in Article 26 of the VCLT: ‘Every treaty in force is binding upon the parties to it and must be performed in good faith.’
Linked to this general principle is a core norm of customary international law and one that is particularly relevant to the current debate in Ireland: A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. (Article 27 VCLT). This is without prejudice to the provisions of Article 46 of the VCLT, concerning the competence of states to conclude treaties. And, in the Irish context, the precise legal meaning of the reference to a provision of internal law regarding competence to conclude treaties has generated both litigation and debate, particularly with regard to Ireland’s relationship with the European Union, and to Anglo-Irish relations (See Crottey and McGimpsey, in particular). (See Clive Symmons comments on this potential clash here).
Of relevance also to this debate is the characterization of an act as a ‘wrongful act’ under international law, and the International Law of State Responsibility. As noted by the International Law Commission, affirmed by the General Assembly, the characterization of an act as ‘internationally wrongful’ is not affected by the characterization of the same act as lawful by internal law. It is of significance also that Article 1 of the ILC’s Articles on Responsibility of States for Internationally Wrongful Act, does not confine their scope to the responsibility of states towards other states, which, as James Crawford has noted, would have significantly curtailed the scope of the obligations covered by the Articles and ‘could have stifled the development of international law.’
In the text of the ICCPR itself, it is important to remember the treaty obligation on all States Parties to provide an ‘effective remedy’ for a violation of the Covenant (article 2(3)(a)). This obligation is re-stated in the final paragraphs of the Committee’s views in Mellet v Ireland, and forms part of the consistent wording of its views. (See also General Comment no.33 para.14)
And so, although the Committee’s views are not those of a judicial body, and do not have a status equivalent to that of a judgment of an international court, they do have legal consequences and do give rise to legal obligations for the State. Indeed in Kavanagh v Governor of Mountjoy Prison, Justice Fennelly, speaking for the Supreme Court, commented that he was ‘prepared to assume that the State may, by entering into an international agreement, create a legitimate expectation that its agencies will respect its terms.’ (para.43)
The Irish Government has been slow in the past to give effect to views of the UN Human Rights Committee. This failure was the subject of the proceedings before the Supreme Court in the Kavanagh case, in which the appellant sought inter alia, a declaration that section 47(2) of the Offences against the State Act, 1939 was incompatible with the Covenant on Civil and Political Rights and was repugnant to the Constitution ,in particular, Articles 29(2) and (3). The case followed on from the finding of a violation by Ireland of Article 26 ICCPR (guarantee of equality before the law) by the UN Human Rights Committee in Kavanagh v Ireland concerning the role and scope of jurisdiction of the Special Criminal Court. The Committee upheld Kavanagh’s complaint of a violation of article 26 observing that:
“No reasons are required to be given for the decisions that the Special Criminal Court would be “proper”, or that the ordinary courts are “inadequate,” and no reasons for the decision in the particular case has been provided to the Committee. Moreover, judicial Review of the DPP’s decisions is effectively restricted to the most exceptional and virtually undemonstrable circumstances.”
The Committee went on to note that “the State Party [had] failed to demonstrate that the decision to try the author before the Special Criminal Court was based on reasonable and objective grounds.” It continued: “Accordingly, the Committee concludes that the author’s right under article 26 to equality before the law and to the equal protection of the law has been violated.”
Before the Supreme Court, Kavanagh argued that Article 29(3) of the Irish Constitution, effectively constitutionalises the general principles of international law, including the principles of equal treatment. Given the UN Human Rights Committee’s findings of a violation of Article 26 also in Mellett v Ireland, this argument takes on particular significance. In support of this argument, counsel for Kavanagh, Dr Forde, invoked the dissenting judgment of Judge Tanaka in the South West Africa Cases (1966) on “the essence and nature of fundamental rights ..[in the context of the United Nations Charter] … in which the principle of equality before the law occupies the most important part ….”
His argument, however, was not accepted by the Supreme Court. Invoking again its findings in In Re O Láighleis  IR 93, the Court concluded that article 29 (3) confers no rights on individuals. While accepting that O’Láighleis was ‘probably correct in its time’, Dr Forde had argued that the substance of the principles of international law had ‘changed so radically’ that the case would no longer be decided in the same way. Given, he argued, that these principles take effect in Irish law by virtue of article 29(3), there is thus no need for their enactment into Irish law pursuant to art 29 (6).
It was a nuanced argument, recognising the diverse sources of international law and seeking to move beyond the limits imposed by a strict dualist approach to the relationship between domestic and international law. The Supreme Court was not to be persuaded. The O’Láighleis case, Fennelly J concluded, remains the law, having been followed in other cases: see, for example State (Sumers Jennings) v Furlong  IR 183; State (Gilliland) v Governor of Mountjoy Prison  201. O Laighleis, in his view, had ‘stood the test of time’, because the words that it interpreted were, ‘clear beyond argument and do not admit of any other construction.’
Of interest is the somewhat different approach taken by the High Court and Supreme Court in cases concerning Ireland’s obligations under the 1951 Convention relating to the Status of Refugees. In Fakih & Ors v. Minister for Justice, the High Court held that a letter sent by the Minister for Justice to the UNHCR representative in London, Mr von Arnim, had given rise to a legitimate expectation on the part of the applicant that his asylum claim would be assessed in accordance with the procedures laid down in the 1951 Convention. In Gutrani v. Minister for Justice, the Supreme Court, speaking through McCarthy J, held that the same result followed, not because of any legitimate expectation that the letter may have given rise to, but simply because of the binding undertaking given by the Minister. Thus, the 1951 Convention, not yet incorporated into domestic law, was given indirect effect, circumventing the strict requirements of Article 29.6 of the Constitution.
(I have discussed these cases in the context of transnational judicial dialogue in asylum law in Goodwin Gill and Lambert eds. The Limits of Transnational Law (CUP: 2010) It may, of course, be of some relevance, that at the time of these judgments, giving effect to the requirements of the 1951 Refugee Convention, would have been considerably less controversial than questioning the role of the Special Criminal Court, or the interpretation of Article 40.3.3 of the Irish Constitution.)
Beyond and within the law, there is of course politics. And as the now President of the UN Committee on the Elimination of Racial Discrimination (CERD), Dr Anastasia Crickley, commented earlier this year, it is important to remember that the Irish Government in an exercise of its sovereign authority, has chosen to ratify the ICCPR and other UN human rights treaties. It has, simply by this act of ratification, incurred an obligation to ‘all those subject to its jurisdiction’ to give effect to the rights protected by the Covenant. Those rights include the right to be free from cruel, inhuman or degrading treatment, the right to be free from arbitrary interference with one’s privacy, and to equality before the law and equal protection of the law.
 Fakih & Ors v. Minister for Justice  ILRM 274.
Gutrani v. Minister for Justice  2 IR 427.