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On November 4, 1950, at Rome, thirteen member nations of the Council of Europe signed a Convention for the Protection of Human Rights and Fundamental Freedoms. The purpose of the Convention was to give practical effect to some of the ideals embodied in the Universal Declaration of Human Rights proclaimed by the United Nations General Assembly on December 10, 1948. In contrast to the Universal Declaration, which is a statement of long-term ideals having no binding force in law, the European Convention guarantees to everyone within the jurisdiction of the signatory states certain rights and freedoms defined in Section I of the Convention. Chief among these are the right to life; the right not to be subjected to torture or inhuman punishment; the right not to be held in slavery or servitude; the right not to be deprived of personal liberty save in certain specified circumstances; freedom of religion, thought and conscience; freedom of assembly and association; the right to marry, and the right to respect for private and family life. By a Protocol signed on March 20, 1953, three further rights were added, namely the right to property; the right to educate one's children in conformity with one's conscience, and the right to free elections. As one of the architects of the Convention, Sean MacBride S.C., former Irish Minister for External Affairs and subsequently counsel for the applicant in the Lawless case, has said:
“In effect, the Convention of Human Rights is a supranational constitution which binds the states accepting it to secure to all human beings within their jurisdiction the rights defined in the Convention.”
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1 Belgium, Denmark, France, German Federal Republic, Iceland, Ireland, Italy, Luxembourg, Netherlands, Norway, Saar, Turkey and the United Kingdom. Greece and Sweden signed on November 28, 1950. The Saar ceased to be a party when it became merged with the Federal Republic of Germany on January 1, 1957.
2 European Treaty Series, No. 5; Cmd. 8130 (1951).
3 U.N. Doc. A/811, Dec. 16, 1948; Cmd. 7662 (1949). See also Kunz, Josef L., “The United Nations Declaration of Human Rights” (1949), American Journal of International Law, Vol. 43, pp. 316–323.CrossRefGoogle Scholar
4 European Treaty Series, No. 9; Cmd. 9221 (1954).
5 In the first of two valuable articles on the background to the Convention, published in the Irish Times, February 12 and 13, 1960. For a similar view of the Convention see a speech by Sir Humphrey Waldock, President of the European Commission of Human Rights, on September 3, 1958, published in British Yearbook of International Law, Vol. 34, pp. 356–363.
6 Irish Times, February 12, 1960.
7 Cf. Robertson, A. H., The Council of Europe: Its Structure, Functions and Achievements, 2nd ed., 1961, pp. 164–166.Google Scholar
8 For a brief account of this machinery see Boyle, D.A.V., “International Law and Human Rights” (1960) 23 M.L.R. 167–172.Google Scholar For a bibliography of the more important studies of the working of the Convention see the various issues of the Yearbook of the European Convention on Human Rights (The Hague).
9 Art. 25.
10 Art. 33.
11 Art. 30.
12 Art. 24. As McNair, Lord says, in his preface to The Rights of the European Citizen (Strasbourg, 1961) at p. 9Google Scholar: “…it [the Convention] makes each country party to the Convention watchdog of the liberties of the citizens of all the others.” The degree of diligence shown by these watchdogs is revealed by the fact that of the 900 applications addressed to the Commission up to January 1, 1961, only three were state applications (op. cit., p. 17).
13 Art. 31.
14 Art. 32.
15 Art. 48.
16 Art. 44.
17 Arts. 46 and 48.
18 The reason for this was explained by the Foreign Secretary (Rt. Hon. Mr. Selwyn Lloyd) on July 29, 1957: “The position which Her Majesty's Government have continuously taken up is that they do not recognise the right of individual petition, because they take the view that states are the proper subjects of international law and if individuals are given rights under international treaties effect should be given to those rights through the national law of the states concerned. The reason why we do not accept the compulsory jurisdiction of a European Court is that it would mean that British codes of common and statute law would be subject to review by an international court. For many years it has been the position of successive British Governments that we should not accept that status.”—H.C.Deb., Vol. 574, cols. 867–868. Cf. Lord Kilmuir in the House of Lords, November 18, 1958, H.L. Deb., Vol. 212, cols. 625–626. See also H.C.Deb., Vol. 602, cols. 124–125; Vol. 607, cols. 1546–1556; and Vol. 624, cols. 173–182.
19 States which have accepted the jurisdiction of the Commission to hear individual petitions against them are: Austria, Belgium, Denmark, Federal Republic of Germany, Iceland, Ireland, Luxembourg, Netherlands, Norway and Sweden. The compulsory jurisdiction of the Court has been recognised by Austria, Belgium, Denmark, Federal Republic of Germany, Iceland, Ireland, Luxembourg and Netherlands.
20 See Schedule to Irish Free State (Consequential Provisions) Act, 1922 (13 Geo. 5, sess. 2, c. 2).
21 It is not without a certain irony that Sean MacBride should take the view that participation in the Convention by both the United Kingdom and the Irish Republic paves the way for the reunification of Ireland. “When the time for the ultimate reunification of the country comes, the Convention provides a ready made constitutional instrument, which is already accepted, to safeguard the rights of the minority. Even in the interim period the Convention could serve as a useful bridge to assuage the suspicion and bitterness which exists. In the course of a number of discussions I had with Mr. Ernest Bevin, while we were considering the provisions of the proposed Convention in 1948–49, we both adverted to this aspect. Ernest Bevin, like myself, held the view that the Convention would some day form the constitutional basis for a solution of partition”: Irish Times, February 13, 1960.Google Scholar See also to the same effect public speeches by Mr. MacBride reported in the Irish Times, February 6, March 28, November 30, 1960Google Scholar, and February 22, 1961.
22 No. 13 of 1939. For the background to this Act and the amending Act of 1940, see Kelly, J. M., Fundamental Rights in the Irish Law and Constitution (Dublin, 1961), pp. 52–59.Google Scholar
23 No. 2 of 1940.
24 Offences against the State (Amendment) Act, 1940, s. 3 (2).
25 Iris Oifigiúil (Official Gazette, Dublin), July 8, 1957.Google Scholar
26 For full text of this letter, see Yearbook of the European Convention on Human Rights, Vol. 1 (published sub nom. European Commission of Human Rights—Documents and Decisions), pp. 47–48. It is worth noting that under the Civil Authority (Special Powers) Act (Northern Ireland), 1922 (12 & 13 Geo. 5, c. 5), similarly wide powers were taken by the Northern Irish authorities to deal with the I.R.A. The United Kingdom also gave notice of derogation in a communication dated June 27, 1957, to the Secretary-General of the Council of Europe, which stated “A public emergency within the meaning of art. 15 (1) of the Convention exists in a part of the United Kingdom, namely, Northern Ireland.
“Owing to the recurrence in Northern Ireland of organised terrorism certain emergency powers have been brought into operation at various dates between June 16, 1954, and January 11, 1957, in order to preserve the peace and prevent outbreaks of violence, loss of life and damage to property; for these purposes the Government of Northern Ireland, to the extent strictly required by exigencies of the situation, have exercised powers to detain persons, to search and seize, and to prohibit the publication of certain printed matter, which may involve derogations in certain respects from the obligations imposed by the Convention. … See Yearbook of the European Convention on Human Rights, Vol. 1, p. 50. Professor Mansergh, P. N. S. has referred to the powers given by the Northern Irish Special Powers Act as being “frankly despotic”: The Government of Northern Ireland (London, 1936), p. 274.Google Scholar For a more tolerant view, see Professor Newark's, F. H. study of the Northern Irish Constitution in Ulster Under Home Rule (edited by T., Wilson; London, 1955) at pp. 46–51.Google Scholar
27 The Irish form of Lawless is Ó Laighléis. In proceedings before the Irish courts the Irish form was used; before the European Commission and Court the English form was used.
28 This Commission is referred to as the “Internment Commission” in proceedings before the European Commission.
29 Re Ó Laighléis [1960]Google Scholar I.R. 93. See also Irish Times, October 17, 1957.Google Scholar
30 Citing Halsbury's Laws of England, Simonds ed., Vol. 7 at art. 507 at p. 264; and see R. v. Keyn (1876) 2 Ex.D. 63 at p. 202; West Rand Central Gold Mining Co. v. R. [1905] 2 K.B. 391 at pp. 406–408.Google Scholar
31 Citing Cail v. Papayanni (The “Amalia”) (1863) 1 Moo.P.C.(n.s.) 471, and Niboyet v. Niboyet (1878) 4 P.D. 1.
32 [1960] I.R. 93 at p. 103.
33 [1960] I.R. 109; (1957) International Law Reports 420; (1957–58) Yearbook of the European Convention on Human Rights, Vol. 2, p. 608.
34 It was assumed by the High Court and the Supreme Court that this phrase means save as may be enacted by the Oireachtas. Is this necessarily the case? Might not a joint resolution of both Houses of the Oireachtas that a convention was to be treated as part of Irish municipal law suffice?
35 [1960] I.R. 109 at p. 125. The approach of the Irish Supreme Court in this case is very similar to that adopted by the House of Lords in Collco Dealings, Ltd. v. I.R.C. [1961] 1 All E.R. 762.Google ScholarCf. Porter v. Freudenberg [1915] 1 K.B. 857.Google Scholar
36 For a report of the proceedings as to admissibility see (1958–59) Yearbook of the European Convention on Human Rights, Vol. 2, pp. 308–340. For background details see Council of Europe Press releases: IP/1230 (19.9.58); IP/1264 (7.4.59); IP/1355 (21.12.59); IP/1369 (22.2.60); also Irish Times, April 9, 17, 18, 20; December 21 and 22, 1959; February 5, 24 and 26, and April 5, 1960.
37 (1958–59) Yearbook of the European Convention on Human Rights, Vol. 2, p. 326.
38 P.C.I.J., 1924, Ser.A., No. 2, p. 34.
39 (1958–59) Yearbook of the European Convention on Human Rights, Vol. 2, p. 326.
40 Art. 29.
41 Council of Europe Press release IP/1230 (19.9.58).
42 Robertson, A. H., “The Lawless Case” (1960), British Yearbook of International Law, Vol. 3, pp. 343–354, at p. 347.Google Scholar
43 Ibid.
44 For the judgment delivered on November 14, 1960, in the Lawless case (Preliminary Objections and Questions of Procedure) see European Court of Human Rights, Series A, (1960–61), p. 4; European Yearbook, Vol. 7, pp. 409–433; (1960) Yearbook of the European Convention on Human Rights, Vol. 3, pp. 492–524. See also Council of Europe Press releases: IP/1384 (4.4.60), IP/1402 (16.5.60), IP/1406 (27.5.60), IP/1411 (8.6.60), IP/1431 (7.9.60), IP/1440 (6.10.60), IP/1457 (22.11.60); also Irish Times, April 5 and 7; May 17 and 31; June 11; September 1, 8, 13 and 30; October 3, 4, 5, 6 and 7; November 5 and 15, 1960. For a comment by an Irish constitutional lawyer on the first stage of the proceedings before the Court see Donal Barrington, “The First Judgment: Lawless Case at Strasbourg,” Irish Times, November 24, 1960. On the functioning of the Court in general see Robertson, A. H., “The European Court of Human Rights” (1960), American Journal of Comparative Law, Vol. 9, pp. 1–28.CrossRefGoogle Scholar
45 For the revised Rules of Procedure of the Commission see (1960) Yearbook of the Convention on Human Rights, Vol. 3, pp. 2–60.
46 (1960) Yearbook of the European Convention on Human Rights, Vol. 3, p. 504.
47 Op. cit., p. 511. The Court's reasoning here seems obscure.
48 For the Rules of Court, see (1958–59) Yearbook of the Convention on Human Rights, Vol. 2, pp. 2–60. Rule 38 (I) provides “The Chamber may, at the request of a Party or of delegates of the Commission or proprio motu, decide to hear as a witness or expert or in any other capacity any person whose evidence or statements seem likely to assist it in the carrying out of its tasks.”
49 European Court of Human Rights, Ser.A (1960–61), pp. 15–16.Google Scholar
50 The judgment, in accordance with Art. 43, was given by a Chamber of seven judges.
51 On the general problem of the status of individuals before international tribunals see Brownlie, Ian, “The Individual before Tribunals exercising International Jurisdiction” (1962) International & Comparative Law Quarterly, Vol. 11, pp. 701–720.CrossRefGoogle Scholar
52 Judgment delivered July 1, 1961. See European Court of Human Rights, Ser.A (1960–61), p. 27Google Scholar (Lawless Case (Merits)). See for background Council of Europe Press releases: IP/1481 (26.1.61); IP/1509 (19.4.61); and IP/1536 (1.7.61); also Irish Times, November 23, 1960Google Scholar; January 23; February 17; April 5, 8, 10 and 12; June 24 and 29; July 1 and 3, 1961. See also (1961) Journal of the International Commission of Jurists, Vol. 3. pp. 112–119.
53 European Court of Human Rights, Ser.A (1960–61), p. 43.Google Scholar
54 Art. 6 guarantees the right to a fair and public hearing within a reasonable time by an independent tribunal, the right to be informed promptly of the nature of any accusation, the right to legal assistance, etc.
55 European Court of Human Rights, Ser.A (1960–61), pp. 45–46.Google Scholar
56 Op. cit., pp. 46–53.
57 Op. cit., pp. 53–54.
58 Op. cit., p. 56.
59 Op. cit., pp. 57–60. The Court also held that the letter from the Irish Government of July 20 to the Secretary-General of the Council of Europe was a sufficient notice of derogation for the purposes of Art. 15, para. 3. See op. cit., pp. 60–62.
60 Dáil Eireann Debates, Vol. 171, cols. 1113–1120.
61 Dáil Eireann Debates, Vol. 171, cols. 1562–1565.