United Nations Review of Human Rights in Ireland
2011 Parnell Summer School – Equality Then & Now
Dr. Katherine Zappone, Senator, Seanad Éireann and Member of the Irish Human Rights Commission
In the opening chapter of the original manuscript of ‘The Tale of a Great Sham’, Anna Parnell comments on the politics of “Home Rule” and offers, I think, an exceptional insight to assist our deliberations about achieving equality now in 21st century Ireland. Her words, written with great passion and intellectual power, also provide a useful interpretive lever to bring to an analysis of the United Nations Review of Human Rights in Ireland, specifically the Universal Periodic Review (UPR) process that Ireland is engaged in at present.
“But those who know that Ireland can only be held by England through artifically caused starvation and weakness, and believe any legal tie between them, if Ireland had her proper strength, would be impossible except for a short time, the terms prosperity and independence appear practically synonomous. Either of the two, if maintained, must lead to the other.” (p. 6, MS 12144, in the National Library of Ireland).
Parnell asserts that ‘prosperity’ and ‘independence’ are mutually re-inforcing. My translation of her insight is this: If we are free, then we will be prosperous. And, isn’t it the recovery of prosperity (or indeed, authentic prosperity for perhaps the very first time), that dictates the primary preoccupation of Ireland today? Though most of the national discourse on the topic of recovering prosperity is focused on the banks, financial regulation, European and international recession and debt and troika bailouts, perhaps if we encourage a national outbreak of discourse about freedom, equality and human rights it might bring us much closer to the politics required for prosperity.
Equality, Freedom and Human Rights
It is a timely moment for an outbreak such as this and I am going to suggest that the UPR process provides us with an innovative tool to embark on such a venture. But first, a few words on the politics of freedom, equality and human rights. I have spent the last twenty seven years in Ireland being an advocate for and theorist on all three. As a philosophical and political feminist I believe in the interplay between advocacy and theory (another way of describing the Aristotelian notion of praxis) which effectively means that one’s political activism influences one’s thinking, that one’s political commitments shape the meaning of ideas and the search for justice and truth.
On Sunday, approximately at the same time you were preparing to open this summer school on the theme of ‘Equality: Then and Now’, I was marching on the streets of Dublin with my life-partner and spouse, Ann Louise Gilligan, along with about 4,000 others, to call for marriage equality for LGBT people. It was both an emotional and exhilirating experience – walking past thousands of Irish citizens and tourists – holding high a sign with just one simple word on it—“Equal” – and wondering why should it take so long in 21st century Ireland for the law to recognise my human right to be free to marry the person I have chosen to love, forever? Further wondering what it takes to bring about such significant social change in our parliamentary democracy? Through the praxis of taking a constitutional case against the Irish state for the past eight years, namely a case for the Irish state to recognise my Canadian marriage to Ann Louise in the same way the Irish state recognises foreign marriages of most other couples (as long as they fit the criteria of being heterosexual) I have learned that equality is not possible without the freedom to be one’s self, and that my civil, political, social, economic and cultural human rights are not being protected unless I am free and equal.
Equality cannot be achieved unless people are free, and the State’s protection and promotion of human rights provide the quintessential conditions for both freedom and equality. If we unite my proclamation with Anna Parnell’s insight about freedom and prosperity, this might bring a sense of import and urgency to turning a spotlight on the United Nations Review of Ireland’s Human Rights Record. All Irish people ought to be free. Freedom brings Equality. Freedom brings Prosperity. Protecting and promoting human rights is a prime pathway to freedom, equality and prosperity.
Ireland’s Universal Periodic Review by the UN
So now let me turn to an outline and analysis of the UN’s Universal Periodic Review of Ireland. I want to offer this, though, within the context of a question:
Does the UN’s UPR process hold the potential to produce a cultural shift in the way we protect and promote human rights in Ireland, or is it simply a GRAND PAPER EXERCISE, just another ‘ticking the box’ requirement operating in rarefied public policy circles?
The UPR Process: What it is
To begin, the UPR process is put forward as an innovative mechanism within the United Nations machinery, under which countries are held to account by their fellow member states of the United Nations every four years on their complete performance across the full range of civil, political, economic, social and cultural rights. The forty-eight members of the UN Human Rights Council offer a peer-review of all other member states, the purpose of which is to improve the human rights situation in all countries. We might call it a ‘report card’ on how well countries are doing with regard to meeting their international and constitutional or domestic obligations to protect and promote human rights.
In the opening session of the Summer School, my colleague Dr. Maurice Manning, referred to this process and the fact that Ireland is currently under review. Three reports are used by the United Nations in the review:
(1) A State report that has been prepared by the Irish government. This document was submitted to the UN in early July, and outlines the State’s assessment of how it has been doing in the job of protection and promotion. The State conducted a country-wide consultation process for citizens to contribute to its review, inclusive of seven meetings in accessible community venues and reception of 120 written submissions from individuals, groups and NGOs. The report primarily underlines Ireland’s achievements, such as:
(a) the number of independent complaints, monitoring and inspection bodies established to protect human rights (eg Equality Authority, Irish Human Rights Commission, Inspector of Prisons, the Ombudsman and Information Commissioner, the Ombudsman for Children, etc);
(b)the various laws enacted to protect human rights (eg the Employment Equality and Equal Status Acts; the Domestic Violence Act, 1996; the Criminal Law (Human Trafficking) Act 2008, etc);
(c) bills that are currently or will be on the tables of lawmakers (eg the Female Genital Mutilation bill; Amendments to Mental Capacity laws; comprehensive legislation for immigration and residency, etc) and
(d) a host of national policies and initiatives to improve protections (eg the Forum on Patronage and Pluarlism in the primary school sector; a commitment to ratify the Convention on the Rights of Persons with Disabilities; the Constitutional Convention; reforms to electoral legislation in order to increase the participation of women in politics).
Ireland concludes its report with these robust statements:
“Ireland’s commitment to the promotion and protection of human rights is an underlying principle of our policy in all spheres. Our deep attachment to the importance of fundamental rights and freedoms for all is grounded in our historical experience” (V, Concluding Comment). Presumably this last statement refers to Ireland’s historical struggle for its independence as a Republic. It is good to see that the State understands the importance of independence and freedom – and human rights advocates, especially those who stand with and on behalf of minority and vulnerable groups, and those who are disadvantaged by gender, sexual identity, disability, economic conditions and/or racial, ethnic and cultural identities, should insist on the essential similarity between the need for national independence in order to protect human rights and the need for individual freedom in the protection of human rights. Is not national independence essentially about the all of the fundamental freedoms of the citizens of a nation?
(2) A Report prepared by the UN itself. This report is a complilation of the information contained in the reports of treaty bodies – such as the UN Conventions on Civil & Political Rights, and Economic, Social and Cultural Rights – including observations and comments by the State concerned, and other relevant official United Nations documents. This has been published recently by the UN and provides the Human Rights Council with a summary of how the monitoring reports of various treaties have assessed Ireland’s record in the past.
(3) A Report compiling the Views of Stakeholders.
The UN Human Rights Council invited submissions on Ireland’s human rights record from civil society groups and from the National Human Rights Institution, to be returned by March of 2011. It received 60 submissions from stakeholders, inclusive of the Irish Human Rights Commission, various coalitions– notably the ‘Your Rights. Right Now’ coalition of 17 leading Irish NGOs, trade unions and civil society groups organised and led by the ICCL—, individual civil society groups, and ICTU. The UN has just published the report that compiles a summary of these various submissions, and I will return to some of the content of this momentarily.
On October 6th, 2011 the Minister for Justice, Mr. Alan Shatter, will lead the Irish Delegation to Geneva, where he will present Ireland’s report to the 48 members of the UN Human Rights Council. Council members will make recommendations to Ireland to improve its human rights record, on the basis of the three documents I have outlined, and no doubt on the basis of informal communication between Council members and Irish civil society groups. Significant to note for this stage of the process is the fact that the UN Human Rights Council invites States to indicate what they term – ‘Voluntary Commitments’ – to improve human rights protections as part of their presentation and inter-active dialogue between State delegations and the Council. Effectively, the UN is asking the Irish Government to not simply indicate what Ireland has achieved, and what is in train, but that Ireland will also solemnly and voluntarily commit itself to some substantive changes with regard to human rights protections, within the time frame of the four year cycle, so that by the time Ireland is up for its next UPR in 2016 (isn’t that a magic number!) Ireland will be able to claim that it has indeed implemented the legislative, constitutional and/or policy changes that it committed itself to.
My understanding is that most states make some voluntary commitments either before or at the time of their examination. The Irish Human Rights Commission has issued a public invitation to the Irish Government to state its voluntary commitments, and has itself indicated what commitments we would like to see the Government make in light of the gaps in human rights protections that our Stakeholder report identified. We published these in early July as ’15 Steps to Greater Human Rights Protection.’ Dr Manning mentioned some of these in his opening remarks.
So far, the Irish Government has not yet responded to our invitation.
There are two final steps to the UPR process. Firstly, three states (not yet selected as far as I know) will work with Ireland to produce an ‘Outcome Document’ from the October 6th dialogue which will appear on the UN website 48 hours later. The outcome document will indicate which recommendations Ireland accepts (again, these are recommendations made to Ireland by the UN Council during the review) and which it rejects. Secondly and finally, there will be a period of approximately six months between the publication of the Outcome Document and its formal adoption by a Plenary Session of the UN Human Rights Council in March of 2012. In theory, this will be a time during which further modifications can be made to the final document of Ireland’s ‘Report Card’ on Human Rights.
So, What’s Ireland’s Score?
As you might suspect from my previous remarks Ireland certainly is not getting full marks! Further, it is no doubt clear already that the place from which one stands influences considerably the marks that are given. Any good teacher knows that it is critical to judge performance on the basis of standards and that is why there is such potency in a United Nations process to utilise international standards of human rights—as contained in UN treaties—to make judgments about performance. An example of the use of standards—in dialogue with the coalface experience of vulnerable people and social groups still experiencing disadvantage, therefore lacking in full human rights protections—is the Stakeholder report of ‘Your Rights. Right Now.’ Listen to some of the words contained in it, and consider the Government’s view:
“Ireland is a champion of human rights abroad but fails to adequately promote and protect human rights at home. The State-sponsored human rights and equality infrastructure is strong in principle but weak in practice. Ireland is without a National Human Rights Action Plan or designated ministry to protect and promote human rights domestically” ( Background & Framework, C, p. 3). I have already noted that in its report, the Government lists various achievements regarding the establishment of multiple monitoring bodies for equality and human rights protection.
“Human rights based challenges to the exercise of the State’s authority remains rare. Delays in court lists . . . prohibitive costs and the possibility of the State’s costs being awarded against claimaints discourage litigation” (Background & Framework, D, p. 3). Ann Louise Gilligan and I have personal experience of this – it has been eight years since we got permission to take our case against the state and we have been waiting almost five years for the Supreme Court to hear an appeal to the judgment we received in the High Court. Further, the High Court ruled against our costs, stating that it was not sufficiently a case that was in the realm of Public Interest!
In commenting on the human right to participate in public and political life, the Stakeholder report says: ‘Political life in Ireland is dominated by white, middle-aged Irish men and the political system remains closed in many ways to women, Travellers and other minorities” (Implementation of International Human Rights Obligations, 5, p. 6). The Government’s report notes its intention of electoral reform, and that political parties will see their state funding halved if they do not meet the new requirements to have at least 30% women and 30% men candidates at the next Dail general election. This is, no doubt, a step forward but will it put a major dent in the deeply embedded patriarchal social structures existing in Ireland today? And how will the government ensure that the 30% target translates into meaningful rather than tokenistic opportunities and that the necessary range of supports accompany legislative change? Further, will this legislative change also apply to local government elections and be implemented in time for the 2014 local elections? Further, what about the political participation of people from minority social backgrounds? How many coloured faces do we see in the Oireachtas? Compare that figure with how many we see in the classrooms throughout Ireland today.
There are many, many more examples of an identification of significant gaps in human rights protection, both in this report and in the UN’s compilation of the 60 submissions that time today does not permit us to review.
The UPR: An Opportunity for Improving Human Rights?
By way of concluding I want to return to my initial question:
Does the UN’s UPR process hold the potential to produce a cultural shift in the way we protect and promote human rights in Ireland, or is it simply a grand paper exercise? In other words, will this process make any substantive difference to the way and the outcomes of human rights protection and promotion in Ireland?
As I have already indicated, I think that it does have that potential, and we have considered briefly how government, civil society and the NHRI conducted a human rights analysis on the basis of international standards and contemporary experience. However, if the UPR is to make an authentic difference, I suggest that there are at least two additional steps to be added to the process underway.
1. Bring the UPR into the heart of the parliamentary democratic process. To date, there has been no consideration of the Government’s report and the Stakeholders’ views within the Oireachtas. There has been no direct engagement of parliamentarians with both the comprehensive human rights analysis of Irish law and policy, nor a formal exchange of views between public representatives, the civil society sector and the Irish Human Rights Commission. Perhaps some of this has to do with the timing issue, namely, that the various reports have only been published and submitted within the last couple of months.
What I can report, though, is that the Seanad is scheduled to hear from the President of the Irish Human Rights Commission in early September on this issue, prior to Ireland’s examination by the UN. As a member of the Independent Group of Senators recently appointed by the Taoiseach, I recommended that the Seanad ought to hear from the Irish Human Rights Commission and a civil society human rights leader, such as a member of the ICCL, about their judgement on Ireland’s human rights record. This would provide us with a form of deliberative democracy, a type of democracy in which public deliberation is central to lawmaking. Public deliberation is a process of thoughtfully weighing options, discussing and considering all sides of an issue—with the public—prior to making judgment, law or policy. Jurgen Habermas, a prominent proponent of this type of democracy, speaks often about the need for ‘communicative competence’ in such public deliberation.
I have checked to see if one of the Joint Oireachtas Committees will also hear from Stakeholders for a similar exchange—so far it does not appear on the list—and if such a session is not scheduled I am suggesting that it ought to be as a key step towards increasing human rights protections in Ireland. Furthermore, I think that this type of parliamentary engagement with the UPR process ought to continue until the UN produces the final outcome document in March 2012, and indeed beyond this time. Public representatives should have the opportunity to influence the type of voluntary commitments that Ireland wishes to make for increasing human rights protections. In addition, there could be periodic reports to the Oireachtas post-publication, to review the ways in which Ireland is implementing its commitments. This could provide lawmakers with a significant opportunity to bring a human rights approach to the centre of their/our deliberations and decisions.
2. Support Civic Initiatives Focused on Human Rights. There has been a certain momentum built up around the UPR process that brings together citizens, NGO and Union leaders to discuss and to debate in public forums Ireland’s human rights achievements and challenges. One of the primary reasons that government ought to provide ongoing support for such initiatives is this: it is often in these forums where we hear the direct experience voiced by those whose human rights are not fully protected. It is imperative, I believe, that those who suffer most, or that those whose fundamental freedoms are inhibited in light of social conditions or human identity, find opportunities to voice their experiences in the public realm. We need this, Ireland needs this if it is to discern with accuracy and truthfulness how large the gaps are between what it is and what it ought to be doing. Further, if there is ongoing support for such activity, the systematic analysis that emerges from such forums will provide material for a more robust and equal exchange between citizens and public representatives.
Our current Government has indicated its commitment to political reform and has begun to take some important steps towards this significant objective. I am recommending here that, as an integral part of this reform, the Government should consider both enabling an ongoing national outbreak of discourse about human rights—utilising the UPR as a benchmark tool—and putting in place permanent avenues to bring that discourse to the heart of our parliamentary democracy. This could be a new kind of politics that moves us beyond interest-driven groups lobbying for resources or competing for advantages, towards practices of fair exchange in order to arrive at right and just conclusions. The justice of the decisions, however, depends on mechanisms which open up decision-making assemblies so that a diversity of voices is heard, and so that those affected by the decisions really do get ther chance to have their voices heard and to agree or to disagree with the decisionmakers.
I think that Anna Parnell, were she here today, would approve of such an approach. As a woman who possessed a radical social and political vision, as one who encouraged the participation of those usually excluded from public political agency—namely, the ladies!—and as one whose leadership and organisation cut across divisions of social class, religion and Irish nationalist persuasion, she would no doubt want to support creative and substantive ways to bring about lasting change.