Human Rights in the Courts of Northern Ireland 2009-10

This article surveys and comments on the decisions issued on human rights points by courts in Northern Ireland during the legal year 2009-2010.

Germany v Italy:The Triumph of Sovereign Immunity over Human Rights Law

This article analyses the doctrine of State immunity within the context of the recent judgment of the International Court of Justice (ICJ) concerning the Jurisdictional Immunities of the State (Germany v Italy: Greece intervening). The object of this article is to explore the implications of the State immunity from foreign judicial proceedings in cases of jus cogens crimes. Challenging the assumption that the law of immunity is merely procedural in nature, this article argues that there can be no immunity in cases of undisputed international crimes.

Human Rights in Irish Prisons

Ireland is bound by several international instruments in the area of prisoners’ rights and penal policy and the ongoing reform in the Irish prison system means that the time is opportune to consider the extent to which these legal obligations are currently met and to evaluate what needs to be done to ensure greater compliance. The aim of this article is thus to examine Ireland’s record in prisoners’ rights against international standards and to determine where reform needs to take place in order to ensure full respect for the rights of prisoners in Irish law, policy and practice.

Human Rights in Northern Ireland in 2011

This chapter surveys and comments on the developments in the legal protection of human rights in Northern Ireland during the year 2011.

What is an absolute right? Deciphering absoluteness in the context of Article 3 of the European Convention on Human Rights

The answer to the question of what it means to say that a right is absolute is often taken for granted, yet still sparks doubt and scepticism. This article investigates absoluteness further, bringing rights theory and the judicial approach on an absolute right together. A theoretical framework is set up that addresses two distinct but potentially related parameters of investigation: the first is what I have labelled the ‘applicability’ criterion, which looks at whether and when the applicability of the standard referred to as absolute can be displaced, in other words whether other considerations can justify its infringement; the second parameter, which I have labelled the ‘specification’ criterion, explores the degree to which and bases on which the content of the standard characterised as absolute is specified. This theoretical framework is then used to assess key principles and issues that arise in the Strasbourg Court’s approach to Article 3. It is suggested that this analysis allows us to explore both the distinction and the interplay between the two parameters in the judicial interpretation of the right and that appreciating the significance of this is fundamental to the understanding of and discourse on the concept of an absolute right.

The Human Rights Act 1998 – Future Prospects

It is now over fifteen years since the Human Rights Act was enacted in November 1998. Although in legal terms it is difficult to argue with the proposition that the Act is working in an effective manner, in political terms the Act remains one of the most highly debated pieces of legislation on the UK statute books. In recent years there have been numerous calls for the repeal of the Act, and for its replacement with a ‘UK Bill of Rights’. Such calls led to the establishment of a Commission on a Bill of Rights, which issued its final report in December 2012. Little progress has since been made on the issue. One notable occurrence however was the introduction of the Human Rights Act 1998 (Repeal and Substitution) Bill, a Private Member’s Bill which was eventually withdrawn in March 2013. This article seeks to assess the current situation regarding the bill of rights debate, and ultimately the question of the future prospects of the Human Rights Act, an issue of immense legal significance. Overall, it will be questioned whether the enactment of a UK Bill of Rights would constitute an improvement on the current position under the Human Rights Act.

The European Convention on Human Rights Act 2003 – Ten Years On

The European Convention on Human Rights Act 2003 has now been in force in Ireland for ten years. This article analyses the Act itself and the impact which it has had on the Irish courts during the first decade of its operation. The use of the European Convention on Human Rights in the Irish courts prior to the enactment of the legislation is discussed, as are the reasons for the passing of the Act. The relationship between the Act and the Irish Constitution is examined, as is the jurisprudence of the Irish courts towards the interpretative obligation found in section 2(1), and the duty placed upon organs of the State by section 3(1). The article ends with a number of observations regarding the impact which the Act has had on the Irish courts at a more general level. Comparisons will be drawn with the UK’s Human Rights Act 1998 throughout the discussion.

Reimagining rights-based accountability: Community use of economic and social rights

This article explores the ways in which marginalised groups in Northern Ireland have employed and translated for practical use human rights standards, principles and mechanisms to campaign for the implementation of economic and social rights obligations. With the support of Participation and Practice of Rights, a regional nongovernmental organisation, marginalised groups have drawn upon human rights in their local context to campaign on issues related to mental health, housing, work and play. Based on case studies from four such campaigns, this article reviews the practical steps groups took to engage directly or indirectly with economic and social rights tools and mechanisms. The article reflects on the usefulness of these frameworks and mechanisms for achieving change in the case studies discussed, as well as the value of a human rights framework for empowering marginalised communities to make rights-based demands for change. It is argued that although the realisation of economic and social rights is limited in part by the lack of traditional enforcement mechanisms, community driven campaigns offer an opportunity for reimagining mechanisms for rights-based accountability.

The EU Charter of Fundamental Rights in the case law of the European Court of Human Rights

The European Court of Human Rights has begun to refer to the EU Charter of Fundamental Rights in order to support its reasoning for interpreting the European Convention on Human Rights in a particular way. But the EU Charter does not yet have any special status in that regard, being treated by the Court as on a par with numerous other documents of international law. The Court’s use of the Charter began in connection with arts 8 and 12 of the Convention (the right to a family life and the right to marry) but in subsequent years it has been extended to many other Articles of the Convention. It is in relation to art.6 (the right to a fair trial) that the Charter’s influence has been most noticeable so far, the Court having changed its position on two important aspects of Article 6 partly because of the wording of the EU Charter. But the influence on art.3 (in relation to the rights of asylum seekers), art.7 (in relation to retroactive penal laws), art.9 (in relation to the right to conscientious objection) and art.11 (in relation to rights of trades unions) has also been significant. The potential for the Charter to have greater influence on the Court’s jurisprudence in years to come remains considerable.