“The Challenge of Human Rights for Contemporary Law, Politics, and Economics” The 2015 Daniel O’Connell Memorial Lecture
The Bar of Ireland, Dublin, 19th November 2015
Honourable Justices,
Distinguished Guests,
Ladies and Gentlemen,
Is mian liom, ar an gcéad dul síos, mo bhuíochas a chur in iúl le Chomhairle Bharra na hÉireann agus lena Chathaoirleach David Barniville, as ucht an cuireadh caoin dom an t-ochtú Léacht Cuimhneacháin Dhónall Ó Conaill a thabhairt anseo tráthnóna.
Firstly, I would like to express my thanks to the Council of The Bar of Ireland and its chairman David Barniville for your kind invitation to deliver here this evening, the eighth Daniel O’Connell Memorial Lecture.]
I understand that we have Mr Turlough O’Donnell, Senior Counsel, to thank for establishing this series of lectures on the theme of human rights when he was chair of the Bar Council in 2008. Turlough’s personal contribution to the promotion of human rights in all parts of the island is considerable and well recognised.
When considering the previous speakers and themes that have formed the short history of this Lecture, it is clear that this annual event has come to serve an important function in the evolution of human rights in Ireland and in ensuring that those who defend human rights are recognised with a place of esteem in the diary of the Irish Bar and among all those concerned with the law in Ireland. Fáiltím roimh an deis seo chun roinnt saincheisteanna atá ag déanamh imní dúinn ar fad a ardú libh, comhpháirtithe i agus saineolaithe i réimse chearta an duine in Éirinn. [I welcome the opportunity to raise with you, as key partners in the human rights landscape in Ireland, some of the issues which are of concern to all of us.]
Previous lectures have emphasised Daniel O’Connell’s own remarkable achievements in several spheres, and indeed his incomplete attempts, for the advancement of human rights in his time – not only in relation to equality and civil liberties for Catholics, but of course also in support of such causes as Jewish emancipation and, perhaps most notably, the abolition of slavery.
Born at a time when Catholics could not enter the Bar (an exclusion only lifted in 1793), under his uncle’s patronage O’Connell had the rare privilege of a full university and legal education in France, in London and at the Kings Inns.
He went to enjoy a hugely successful legal career as a circuit barrister; and as a prosecutor, legislator, defendant (a victim of a shamefully unfair trial, during which it seems the Attorney General challenged O’Connell’s defence counsel to a duel!) and as a prisoner, O’Connell participated at every level of the judicial system save that of the bench – an aspiration of his that remained unfulfilled, though perhaps with consideration of temperament that may have been for the best.
The cases and campaigns in which “The Counsellor” – as he was known among his peers at the Bar - was involved resonate today, as do his legendary feats of intellectual force and oratorical skill as an advocate, his strategic political genius, and his unfailing, stubborn commitment to the ideal of justice.
However, rather than simply retrace his fascinating life – and all of its ambiguities – making use of the legacy space of a memorial lecture, the theme I have chosen for this evening looks briefly at the contemporary challenge of human rights – the challenge, and the promise, that the call of human rights continues to present for law, for politics and for economics for this generation. In addressing these current issues, I believe that the resonance and legacy of O’Connell remains relevant to the work before us in this time and his life and achievements can continue to inspire us.
The promotion and vindication of human rights have been, and will remain, a central theme of my Presidency.
Human rights are essential if a society is to allow its citizens as individuals to live with freedom and dignity and for enabling them to form a functioning and cohesive democratic society. Human rights are never merely an aspiration: they remain an urgent requirement of law and of our democracy. They are universal, not confined by space or time, not confined to certain parts of society, or indeed to those that we feel are deserving of rights. As the words of the Preamble of the United Nations’ Universal Declaration of Human Rights puts it,
“recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”.
These words are strong, however, may I suggest, that despite the achievements which have been secured in advancing human rights in Ireland and in Europe, the demands presented to us at this moment will define us in the assessments of future historians. The demands of which I speak are demands of a social, economic, legal and environmental kind – they are pressing and they, in terms of inter-generational justice, will define the circumstances of future generations.
Discussions on law reform are frequent, but in that area and the codification of rights, there remain many outstanding and urgent issues. While progress has been made, we need not look too far for persistent denials of rights in our time which require of us in our time the same passionate and forceful advocacy as was required in O’Connell’s era.
There is need in our contemporary circumstances for political leadership on many of the great human rights issues of our time. In the spirit of O’Connell, endeavours in the legal sphere aimed at meeting the State’s human rights obligations should be seen as complementing rather than conflicting, enhancing rather than diminishing political and administrative measures.
May I take the opportunity finally of turning, however briefly, to the challenge of imagining new rights structures and mechanisms of enforcement, a challenge which calls on us to engage with the area of economic and social rights for the existing and proposed legal protection of these rights presents us, I believe, with an opportunity to make practical progress in addressing the underlying inequalities in our World. Moreover, legal protection of such rights can help us address the great crisis of political legitimacy which threatens to undermine and destabilise the institutions of our democratic system.
Turning first to the current landscape of rights’ protection in Ireland, there is a danger, I believe, that when we consider the sophisticated and extensive range of legal instruments which have been developed, over the past century in particular, that we might conclude that the progress of the project of human rights is much further developed than is real.
That the expansion of the legal protection of rights and equality at the national and international levels can be traced from the period of O’Connell is undeniable. Certainly, in the last century, the establishment of the United Nations, the Council of Europe and other bodies, and the proliferation of treaty law and human rights institutions from those bodies, represent moments of achievement which have marked a key stage in human history. Similarly, landmark achievements at the national level such as abolition of the death penalty, legal guarantees of gender equality, providing legal recognition to the equal status of all children, are rightly celebrated.
Looking backwards, these reforms that have been secured may, for the uninformed seem to be the outcome of an evolutionary process, one that was even inevitable.
We must guard against any such assumption that the narrative of human rights in Ireland or globally is linear, or that it is a project that is near completion. Progress has been made, and this must be acknowledged, but – as you know well - the demands of universal rights and human dignity continue to be tested every day in our courts.
In the sphere of the criminal trial, for example, the evolution of the rights of defendants does not flow only in one direction – new challenges are emerging in the form of technological innovation, and changes in the forms of crime itself and the response to it, or in changing social conditions, may bring forward new arguments for exceptionalism and derogation of rights. In this as in other areas, the work of the human rights lawyer is far from settled.
The human rights discourse does not benefit from any removal from a more general discourse on the distribution of power. Increasingly in our discourse, rights can even be brought forward as a defence of the status quo or of the interests of dominant or ascendant groups. Baroness Onora O’Neill, philosopher and politician, speaking at one of the public events held last year under the President of Ireland’s Ethics Initiative, confronted this perspective, entreating
‘that we should look at rights not as our rights, but as someone else’s, which we have a duty to protect, guarantee and realize’.
Human rights are the tools by which, in undemocratic times and settings, unthinkable aspirations can become an irresistible case for Equality – as we have recently seen in Ireland. What is required of us is not simply that we seek to protect and enforce those rights which are well established, but also that we seek out new possibilities to use rights to extend citizenship, dignity and equality. Lawyers and judges will have, of course, their own critical roles in this regard.
The challenge for the human rights lawyer, then, is the challenge to seek out violations of human dignity beyond those that are popular or obvious; to identify violations of rights and dignity not previously understood as such; and to conceive of new realities where, through imaginative and creative application of the law, human dignity can be vindicated, can find greater and freer expression.
The role of the human rights lawyer should not be confined to the courtroom. An adequate definition of the role requires her to do more than act for those in need; it calls on her to engage her talents to empower and facilitate. In taking up this work, you are drawn inevitably to the corners of our society. At this time, we should recognise that there remain communities amongst us that are, in the everyday experience of their times and circumstances, denied their rights and thus require the principled and energetic advocacy of lawyers and human rights defenders – people with disabilities, prisoners, undocumented migrants, and members of minorities who suffer racism and discrimination including members of the Traveller and Roma communities, whom I met just yesterday at Pavee Point.
We see resonances of the challenges undertaken by previous advocates of principle today, when we consider such issues as that of contemporary forms of slavery. O’Connell in his time confronted explicit and legally sanctioned forms of dehumanisation by fighting to end slavery in the Americas – indeed he refused to set foot in the United States as long as slavery was allowed. He was willing to receive the criticism of sections of Irish American opinion for his refusal to stay, his condemnation of slavery in his lecture tour. Today, we, in our time, are confronted by more insidious forms of forced labour that must be sought out, revealed and ended.
In Ireland, as in other developed countries men, women and children continue to be exploited in many sectors and settings, and I commend the work of organisations such as the Migrants Rights Centre Ireland and their legal representatives who have been involved in recent cases in this area.
Sa chaoi chéanna, is mian liom comhaltaí an Bharra agus Barra na hÉireann a mholadh as bhur gcuid oibre, lá i ndiaidh laé, chun tabhairt faoi na ceisteanna seo trí bhur gcuid oibre fairsing ‘pro bono’, tríd an Scéim Cabhrach Deonach agus go háirithe tríd an tacaíocht a chuireann sibh ar fáil d’ Eagraíochtaí Neamhrialtasach agus d’eagraíochtaí phobail.
[In the same vein, I commend the members of the Bar, and The Bar of Ireland, for the work that you continue to do today to address these issues on a daily basis – through the extensive pro bono work done by your members, through the Voluntary Assistance Scheme, particularly in your support for NGOs and community organisations.]
Creating and maintaining a space for civil society is intrinsic to this process of giving vitality to legal rights. It is imperative that States create and maintain, in law and practice, a safe and enabling environment in which civil society can operate effectively. Given its critical role in building pluralistic societies and in holding governments to account, it is of great concern that the effective functioning of civil society is becoming increasingly restricted in many countries around the world.
International solidarity is of importance now more than ever, as the space for lawyers and for civil society to operate becomes increasingly restricted in many countries around the world. I am particularly concerned at the ongoing reprisals against human right defenders in many parts of the world, including against those who seek to co-operate with human rights mechanisms such as UN Special Rapporteurs and those who participate in the work of the UN Human Rights Council.
I will always remember a prisoner telling me of the manner in which he and his fellow prisoners were forced to watch the beaten body of their lawyer being paraded before their cells.
Internationalism was a key theme of O’Connell’s own work, not just in relation to the issues of slavery and Jewish emancipation, but also in his support for the liberation movements in South America and elsewhere. From the standpoint of the principle of universality, we are all members of the human family and a commitment to internationalism has informed and remained at the heart of the best expressions of Irish national identity from that time and should always be central to our foreign policy as an independent nation.
In this spirit, I was glad to see Ireland take the lead on drafting and negotiating two Human Rights Council resolutions affirming the importance of civil society space, which recognised for the first time, at the Council, the issue of civil society space as a human rights concern.
Ireland has consistently pushed for measures within the EU and United Nations to support the important work of these brave men and women, and one hopes that it will continue to do so.
In its role on the Human Rights Council, among the other issues prioritised by Ireland were freedom of religion or belief, the rights of LGBTI persons, the rights of the child, and internet freedom.
Its exemplary role in these issues must be matched by its vigour in seeking compliance with human rights from new sources of great influence on humanity such as transnational corporations.
The Bar of Ireland the Law Society follows an honourable path laid down by O’Connell and others when it takes on international issues.
The support provided by The Bar of Ireland and the Law Society to the Rule of Law International project, which I was able to visit in Malawi last year is a wonderful example of this spirit of internationalism in action.
Actions that at the level of legal representation and law-making, nationally and internationally are important, but the project of achieving human rights and equality through law does not end with codification and legislation, the actions of the State, at home and abroad at a formal level. O’Connell was committed not only to achieving legal change but to leading the popular political change that could underpin and guarantee the reform of laws.
He was acutely aware of the importance of an informed public opinion in supporting reform. Crucially, he did not use regressive sentiment as an excuse for inaction or compromise; rather he set about the hard and dogged work of engaging with the public discourse. He embraced the most difficult and politically inconvenient issues of his time from a perspective of first principles; even when to do so was seen as risking his own immediate political objectives. He had many moments of decision on principle, including of course his Clontarf crisis.
In this regard, we, in our time are challenged by, for example, the contemporary issue of refugees and migrants arriving in Europe which is both a great human rights challenge and also a great test of political leadership.
We are living through the greatest level of human displacement since World War 2, with 60 million people forced from their homes by war or conflict. We see the results of this with the ongoing tumultuous displacement of people across the Middle East and beyond and the tragic loss of life witnessed in the Mediterranean Sea.
General Secretary of the United Nations, Ban Ki-Moon, who came to visit me recently said on International Migrants Day:
“let us reaffirm our commitment to shape diverse and open societies that provide opportunities and lives of dignity for all migrants.”
As a matter of law, when states are unable or unwilling, for whatever reason, to protect their citizens’ fundamental human rights, the international community must act to ensure their safety and protection. For that reason, the 1951 UN Refugee Convention and its 1967 Protocol – based on the principle of non-refoulement - remains the cornerstone of refugee protection, and is as relevant now as when it was first drafted. The legal position is clear, but the implementation of legal rights and obligations poses direct questions to the capacity and will of national and regional authorities.
This is an international challenge demanding an urgent and effective international response. It is also a challenge where solidarity often appears to be fragile and the danger of regression to prejudice and suspicion is real. I am concerned that, in the absence of coordinated and comprehensive agreements between EU states, the goodwill of the European publics that we saw over the summer months may dissipate or even turn from compassion to fear, from universalism to exclusion – we are seeing some worrying signs in this regard at least, including by some who would seek to use the terrible tragedy of terrorist attacks as a justification for exclusion and the denial of rights. We must translate our global interdependency into action. We must anticipate exclusion by building cohesion. We must not let our failures in confronting global poverty, deepening exclusion, continue leading our times to be called as Vijay Prashad of the World Forum for Democracy put it today – “pitiless times”.
I was moved today to read some further words of Vijay Prashad, when he described the liberal leader of Mali – Alpha Oumar Konaré’s – desperate plea for relief from odious debt so as to save the cohesion of his Mali people. This plea fell on deaf ears and al-Quaeda took over Timbuktu.
If we are to be meaningful of achieving the best fruits of the human rights discourse it must be observable in all our policies, including international debt as well as development. Human rights should never be a residual consideration to authorities whose origins are in the United Nations Charter itself.
Much of the response to date to global challenges has been reactive at best, and nearly always in response to the emergency issues at hand. In such a context there is a grave danger that we may lose sight of the more fundamental issues of rights that are at stake. For example, we can anticipate now, given the intense conflicts ongoing in so many countries, that the large-scale movement of refugees into Europe is likely to continue for some time. What is required is a positive articulation of a European response to this situation, grounded in the core values of human rights on which the idea of a peaceful Europe was constructed, and a real energetic attempt at the construction of global institutional architecture that can privilege a human rights set of principles.
Closer to home and in this context, we must recall that the Convention of Human Rights is not some externally imposed restriction on States’ rights within Europe; it is rather a founding document and statement of values of a peaceful and just Europe. The Convention and its values are not something to be sacrificed at times of conflict or when confronted by extremism – these are the very values that we must defend and assert at such times, and we turn to these documents now as we frame our response to the terrible events of the past week in Paris and Beirut.
The identity of post-war Europe is, at its better moments, defined by the rule of law and the protection of democratic freedoms. However, in some recent debates about issues of rights across Europe, a false dichotomy is sometimes postulated between law and democratic government, with some suggesting that the legal protection and judicial enforcement of rights can stand in opposition to, or can lead to diminution of, democratic institutions.
Remembering O’Connell, we might recall that the argument that legal human rights protections are inimical to democracy was one also made by those powerful institutions which resisted emancipation in its various forms in the 19th century, forces that had to be defeated and replaced, and what remains a persistent line of argument today must be confronted.
Human rights, democratically set out in law and agreed by sovereign governments, should be central to our political and economic thinking and to our policy making, not just as an academic exercise, not just in a court room, but in all aspects of public life.
Indeed, less time might be spent arguing in courtrooms if a human-rights centred approach were to be taken to the formulation, drafting, development and implementation of all public policy. The difficulty – in so far as it is suggested that there is a difficulty – lies in the failure of agencies both public and private to be imbued with a desire and commitment to meet their legal obligations under human rights law; rather than there being any deficiencies in those rights standards themselves.
Based on a sound legal foundation, dialogue between the judicial and the executive branches of government on issues of rights can be not only healthy but positive in terms of needed reforms. Where tensions or obstacles emerge, opportunities should be recognised for new institutional and legal models that might be developed as a response.
A significant innovation in the new legislation which established the Irish Human Rights and Equality Commission, for example, was the introduction of a positive duty on public bodies to place equality and human rights at the heart of public decision making, thus ensuring that these tenets are integral part of the organisation’s daily work. This mechanism, rather than being seen as an impediment, should serve to assist and support public bodies meeting their legal obligations in a constructive manner. Delivering an atmosphere, in language, procedures and care, can enhance the experience of those who deliver the guarantees of the State as well as those who receive them.
Public administration can adapt, and engagement between law and government and administration can be productive and enriching; but none of the institutions can succeed without the legitimacy of popular support. O’Connell’s own career was marked by great legal and political triumphs, but it was to end in a form of failure and perceived rejection. In his attempts to move from Emancipation to Repeal, his strategy of mass meetings was ultimately to be criminalised from above, while disillusionment grew from below.
O’Connell asked the people to place their faith in reform that might be achieved within and through a corrupt and asymmetric political system – a system which proved to be beyond those reforms that would give it legitimacy in an Irish context, and a legal system that proved incapable of meeting the greatest and most urgent needs of its subjects. In the final settlement, Repeal of the Union would come from force and not from parliamentarism several decades after his death.
Our position today as a free and democratic republic is wholly different from that of the mid 19th century. At the same time, the danger exists that the current economic and social strains being felt across Europe will have a detrimental effect on cohesion within society. This is all the more reason why our society must be embedded with our fundamental democratic values and why our laws must continue to afford effective protection to the weak and vulnerable.
At international level the building of capacity within poorer nations’ capacity to forge cohesion, is not facilitated by an unfair structure of trade, debt, and asymmetric participation in global institutions.
The democratic crisis of legitimacy in Europe – identified by many commentators, and demonstrated by falling electoral turnout across the continent – stems from a growing sense that European and national institutions are not meeting the needs of their citizens, that politics is not sufficiently relevant or does not present adequate responses to the lived experience of the people. Can this present set of circumstances, perceptions, be changed?
This brings me to my final point – the need for new institutional structures and instruments. I have made the case on many occasions over recent years, that a new re-integrated approach to economics and politics is required; one that will invoke a connection between economics, ecology and ethics; one in which the essential needs of citizens are guaranteed as a priority, and beyond which policy options and the operation of the market can be considered and regulated. An approach which has the capacity to distinguish between essential needs and insatiable wants.
I believe that human rights law widely and generously sourced can suggest and develop some of the tools to achieve the new approach that is needed. The great inequality of our time will require profound changes to our democracy and to our economics. What can help, I believe, is the construction of a social floor of essential social goods, which are to be the agreed foundations of economy and society. These social goods, meeting need and sufficiency for participation, are properly understood as matters of human rights and the legal protection of these rights is the great challenge and opportunity of human rights theorists, activists, and supporters of our time. The debate that has grown in Ireland and elsewhere on the legal enforcement of economic and social rights is positive and offers promise.
Connecting the structures of human rights to these questions of economics and social policy provides an opportunity to close the legitimacy gap in Europe between the institutions and the needs of the people. Nothing alien or novel is required. In existing treaty law, the framework is already there to re-ground the Union and its institutions, and surely the Charter of Fundamental Rights, which sets out a broad range of economic and social as well as civil and political rights, can be of particular significance in this regard.
Following the entry into force of theLisbon Treatyin 2009 theharter now has the same legal value as the Treaties themselves. Indeed, in the short timeand is further strengthened by the work of the EU’s Fundamental Rights Agency based in Vienna.
Interest and expectations as regards the effectiveness of the Charter are high, but it is also fair to say that the potential of the Charter is not widely understood at this point by European citizens, and this includes legal practitioners.
National administrations and the EU have an important role to play in this by ensuring access to practical information for the citizen on the judicial and non-judicial remedies open to them. Indeed it will be a matter for the legal professions and the courts to breathe life and purpose into the Charter.
Equally the European Convention on Human Rights, as interpreted by the Strasbourg Court, has also now been applied in a wider context engaging with some of the most pressing economic and social issues facing European populations. When the European Union eventually becomes a party to the Convention, as provided for in the Lisbon Treaty, this will represent a further important evolution in the development of the Convention and towards a stronger and more coherent body of human rights law to underpin the Union.
The future for human rights in Europe is full of promise and we can anticipate exciting legal developments in the years ahead which have the potential to deepen and strengthen our human rights architecture, while bringing the law of human rights closer to the most pressing economic and social issues that the continent faces in the years ahead, but it requires all of our articulated support, debate and resolution.
Mar fhocal scoir tráthnóna, is mian liom mo bhuíochas a chur in iúl daoibh as bhur gcuireadh caoin agus as bhur n-aire. Tá súil agam go spreagfaidh na ceisteanna atá pléite agam tuilleadh díospóireachta eadraibh. Is mian liom arís na breithiúna agus comhaltaí an Bharra a athaint as a gcuid oibre luachmhar laethúil agus iad ag seasamh le Riail an Dlí, ag sholáthar an chóir agus ag cosaint cearta na híochtaráin.
This evening I would like to finish by thanking you for your attention and kind invitation. I hope the issues I have raised will provoke further food for thought and encourage more debate and discussion on the subject. I would like to acknowledge again the valuable work which the judiciary and members of the Bar undertake on a daily basis in upholding the rule of law, administering justice and defending the rights of the underdog.
I salute all of you who have been activists in this regard. The role of the lawyer is a privileged one – your skills and training provide you with the capacity to make a great contribution to human rights in our society, not just in applying existing legal norms, but in seeking out the opportunity to bring the protection of human rights to those who are in most need, in bringing the positive case for human rights into the public sphere, and also for taking up the work of fashioning new constructs and systems of rights protection that will address the most essential needs of the future.
In conclusion, I would like to leave you with a quote from Eleanor Roosevelt:
"If you want a world ruled by law and not by force you must build up, from the very grassroots, a respect for law.”
The corollary, I suggest, is that the law must gain the respect of the people, through its relevance and its capacity to address their most essential needs – and that work is a project that remains to be completed.
Thank you.
