Even a cursory look at a very few human rights issues illustrates the kaleidoscopic nature of the human rights agenda. The issues of self-determination, political representation and minority rights, highlighted above, are just the tip of the human rights iceberg. Human rights law and practice covers, inter alia, the rights to liberty, health, property, family life, education, fair trial, and fair conditions of employment. Furthermore, the human rights agenda also provides for a number of freedoms such as freedom of expression, conscience, peaceful assembly and association.
This panoply of rights was evident in the Universal Declaration of Human Rights itself which brought together, for the first time, rights of different kinds: economic, social, cultural, political
62John W. Burton, ―Conflict Resolution: The Human Dimension,‖ International Journal of Peace Studies 3, no. 1 (January 1998), accessed June 15, 2014, http://www.gmu.edu/programs/icar/ijps/vol3_1/burton.htm.
29
and civil. The Declaration itself makes no distinction, and marks no hierarchy between the different rights. In fact it has been suggested that:
When read as it was meant to be, namely as a whole, it is an integrated document that rests on a concept of the dignity of the human person within the human family. In substance, as well as in form, it is a declaration of interdependence of people, nations, and rights.63
The two covenants mentioned above while separating civil and political rights from social, economic and cultural rights did not explicitly refute the notion that the two sets of rights are interdependent. Soon after the adoption of the Covenants the ‗indivisibility‘ of human rights was proclaimed as an essential element of the human rights edifice. The Final Act of the 1968 UN Teheran Conference on Human Rights stated that ―human rights and fundamental freedoms are indivisible, the full realization of civil and political rights without the enjoyment of economic, social and cultural rights is impossible.‖64
The importance of the indivisibility and interdependence of human rights re-emerged forcefully in the wake of the end of the Cold War. The 1993 UN World Conference on Human Rights articulated this principle clearly and concisely: ―All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis.‖65 This emphasis on indivisibility and interdependence in the aftermath of the Cold War was understandable as the divisions between civil and political rights on the one hand and social, economic and cultural rights on the other had been conceived, at least partially, as ideological divisions between West and East. The end of the Cold War seemed to project a new world order in which old ideological divisions would be overcome and thus the human rights agenda also sought to reap the benefits of this new world order.
The debate around the interdependence and indivisibility of human rights has, nevertheless, persisted as new challenges to these principles have arisen in different contexts. Scenarios in which these challenges have arisen refer to situations where two or more rights have come into collision or where decisions have to be taken which gives precedence to one right over another.
The idea of human rights that are in conflict with each other is, in fact, not an unusual one.
Situations where rights clash with one another or where a right has to be prioritised over another
63Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (New York: Random House, 2001), 174.
64The International Conference on Human Rights, Proclamation of Teheran, Final Act of the International Conference on Human Rights, U.N. Doc. A/CONF. 32/41, vol. 3, 1968,
http://www1.umn.edu/humanrts/instree/l2ptichr.htm.
65Vienna Declaration and Programme of Action, A/Conf.157/23, June 12, 1993, accessed October 12, 2014, http://www.ohchr.org/EN/ProfessionalInterest/Pages/Vienna.aspx.
30
are common enough. In fact, it has been argued that ―it is unlikely that conflicts between established rights will ever be eliminated.‖66
One such scenario of human rights in conflict with each other, which has risen to prominence in recent years, involves the doctrine of humanitarian intervention or what Geoffrey Robertson refers to as ―The Guernica Paradox: Bombing for Humanity‖.67 In essence, the paradox refers to humanitarian intervention in utilising armed force is breaching fundamental rights (such as the right to life) in order to protect human rights (usually protecting communities from egregious human rights abuses such as genocide, crimes against humanity etc.) The question of the use of force in order to achieve or protect particular human rights is a quintessentially difficult one. The conflicting rights in, for example, the Kosovo conflict were the right to life of people killed in Belgrade by aerial bombings as against the right to life or not to be ethnically cleansed of Kosovar Albanians.
This conflict between rights arises in other circumstances apart from those related to formal cases of humanitarian intervention where communities are protected by outside forces, such as when communities themselves resort to the use of force in order to protect themselves from human rights abuses. One can illustrate this latter scenario in the light of the preceding discussion of the right to self-determination, the right to political representation and minority rights. If a minority community is denied any form of self-determination, has no -or limited- rights to political representation and is not guaranteed certain basic minority rights, is such a minority entitled to use armed force to achieve its objectives?
The use of armed force to achieve human rights is a complex and challenging issue since at the heart of it is the crucial question if certain rights (such as self-determination are more important than other rights (such as the right to life). In the context of minority communities struggling for their rights, as outlined above, the question may also be framed as to whether the rights to self-determination, political representation or minority protection of one group (the minority) take precedence over the right to life and physical integrity of another group (all those who are victims of the armed struggle).
The Universal Declaration of Human Rights, which remains the single most authoritative (if only because most-often referred to) document in human rights history does not provide a direct answer to these questions. However, in its Preamble the Declaration does prefigure the probability of a resort to rebellion where human rights are abused: ―Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law‖. The Declaration, however, does not stipulate at what stage is such rebellion justified. Both the words ―tyranny‖
and ―oppression‖ are open to various interpretations. In this context, the Preambular reference to
66Xiaobing Xu and George Wilson, ―On Conflict of Human Rights,‖ Pierce Law Review 5, no. 1 (December 2006), 40. 67Geoffrey Robertson, Crimes against Humanity: The Struggle for Global Justice (Penguin Books, 2006), 468.
31
tyranny, oppression and rebellion is not sufficiently clear to provide precise guidance in practice.
Nor does the reference to rebellion specify whether such rebellion may be violent armed rebellion as opposed to a Gandhian rebellion consisting of civil disobedience and other pacifist methods.
Thus in international human rights law we do not find a precise answer to the question of whether violence is ever justified in pursuing human rights aims. However international humanitarian law may provide some guidance as to what kind of violence is never permissible whatever the justness of the cause that is being pursued. Thus, if one accepts the hypotheses that violent rebellion is permissible, when serious and systematic human rights violations occur through tyranny and oppression, one is still faced by the question of the kind and extent of violence that is permissible.
International humanitarian law which applies in situations of armed conflict is clear that individuals who are hors de combat (for example civilians) may never be the targets of violence in situations of international and non-international armed conflict. The requirement to protect civilian life from violence is a key, non-derogable, principle of international humanitarian law.
Even if a given situation of rebellion does not qualify as an internal conflict for the purposes of international humanitarian law, the principle of the sanctity of civilian life would seem to be equally applicable in such a situation. This point of view is sustained also by reference to a hierarchy of human rights that is implicit in certain human rights treaties.
Article 4 of the International Covenant on Civil and Political Rights states that
1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.
2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.
Thus sub-article 2 of this article renders certain rights absolute, even in times of emergency.
These rights include the right to life, freedom from torture, freedom from slavery or servitude, freedom from criminal guilt unless determined by law, as well as the freedoms of thought, conscience and religion. The implication is clear that the right to life is an absolute, non-derogable right in times of peace (as per the Universal Declaration, the ICCPR and other instruments), in times of emergency falling short of an armed conflict (as per Article 4 (2)68) and also in times of armed conflict (according to the Geneva Conventions 1949 and the Additional Protocols of 1977). In view of these legal considerations it may be concluded that (i) it is unclear whether the use of violence is permissible to achieve human rights objectives and (ii) the use of
32
violence in pursuit of human rights objectives, even if legally permissible, may never target civilians.
33 Chapter Three
Human Rights in Northern Ireland 1921-1964: Developments, Issues and Perceptions
3. 1 Introduction
Seamus Heaney famously wrote that sometimes ‗hope and history rhyme‘69. In the context of Northern Ireland it would have been more appropriate to refer to ‗histories‘ since there is certainly no agreed history of Ireland generally and of Northern Ireland in particular. Versions of history compete with one another and stretch far back into the mists of time. Competing histories range from the comparatively recent events surrounding Bloody Sunday, to the details of the Anglo-Irish Treaty and ensuing Civil War, to the Easter Rising of 1916 and the Home Rule debates of the 1870s and further back in time to the 1689 Battle of the Boyne and the immigration from Great Britain of the 1600s referred to as the Plantation of Ulster. Different attitudes exist to history even further into the mythical past of Cuchulain celebrated by the Protestant republican W.B. Yeats.
Each of these landmark events and countless others, have their own particular versions of history through which communities construct an imagined past that is often used as an instrument to vindicate present positions. There is, in fact, a body of literature by writers such as Conor Cruise O‘Brien, Joe Lee, Ruth Dudley Edwards and others, which offers an explanation of contemporary politics with reference to historical episodes70. It has been noted that the Good Friday Agreement is in fact an agreement to disagree about the future of Northern Ireland71 and certainly about its past too.72 The impossibility of imagining a common future is, one may argue,
69Seamus Heaney, The Cure at Troy: A Version of Sophocles’ Philoctetes (New York: Farrar, Straus and Giroux, 1991).
70See, for example, Conor Cruise O‘Brien, States of Ireland (London: Hutchinson, 1972), Dudley Edwards, Ruth, The Faithful Tribe: An Intimate Portrait of the Loyal Institutions (London: Harper Collins, 1999), and Joseph J Lee, Ireland 1912-1985: Politics and Society (Cambridge University Press, 1989).
71This point is made, amongst others, by Michelle Parlevliet who states that the Good Friday Agreement ―means different things to different groups…The absence of a strong common vision of the future among unionists and nationalists is both a cause and consequence of the different meanings the agreement holds.‖ Parlevliet, Michelle,
―Icebergs and the Impossible: Human Rights and Conflict Resolution in Post-Settlement Peace Building,‖ in Human Rights and Conflict Resolution in Context, ed. Babbett, Eileen F. and Lutz, Ellen L. (New York: Syracuse University Press, 2009), 248–88.
72This is evidenced by the references to parity of esteem for the culture and traditions of the two communities. Vide, inter alia, Article 1 (v) of the Constitutional Issues section of the Agreement. The Northern Ireland Peace
Agreement, accessed June 16, 2014,
http://peacemaker.un.org/sites/peacemaker.un.org/files/IE%20GB_980410_Northern%20Ireland%20Agreement.pdf.
34
inextricably linked to the impossibility of constructing an agreed past or even to accept that there may be other, equally valid, interpretations of history.
Given this reality it is especially difficult to frame a discussion of what happened in terms of rights and freedoms in the early years of the existence of Northern Ireland. This Chapter is intended as a brief, non-exhaustive historical overview of Northern Ireland viewed with a human rights lens. Such an overview will serve as a background to the main argument of this study that revolves around the role of human rights values, principles and processes in Northern Ireland post-1998. The objectives of this overview are twofold: to determine the role played by the human rights agenda in the development of the Northern Ireland conflict; and to assess how the two main communities viewed the role and content of the human rights agenda in the years leading to the sustained violent conflict that characterized Northern Ireland from 1969 to 1998.
This Chapter shall be divided into two major sections: (i) one section dealing with the situation prevailing in Northern Ireland from its birth as a separate political entity and a constituent state of the United Kingdom (1921-1945) to the end of the Second World War (1945); and (ii) a subsequent section that examines the increasing role of human rights in Northern Ireland‘s socio-political context from the end of World War Two until the early 1960s. This latter section will also place the human rights developments in Northern Ireland within a broader international context.