should compo be paid when no law is broken?

recedite

Peregrinus wrote: »

It makes even less sense for a regime both to pay no remedy and to continue with the same behaviour, and for the whole issue to be parked until there is regime change.

But that does make complete sense if the regime believes that it has the correct policy, and the international body is mistaken. Effectively they would be agreeing to disagree.
An EU member cannot disagree with the ECJ, as they have already ceded that sovereignty to the EU.
But in the case of UN Committee of HR or the ECHR, what sanction is available to a member state who does not implement the recommendation?
Other than the transgression being "duly noted" in the record. The threat of expulsion?
That would be our position regarding the UN Committee of HR.

Post Brexit, the UK will be in this position regarding the ECHR too, as there would be no chance of any dispute being escalated to the ECJ.

Peregrinus wrote: »

The legal anomaly doesn’t arise from the payment of compensation, but from the mismatch between the provisions of domestic law and/or government policy on the one hand, and the international obligations which Ireland has undertaken by ratifying the Convention on Civil and Political Rights. That problem doesn’t go away if Ireland refused to provide recommended remedies to those whose Convestion rights have been breached.

You are conflating two different issues.
There is a kind of "mismatch" whether or not Ireland accepts the UN Committee's view, but it can take very different forms, depending on our attitude.
If we disagree with their view, we need to resign from the particular covenant that we opted to sign up to. That resolves the matter; we would just agree to disagree.
If we agree with their view, we need to change the way we do things instead of carrying on as before, and then paying the compo subsequently.

The legal anomaly I refer to occurs when we do neither of the above. It occurs when we hold two mutually incompatible legal positions at the same time. That lack of clarity is exactly the kind of position that led to Ireland being taken to the ECHR previously (quite rightly) after which we were obliged to draft the POLP legislation.

GM228

Peregrinus wrote: »

The EU is a party to the European Convention on Human Rights, and as you correctly note the EU courts do give effect to Convention rights in their decisions.

But that doesn’t mean that you can take any breach of the Convention to the ECJ. If you have a case arising under EU law, you can go to the ECJ (if you need to), and if the facts of that case happen to give rise to issues to which the Convention is relevant, then the Convention will be applied.

The EU is not a party to the ECHR, yes the Lisbon Treaty provided for a duty for the EU to accede to the ECHR, but to date it has not done so. The ECJ has held that the ECHR is not compatible with EU law, as such you can't refer any matter in relation the ECHR to the ECJ as the ECHR is not EU law.

Accession of the ECHR has been delayed numerous times, each year some body within the EU confirms a commitment to actually accede, but there is no sign of it actually happening anytime soon, the Council of the European Union only last month reiterated the commitment to do so.

Peregrinus

recedite wrote: »

But that does make complete sense if the regime believes that it has the correct policy, and the international body is mistaken. Effectively they would be agreeing to disagree.
An EU member cannot disagree with the ECJ, as they have already ceded that sovereignty to the EU.
But in the case of UN Committee of HR or the ECHR, what sanction is available to a member state who does not implement the recommendation?
Other than the transgression being "duly noted" in the record. The threat of expulsion?
That would be our position regarding the UN Committee of HR.

All states which are party to the Convention are legally bound respect the Convention rights; to ensure them to individuals within their jurisdiction; where not already provided by legislation, to take the necessary steps to enact the required domestic laws; to ensure that those whose rights are violated (including by government action/government officials) have an effective and enforceable remedy.

As regards remedies, even those states which have signed up to the individual complaint process are not bound to provide the particular remedy recommended by the Committee, but they are bound to provide a remedy which is both effective and enforceable. In practice this means either the remedy recommended by the Committee, or an alternative remedy acceptable to the victim.

The treaty doesn’t deal with enforcement. This is fairly common with treaties creating international legal obligations. The question of how the obligation gets enforced isn’t addressed until it is breached.

Essentially, it’s up to the international community to enforce obligations on states; how they enforce them (and indeed whether they enforce them) is heavily influenced by politics. Depending on the circumstances, the breach by a state of an international obligation may result in any sanctions ranging in severity from a curt diplomatic note, through retaliatory action or sanctions of one kind or another, to the Partition of Poland or the Second Gulf War.

Realistically, nobody is going to invade Ireland to enforce the payment of the recommended compensation in these cases. The effective sanctions that we would suffer are a loss of reputation, a loss of credibility, a loss of future negotiating muscle (why make treaties with Ireland if Ireland does not take implementation of treaties seriously?) and a loss of status/weight when it comes to opposing human rights breaches in other countries.

recedite wrote: »

There is a kind of "mismatch" whether or not Ireland accepts the UN Committee's view, but it can take very different forms, depending on our attitude.
If we disagree with their view, we need to resign from the particular covenant that we opted to sign up to. That resolves the matter; we would just agree to disagree.
If we agree with their view, we need to change the way we do things instead of carrying on as before, and then paying the compo subsequently.

The legal anomaly I refer to occurs when we do neither of the above. It occurs when we hold two mutually incompatible legal positions at the same time. That lack of clarity is exactly the kind of position that led to Ireland being taken to the ECHR previously (quite rightly) after which we were obliged to draft the POLP legislation.

SFAIK, we haven’t disagreed with their view that the current state of Irish law is not compatible with the Covenant. The fact that we paid the compensation is fairly clear evidence of that. We’re now required to consider what legal and other changes are needed in Ireland to bring us into compliance. The Convention contains a process by which states periodically report to the Committee on the measures they have adopted to give effect to Convention rights, and on the progress they have made, and on any problems they have encountered, and the Committee comments in response. Presumably, the issue is going to be addressed through that process.

The end result may be a conclusion that Irish law is not compliant with the Covenant and that it's impossible to bring it into compliance, in which case the correct course might be to denounce the Convention. That would be acutely embarrassing and humiliating; SFAIK no state has ever denounced the Convention absolutely. More probably we would attempt to enter a reservation, carving out an area where we did not accept the application of the Convention. Reservations are possible, though at the moment Ireland has made none. Austria, for example, has made a reservation permitting it to continue to exile members of the House of Hapsburg; the US has made a reservation permitting it to continue to execute children (although of course its own domestic law now forbids that). As can be seen, some reservations will be more controversial than others.

recedite

Peregrinus wrote: »

SFAIK, we haven’t disagreed with their view that the current state of Irish law is not compatible with the Covenant. The fact that we paid the compensation is fairly clear evidence of that. We’re now required to consider what legal and other changes are needed in Ireland to bring us into compliance.....

The end result may be a conclusion that Irish law is not compliant with the Covenant and that it's impossible to bring it into compliance, in which case the correct course might be to denounce the Convention..

Or a successful referendum to change the constitution (repeal the 8th) might eventually render the whole matter moot.
But in the meantime, the govt. has destroyed the legal clarity which was only obtained fairly recently, in 2013, at the behest of the ECHR.

What if a clinic started offering abortions next week, in Dublin, for cases of FFA? Could the DPP prosecute them for the offence, when the state is at the same time compensating people for breach of human rights when they are denied the same service? Is it a service or an offence?
Nobody knows. And when nobody knows, that is a definite breach of human rights, as proven by legal precedent.

Peregrinus

recedite wrote: »

Or a successful referendum to change the constitution (repeal the 8th) might eventually render the whole matter moot.

It wouldn't "render the whole matter moot"; it would be steps taken to bring Irish domestic law into line with our obligations under the Convention, which is exactly what the Convention calls for.

recedite wrote: »

But in the meantime, the govt. has destroyed the legal clarity which was only obtained fairly recently, in 2013, at the behest of the ECHR.

Mmm. The salient feature of this report was the view that Irish law was not compliant with the Convention. If that creates uncertainty or confusion, or destroys legal clarity, the problem is not solved by the Irish government declining to provide the recommended (or any) compensation.

recedite wrote: »

What if a clinic started offering abortions next week, in Dublin, for cases of FFA? Could the DPP prosecute them for the offence, when the state is at the same time compensating people for breach of human rights when they are denied the same service? Is it a service or an offence?
Nobody knows. And when nobody knows, that is a definite breach of human rights, as proven by legal precedent.

The Covenant isn't directly effective in Irish domestic law. If Irish law is not compliant with the Covenant, then there's an obligation on Ireland to change domestic law until it is compliant (or denounce the Covenant, or enter a reservation, or whatever). But unless and until they change Irish domestic law, Irish domestic law is still Irish domestic law.

This is standard for intenational treaties. The EU treaties are directly effective in Irish law because the Constitution was amended by the people to provide for this. The European Convention on Human Rights is not directly effective in Irish domestic law, but the rights set out in the Convention are incorporated into domestic law by the European Convention on Human Rights Act 2003. But neither of these things have been done with respect to the International Covenant on Civil and Political Rights, and the Covenant itself implicitly recognises that it generally won't be directly effective in the domestic law of signatory states.

Irish law on abortion is as it is and, while it may get changed to bring it into compliance with the Covenant, the Covenant itself does not effect that change.

recedite

Peregrinus wrote: »

The European Convention on Human Rights is not directly effective in Irish domestic law, but the rights set out in the Convention are incorporated into domestic law by the European Convention on Human Rights Act 2003.

That's a good point, and I see that a provision has been made within the act for this kind of situation. A declaration of incompatability followed by a compensation payment, but only after the SC and the AG have made a determination on it. So that excludes any solo run by the govt, or any single govt. minister.
BUT its important to note that this relates to any incompatibility between the ECHR and Irish law. Whereas the subject of this thread relates to an incompatability between an opinion of a UN Committee and Irish law.

But for comparison, here's the text from the Act as written into Irish law anyway..

5.—(1) In any proceedings, the High Court, or the Supreme Court when exercising its appellate jurisdiction, may, having regard to the provisions of section 2 , on application to it in that behalf by a party, or of its own motion, and where no other legal remedy is adequate and available, make a declaration (referred to in this Act as “a declaration of incompatibility”) that a statutory provision or rule of law is incompatible with the State's obligations under the Convention provisions.

(2) A declaration of incompatibility—

(a) shall not affect the validity, continuing operation or enforcement of the statutory provision or rule of law in respect of which it is made, and

(b) shall not prevent a party to the proceedings concerned from making submissions or representations in relation to matters to which the declaration relates in any proceedings before the European Court of Human Rights.

(3) The Taoiseach shall cause a copy of any order containing a declaration of incompatibility to be laid before each House of the Oireachtas within the next 21 days on which that House has sat after the making of the order.

(4) Where—

(a) a declaration of incompatibility is made,

(b) a party to the proceedings concerned makes an application in writing to the Attorney General for compensation in respect of an injury or loss or damage suffered by him or her as a result of the incompatibility concerned, and

(c) the Government, in their discretion, consider that it may be appropriate to make an ex gratia payment of compensation to that party (“a payment”),

the Government may request an adviser appointed by them to advise them as to the amount of such compensation (if any) and may, in their discretion, make a payment of the amount aforesaid or of such other amount as they consider appropriate in the circumstances.

(5) In advising the Government on the amount of compensation for the purposes of subsection (4), an adviser shall take appropriate account of the principles and practice applied by the European Court of Human Rights in relation to affording just satisfaction to an injured party under Article 41 of the Convention.
6.—(1) Before a court decides whether to make a declaration of incompatibility the Attorney General and the Human Rights Commission shall be given notice of the proceedings in accordance with rules of court.

(2) The Attorney General shall thereupon be entitled to appear in the proceedings and to become a party thereto as regards the issue of the declaration of incompatibility.

Peregrinus

recedite wrote: »

That's a good point, and I see that a provision has been made within the act for this kind of situation. A declaration of incompatability followed by a compensation payment, but only after the SC and the AG have made a determination on it. So that excludes any solo run by the govt, or any single govt. minister.
BUT its important to note that this relates to any incompatibility between the ECHR and Irish law. Whereas the subject of this thread relates to an incompatability between an opinion of a UN Committee and Irish law.

No, no. In this case the incompatibility is between the International Covenant on Civil and Political Rights and Irish Law. The Committee, whose job it is under the Covenant to investigate and express an opinion on alleged incompatibilities, have expressed the opinion that there is an incompatibility. The Irish government are not bound to agree with the Committee that there is an incompatibility, but they evidently do agree, as shown by their payment of compensation.

recedite

Peregrinus wrote: »

No, no. In this case the incompatibility is between the International Covenant on Civil and Political Rights and Irish Law. The Committee, whose job it is under the Covenant to investigate and express an opinion on alleged incompatibilities, have expressed the opinion that there is an incompatibility. The Irish government are not bound to agree with the Committee that there is an incompatibility, but they evidently do agree, as shown by their payment of compensation.

Not quite; this UN committee has no mandate to search for incompatibilities between UN covenants and the national laws of the various signatory countries.
They merely state whether they think a complainant's human rights have been breached, in this case an Irish person.
It is then up to Ireland to investigate the matter. There seems to be no formal procedure within Irish law for this, because unlike the European Convention as mentioned above, the UN Covenant has not been incorporated into Irish law.
Any rulings made by the UN Committee have no legal standing in this country, and certainly do not have primacy over any contradictory domestic law. That principle is firmly enshrined in Article 29 of our Constitution...

Article 29 wrote:

6. No international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas.

So, what we have here is an apparent incompatibility between an international treaty and domestic law, with no formal procedure in place to resolve it.

If we follow the example set in the resolution procedure as enacted for the European Convention, there is a clear principle established there that the Irish courts would make any Declaration of Incompatibility.
Not the Irish Govt, and not the UN committee.
If the Irish govt. were to make the declaration, that is a breach of the separation of powers principle.
The UN Committee have no desire or competence whatsoever to comment on Irish law.

Peregrinus

Well, yes, it's up to the Committee to express an opinion as to whether there has been a breach of Convention rights. They don't need to say whether that's because of the state of Irish law, or on account of a government policy or practice that is not legally mandated, or anything else. That's not their business.

And you're right to say that the Committee's opinion does not have primacy over domestic law.

But it's also the case that, if in fact there has been an infringement of Convention rights, and if in fact this is due to the operation/effect of Irish law, that's no excuse or defence; Ireland is in breach of its obligations under the Convention (and has an obligation under the Convention to provide redress to victims; hence the compensation payments).

And it's not entirely true to say that there no formal procedure in place to resolve it. Under general principles of international law, the onus is on the Irish government to resolve it. The Convention doesn't dictate how they are to do that (and we have already canvassed a couple of possibilities) but it does require them to report to the Committee on what they are doing about it, which will make it a bit more difficult to employ the traditional Irish technique of studiously ignoring the discrepancy for a couple of decades in the hope that oh look at that really interesting thing over there!!!

recedite

Peregrinus wrote: »

But it's also the case that, if in fact there has been an infringement of Convention rights, and if in fact this is due to the operation/effect of Irish law, that's no excuse or defence; Ireland is in breach of its obligations under the Convention (and has an obligation under the Convention to provide redress to victims; hence the compensation payments).

I agree in general, but there are two major failings going on. Firstly, its a matter for the Irish courts to decide "if in fact" Ireland agrees with the findings of the UN Committee. The executive (the govt.) has apparently usurped that power from the judiciary, which is wrong.
Maybe the Irish courts would take the view that this UN Committee have taken an overly liberal interpretation of the treaty we signed, in which case no further action would be needed. The committee might then have to reconsider their own position.

If Ireland agrees with the committee, as decided by the Irish courts, the courts should formally declare a finding of incompatibility between the UN Covenant and Irish Law.

Following any such declaration being issued by the Irish courts, the onus would then be on the Irish govt. to decide whether to pull out of the UN covenant (or selected aspects of it) or alternatively to attempt to change Irish law by bringing a bill before the Oireactas. Which in this case would mean constitutional change first, which in turn would require a referendum.

Only then would it be appropriate for the Irish govt. to pay compensation, because they would have moved into the resolution phase.
However, paying compensation without attempting to resolve (or even give legal recognition to the apparent incompatibility is a wrongheaded approach.

Peregrinus wrote: »

... the traditional Irish technique of studiously ignoring the discrepancy for a couple of decades in the hope that oh look at that really interesting thing over there!!!

22 years from the 1991 X-case until the 2013 POLPA legislation was ridiculous, and a major failing on the part of the many different govts. we had over that time.

nuac

Good debate. Keep on.

Peregrinus

recedite wrote: »

I agree in general, but there are two major failings going on. Firstly, its a matter for the Irish courts to decide "if in fact" Ireland agrees with the findings of the UN Committee. The executive (the govt.) has apparently usurped that power from the judiciary, which is wrong.
Maybe the Irish courts would take the view that this UN Committee have taken an overly liberal interpretation of the treaty we signed, in which case no further action would be needed. The committee might then have to reconsider their own position.

If Ireland agrees with the committee, as decided by the Irish courts, the courts should formally declare a finding of incompatibility between the UN Covenant and Irish Law.

Following any such declaration being issued by the Irish courts, the onus would then be on the Irish govt. to decide whether to pull out of the UN covenant (or selected aspects of it) or alternatively to attempt to change Irish law by bringing a bill before the Oireactas. Which in this case would mean constitutional change first, which in turn would require a referendum.

Only then would it be appropriate for the Irish govt. to pay compensation, because they would have moved into the resolution phase.
However, paying compensation without attempting to resolve (or even give legal recognition to the apparent incompatibility is a wrongheaded approach.

I disagree.

There's nothing in the Convention itself, obviously, which says that the Irish courts determine whether Ireland is complying with its obligations under the Treaty. Nor would we expect there to be. In general its an internal, domestic matter for Irish law to determine which arms or agencies of the Irish state undertake which functions. The Convention just says that participating States must do X or Y; it doesn't look through the State to confer particular functions on courts, legislature, executive, etc.

Nor is their anything in Irish law which says the courts have to do this. In general the government determines what executive acts the law requires them to do, and this applies equally to the state's obligations under international law.

If the government thinks that the treaty requires Ireland to do X or Y, then the government does X or Y on behalf of Ireland unless, constitutionally, X or Y is not something the government can do. But they don't have to go and ask the courts if they are correct to think that the treaty requires X or Y.

So, for example, if they think the treaty requires Irish law to be changed, they introduce a Bill into the Oireachtas; they don't ask the courts if they are obliged to introduce a Bill into the Oireachtas. And, if they think the treaty requires money to be paid to someone whose rights have been breached, they pay the money. Constitutionally, the money has to be appropriated by the Oireachtas; the government can't pay it unless it is within the terms of an appropriation. But there is no constitutional requirement that the courts should agree that the money is payable. Anybody who thinks that the money isn't properly payable and who has an interest in the matter - a taxpayer, for example, such as yourself - can go to court seeking an order to prevent payment, and of course the Oireachtas can refuse to appropriate money for the payment. But there is no a priori requirement to go to court before any money can be paid.

recedite

Peregrinus wrote: »

Nor is their anything in Irish law which says the courts have to do this. In general the government determines what executive acts the law requires them to do, and this applies equally to the state's obligations under international law.

But "in general" international law does not conflict with domestic law. In cases where it appears to conflict, then it is "in general" a judicial function to make any technical determination on a point of law. Once the Irish position is established, there may or may not be a need to see what arbitration procedure is appropriate.

Peregrinus wrote: »

Anybody who thinks that the money isn't properly payable and who has an interest in the matter - a taxpayer, for example, such as yourself - can go to court seeking an order to prevent payment, and of course the Oireachtas can refuse to appropriate money for the payment. But there is no a priori requirement to go to court before any money can be paid.

Very unlikely to happen, because as mentioned earlier in the thread, FFA is a particularly "hard case" scenario. People would tend to take a sympathetic view of the women involved, and not begrudge them the money. Also, any pro-life campaigners would be foolish to make a stand on this, as opposed to some other aspect of the pro-life agenda. But all of that does not make the govt. strategy correct in law.

Peregrinus

recedite wrote: »

But "in general" international law does not conflict with domestic law.

On the contrary; such conflicts are frequent. When they arise, its' the responsibility of the state concerned to do what it needs to do to comply witgh its international obligations. There may be different things they could do; in that case it's up to the state to choose one and do it. As to what the proper process for doing this is, that's an internal matter for the state concerned. As already pointed out, international law will have nothing to say about, e.g., the respective roles of courts, executives and legislatures in the process.

recedite wrote: »

In cases where it appears to conflict, then it is "in general" a judicial function to make any technical determination on a point of law. Once the Irish position is established, there may or may not be a need to see what arbitration procedure is appropriate.

The Irish courts determine disputes under Irish law. They would only determine a dispute under an international legal instrument such as treaty if the treaty had been incorporated into Irish law which, as you point out, this one hasn't. I think if you did go to the Irish courts asking them if the Convention obliged Ireland to provide redress to someone denied access to abortion in circumstances where abortion is not permitted by the Irish legislation, the answer would be "we have no competence to adjudicate what the Convention requires. The Convention is not an aspect of Irish law, and neither the Convention itself nor anything in Irish law confer on us a jurisdiction to determine what the Convention requires, any more than we have a jurisdiction to determine what, e.g., French law requires on some point. If you want guidance on this you can use the processes provided by the Convention itself (i.e. take it to the Committee); if you want judicial guidance you could perhaps seek an advisory opinion from the International Court of Justice. Or you can just make up your own mind what is required. But we can't help. We can tell you that you can't pay the compensation without satisfying the constitutional requirement of having it appropriated by the Oireachtas, because that is a requirement that arises under Irish law."

When an issue of non-Irish (and non-EU) law comes before the Irish courts relevant to some dispute on a point of Irish law, they treat it as a matter of fact, to be determined by evidence, not a matter of law, on which they can rule. So if it's relevant to an Irish legal action to know what French law provides on some question, the parties need to introduce authoritative expert evidence of the provisions and requirements of French law, e.g. from a well-qualified and highly-reputed French lawyers who practices in the area concerned. We have a recent example here in Australia - the Constitution disqualifies someone from being a member of Parliament if he or she is a citizens of a country other than Australia; the courts have recently had to determine whether particular people were disqualifed on the basis of being, respectively, citizens of New Zealand, the UK and Italy; these are of course questions of NZ, UK and Italian law; rather than interpreting the laws concerned and ruling on the citizenship status of the people, the court received expert evidence from NZ, UK and Italian lawyers on whether the people would be regarded as citizens under those laws.

If it became relevant in Irish proceedings to know what the Convention required in a particular matter and the Committee had already issued an opinion on that, I really can't see an Irish court looking past evidence of the Committee's opinion.

recedite wrote: »

Very unlikely to happen, because as mentioned earlier in the thread, FFA is a particularly "hard case" scenario. People would tend to take a sympathetic view of the women involved, and not begrudge them the money. Also, any pro-life campaigners would be foolish to make a stand on this, as opposed to some other aspect of the pro-life agenda. But all of that does not make the govt. strategy correct in law.

It is, nevertheless, correct in law.

Can you point to any provision of Irish law that the government is in breach of in paying compensation in these cases?

Mr. Incognito

This is the most articulate and interesting and non confrontational abortion debate I have ever read on Boards.

recedite

Peregrinus wrote: »

If it became relevant in Irish proceedings to know what the Convention required in a particular matter and the Committee had already issued an opinion on that, I really can't see an Irish court looking past evidence of the Committee's opinion.

I can see your point in regard to matters which are entirely to be decided within another jurisdiction, such as whether a person has NZ citizenship.
But if we are talking about a treaty, which may be open to some interpretation, then both parties are entitled to have their own opinions on it.
For example, in the CETA negotiations and in currently in Brexit talks, both Canada and the UK were reluctant to accept that the ECJ would be the sole arbiter in the event of any future dispute over the agreement. They did not simply accept that the ECJ could have the sole competence to make judgements on such matters. Because although it may be technically quite competent, and may be capable of acting in a fair and neutral manner, nevertheless it is still effectively the representative of only one side in the dispute.

Similarly, why should we accept the opinion of the UN Committee saying that we are in breach of a treaty that we have signed, without ever asking our own courts to examine the matter?
It is true that there is no written procedure to say we must do this. But, on the other hand, if we use the precedent set by the previously quoted ECHR Act 2003 as written into domestic law, we can say that "if" we were going to take the recommendations of the UN Committee seriously enough to "compete" with domestic law in determining the human rights of Irish citizens, then we would have a similar act of the Oireactas in place which would require the courts to play a defined role. That role would be to determine
a) whether any conflict existed (from the Irish point of view) and
b) if so, to issue the Declaration of Incompatibility. It would then be over to the govt. to take whatever steps to resolve the incompatibility.

If we do not take the UN recommendations seriously, then we need not act on them. Especially where they conflict with our own laws.

Peregrinus wrote: »

Can you point to any provision of Irish law that the government is in breach of in paying compensation in these cases?

I cannot, at least not directly.
However I do think that it puts us in breach of the ECHR Act 2003 because of the lack of legal clarity which now pertains over the whole issue of abortion provision, specifically in cases of FFA.
We cannot claim that it is unlawful, while at the same time saying it is a breach of human rights not to provide it, and then say the whole situation is perfectly clear. It just does not add up.

Peregrinus

recedite wrote: »

I can see your point in regard to matters which are entirely to be decided within another jurisdiction, such as whether a person has NZ citizenship.
But if we are talking about a treaty, which may be open to some interpretation, then both parties are entitled to have their own opinions on it.
For example, in the CETA negotiations and in currently in Brexit talks, both Canada and the UK were reluctant to accept that the ECJ would be the sole arbiter in the event of any future dispute over the agreement. They did not simply accept that the ECJ could have the sole competence to make judgements on such matters. Because although it may be technically quite competent, and may be capable of acting in a fair and neutral manner, nevertheless it is still effectively the representative of only one side in the dispute.

No, it isn't. The two sides in this dispute are (a) Ireland, and (b) the individual complainants. The UN Committee doesn't represent either of them.

They have jurisdiction here because the issue is whether the Convention has been breached. For the reasons already given this is not a question of Irish law, and the Irish courts have no competence. The UN Committee does have competence, because the Convention itself provides for this, and because Ireland has voluntarily accepted the competence of the Committee to express opinions on cases such as this.

recedite wrote: »

It is true that there is no written procedure to say we must do this. But, on the other hand, if we use the precedent set by the previously quoted ECHR Act 2003 as written into domestic law, we can say that "if" we were going to take the recommendations of the UN Committee seriously enough to "compete" with domestic law in determining the human rights of Irish citizens, then we would have a similar act of the Oireactas in place which would require the courts to play a defined role. That role would be to determine
a) whether any conflict existed (from the Irish point of view) and
b) if so, to issue the Declaration of Incompatibility. It would then be over to the govt. to take whatever steps to resolve the incompatibility.

The "declaration of incompatibility" is a quaint British invention devised to reduce the degree of embarrassment that arises from the fact that they don't have effective human rights mechanisms in their own domestic laws. It's unusual both in that ECHR is one of the few, if not the only, international treaties to be enforced through this mechanism, and because the UK is one of the few countries using the mechanism. We've copied it in support of the GFA process, to ensure that human rights enforcement mechanisms are similar on both sides of the border.

The much more usual arrangement for the enforcement of an international treaty is that the Treaty itself provides for enforcement through an international mechanism, as the ECHR does (the European Court of Human Rights, which can give binding judgments) and the Convention (the UN Human Rights Committee, which can issue advisory opinions).

recedite wrote: »

If we do not take the UN recommendations seriously, then we need not act on them.

We don't get to choose whether we're bound by our international obligations; we are. And deciding "not to take seriously" the UN Committee opinions about our obligations that arise through a mechanism that we have voluntarily signed up for wouldn't alter that. If the Committee opinions are correct, they don't become less correct because we announce that we won't "take them seriously". We'd suffer significant reputational damage, obviously, be we'd still be in breach of the same obligations we were in breach of immediately before making that announcement.

recedite wrote: »

Especially where they conflict with our own laws.

That would make no difference. But the point is moot since, as I think you've accepted, the UN Committee opinion in this instance does not conflict with our own laws.

recedite wrote: »

However I do think that it puts us in breach of the ECHR Act 2003 because of the lack of legal clarity which now pertains over the whole issue of abortion provision, specifically in cases of FFA.
We cannot claim that it is unlawful, while at the same time saying it is a breach of human rights not to provide it, and then say the whole situation is perfectly clear. It just does not add up.

Nobody says that the situation is perfectly clear; obviously action is required in order to resolve the tension between Irish law and the Convention rights as identified by the Committee. That wouldn't change if we announced that we wouldn't "take the Committee seriously"; action would still be required, but we would just be signalling that we were intending to avoid taking it.

recedite

Peregrinus wrote: »

The "declaration of incompatibility" is a quaint British invention devised to reduce the degree of embarrassment that arises from the fact that they don't have effective human rights mechanisms in their own domestic laws. It's unusual both in that ECHR is one of the few, if not the only, international treaties to be enforced through this mechanism, and because the UK is one of the few countries using the mechanism. We've copied it in support of the GFA process, to ensure that human rights enforcement mechanisms are similar on both sides of the border.

That's interesting, I didn't realise that. Nevertheless, it seems a sensible invention. And of course, most of our laws derive from old British laws anyway, so we won't hold that against it, if it helps to resolve things.

Peregrinus wrote: »

The two sides in this dispute are (a) Ireland, and (b) the individual complainants. The UN Committee doesn't represent either of them...
We don't get to choose whether we're bound by our international obligations; we are. And deciding "not to take seriously" the UN Committee opinions about our obligations that arise through a mechanism that we have voluntarily signed up for wouldn't alter that.

OK, well there's a quid pro quo here. If I concede that the UN committee is the rightful and final arbiter in this matter, then you must also concede that their decision/recommendation has no legal standing in Ireland.

My point is that "if" we were going to put their determinations up on the same level as Irish domestic law, then we also would be looking for a more robust arbitration procedure. Or at least to have some say in the matter ourselves.


Looking more deeply into the apparent incompatibility in this case, it seems to derive from the fact that both the Irish constitution and the UN Committee are concerned about the human rights of the mother, but only the Irish constitution is balancing the human rights of the unborn against the rights of the mother.

That could be because the UN Committee is unconcerned with the rights of the unborn generally, or because it considers that in the case of FFA the life of the unborn is doomed anyway, and therefore of no value. I'm not sure which.

If its the latter, then we also have to consider that in cases of assisted suicide, or the provision of artificial life support for severely injured persons, it is generally considered acceptable to allow somebody to die if we think it is inevitable anyway. But not to take active steps to end their life. Abortion for FFA definitely comes into the latter category.

It could be argued therefore that Irish law takes a more holistic or complete approach to human rights than the UN Committee does.

Another problem here is that we don't know exactly what rights can be extracted from the constitution. The x-case surprisingly uncovered the legality of abortion in Ireland if the mother's life was threatened. Could a new case involving FFA uncover the legality of abortion if the foetus was deemed to be unviable?

Peregrinus wrote: »

Nobody says that the situation is perfectly clear; obviously action is required in order to resolve the tension between Irish law and the Convention rights as identified by the Committee. That wouldn't change if we announced that we wouldn't "take the Committee seriously"; action would still be required, but we would just be signalling that we were intending to avoid taking it.

But if we openly disagreed with their verdict, and asserted the primacy of our own law, then at least it would restore some clarity to the situation.
As things stand now, we are wide open to a somebody (rightly) taking a case to the ECHR due to the lack of clarity.
It would be interesting if some clinic in Ireland started advertising the provision of abortion for FFA, just to see what would happen.

Peregrinus

recedite wrote: »

OK, well there's a quid pro quo here. If I concede that the UN committee is the rightful and final arbiter in this matter . . .

You need not go so far. It’s not my claim, and it’s not the case, that the UN Committee is “the rightful and final arbiter in this matter”; just that they have had conferred upon them, by Ireland, the function of investigating this matter and expressing an opinion on it, and that the opinion is one which must be taken very seriously.

recedite wrote: »

. . . then you must also concede that their decision/recommendation has no legal standing in Ireland.

It has no legal force in Ireland - as in, Irish law does not oblige the government to give effect to it. But it certainly has legal standing; it’s an authoritative opinion properly given under a process provided for in a treaty which Ireland has ratified and by which Ireland is bound. If we did pass an Act in Ireland giving the Irish courts a jurisdiction to make judgements about whether Ireland was in compliance with its treaty obligations, then the Irish courts would attach considerable weight to this opinion. They wouldn’t be bound by it (unless our Act provided that they were, which is unlikely) but they would treat it as extremely persuasive.

recedite wrote: »

My point is that "if" we were going to put their determinations up on the same level as Irish domestic law, then we also would be looking for a more robust arbitration procedure. Or at least to have some say in the matter ourselves.

We do have some say in the matter ourselves, since we are one of the parties in the dispute that the Committee investigates. We have exactly the same say as the other party in the dispute, which is the complainants.

And, of course, we don’t “put their determinations on the same level as Irish domestic law”. Domestic law prevails; someone in the same situation as the complainants still could not get an abortion in Ireland today, because Irish law forbids it. That won’t change unless and until Ireland changes it.

recedite wrote: »

Looking more deeply into the apparent incompatibility in this case . . .

Your discussion here is basically raising this question; is the Committee’s opinion (that Convention rights have been denied) correct?

Ireland is free to take the view that it’s not correct, and to decline to provide any redress. But what we cannot do is to take the view that it’s not correct because Irish law says it’s not correct, or because Irish law identifies different rights, or balances competing rights in a different way. The state of Irish law has no bearing at all on the meaning, operation or effect of the treaty.

recedite wrote: »

But if we openly disagreed with their verdict, and asserted the primacy of our own law, then at least it would restore some clarity to the situation.

Couple of thoughts:

Disagreeing with the verdict and asserting the primacy of domestic law are two different, and independent, things. Whether the verdict is correct or not doesn’t depend at all on the state of Irish law or on the relative priorites accorded to domestic and international law. Whatever our reasons for disagreeing with the opinion, to be valid and legitimate those reasons must not ultimately rest on an appeal to Irish law.

And equally we can assert the primacy of Irish law without disagreeing with the opinion (which is in fact the position we have taken).

I’m not sure that disagreeing with the opinion would “restore some clarity to the situation”. If it’s objectively true that there has been a breach of Convention rights, Ireland is legally bound by the Convention to provide redress, and to take steps to remove the incompatibility. Disagreeing with the opinion would signal that Ireland intended to do neither, but wouldn’t change the fact (if it is a fact) that Ireland is in breach, and wouldn’t prevent the complainants/the international community from contemplating or taking other steps to induce Ireland comply with its obligations. Nor would it insulate Ireland from the diplomatic and reputational consequences of being seen to be in breach, and simply refusing to acknowledge the breach. Other strategies are available to Ireland, such as entering a reservation to the Convention, which would provide greater clarity, and do us less reputational damage.

recedite

Peregrinus wrote: »

Disagreeing with the verdict and asserting the primacy of domestic law are two different, and independent, things. Whether the verdict is correct or not doesn’t depend at all on the state of Irish law or on the relative priorites accorded to domestic and international law. Whatever our reasons for disagreeing with the opinion, to be valid and legitimate those reasons must not ultimately rest on an appeal to Irish law.

I can't agree with that separation though. It seems more like a mental reservation than something real. Ultimately this is about what human rights an Irish citizen can expect to have. There cannot be two different standards, depending on who they ask.
The human rights that "we" (as in Ireland) allow to our citizens are based on the rights assigned to them by our constitution, which we can of course amend if we so choose.
If somebody from outside the country is going to assert that Irish citizens have a different set of rights, then "we" cannot in all honesty agree with them, and then carry on as if nothing had happened. If we are honest, we must disagree, and say so.

Peregrinus

We’ve strayed here into a practical illustration of a long-standing academic debate between monistic and dualistic views of international law.

For the monist, conceptually speaking, domestic and international law are two aspects of a single united legal order. Whereas dualists see two distinct legal orders, one governing a state’s obligations to its citizens and vice versa, and the other governing relations between states, which intersect only exceptionally.

In practice, most states take a partly monist and partly dualist attitude, but the emphasis as between the two can vary from state to state. For example in the US, by Article VI of the Constitution, treaties (once ratified by the Senate) are part of “the Supreme Law of the Land, and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding”. Germany has a constitutional provision to the effect that the general rules of international law are an integral part of German law, take precedence over German statutes and directly create rights and duties for the inhabitants of Germany. These provisions tend towards monism.

Things are different in the UK. A treaty which the UK has signed and ratified has no force in UK law unless and until Parliament passes an Act to give effect to it (which doesn’t normally happen). The result is that in the UK treaties mainly function to control, limit, direct, etc, the actions of the UK government in its relations with other states, but they are not something the citizen can invoke in the domestic courts. International law that is incorporated into UK law - the EU treaties and laws arising under them, the European Convention on Human Rights - is the exception, not the rule.

Ireland’s position is close to the UK’s. You’re already quoted article 29; it provides that Ireland accepts general principles of international law “as its rule of conduct in its relations with other States”, but that treaties are not “part of the domestic law of the State save as may be determined by the Oireachtas”. (Again, there’s an exception for the EU treaties and laws made under them, and this is hard-wired into the Constitution. And there’s a similar exception for the 1998 British-Irish agreement.)

So, this discrepancy can arise in ireland because we take a dualistic view of international law. It could arise in the UK too, or in any other state which takes a similarly dualistic view.

But this is a feature, not a bug. International law only binds states to the extent that they agree to be bound by it (e.g. by entering into a treaty), and states are that bit more willing to be bound if, in the event of a discrepancy like this emerging, the dualist approach gives them some room for manoeuvre in how to address it. In the current circumstance, for example, Ireland could either (a) amend its domestic law to address the problem identified by this case, or (b) enter a reservation to the Convention (and there are in principle other avenues (c), (d) and so on that could be explored), and Ireland gets to choose which to do. Whereas if we had a monist approach - if, for example, we had “constitutionalised” the Convention in the way that we have the EU treaties, or if we “constitutionalised” all treaties we’d have no dilemma, but we’d also have no choice. The Convention rights would prevail over inconsistent laws.