British Institute of International and Comparative Law

Ireland v. United Kingdom Author(s): David Bonner Reviewed work(s): Source: The International and Comparative Law Quarterly, Vol. 27, No. 4 (Oct., 1978), pp. 897907 Published by: Cambridge University Press on behalf of the British Institute of International and Comparative Law Stable URL: http://www.jstor.org/stable/758483 . Accessed: 18/01/2012 07:04
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basis of the claimant's earnings before he became entitled to unemployment benefit if he has received such benefit. Otherwise, it will be based on the wage agreementscurrent at the time of the claim.
K. C. HORTON AND 1. SNAITH.*

IRELAND v. UNITED KINGDOM ON January 18, 1978, the European Court of Human Rights delivered judgment in Irelandv. U.K., the first inter-Statecase of which it had been seised.1The decision deals with many points of interpretationconcerning procedural, institutional and substantive aspects of the European Convention on Human Rights.2 However, this note does no more than outline and evaluate the Court's response to the principal areas of concern before it: (1) the implementation and operation during the emergencysituation in Northern Ireland of varying systems of extra-judicialdeprivation of liberty, which raised the matter of the scope of the right of derogation permitted during "a public emergency threatening the life of the nation "; and (2) the alleged ill-treatment of persons detained by the Security Forces in the Province. The Court's decision provides an opportunity to examine its approach, after 20 years 3 to the protection of human rights in a period of acute emergency. This area of concern was in part explored and elucidated by the Court in Lawless v. Ireland 4 in 1961 and by the Commission of Human Rights in that case and in the First Greek Case.5 The judgment in Ireland v. U.K. is the culmination of a long process which started with the Irish Government's application to the Commission in 1971 pursuant to Article 24.6 The application did not seek compensation on behalf of any individuals; it was presented to obtain a declaration that certain legislative measures and administrativepractices
* The authors wish to thank the following for their assistance in supplying information on the German Scheme: The West German Federal Institute of Labour, Bonn; The West German Press and Information Service, Bonn. 1 The official text of the judgment (hereinaftercited as " Judgment") can be obtained from the Registrarof the Court in Strasbourg. 2 For the text of the Convention as amended see: Council of Europe, European Convention on Human Rights, Collected Texts (10th ed., 1975). For an up-to-date commentary on the Convention see A. H. Robertson, Human Rights in Europe (2nd ed., 1977). A full bibliographycan be found in [1958-76] 1-19 Yearbookof the EuropeanConventionon Human Rights (hereinaftercited as Y.B.) 3 The Court came into existence on Sept 3, 1958, after deposit of the eighth recognition of its jurisdiction. 4 [1961] 4 Y.B. 438. 5 Denmark,Norway, Netherlandsand Swedenv. Greece [1969] 12 Y.B., Vol. 2. 6 " Any High Contracting Party may refer to the Commission, through the SecretaryGeneral of the Council of Europe, any alleged breach of the provisions of the Convention by another High ContractingParty."

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of the respondent Government in Ulster, concerning, inter alia, internment and ill-treatment, constituted violations of the Convention. Confining considerations to such general issues enabled the applicant government to circumvent the exhaustion of domestic remedies rule set out in Article 26, since the Commission has consistently held that the rule has no application to a claim concerning " legislative measures and administrative practices." 7 The Court has now endorsed that exception to the rule and has recognised that the parameters of the case as admitted by the Commission constitute the outer limits of its own otherwise plenaryjurisdiction.8 Thus it noted that it was not concerned with violations of the Convention by individual cases of maltreatment as such but only in so far as such cases provided evidence of a practice of maltreatment.9Similarly, with regard to the " legislative measures " aspect of the case, the Court said it was confined to examining the conformity with the Convention of the measures themselves and their implementation but " only as a practice and not in a given individual case." 10 What was the Court's response to the substantive issues in the case ?
IN OF ALLEGEDILL-TREATMENT CONTRAVENTION CONVENTION

The Irish Government alleged that the already well-documented maltreatment of persons arrested and interrogated by the Security Forces 11 constituted an administrative practice of " torture, inhuman or degrading treatment " prohibited by Article 3, a state of affairs to which the existence of " a public emergency threatening the life of the nation" was irrelevant, since the Convention does not permit any derogation from this provision.12Evidence relating to several differing types of maltreatment was produced, but the focus was mainly on the system of " interrogation in depth " which involved the application in combination to 14 persons questioned at an unidentified interrogation centre of five aids to interrogation: hooding; wall-standing; subjection to " white noise"; deprivationof sleep, and deprivationof food and water.13 It was contended that the system of interrogation in depth amounted to torture. Such was the unanimous view of the Commission.14Indeed, the issue was not contested before the Court by the United Kingdom which invited the Court to refrain from considering it since it felt that the objective of this part of the application had been achieved by the Commission's well-publicised finding.15The Irish Government did not agree and the point was not accepted in any general way by the Commis7 Irelandv. U.K. [1972] 15 Y.B. 67. For an analysis of the exception see E. McGovern, "The Local Remedies Rule and Administrative Practices in the European Convention on Human 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, " Interrogation in 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 see paras. 108-132, 173-185. 14 " Report of the Commission" [1976] 19 Y.B. 512 at pp. 792-794 (hereinafter referred to as Report). 15 Judgment,para. 152.

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sion's delegates. The Court considered that its duty under Article 19 compelled it to examine the substantive issue since its judgmentsthosecasesbrought before Courtbut,more the in factservenot onlyto decide and the to safeguard develop rulesinstituted the Congenerally, elucidate, by to of vention, contributing theobservance theStates theengagements by thereby Parties.16 undertaken themas Contracting by This broad view of the role of the Court is, it is submitted, to be welcomed. Given that the purpose of the Convention is to furtherprotection of human rights in Europe, treatingjudgments of the Court as authoritative interpretations of Europe's Bill of Rights acknowledges the impact of the judgment for all parties to the Convention and not just for the State(s) concerned in the case.17 It also means that individuals within States parties to the Convention derive benefits without having to surmount the procedural hurdles of, and delays inherent in making, an individual application.18 The Court found that it was proved beyond reasonable doubt (the required standard of proof in this area) that the five techniques constituted a practice which contravened Article 3; their application amounted both to inhuman treatment and to degradingtreatment.19 The Court did not define inhuman treatment in precise terms but it seems clear that it is the infliction of " intense suffering."20 The Court held that the techniques constituted degrading treatmentsincetheyweresuchas to arousein theirvictims of and feelings fear,anguish of and themandpossibly their capable humiliating debasing inferiority breaking or physical moralresistance.21 However, the Court felt that " interrogation in depth" fell short of torture; it did not consider that its application occasioned " sufferingof the particular intensity and cruelty implied by [the concept] " as the Court understood it.22 This decision surprised many, but it does not stem directly from the fact that the sufferinginflicted was more mental than physical. Both the Court and the Commission agreed that " torture " could embrace both mental and physical suffering.23Nor does the difference in opinion between the Court and the Commission flow from any substantial disagreement as to the definition of the concept in the context of Article 3. Indeed, disregarding somewhat different verbal formulae, as one of the judges who annexed separate opinions recognised, the definitions adopted seem in their essence very similar.24The Commission, reiterating
16 Ibid., para. 154. 17 As might be implied from Art. 53: " The High Contracting Parties undertake to abide by the decision of the Court in any case to which they are parties." 18 For criticismof delay etc. see e.g. K. Boyle and H. Hannum, " Ireland in Strasbourg: An Analysis of Northern Irish Proceedings before the European Commission on Human Rights," (1972) VII The Irish 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 Gerald Fitzmaurice, held that the five techniques did not amount to treatment prohibited by Art. 3 (p. 102). Given that he considered the meaning of Art. 3 to be unclear, it seems strange that the learned judge did not refer to the travauxpreparatoireswhich, it is submitted, reveal his view to be erroneous (on this see " Report," 19 Y.B. 512 at p. 790). 24 Judgment, p. 117 (Judge Evrigenis).

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the view it expressed in the First Greek Case, considered that torture generally constituted an aggravated form of inhuman treatment, that is the infliction of severe mental or physical suffering, which is applied often for such purposes as extracting information or confessions from the victims.25 The Court conveyed an essentially similar notion by referring to " deliberate inhuman treatment causing very serious and cruel suffering "; the term " deliberate " seems to be used to connote an element of purpose.26Thus the Court went on to conclude that "interrogation in depth " did not amount to torture notwithstanding its systematic and purposeful use as an aid to the extraction of information from those to whom it was applied.27 The difference of opinion between the two Convention agencies arises from a different perception of the level of severity of suffering required in order to place the conduct at the " torture " point on the spectrum of maltreatment ranging from degrading treatment at the one end to torture at the other. This different perception is found partly in the definitions but also in their application to the facts.28 In placing so much emphasis on the criterion, "very serious suffering,"it is submitted that the Court has given too limited a scope to the notion of torture as understood in the modern world. Such emphasis is not to be found in the definitions of the term propounded by other authorities.29 Indeed, such definitions are almost identical to that proffered by the Commission. For instance, Article 1 of Resolution 3452 (XXX) of the General Assembly of the United Nations on Torture, adopted without a vote on December 9, 1975, provides thatwhether meansany act by whichseverepain or suffering, (1) . . . torture of inflicted or at theinstigation a public is or by physical mental, intentionally as fromhimor a thirdperson for on official a person suchpurposes obtaining him or or information confession, punishing for an act he has committed is or him of committed, intimidating or otherpersons ... suspected having an and form constitutes aggravated deliberate of cruel,in(2) . . . Torture and treatment punishment.30 or human degrading To similar effect is the definition advanced by Amnesty International: infliction acutepainin anyformby of and is Torture thesystematic deliberate in the or to on oneperson another on a third person, order accomplish purpose the of theformer against willof thelatter.31 In this light the Court's stress on" very serious "seems misplacedand, if only for reasons of consistency of definition, the Commission's definition seems preferable to that of the Court. Furthermore, such stress might well prove problematic in the future, and produce results not intended by the Court, when applied to evolving modern " psychological "
25 " Report " [1976] 19 Y.B. 512 at p. 748. 26 Judgment, para. 167. 27 Ibid.

held that the five techniquesamounted to torturehad he used that definition-see Judgment,

28 ThusJudgeEvrigenis, didnot agree wouldstillhave withtheCourt's who definition,

p. 118. "

29 General Assembly Resolution 3452 (XXX) " (1976) 13 United Nations Chronicle at pp. 55-56, 91; Amnesty International,Report on Torture(revised ed., 1975), pp. 33-38; M. Ruthven, Torture:the GrandConspiracy (1978), pp. 17-22. the n. only to Art. 1 (2) in its 30 Cited,supra 29, at p. 91. Surprisingly Courtreferrred decision (para. 167) presumablybecause it came closer to its own view than did Art. 1 (1). 31 Cited, supra. n. 29, at p. 35.

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methods of interrogation which have been characterised by Amnesty International and other authorities as " torture." 32 Problems may arise because the effects of such methods on the human mind and spirit appear most difficult to gauge. As a result, mental suffering, which the Court said could, in principle, amount to torture, might tend in practice not to be so characterised by the Convention agencies. The adoption and appropriate application of the Commission's definition would, it is submitted, avoid such a result. Indeed, the actual decision in respect of the application of the five techniques provides an extant indication of such problems. Their application caused " at least intense mental and led to psychiatric disturbances during physical suffering and... interrogation." 33 The victims received compensation of between ?10,000-?25,000 in out of court settlements, the bulk of which must surely represent damage done by " interrogation in depth." 34 If techniques producing effects attracting such high levels of compensation do not amount to torture, one wonders what will; must permanent neurosis be induced before the Court will accept that torture has been used ? Of course, it is important to point out that the Court's decision nonetheless has the clear effect in law that interrogation in depth, and presumably related sensory deprivation techniques, cannot be employed by State agencies in jurisdictions to which the Convention applies without contravening Article 3. Yet the impact of this holding that this provision had been violated was much reduced, being overshadowed by the decision that torture had not been used. The contrary holding, that torture had been used, might have more effectively mobilised public opinion to reinforce the Attorney-General's undertakingthat the system of " interrogation in depth " would not be reintroduced in the United Kingdom, and to help reduce the likelihood of its use elsewhere.35In this way such a decision would, it is submitted, have more constructively furthered protection of human rights in Europe. This is not to say that the Court should stretch concepts beyond their true limits merely to make a better impact on public opinion; that would be an illegitimate exercise of judicial power as well as the surest way to lose State confidence vital to the Convention's success. But in this case to say that torture had been used would not have stretched concepts; it would have fully reflected the international community's understanding of " torture" expressed in the General Assembly Resolution. That understandingand the United Kingdom's acquiescencein the decision of the Commission would also tend to indicate that State confidence was unlikely to be lost. It is therefore to be hoped that the Court will revise its approach to the notion of torture at the earliest possible opportunity. The Irish Government also asked the Court to direct the United Kingdom to prosecute those members of the Security Forces involved in maltreatment contrary to Article 3. But the Court, without elaborating,
32 Ibid., at pp. 39-69. 33 Judgment,para. 167. The suffering was 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 period of false imprisonmentwhen subject to a detention order invalid for technical reasons set out in Re McElduff [1972] N.I.L.R. 1. This period would rarely last for more than 28 days (para. 217). 35 That undertaking is set out in Judgment,para. 153.

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considered that the sanctions available to it did not embrace a power to give any such directions.36 In the absence of any provision in the Convention giving the Court express power to order States to take such action, no other approach could be expected from a non-supranational body conscious of the need to preserve State confidence in the workings of the Convention. It may, however, be true to say that such directions and resultant prosecutions might constitute the best way to ensure future conformity with the terms of Article 3.37 Perhaps the possibility of amending the Convention ought to be explored. However, given the long delay before any final decision is made by the appropriate Convention organs " there would be practical difficultiesin securing compliance with any such order." 38 Moreover, one doubts whether States would readily agree to any such amendment.
DEPRIVATIONOF LIBERTY EXTRA-JUDICIAL

Between August 1971 and March 1975 three statute-based systems authorisinginternmentwithout trial were deployed in Northern Ireland. The Irish Government alleged that these measures did not conform with the standards laid down in the Convention. The three systems were(i) the system set up under the Special Powers Act (used August 1971-November 1972); (ii) the system regulated by the Detention of Terrorists Order, which in part replaced and in part supplemented (i) and was used from November 1972 to August 1973; (iii) the system governed by the Emergency Provisions Act 1973 which was in almost all respects the same as (ii) and was used from August 1973 to August 1975.39 Consideration of two aspects of these systems, namely, their by-passing of any form of criminal trial process and their provision of some form of review, which was independent of the Executive, of the decision to intern a person without trial, illustrates the Court's approach to the issues raised. However, analysis demands a little more study of the second aspect. Under the r6gime created pursuant to the Special Powers Act, internees could make representations to an advisory committee and could obtain legal advice to enable them to do so. However, the committee's decision was not binding on the Executive. Under the later systems an internee's release could be directed, either by a quasi-judicial commissioner, after a process employing quite sophisticated adversary procedures involving the provision for the internee of State-financed legal representation, or by the Appeal Tribunal empowered to review the commissioner's decision to endorse internment.40 Following the approach it had adopted in Lawless v. Ireland, the Court had to consider whether the measures and their use could be
36 Ibid., paras 186-187. 37 Irelandv. U.K., VerbatimReport of Public Hearings (April 19, 20, 21 and 22, 1977): Council of Europe Doc. Court (77) 36, at pp. 21-23. 38 Judgment,p. 93 (Judge O'Donoghue). 39 For more detail see K. Boyle, T. Hadden and P. Hillyard, Law and State: The Case of NorthernIreland(1975), Chaps. 4 and 5. 40 Judgment,paras. 84, 87, 88.

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justified under Article 5, which sets out the sole grounds on which deprivation of personal liberty is permissible under the Convention, assuming a situation of normalcy.4' It decided that they could not be justified under any of the relevant categories embodied in that provision. Thus the Court ruled thatsuch deprivations[of libertywere not] covered by sub-paragraph since they (b) had no connectionwith " non-compliance with the orderof a court " and were not designedto " secure the fulfilmentof an obligationprescribedby law." 42

The Court further noted that " at first sight the different forms of deprivation of liberty may appear to bear some resemblance to the cases contemplated by sub-paragraph(c) " which permitsthe lawful arrest or detention of a person effectedfor the purpose of bringing him before the competent legal authority on reasonable suspicion of having committedan offence or when it is reasonablyconsiderednecessaryto prevent his committingan offence or fleeingafter having done so.

However, again acting in full conformity with its Lawless approach, the Court stressed that this had to be read as one with paragraph three of Article 5 which mandates that persons so arrested or detainedshall be broughtpromptlybefore a judge or other officerauthorisedby law to exercisejudicial power and shall be entitledto trial within a reasonabletime or to release pending trial. Release may be conditionedby guaranteesto appear for trial.

These two provisions requirethat the detained person be arrestedfor the purpose of deploying some form of criminal trial process against him and that any such trial take place within a reasonable time.44 The measures authorising deprivation of liberty did not comply with the dictates of these paragraphs since their rationale and purpose was to by-pass the criminal trial process. Moreover, and in any event, the independent review bodies did not constitute the agencies contemplated by these Convention provisions because (in the Special Powers Act case only) of a lack of a power of binding decision and (in the case of all the measures) the failure to bring the internee promptly before them.45 Furthermore, for similar reasons, these bodies did not constitute the " court " contemplated by Article 5 (4) which requires that a person be entitled to " take proceedings by which the lawfulness of his detention shall be decided speedily ... and his release ordered if the detention is not lawful." Nor did review by the Courts on habeas corpusapplications satisfy that paragraph since, being limited to technical defects only, it " was not sufficientlywide on scope, taking into account the purpose and object " 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.47
42 Judgment,para. 195. 43 Ibid., para. 196. 44 Ibid., para. 199. 45 Ibid. 46 Ibid., para. 200.
41 Ibid., para. 191; c.f. [1961] 4 Y.B. 438 at 452.

of 47 Ibid.,para.25. TheCourtdid not feelcalleduponto decidethecomplexquestion the applicability Art. 6 to systemsauthorising of of extra-judicial deprivation liberty
(paras. 233-235.).

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In consequence the Court had to consider whether the measures could nonetheless be justified pursuant to Article 15 (1). This provides thatthe In timeof waror otherpublic threatening life of thenationany emergency from under derogating itsobligations HighContracting maytakemeasures Party to thisConvention theextent of strictly by required theexigencies thesituation... The Court recognised that it was the final arbiter of what the Convention demanded, but it pointed out the need to accord the derogating State " a wide margin of appreciation," both in relation to whether an emergency existed and what measures were necessary to overcome it; the Court felt that " by reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle in a better position than the international judge " to decide such questions.48To some extent this is an obviously realistic recognition that the Convention's existence depends on State consent: to adopt too strict a review may be to undermine the Convention. But one must not lose sight of the fact that the Court was set up to protect human rights. Since the " margin of appreciation" can involve according the State the benefit of the doubt, too wide a margin may operate to the detriment of effective protection, as is arguably the case with the Court's approach to the issue now under consideration.49 That the requisite emergency existed was not questioned in the case and the Court considered its existence clear.50Indeed, who can doubt that the Ulster situation satisfied the test laid down by the Court in Lawless: the whichaffects wholepopulasituation crisisor emergency of an exceptional the of to life a tionandconstitutes threat theorganised of thecommunity which Stateis composed.51 The crux of the issue joined between the Parties was whether internment without trial was strictly required by the exigencies of the Ulster situation. The Court, adhering to its Lawless format, perceived this to involve two sub-issues: (i) "the necessity for derogation from Article 5 (1)," 52 or, in Lawless terms, whether any less draconian methods than internment without trial would have been sufficient to deal with the situation.53
49 DenmarkNorway Netherlandsand Swedenv. Greece [1969] 12 Y.B., Vol. 2., at p. 116 (dissenting opinion of M. Busuttil). For further comment see K. J. Partsch, " Experience Regarding the War and Emergency Clauses of the European Convention on Human Rights," 1 Israel Y.B. on HumanRights 327. 50 Judgment,para 205 (unanimous). 51 [1961]4 Y.B. 438 at pp. 472-474. The Court did not make it wholly clear whether the relevant community (" the nation ") affectedwas the U.K. as a whole (a view supported by para. 212 and Judge O'Donoghue, p. 93) or just Ulster (a view supported by para. 205). It is submitted that a rational, common sense view would support the latter; there seems no reason of policy not to permit a State to derogate in respect of a part of its territory affected by " a public emergency " of the requisite magnitude provided that the necessary curtailment of the protected rights and freedoms is confined to that-part only, especially when the affected part is an offshore entity like Ulster. This view would seem to be supported by the Turkish practice, not impugned as law-breaking: see [1971] 14 Y.B. 24-32. Moreover the 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.
48 Ibid., para. 207.

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(ii) " the necessity for derogation from the guarantees under paragraphs 2-4 of Article 5 " 54 or, in Lawless terms, whether the method employed (and justified under (i)) was subject to adequate safeguards to protect personal liberty so far as the situation allowed ? 55 With regard to the first sub-issue the Court considered that the steps taken by the United Kingdom were reasonable in the circumstances given the margin of appreciation granted to it and adjudged in the context of conditions at the time the measures were invoked rather than The conclusion that some form of internment in the light of hindsight.56 without trial was required was not unexpected given that the Court had so held in Lawless in the context of a much less serious situation in Eire.57But what can be criticised is the Court's failure to examine any alternatives to internment, to canvass, for instance, why even a modified criminal process or special criminal courts, such as those now employed in Ireland,58 were not capable of dealing with the situation as efficaciously as internment. Surely such an approach can be expected of a body charged with the protection of human rights and aiming to give guidance to decision-makers in the States party to the Convention. Indeed, does not the term " strictly required " in Article 15 (1) mandate such exploration of alternatives even if, at the end of the day, they are rejected on rational grounds? 59 That the Court did not take this approach seems attributable to the " margin of appreciation "; it noted thatit is certainly not the Court's function to substitute for the British Government's assessmentany other assessmentof what might be the most prudentor most expedientpolicy to combat terrorism... the Court acceptsthat the limits of the marginof appreciation... were not overstepped the United Kingdom by [in using internment].60

But while internment in some form might well have been required there still remained the second sub-issue: was the system hedged round with sufficient safeguards against abuse? The Court held that even the Special Powers Act regime, backed up by very limited, technicality oriented judicial review, fulfilled the Convention requirements on this score in the circumstances then prevailing in Ulster. Moreover the later more sophisticated systems were satisfactory from this perspective.61 The Court declared thatan overall examinationof the legislationand practiceat issue revealsthat they evolved in the directionof increasingrespectfor individualliberty. The incorporation right from the start of more satisfactoryjudicial, or at least administrative guarantees would certainly have been desirable, especially as [the SpecialPowersAct regime]datedbackto 1956-57 ..., but it wouldbe unrealistic to isolate the first from the later phases. Where a State is strugglingagainst a
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," The Lawless Case "(1962) Camb. L. J. 234. 58 Cf. W. L. Twining, " Emergency Powers and the Criminal Process: The Diplock Report " [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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the publicemergency threatening life of the nation,it would be rendered at from defenceless it wererequired accomplish if to everything once,to furnish the outseteach of its chosenmeansof actionwith each of the safeguards for of reconcilable the priority with requirements the properfunctioning the The of the authorities forrestoring and peacewithin community. interpretation Article15 mustleavea placefor progressive adaptations.62 Once again, the role of a wide margin of appreciation seems an important decision-making factor. However, the decision with respect to the Special Powers Act regime is clearly out of line with the Court's view on the same issue in Lawless where it stressed the importance as a safeguard of the binding character of the decision of the review body.63Of course, the Convention does not dictate any system of binding precedent 64 and clearly, given the differing scale of the emergencies, not every single factor in Lawless could have been fully applicable in Ireland v. U.K.65However, the difference in scale of the emergency must surely go to the question of what was required in the situation rather than to the question of safeguards since the better protection of human rights demands the maintenance of some minimum due process guarantees even in an emergency situation like that in Ulster. To say otherwise is surely to deny the Convention provisions any practical application to such a situation. Surely, one minimum guarantee must be the requirement that the review body be empowered to make binding decisions; otherwise the process of independent review by an advisory agency could be abused by merely going through the sham process of a reference to it knowing full well that its advice would not be implemented. Since the Court saw its role as giving guidance to decision-makers on the requirements of the Convention, then it is the point of principle and not the fact that in Ulster the process was not abused which is important.66 It is submitted that Lawless should have been strictly followed on this point and that the Court ought to have held that the United Kingdom's use of the Special Powers regime of internment violated the Convention.67 Merely to say that better safeguards were " desirable " is, it is submitted, not enough, though it was important to give the United Kingdom its due and point out that the review process was not abused. The Court's notion that one phase cannot be isolated from another seems to involve treating the more detailed aspects of Lawless as only relevant to Ireland, the party to that case. But if the Court's decisions are to be regarded as giving guidance to decision-makers in other States (and the Court indeed so preceives them) then surely it was up to the United Kingdom to have secured such modification of the Special Powers regime as was required by the provisions of the Convention as interpreted in Lawless.68As it is, the Court appears to regard only the more general aspects of Lawless to be relevant for the future; each new case is to be treated on its own facts within the framework of relevant
63 [1961] 4 Y.B. 438 at p. 478. 64 F. Castberg, TheEuropeanConvention HumanRights (1974), p. 18. on 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.
62 Ibid., para. 220.

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This is surely not laying down meaningquestions dictated by Lawless.69 ful human rights' standards for States to follow. The preferred holding set out above seems to accord a little more protection to individual rights without it being so radical as adversely to affect State confidence in the Convention system. It is, after all, no more than a proper application of criteria laid down in Lawless by the Court in 1961 and accepted by the States Parties which have recognised the Courts jurisdiction.70 Once again, it is to be hoped that the Court will revise its approach at the earliest opportunity.
A LANDMARKDECISION?

Clearly, in a formal and institutional sense Irelandv. U.K. is a landmark decision in the protection of human rights by international agencies. That two States can conduct legal argument before an independent international judicial body on matters once thought to lie at the heart of the reserved domain of " domestic jurisdiction " is surely remarkable. In this sense, the Court has taken a step forward. However, it has been suggested in this note that the standards it laid down are not conducive to the better protection of human rights in time of emergency and that the Court has been over-zealous in its deference to State needs at the expense of those of the individual. As a result, in terms of substance the Court has taken several steps back.71 A reappraisal of attitude is urgently needed in order to fulfil the aim of the Convention: the better protection 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 in Lawless: whether there was a practice of interning persons who ought not to have been interned? This would have covered the charge that internment was " over-inclusive." It is submitted that the Court would have held that the U.K.'s " dragnet " approach did not exceed the State's " margin of appreciation."The allegation that internment was " underinclusive " and therefore discriminatorywas dealt with under Arts. 5 and 14. The Court held that no discrimination contravening the Convention had taken place, given the " margin of appreciation " (paras. 225-232). 70 With the exception of France; see its reservation in respect of Art. 15 in [1974] 17 Y.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 and Domestic Remedies under the European Convention: 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 helpful comments on this note. The usual thanks go to the Faculty secretarial staff. The views expressed and any errors in it are, of course, my responsibility.