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British Institute of International and Comparative Law
Ireland v. United KingdomAuthor(s): David BonnerReviewed
work(s):Source: The International and Comparative Law Quarterly,
Vol. 27, No. 4 (Oct., 1978), pp. 897-907Published by: Cambridge
University Press on behalf of the British Institute of
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OCTOBER978] UnemploymentBenefit 897basis of the claimant's
earnings before he became entitled to unemploy-ment benefit if he
has received such benefit. Otherwise, it will be basedon the wage
agreementscurrentat the time of the claim.
K. C. HORTONAND 1. SNAITH.*
* The authors wish to thank the following for their assistance
in supplyinginformationon the German Scheme: The West German
Federal Institute of Labour, Bonn; The WestGerman Press and
Information Service, Bonn.
IRELAND v. UNITED KINGDOMON January 18, 1978, the European Court
of Human Rights deliveredjudgment in Irelandv. U.K.,the
firstinter-State case of which it had beenseised.1The decision
dealswith manypoints of interpretationconcerningprocedural,
institutional and substantive aspects of the EuropeanConvention on
Human Rights.2However, this note does no more thanoutline and
evaluate the Court's response to the principal areas ofconcern
before it:
(1) the implementationand operationduringtheemergencysituationin
Northern Ireland of varyingsystems of extra-judicialdepriva-tion of
liberty, which raisedthe matter of the scope of the
rightofderogation permitted during "a public emergency
threateningthe life of the nation "; and(2) the alleged
ill-treatment of persons detained by the SecurityForces in the
Province.
The Court'sdecision providesan opportunityto examine its
approach,after 20 years 3 to the protection of human rights in a
period of acuteemergency.This area of concern was in part explored
and elucidated bythe Court in Lawless v. Ireland4 in 1961 and by
the Commission ofHuman Rights in that case and in the First
GreekCase.5The judgment in Irelandv. U.K. is the culmination of a
long processwhich started with the Irish Government's application
to the Commis-sion in 1971 pursuant to Article 24.6 The application
did not seekcompensation on behalf of any individuals; it was
presentedto obtain adeclarationthat certainlegislativemeasures and
administrativepractices
1 The official text of the judgment (hereinaftercited as
"Judgment") can be obtainedfrom the Registrarof the Court in
Strasbourg.2 For the text of the Convention as amended see: Council
of Europe, EuropeanConvention on Human Rights, Collected Texts
(10th ed., 1975). For an up-to-datecommentaryon the Convention see
A. H. Robertson, HumanRights in Europe(2nd ed.,1977).A full
bibliographycan be found in [1958-76] 1-19 Yearbookof the
EuropeanCon-ventionon HumanRights(hereinaftercited as Y.B.)3 The
Courtcame into existence on Sept 3, 1958,after deposit of the
eighth recognitionof its jurisdiction.4 [1961]4 Y.B. 438.5
Denmark,Norway,NetherlandsandSwedenv. Greece[1969] 12Y.B., Vol. 2.6
" Any High Contracting Party may referto the Commission, through
the Secretary-General of the Council of Europe, any alleged breach
of the provisions of the Conventionby anotherHigh
ContractingParty."
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898 Internationaland ComparativeLaw Quarterly [VOL. 7of the
respondent Government in Ulster, concerning, interalia, intern-ment
and ill-treatment, constituted violations of the
Convention.Confining considerations to such general issues enabled
the applicantgovernment to circumventthe exhaustion of domestic
remedies rule setout in Article 26, since the Commission has
consistently held that therule has no application to a claim
concerning " legislative measuresandadministrative practices." 7The
Court has now endorsed that exception to the rule and hasrecognised
that the parametersof the case as admitted by the Commis-sion
constitute the outer limits of its own
otherwiseplenaryjurisdiction.8Thus it noted that it was not
concerned with violations of the Conven-tion by individual cases of
maltreatment as such but only in so far assuch cases provided
evidence of a practice of maltreatment.9Similarly,with regardto the
" legislative measures" aspect of the case, the Courtsaid it was
confined to examining the conformity with the Conventionof the
measures themselves and their implementation but " only as
apracticeand not in a given individual case." 10What was the
Court's response to the substantive issues in the case?
ALLEGEDILL-TREATMENTN CONTRAVENTIONOF CONVENTIONThe Irish
Government alleged that the already well-documentedmaltreatment of
persons arrested and interrogated by the SecurityForces 11
constituted an administrative practice of " torture, inhumanor
degrading treatment" prohibited by Article 3, a state of affairs
towhich the existence of " a public emergency threatening the life
of thenation" was irrelevant, since the Convention does not permit
anyderogation from this provision.12Evidence relating to several
differingtypes of maltreatment was produced, but the focus was
mainly on thesystem of " interrogation in depth " which involved
the application incombination to 14 persons questioned at an
unidentified interrogationcentreof fiveaids to interrogation:
hooding; wall-standing; subjectionto"white noise"; deprivationof
sleep,anddeprivationof food andwater.13It was contended that the
system of interrogation in depth amountedto torture. Such was the
unanimous view of the Commission.14Indeed,the issue was not
contested before the Court by the United Kingdomwhich invited the
Court to refrain from considering it since it felt thatthe
objective of this part of the application had been achieved by
theCommission's well-publicised finding.15The Irish Government did
notagreeand the point was not accepted in any generalway by the
Commis-
7 Irelandv. U.K. [1972] 15 Y.B. 67. For an analysis of the
exception see E. McGovern,"The Local RemediesRule and
Administrative Practicesin the EuropeanConvention onHuman Rights "
(1975) 24 I.C.L.Q. 119.8 Judgment,para. 157; see also Arts. 44-49.9
Judgment,para. 157.10 Ibid., paras. 190, 243.11 See e.g. I.
Brownlie, " Interrogationin Depth: The Compton and Parker
Reports"(1972)35 M.L.R. 501, and sources cited therein.12 Art. 15
(2).13 Judgment,paras. 96-104, 106-107, 165-172, On other types of
ill-treatment seeparas. 108-132, 173-185.14 " Report of the
Commission" [1976] 19 Y.B. 512 at pp. 792-794
(hereinafterreferredto as Report).15 Judgment, para. 152.
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OCTOBER978] Ireland v. UnitedKingdom 899sion's delegates. The
Court considered that its duty under Article 19compelled it to
examine the substantive issue since its judgments-in
factservenotonlyto decide hosecasesbrought efore he
Courtbut,moregenerally,o elucidate,afeguardnddevelopherules
nstituted y the Con-vention,herebyontributingo
theobservanceytheStates
ftheengagementsundertakenythemasContractingarties.16This broad view
of the role of the Court is, it is submitted, to be wel-comed.
Given that the purposeof the Convention is to furtherprotectionof
human rights in Europe, treatingjudgmentsof the Courtas
authorita-tive interpretations of Europe's Bill of Rights
acknowledges the impactof the judgment for all parties to the
Convention and not just for theState(s) concerned in the case.17It
also means that individuals withinStates parties to the Convention
derive benefits without having tosurmount the procedural hurdles
of, and delays inherent in making, anindividual application.18The
Court found that it was proved beyond reasonable doubt (therequired
standard of proof in this area) that the five techniques
con-stituted a practice which contravened Article 3; their
applicationamounted both to inhuman treatment and to
degradingtreatment.19TheCourt did not define inhuman treatment in
precise terms but it seemsclear that it is the infliction of "
intense suffering."20 The Court heldthat the techniques constituted
degradingtreatment-
since heyweresuchas to arouse ntheirvictimseelings f
fear,anguish
ndinferiorityapablefhumiliatingnddebasinghemandpossibly
reakingheirphysical rmoral esistance.21However, the Court felt that
" interrogation in depth" fell short oftorture; it did not consider
that its application occasioned " sufferingofthe particular
intensity and cruelty implied by [the concept] " as theCourt
understood it.22This decision surprisedmany, but it does not stem
directly from thefact that the suffering nflicted was more mental
than physical. Both theCourt and the Commission agreed that "
torture" could embracebothmental and physical suffering.23Nor does
the difference in opinionbetween the Court and the Commission flow
from any substantialdisagreementas to the definition of the concept
in the context of Article3. Indeed, disregarding somewhat different
verbal formulae, as one ofthe judges who annexed separate opinions
recognised, the definitionsadopted seem in theiressencevery
similar.24TheCommission,reiterating
16 Ibid., para. 154.17 As might be implied from Art. 53: " The
High Contracting Parties undertake toabide by the decision of the
Court in any case to which they areparties."18 For criticism of
delayetc. see e.g. K. Boyle and H. Hannum," Irelandin Strasbourg:An
Analysis of Northern Irish Proceedingsbefore the European
Commission on HumanRights," (1972) VII TheIrish Jurist 329.19
Judgment,para. 167 (16 votes to 1).20 Ibid.21 Ibid.22 Ibid. (13
votes to 4).23 Ibid; " Report " [1976] 19 Y.B. 512 at p. 748. The
dissenting judge, Sir GeraldFitzmaurice, held that the five
techniques did not amount to treatment prohibited byArt. 3 (p.
102). Given that he considered the meaning of Art. 3 to be unclear,
it seemsstrange that the learnedjudge did not refer to the
travauxpreparatoireswhich, it is sub-mitted, revealhis view to be
erroneous(on this see " Report," 19Y.B. 512 at p. 790).24 Judgment,
p. 117 (Judge Evrigenis).
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900 Internationaland ComparativeLaw Quarterly [VOL.27the view it
expressed in the First Greek Case, considered that
torturegenerallyconstituted an aggravatedform of inhuman treatment,
that isthe infliction of severe mental or physical suffering, which
is appliedoften for such purposes as extracting information or
confessions fromthe victims.25 The Court conveyed an essentially
similar notion byreferring to " deliberate inhuman treatment
causing very serious andcruel suffering"; the term " deliberate "
seems to be used to connote anelement of purpose.26Thus the Court
went on to conclude that "interro-gation in depth " did not amount
to torture notwithstanding its system-atic and purposeful use as an
aid to the extraction of information fromthose to whom it was
applied.27 The differenceof opinion between thetwo Convention
agencies arises from a differentperception of the levelof severity
of suffering required in order to place the conduct at the" torture
" point on the spectrum of maltreatment ranging
fromdegradingtreatmentat the one end to torture at the other. This
differentperception is found partly in the definitions but also in
their applicationto the facts.28In placing so much emphasis on the
criterion, "very serioussuffering," t is submittedthat the Court
has given too limited a scope tothe notion of tortureas understood
in the modern world. Such emphasisis not to be found in the
definitions of the term propounded by otherauthorities.29 Indeed,
such definitions are almost identical to thatproffered by the
Commission. For instance, Article 1 of Resolution3452 (XXX) of the
GeneralAssembly of the United Nations on Torture,adopted without a
vote on December 9, 1975, provides that-(1) . . .
torturemeansanyact by whichseverepainor suffering,
hetherphysicalrmental,s intentionallynflicted yor at
theinstigationf a publicofficial n a personor suchpurposess
obtainingromhimor a thirdpersoninformationr confession, unishing im
for an act he has committedr issuspectedf having
ommitted,rintimidatingimorotherpersons..(2) . . . Torture
onstitutesn aggravatednd deliberateormof cruel, n-human
rdegradingreatmentndpunishment.30To similar effect is the
definition advanced by Amnesty International:Tortures
thesystematicnddeliberatenfliction f acutepain nanyformbyoneperson
nanotherron a thirdperson,norderoaccomplishhepurposeof theformer
gainsthewillof the atter.31
In this light theCourt's stress on" veryserious
"seemsmisplacedand,ifonly for reasonsof consistency of definition,
the Commission's definitionseems preferable to that of the Court.
Furthermore, such stress mightwell prove problematic in the future,
and produce results not intendedby the Court, when applied to
evolving modern " psychological "25 " Report
"[1976] 19 Y.B. 512 at p. 748.26 Judgment, para. 167.27 Ibid.28
ThusJudgeEvrigenis, ho didnotagreewiththe Court'sdefinition,would
tillhaveheldthat the fivetechniquesamountedto torture had he used
thatdefinition-see Judgment,p. 118.29 " General Assembly Resolution
3452 (XXX) " (1976) 13 United Nations Chronicleat pp. 55-56, 91;
AmnestyInternational,Reporton Torture reviseded., 1975), pp.
33-38;M. Ruthven,Torture: he GrandConspiracy1978),pp. 17-22.30
Cited, upran. 29,at p. 91. Surprisinglyhe Courtreferrrednlyto
Art.1(2) in itsdecision (para. 167) presumablybecauseit came closer
to its own view than did Art. 1 (1).31 Cited, supra.n. 29, at p.
35.
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OCTOBER978] Irelandv. UnitedKingdom 901methods of interrogation
which have been characterised by AmnestyInternational and other
authorities as " torture." 32 Problems may arisebecause the effects
of such methods on the human mind and spiritappear most difficultto
gauge. As a result, mental suffering, which theCourt said could, in
principle, amount to torture, might tend in practicenot to be so
characterisedby the Convention agencies. The adoptionand
appropriate application of the Commission's definition would, it
issubmitted, avoid such a result. Indeed, the actual decision in
respect ofthe application of the five techniques provides an extant
indication ofsuch problems. Their application caused " at least
intense mental andphysical suffering and... led to psychiatric
disturbances duringinterrogation." 33 The victims received
compensation of between?10,000-?25,000 in out of court settlements,
the bulk of which mustsurely represent damage done by "
interrogation in depth." 34 Iftechniques
producingeffectsattractingsuch high levels of compensationdo not
amount to torture, one wonders what will; must permanentneurosis be
induced before the Court will accept that torture has beenused ?Of
course, it is important to point out that the Court's
decisionnonetheless has the clear effect in law that interrogation
in depth, andpresumablyrelated sensory deprivation techniques,
cannot be employedby State agencies in jurisdictions to which the
Convention applieswithout contravening Article 3. Yet the impact of
this holding that thisprovision had been violated was much reduced,
being overshadowed bythe decision that torture had not been used.
The contrary holding, thattorture had been used, might have more
effectively mobilised publicopinion to reinforcethe
Attorney-General's undertakingthat the systemof " interrogation in
depth " would not be reintroducedin the UnitedKingdom, and to help
reduce the likelihood of its use elsewhere.35Inthis way such a
decision would, it is submitted,have more
constructivelyfurtheredprotection of human rights in Europe. This
is not to say thatthe Court should stretch concepts beyond their
true limits merely tomake a better impact on public opinion; that
would be an illegitimateexercise of judicial power as well as the
surest way to lose State con-fidence vital to the Convention's
success. But in this case to say thattorture had been used would
not have stretchedconcepts; it would havefully reflected the
international community's understanding of" torture" expressed in
the General Assembly Resolution. Thatunderstandingand the United
Kingdom's acquiescence n the decision ofthe Commission would also
tend to indicate that State confidence wasunlikely to be lost. It
is therefore to be hoped that the Court will reviseits approach to
the notion of torture at the earliestpossible opportunity.The Irish
Government also asked the Court to direct the UnitedKingdom to
prosecute those membersof the SecurityForces involved
inmaltreatmentcontrary to Article 3. But the Court, without
elaborating,
32 Ibid., at pp. 39-69.33 Judgment,para. 167. The sufferingwas
more mental than physical; see " Report "[1976] 19 Y.B. 512.at pp.
786-88.34 Ibid., paras. 197, 143, Some of the compensation would
have covered a periodoffalse imprisonmentwhen subjectto a detention
order invalid for technicalreasons set outin Re McElduff [1972]
N.I.L.R. 1. This period would rarely last for more than 28
days(para. 217).35 That undertakingis set out in Judgment,para.
153.
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902 Internationaland ComparativeLaw Quarterly [VOL. 7considered
that the sanctions available to it did not embracea power togive
any such directions. 6 In the absence of any provisionin the
Conven-tion giving the Court express power to order States to take
such action,no other approach could be expected from a
non-supranational bodyconscious of the need to preserveState
confidencein the workings of theConvention. It may, however, be
true to say that such directions andresultant prosecutions might
constitute the best way to ensure futureconformity with the terms
of Article 3.37 Perhaps the possibility ofamending the Convention
ought to be explored. However, given thelong delay before any final
decision is made by the appropriateConven-tion organs" there would
be practicaldifficulties n securingcompliancewith any such order."
38Moreover, one doubts whether States wouldreadily agreeto any such
amendment.
EXTRA-JUDICIALDEPRIVATIONOFLIBERTYBetween August 1971 and March
1975 three statute-based
systemsauthorisinginternmentwithouttrialwere deployed in Northern
Ireland.The Irish Governmentalleged that these measuresdid not
conform withthe standardslaid down in the Convention. The three
systems were-
(i) the system set up under the Special Powers Act (used
August1971-November 1972);(ii) the system regulated by the
Detention of TerroristsOrder,whichin part replacedand in part
supplemented (i) and was used fromNovember 1972 to August
1973;(iii) the system governed by the Emergency Provisions Act
1973which was in almost all respects the same as (ii) and was
usedfrom August 1973 to August 1975.39
Consideration of two aspects of these systems, namely, their
by-passingof any form of criminal trialprocessand theirprovision of
some form ofreview, which was independent of the Executive, of the
decision tointern a person without trial, illustrates the Court's
approach to theissues raised. However, analysis demands a little
more study of thesecond aspect.Under the r6gime created pursuant to
the Special Powers Act,internees could make representations to an
advisory committee andcould obtain legal advice to enable them to
do so. However, thecommittee's decision was not binding on the
Executive. Under the latersystems an internee'srelease could be
directed, either by a quasi-judicialcommissioner, after a process
employing quite sophisticated adversaryprocedures involving the
provision for the internee of State-financedlegal representation,
or by the Appeal Tribunal empowered to reviewthe commissioner's
decision to endorse internment.40Following the approach it had
adopted in Lawless v. Ireland, theCourt had to consider whether the
measures and their use could be
36 Ibid., paras 186-187.37 Irelandv. U.K., VerbatimReportof
Public Hearings(April 19, 20, 21 and 22, 1977):Council of
EuropeDoc. Court(77) 36, at pp. 21-23.38 Judgment,p. 93 (Judge
O'Donoghue).39 For more detail see K. Boyle, T. HaddenandP.
Hillyard,Lawand State: The CaseofNorthernIreland(1975), Chaps. 4
and 5.40 Judgment,paras. 84, 87, 88.
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OCTOBER1978] Irelandv. UnitedKingdom 903justified under Article
5, which sets out the sole grounds on whichdeprivation of personal
liberty is permissible under the Convention,assuming a situation of
normalcy.4' It decided that they could not bejustified underany of
the relevantcategories embodied in that provision.Thus the Court
ruled that-
suchdeprivations of libertywerenot] coveredby sub-paragraphb)
sincetheyhad no connectionwith " non-compliancewith the order of a
court" andwerenot designedto " securethe fulfilmentof an
obligationprescribedby law." 42The Court further noted that " at
first sight the different forms ofdeprivation of liberty may appear
to bear some resemblance to thecases contemplated by
sub-paragraph(c) " which permits-
the lawful arrest or detention of a personeffectedfor the
purposeof bringinghim before the competent legal authorityon
reasonablesuspicion of havingcommittedan offenceor when it is
reasonablyconsiderednecessary o preventhis committingan offence or
fleeingafterhavingdone so.However, again acting in full conformity
with its Lawlessapproach,theCourt stressed that this had to be read
as one with paragraphthree ofArticle 5 which mandates that persons
so arrestedor detained-
shall be broughtpromptlybeforea judgeor other
officerauthorisedby law toexercise udicial powerand shall be
entitled to trialwithin a reasonable ime orto releasependingtrial.
Releasemay be conditionedby guarantees o appearfor trial.These two
provisions requirethat the detainedperson be arrestedfor thepurpose
of deploying some form of criminal trial process against himand
that any such trial take place within a reasonable time.44
Themeasures authorising deprivation of liberty did not comply with
thedictates of these paragraphs since their rationale and purpose
was toby-pass the criminal trial process. Moreover, and in any
event, theindependent review bodies did not constitute the agencies
contemplatedby these Convention provisions because (in the Special
Powers Act caseonly) of a lack of a power of binding decision and
(in the case of all themeasures) the failure to bring the internee
promptly before them.45Furthermore, for similar reasons, these
bodies did not constitute the" court " contemplated by Article 5
(4) which requiresthat a person beentitled to " take proceedings by
which the lawfulness of his detentionshall be decided speedily ...
and his release ordered if the detention isnot lawful." Nor did
reviewby the Courts on habeascorpusapplicationssatisfy that
paragraphsince, being limited to technical defects only, it" was
not sufficientlywide on scope, taking into account the
purposeandobject " of that paragraph.46 Since they did not comply
with Article 5,the far-reaching consequences of the measures for
the liberty of the
individual can clearly be seen and were recognised by the
Court.4741 Ibid., para. 191; c.f. [1961]4 Y.B. 438 at 452.42
Judgment,para. 195.43 Ibid., para. 196.44 Ibid., para. 199.45
Ibid.46 Ibid., para. 200.47 Ibid.,para.25.TheCourtdid notfeel
calledupon o decide hecomplexquestion fthe applicability f Art. 6
to systemsauthorising xtra-judicial eprivation f liberty(paras.
233-235.).
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904 Internationaland ComparativeLaw Quarterly [VOL.27In
consequencethe Court had to consider whetherthe measures
couldnonetheless be justified pursuant to Article 15 (1). This
provides that-
Intimeof waror otherpublic mergencyhreateninghe ifeof the
nationanyHighContractingartymay akemeasureserogatingrom
tsobligationsnderthisConventiono theextenttrictlyequiredy
heexigenciesfthe ituation...The Court recognisedthat it was the
final arbiterof what the Conven-tion demanded, but it pointed out
the need to accord the dero-gating State " a wide margin of
appreciation," both in relation towhether an emergency existed and
what measures were necessary toovercome it; the Court felt that "
by reason of their direct andcontinuous contact with the pressing
needs of the moment, the nationalauthorities are in principle in a
better position than the internationaljudge " to decide such
questions.48To some extent this is an obviouslyrealistic
recognition that the Convention's existence depends on
Stateconsent: to adopt too strict a review may be to underminethe
Conven-tion. But one must not lose sight of the fact that the Court
was set up toprotect human rights. Since the " margin of
appreciation" can involveaccording the State the benefit of the
doubt, too wide a margin mayoperate to the detriment of effective
protection, as is arguablythe casewith the Court's approach to the
issue now under consideration.49That the requisite emergency
existed was not questioned in the caseand the Court considered its
existence clear.50 ndeed, who can doubtthat the Ulster situation
satisfied the test laid down by the Court
inLawless:anexceptionalituation f crisisoremergencyhichaffectshe
wholepopula-tionandconstitutes threatotheorganisedifeof
thecommunityf which heState s composed.51The crux of the issue
joined between the Parties was whether intern-ment without trial
was strictly required by the exigencies of the Ulstersituation. The
Court, adhering to its Lawless format, perceived this toinvolve two
sub-issues:(i) "the necessity for derogation from Article 5 (1),"
52 or, inLawless terms, whether any less draconian methods
thaninternment without trial would have been sufficientto deal
withthe situation.5348 Ibid., para. 207.49
DenmarkNorwayNetherlandsandSwedenv. Greece[1969] 12Y.B., Vol. 2.,
at p. 116(dissenting opinion of M. Busuttil). For furthercomment
see K. J. Partsch, " ExperienceRegarding the War and Emergency
Clauses of the European Convention on HumanRights," 1Israel Y.B.on
HumanRights327.50 Judgment,para 205 (unanimous).51 [1961]4 Y.B. 438
at pp. 472-474. The Court did not make it wholly clear
whethertherelevantcommunity(" the nation ") affectedwas the U.K. as
a whole (a view supportedbypara. 212 and Judge O'Donoghue, p. 93)
orjust Ulster (a view supportedby para. 205). Itis submitted that a
rational, common sense view would support the latter; there seemsno
reason of policy not to permit a State to derogate in respect of a
part of its territoryaffectedby " a public emergency" of the
requisite magnitude providedthat the necessarycurtailmentof the
protected rights and freedoms is confined to that-partonly,
especiallywhen the affectedpart is an offshore entity like Ulster.
This view would seem to be sup-ported by the Turkishpractice, not
impugnedas law-breaking:see [1971] 14 Y.B. 24-32.Moreoverthe U.K.
derogation ([1971] 14 Y.B. 32) referredonly to N. Ireland.52
Judgment,paras. 212-14.53 [1961]4 Y.B. 438 at pp. 474-478.
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OCTOBER 1978] Irelandv. United Kingdom 905(ii) " the necessity
for derogation from the guarantees under para-graphs 2-4 of Article
5 " 54 or, in Lawless terms, whether themethod employed (and
justified under (i)) was subject to
adequate safeguards to protect personal liberty so far as the
situationallowed ? 55With regard to the first sub-issue the Court
considered that the stepstaken by the United Kingdom were
reasonable in the circumstancesgiven the margin of appreciation
granted to it and adjudged in thecontext of conditions at the time
the measureswere invoked ratherthanin the light of hindsight.56The
conclusion that some form of internmentwithout trial was
requiredwas not unexpected given that the Court hadso held in
Lawless in the context of a much less serious situation
inEire.57But what can be criticised is the Court's failure to
examine anyalternativesto internment, to canvass, for instance, why
even a modifiedcriminalprocess or special criminalcourts, such as
those now employedin Ireland,58 were not capable of dealing with
the situation asefficaciously as internment. Surely such an
approach can be expected ofa body charged with the protection of
human rights and aiming to giveguidance to decision-makers in the
States party to the Convention.Indeed, does not the term " strictly
required" in Article 15(1) mandatesuch exploration of
alternativeseven if, at the end of the day, they arerejected on
rational grounds? 59 That the Court did not take thisapproach seems
attributable to the " margin of appreciation "; itnoted that-
it is certainlynot the Court's function to substitutefor the
BritishGovern-ment's assessmentany other assessmentof what mightbe
the most prudentormost expedientpolicyto combatterrorism... the
Courtacceptsthat the limitsof themarginof appreciation.. werenot
oversteppedby theUnitedKingdom[inusinginternment].60But while
internment in some form might well have been requiredthere still
remainedthe second sub-issue: was the system hedged roundwith
sufficientsafeguards against abuse? The Court held that even
the
Special Powers Act regime, backed up by very limited,
technicalityoriented judicial review, fulfilled the Convention
requirements on thisscore in the circumstancesthen prevailing in
Ulster. Moreover the latermore sophisticated systems were
satisfactory from this perspective.61The Court declared that-an
overall examinationof the legislationand practiceat issue
revealsthat theyevolvedin the directionof increasingrespectfor
individual iberty.The incor-poration right from the start of more
satisfactory udicial,or at least admini-strative guaranteeswould
certainly have been desirable, especially as
[theSpecialPowersActregime]datedbackto 1956-57..., butit wouldbe
unrealisticto isolate the firstfrom the laterphases.Wherea State is
strugglingagainsta
54 Judgment,paras. 215-221.55 [1961]4 Y.B. 438 at pp. 474-478.56
Judgment,para. 214.57 [1961] 4 Y.B. 438 at pp. 474-478. For
critical comment see P. O'Higgins," TheLawless Case "(1962) Camb.
L. J. 234.58 Cf. W. L. Twining, " EmergencyPowers and the Criminal
Process: The DiplockReport " [1973] Crim.L.R. 406.59 Cf. a point
suggested by Judge O'Donoghue-Judgment, p. 92.60 Judgment,para.
214.61 Ibid., paras. 217-220 (16 votes to 1).
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906 Internationaland ComparativeLaw Quarterly [VOL.
7publicemergencyhreateninghe life of the nation, t would be
rendereddefencelessf itwere equiredoaccomplishverythingtonce, o
furnishromthe outseteachof its chosenmeansof action with each of
the safeguardsreconcilable iththepriority equirementsor theproper
unctioningf theauthoritiesnd orrestoring eacewithinhecommunity.he
nterpretationfArticle15must eavea place
orprogressivedaptations.62
Once again, the role of a widemarginof
appreciationseemsanimportantdecision-making factor.However, the
decision with respect to the Special Powers Act regimeis clearly
out of line with the Court's view on the same issue in Lawlesswhere
it stressedthe importance as a safeguardof the binding characterof
the decision of the reviewbody.63Of course, the Convention does
notdictate any systemof binding precedent 64 and clearly,given the
differingscale of the emergencies, not every single factor in
Lawless could havebeen fully applicable in Ireland v.
U.K.65However, the difference inscale of the emergency must surely
go to the question of what wasrequiredin the situation ratherthan
to the question of safeguards sincethe betterprotection of human
rights demands the maintenanceof someminimum due process guarantees
even in an emergency situation likethat in Ulster. To say otherwise
is surely to deny the Conventionprovisions any practical
application to such a situation. Surely, oneminimum guarantee must
be the requirement that the review body beempowered to make binding
decisions; otherwise the process ofindependent review by an
advisory agency could be abused by merelygoing through the sham
process of a reference to it knowing full wellthat its advice would
not be implemented. Since the Court saw its role asgiving guidance
to decision-makerson the requirementsof the Conven-tion, then it is
the point of principle and not the fact that in Ulster theprocess
was not abused which is important.66 It is submitted thatLawless
should have been strictly followed on this point and that theCourt
ought to have held that the United Kingdom's use of the
SpecialPowers regime of internmentviolated the Convention.67Merely
to saythat better safeguardswere " desirable " is, it is submitted,
not enough,though it was important to give the United Kingdom its
due and pointout that the review process was not abused.The Court's
notion that one phase cannot be isolated from anotherseems to
involve treating the more detailed aspects of Lawless as
onlyrelevantto Ireland, the partyto that case. But if the
Court'sdecisions areto be regarded as giving guidance to
decision-makers in other States(and the Court indeed so preceives
them) then surely it was up to theUnited Kingdom to have secured
such modification of the SpecialPowers regime as was required by
the provisions of the Convention asinterpreted in Lawless.68As it
is, the Court appearsto regardonly themore general aspects of
Lawless to be relevant for the future; each newcase is to be
treated on its own facts within the framework of relevant
62 Ibid., para. 220.63 [1961]4 Y.B. 438 at p. 478.64 F.
Castberg,TheEuropeanConvention n HumanRights(1974), p. 18.65 "
Report " [1976] 19 Y.B. 512 at pp. 598-600.66 Judgment,paras. 84,
154.67 Cf. Judge O'Donoghue, ibid., p. 93.68 Ibid., para. 220.
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OCTOBER978] Ireland v. UnitedKingdom 907questions dictated by
Lawless.69This is surelynot laying down meaning-ful human rights'
standards for States to follow. The preferredholdingset out above
seems to accord a little more protection to individualrights
without it being so radical as adversely to affect State
confidencein the Convention system. It is, afterall, no more than a
proper applica-tion of criteria laid down in Lawless by the Court
in 1961 and acceptedby the States Parties which have recognised the
Courts jurisdiction.70Once again, it is to be hoped that the Court
will revise its approach atthe earliest opportunity.
A LANDMARKDECISIONClearly, in a formal and institutional sense
Irelandv. U.K. is a landmarkdecision in the protection of human
rights by international agencies.That two States can conduct legal
argument before an independentinternationaljudicial body on matters
once thought to lie at the heart ofthe reserved domain of "
domestic jurisdiction " is surely remarkable.In this sense, the
Court has taken a step forward. However, it has beensuggested in
this note that the standards it laid down are not conduciveto the
better protection of human rights in time of emergency and thatthe
Court has been over-zealous in its deference to State needs at
theexpense of those of the individual. As a result, in terms of
substance theCourt has taken several steps back.71 A reappraisal of
attitude isurgently needed in orderto fulfil the aim of the
Convention: the betterprotection of human rights in the European
arena.
DAVID BONNER.*
69 Ibid., paras. 212-221, 243. It is odd that the Court did not
ask a question posed inLawless: whether there was a practice of
interning persons who ought not to have beeninterned? This would
have covered the chargethat internmentwas " over-inclusive."It
issubmitted that the Court would have held that the U.K.'s "
dragnet" approachdid notexceed the State's" marginof
appreciation."The allegation that internmentwas " under-inclusive"
and thereforediscriminatorywas dealt with under Arts. 5 and 14. The
Courtheld that no discrimination contravening the Convention had
taken place, given the" marginof appreciation" (paras. 225-232).70
With the exception of France; see its reservationin respect of Art.
15 in [1974] 17Y.B. 2 at p. 4.71 The term " one step forward,two
steps back " is borrowed from K. Boyle and H.Hannum," The Donnelly
Case:AdministrativePractice andDomestic Remedies
undertheEuropeanConvention: One Step Forward and Two Steps Back"
(1977) 71 A.J.I.L. 316.* I am indebted to colleagues Robin White
and Noreen Burrows for their helpfulcomments on this note. The
usual thanks go to the Faculty secretarial staff. The
viewsexpressedand any errorsin it are,of course,my
responsibility.
