We are pleased to publish this guest post from Ciarán Finlay, Legal & Policy Officer with the Free Legal Advice Centres (FLAC).
The value of shining an international spotlight on domestic human rights issues has long been recognised by civil society organisations working in Ireland. Prior experience has shown that international scrutiny by United Nations (UN) bodies and experts can yield tangible results in the form of positive state action.
However, while domestic actors place much emphasis on periodic reporting to UN Human Rights Treaty Bodies and the Universal Periodic Review mechanism, considerably less focus is placed on engagement with UN Special Procedures mandate holders and taking individual complaints to UN Treaty Bodies.
To bridge this gap, FLAC has developed two guides which aim to better equip civil society actors seeking to engage with UN Special Procedures mandate holders and individuals taking complaints to UN Treaty Bodies as well as civil society actors taking cases on their behalf.
The first guide is intended for civil society organisations seeking to engage with UN Special Procedures mandate holders. Mandate holders are independent human rights experts who examine, monitor, advise and publicly report on human rights situations in specific countries or on certain thematic human rights issues such as migrants, minorities, education and violence against women.
Drawing on case studies from Ireland, the guide describes the tools available to mandate holders to fulfil their functions, explains how civil society organisations can engage with these experts and identifies the criteria which must be satisfied in order to do so.
In terms of powers, mandate holders can, first of all, send communications to states concerning alleged human rights violations. Oftentimes, mandate holders will mobilise on the basis of information received from civil society. For example, in April 2015, acting upon information transmitted by civil society, the Working Group on the issue of discrimination against women in law and in practice and the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health transmitted a joint communication to the Government concerning the potential discriminatory effects of the Gender Recognition Bill.
In particular, the mandate holders expressed concerns and asked detailed questions regarding mandatory medical certification, the “forced divorce” clause and disproportionate safeguards applied to children which, in their view, discriminated against transgender people and their rights to privacy, equality and education and could affect physical and mental health. The mandate holders requested an official state response to their allegations.
Importantly, civil society organisations can provide information on alleged human rights violations even where Ireland has not ratified the relevant UN treaty. For example, while Ireland has yet to ratify the UN Convention on the Rights of Persons with Disabilities, or its Optional Protocol, organisations can submit communications to the UN Special Rapporteur on the Rights of Persons with Disabilities concerning alleged human rights violations affecting persons with disabilities.
Second, mandate holders can undertake country visits which allow them to assess the human rights situation on the ground. In January 2011, then Independent Expert on extreme poverty and human rights, Magdalena Sepúlveda Carmona, undertook a country visit to Ireland. Her visit focused on the impact of the economic crisis in Ireland and the effect of austerity measures on the enjoyment of human rights. She looked in particular at how vulnerable groups were impacted by recovery measures.
During her visit, civil society actors raised awareness of the visit through the media, met directly with Ms Sepúlveda Carmona and provided her with briefings on issues relevant to her mandate. In May 2011, Ms Sepúlveda Carmona published her mission report on Ireland. She made a range of recommendations including to reverse austerity measures which had disproportionately impacted on the most vulnerable and to strengthen the social protection system, infrastructure and social services.
It is relevant to note in this regard that civil society organisations will have the opportunity to engage with both the Special Rapporteur on the human right to safe drinking water and sanitation and the Special Rapporteur on the sale of children, child prostitution and child pornography in the near future as both have requested to visit Ireland.
Thirdly, mandate holders frequently undertake detailed studies on specific human rights violations or situations affecting a certain vulnerable group. Civil society can provide information for inclusion in these reports. For example, the UN Special Rapporteur on the right to adequate housing presented a report on homelessness to the UN Human Rights Council in March 2016. The Special Rapporteur’s report notes that, in Ireland, families with children have become the fastest growing group within the homeless population. To support her argument, the Special Rapporteur referenced a submission she received from an Irish organisation working with people who are homeless.
The second guide is a toolkit for individuals taking complaints to UN Treaty Bodies as well as civil society actors taking cases on their behalf. UN Treaty Bodies are committees of independent experts which are responsible for monitoring compliance with international human rights treaties. The guides specify which mechanisms people in Ireland can access, the procedures involved and the requirements which must be fulfilled.
Thus far, Ireland has ratified six core international human rights treaties. Of these, individuals can bring complaints to five UN Treaty Bodies, the sole exception being complaints to the UN Committee on Economic, Social and Cultural Rights. Despite signing the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights in March 2012, Ireland has yet to ratify this instrument. Ratification would enable individuals to bring complaints alleging violations of the International Covenant on Economic, Social and Cultural Rights which protects basic rights such as health, housing and social security.
The guide also contains case studies on complaints which have been brought against Ireland to UN Treaty Bodies. To date, five complaints have been made against Ireland. All of these petitions have been filed with the Human Rights Committee alleging violations of the International Covenant on Civil and Political Rights (ICCPR).
Three complaints, including Ó Cólchúin v Ireland, which concerned voting restrictions imposed on Irish citizens living abroad, were deemed inadmissible.
Nevertheless, two petitions were found to be admissible and were considered on the merits. In Kavanagh, Ireland was found to have breached the ICCPR for failing to demonstrate that the decision to try the complainant before the Special Criminal Court was based upon reasonable and objective grounds. In O’Neill & Quinn, the Human Rights Committee found no violation of the Covenant, holding that the Government’s decision to exclude the complainants from the early release scheme under the Good Friday Agreement was not discriminatory and their continuing detention was not arbitrary.
An information piece on the guides with links is available on the FLAC website.