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Home Archive for category "Human Rights"

Update on the Extraterritorial Application of Human Rights Treaties

Published on May 21, 2013        Author: 

I’m happy to announce that my book Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy is now available in paperback (and for cheap… and even on Kindle – OUP seems to be branching out). I’ve decided to keep a sort of running update on new cases and developments here on the blog. Since the book has been published the European Court in particular has decided a number of relevant cases, chief among them of course Al-Skeini (judgment; my EJIL article), but also Catan and others (judgment; my blog post).

In this (longish!) post I’ll discuss two inadmissibility decisions, Djokaba Lambi Longa v. The Netherlands, App. No. 33917/12, 9 October 2012, dealing with the applicability of the ECHR to the ICC detention unit in The Hague, and Chagos Islanders v. UK, App. No. 35622/04, 11 December 2012, dealing with the applicability of the ECHR to the British Indian Ocean Territory, part of which is the Diego Garcia naval base. Neither is about the extraterritorial applicability of the ECHR as such, but both turn on the interpretation of the jurisdiction clause in Article 1 ECHR. I will then very briefly discuss two cases pending before the UK Supreme Court and the European Court on the applicability of the ECHR to British military personnel stationed overseas but outside areas under the UK’s effective control.

In Djokaba, the applicant, a Congolese national charged with several offences in the Congo, was transferred to the custody of the International Criminal Court in The Hague as a witness against Thomas Lubanga. He gave evidence before the ICC, but after doing so lodged an application for asylum with the Dutch authorities and also requested the ICC not to transfer him back to Congolese custody, where he feared reprisals. Thereafter followed a diplomatic ping-pong between the ICC and the Dutch authorities which is too tedious to get into here – suffice it to say that the applicant remained in ICC detention. In Strasbourg he claimed that the Netherlands has violated Article 5 ECHR on various counts because of his continued detention and the lack of review thereof.

But any examination of the merits was subject to the threshold question of Article 1 ECHR jurisdiction. In the applicant’s view, as he was located on Dutch territory he was necessarily within the Dutch jurisdiction. In the view of the Dutch government, however, the applicant was in the custody of the ICC, and hence outside the Dutch Article 1 jurisdiction.

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Filed under: EJIL Analysis, Extraterritorial Application, Human Rights
 

The Peremptory Right of Women to Life: Why El Salvador Should Authorise Abortion for Women Who Face a Substantial Risk of Death

Published on May 16, 2013        Author: 

Dr. Theodore Christakis is Professor of International Law at the University Grenoble-Alpes (France). He is Director of the Centre for International Security and European Studies (CESICE).

The Supreme Court and the authorities of El Salvador have the obligation under International Law to authorize a woman to receive a life-saving medical abortion despite the anachronistic total ban on abortion in El Salvador’s law.

“Beatriz” is the pseudonym (intended to protect her identity) of a 22-year-old woman in El Salvador who is now more than five months pregnant. The foetus she is carrying is missing a large part of its brain and skull, which means almost certain death either before or immediately after birth. The mother has been diagnosed with a number of severe illnesses, including lupus and kidney disease, and doctors say she faces a substantial risk of dying if she continues with the pregnancy, but have not yet treated her because they fear that if they end the pregnancy they might be prosecuted under the country’s total ban on abortion. Indeed, under these laws if the woman gets abortion she risks up to 50 years in prison and the doctors who perform the act up to 12! It is now almost two months since the doctors requested permission to provide Beatriz with the treatment she needs, but El Salvador’s Attorney General has said that the country’s Penal Code will be applied if Beatriz gets an abortion. The case has been brought to the country’s Supreme Court, but it has stalled for weeks. A hearing was finally expected to take place yesterday (15 May), but it was unclear whether the court will issue a final decision immediately. With each day that passes, the pregnancy poses more danger.

The case became “internationalized” on April 29, 2013, when the Inter-American Commission on Human Rights granted protection measures in order “to protect the life, personal integrity and health of “B”, asking the State of El Salvador to authorize this therapeutic abortion within 72 hours of the Commission’s letter. More than two weeks later though, El Salvador has failed to comply.

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Filed under: EJIL Analysis, Human Rights, Right to Life, Right To Privacy/Family Life
 

CERD and Hate Speech

Published on April 19, 2013        Author: 

An important case on hate speech was recently decided by the CERD Committee, TBB v. Germany, dealing with the intersection or conflict between the prohibition of racial discrimination and the freedom of expression (thanks to Marty Lederman for the pointer). The case concerned an interview given by a Mr Sarrazin in a journal that contained derogatory and offensive statements against the Turkish population in Germany; the statements were however given in the context of at least a superficially reasoned discussion dealing mainly with the economy. The TBB, a Turkish association in Germany, wanted Mr Sarrazin to be prosecuted for hate speech; the German prosecutors refused to do so, finding that while some of S’s statements were offensive, a prosecution would under the circumstances run afoul of the freedom of expression.

Article 4 CERD explicitly requires states parties to ‘declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred’; however when doing so they must give ‘due regard to the principles embodied in the Universal Declaration of Human Rights,’ including the freedom of expression. The Convention itself thus even at the purely textual level creates a potential conflict between the duty to incriminate hate speech and the freedom of expression, without providing much guidance as to how this conflict can be resolved. Text aside, the same set of issues is of course raised under other human rights treaties, such as the ECHR and the ICCPR, or in the domestic context.

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Filed under: EJIL Analysis, Freedom of Expression, Prohibition of Discrimination
 

Former ICC Defendant – Ngudjolo – Applies for Asylum in the Netherlands

Published on March 28, 2013        Author: 
Mathias Holvoet is PhD-Researcher in International Criminal Law at the Vrije Universiteit Brussel, Belgium. He is also a member of the Research Group on Fundamental Rights and Constitutionalism (FRC). Dersim Yabasun is a PhD-Researcher in the International and European Law Department, Maastricht University, The Netherlands.

Mathieu NgudjoloOn 18 December 2012, Mathieu Ngudjolo Chui (Ngudjolo) – a Congolese militia leader – became the first to be acquitted before the ICC, after Trial Chamber II judged that he could not be found guilty beyond a reasonable doubt of charges of war crimes and crimes against humanity committed in the village of Bogoro in 2003. Ngudjolo was released on 21 December 2012. Subsequently, according to Ngudjolo, the Dutch government decided to repatriate him back to the Democratic Republic of Congo (DRC). Since Ngudjolo feared persecution in the DRC because of his incriminating testimony against the Kabila government during his trial, he decided to apply for asylum in the Netherlands to prevent his expulsion. Furthermore, Ngudjolo requested the ICC to require the Netherlands to hand him over to the Court, with whom he would negotiate a place to live pending his asylum examination and during the appeal proceedings. In addition, Ngudjolo requested the Court to order the Victims and Witnesses Unit (VWU) to provide for his protection. The Appeals Chamber will decide on these requests later this year.

The Dutch authorities have approached this whole new development of ‘ICC-asylum seekers’ with serious concern.

There is a reasonable chance that Ngudjolo will be excluded from refugee protection by the Dutch Immigration and Naturalization Service (IND) on the basis of Article 1(f)(a) of the 1951 Geneva Convention relating to the Status of Refugees (Refugee Convention), as was the case with two defense witnesses in the Katanga & Ngudjolo cases who applied for asylum in the Netherlands in 2012. However, if there is a risk that Ngudjolo would be subjected to torture or degrading treatment if he were to be expelled to the DRC, Article 3 of the European Convention on Human Rights (ECHR), which protects any person and has an ‘absolute’ character, might prevent his expulsion to the DRC. In that case, Ngdudjolo may find himself in a ‘legal vacuum’. He would be ordered to leave Dutch territory, but at the same time the Dutch authorities are not allowed to expel him to the DRC because of its obligations under European human rights law. This piece will discuss the chances of returning Ngudjolo on the basis of diplomatic assurances and the option of relocation for future acquitted defendants to third countries.

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Filed under: Human Rights, International Criminal Court, Refugee Law, Torture
 

In Defence of a More Sophisticated and Nuanced Approach To Abortion: A Response to Gregor Puppinck

Published on March 22, 2013        Author: 

Rumyana Grozdanova, Alice Panepinto and Konstantina Tzouvala are PhD Candidates at Durham University Law School, UK.

The primary purpose of this response is to re-evaluate the jurisprudence of the European Court of Human Rights (“the Court”) on abortion, which we found to be misrepresented in Mr Puppinck’s recent EJIL: Talk! piece. Even though the Court has admittedly not recognised a general right to abortion, it has systematically been pressing more conservative Member-States to respect their own legislation and relax the absolute prohibition of abortion under certain circumstances. While the Court may have been too shy in its push for expanded protection of women’s reproductive rights instead of having a more muscular approach, the trend is visible and is gaining momentum.  In this context, it is vital to appreciate the rulings of both domestic courts and the ECtHR on this issue in their entirety in order to have a comprehensive understanding of the current legal concerns and potential future solutions. The international human rights project seeks to provide fundamental freedoms and rights for each and all of us. Mr Puppinck’s attitude towards the ‘free will of women’ combined with his (mis)representation of abortion is not particularly constructive and his legal analysis is not sufficiently nuanced.

In the late 2012 P. and S. v. Poland case, the Court stated that Poland’s failure to protect a 14-year-old rape victim from harassment, due to her decision to have an abortion (available under Polish law in the circumstances), and the fact that legal proceedings were initiated against her for “illicit sexual relations”, amounted to violations of Art. 3 regarding inhuman and degrading treatment; of her right to privacy and family life (Article 8), to liberty and security (Art. 5 par. 1). Read the rest of this entry…

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Filed under: European Convention on Human Rights, Human Rights, Right to Life, Right To Privacy/Family Life
 

Russian Prisons: Still inhuman, Still degrading

Published on February 27, 2013        Author: 

Natasha Simonsen is a DPhil student in the Faculty of Law, University of Oxford. She was previously a consultant to UNICEF and has interned with the Office of the United Nations High Commissioner for Refugees in Pakistan

This month, the European Court of Human Rights handed down two more judgments finding Russia to be in breach of Articles 3 and 13 of the Convention with respect to the appalling conditions in its remand centres, and the lack of a domestic remedy for claims of ill-treatment in detention. In the cases of Yefimenko (February 12) and Zuyev (February 19) (not to mention last month’s contribution in Reshetnyak, January 8) the Court’s First Section unanimously found violations of Articles 3 and 13 by the Russian Federation, yet again. These judgments are significant because they reflect the failure of the European Court’s ‘pilot judgment’ policy to stem the flow of applications by detainees in Russian prison and remand facilities.

The problem with Russian prisons is symptomatic of the wider issue of the clogging of the Court by so-called ‘repetitive applications’ (defined by the Court as those relating to ‘structural issues in which the Court has already delivered judgments finding a violation of the Convention and where a well-established case law exists’). This problem persists despite the various efforts by contracting states to reform the structural problems of the Court, and the Court’s introduction of a ‘priority policy’ to manage its extensive workload. The Court’s provisional annual report for 2012 (available here) admits there are almost 30,000 pending cases allocated to judicial formation against Russia alone. The second ‘worst offender’ is Turkey, with a little over half of that number, and Italy in a close third place with almost 15,000 pending cases (see p149 of the report). Those three states together account for almost half of the 128,000 cases currently pending before the Court. The violations by country-and-Article breakdown (p152-3 of the report), reveals that in 2012 there were 75 findings of violations of Article 3 by Russia last year, which amounts to 27% of the total number of Article 3 violations across the contracting states in that period. Russia has a serious problem in its detention centres—and it seems that the Court (not to mention the Council) has a serious problem with Russian compliance with the Convention. Read the rest of this entry…

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Filed under: European Convention on Human Rights, European Court of Human Rights, Human Rights
 

Abortion on Demand and the European Convention on Human Rights

Published on February 23, 2013        Author: 

Director of the European Centre for Law and Justice (ECLJ), Expert at the Council of Europe. This article synthesises a section of a study on “Abortion and the European Convention on Human Rights” that will be published in the coming weeks.

The European Court of Human Rights (the Court) has issued several judgments on abortion, especially in recent years since the fundamental ruling of the Grand Chamber in A. B. and C. v. Ireland of 2010. In those cases, the Court found violations of the European Convention on Human Rights (the Convention) in specific situations where the life or the health of the pregnant woman was endangered, or when the pregnancy was the consequence of a rape. The purpose of this article is firstly to identify the rationale of the Court on the matter of abortion, and secondly to observe how it applies to the vast majority of abortions practiced, i.e. “abortion on demand”, also called on request:  abortions that are not justified by a matter of health, life or rape, but by the free will of the woman.

Through its various rulings, the Court explicitly declared that abortion is not a right under the Convention: there is no right to have an abortion (Silva Monteiro Martins Ribeiro v. Portugal) or to practice it (Jean-Jacques Amy v. Belgium). The prohibition per se of abortion by a State does not violate the Convention, (Silva Monteiro Martins Ribeiro v. Portugal see also the case of the first two applicants who unsuccessfully complained of the prohibition of abortion on demand in A. B. and C. v. Ireland), but States can allow it for the sake of competing rights guaranteed by the Convention, i.e. the life and the health of the pregnant woman. In other words, it can be said that the Court tolerates an abortion if it is justified by a proportionate motive protected by the Convention. Read the rest of this entry…

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Filed under: European Court of Human Rights, Human Rights, Right to Life, Right To Privacy/Family Life
 

An Easy Exam Question on the Right to Life

Published on February 8, 2013        Author: 

You are a police officer, patrolling an area known to be a favourite hunting ground of a serial killer. The killer has managed to elude all efforts to track him down so far. All you know about him is that he is a total slave to ritual, killing with a knife a single female victim on the first day of each month, and never deviating from this pattern. Today is one such day.

Today also seems to be your lucky day.  Through sheer chance you stumble into an alley where you discover what could only be the serial killer repeatedly stabbing his victim through the chest. It unfortunately wasn’t her lucky day and she expires on the spot. The killer is wearing a jacket with the words ‘Yo, I’m Dexter Morgan, serial killer’ emblazoned on the back in bright, red letters. You shout: “Stop! Police! You are under arrest. Drop down your weapon.”

Rather than drop the knife, Dexter throws it at you with lightning-fast reflexes. This being your lucky day, the knife merely grazes your forehead, but the cut starts bleeding profusely. He runs; you pursue. You chase him from corner to corner, street to street. It’s all very exciting, and would look great on screen. But he is fast; certainly faster than you (while you’re not exactly fat, your mother still calls you ‘my big boned sugarpuff’ with a mix of pride and tenderness).

You realize that you are losing him. In a few moments he will be entering a labyrinthian maze of service tunnels going underneath the city. Once he does, you will lose him for sure. You shout: “Stop, or I will shoot!” He predictably ignores you. Well, he does somehow manage to flick a finger in your general direction.

You aim your gun. You know you’ll have the time for only one shot before he enters the tunnels. The blood flowing from the cut on your forehead makes aiming difficult. Even though you are pretty handy with a gun, you think that you will probably miss if you fire at his legs, with the purpose of stopping him. If you fire at his torso, which presents a much bigger target, you will probably hit him – but also probably kill him. You steady your aim, thinking back to your training. Do you fire?

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Filed under: EJIL Analysis, Right to Life, Targeted Killings
 
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Incorporating UN General Assembly Declaratory Texts into Domestic Law?

Published on February 4, 2013        Author: 

Last week in Canada, with federal MPs returning to Parliament amidst the continuation of countrywide protests by indigenous peoples, an opposition MP introduced a private member’s bill (Bill C-469) to require the Canadian government to ensure that all federal laws are consistent with the United Nations Declaration on the Rights of Indigenous Peoples (A/RES/61/295). I’ll state clearly at the outset that this isn’t the first such proposal of its kind, with two other private member’s bills with the same general intent of giving domestic legal effect to the Declaration having been introduced in June 2008 (Bill C-569) and February 2009 (Bill C-328), later reinstated in March 2010. But the discussion that has ensued with respect to enacting domestic legislation to give a non-legally binding declaratory text status and pull within domestic law raises interesting questions for our understanding of the sources of international legal obligation (versus the sources of aspiration and political commitment), as well as concerns about the impact of UN efforts that raise unmet expectations. On the other hand, this may simply strike readers in other jurisdictions as very strange, at least in those jurisdictions where there is no chance that a domestic court would ever rely upon, or even cite, a General Assembly resolution text.

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Filed under: EJIL Analysis, General Assembly, Human Rights, Indigenous Peoples, International Law and Domestic Law, International Organisations
 
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The European Court of Human Rights Gets It Right: A Comment on Eweida and Others v the United Kingdom

Published on January 19, 2013        Author: 

Dr Erica Howard is senior lecturer in law at Middlesex University and the author of Law and the Wearing of Religious Symbols: European Bans on the Wearing of Religious Symbols in Education (Routledge, 2012).

The European Court of Human Rights has delivered its Chamber judgment in the case of Eweida and Others v. the United Kingdom application nos. 48420/10, 59842/10, 51671/10 and 36516/10).

These cases concerned four practicing Christians. Ms Eweida, who worked for British Airways as check in staff, and Ms Chaplin, who worked as a nurse, both wanted to wear a cross in a visible way with their uniforms. Ms Ladele, a registrar of births, deaths and marriages, and Mr McFarlane, a relationship and psycho-sexual counsellor, both believed that homosexual relationships are contrary to God’s law and complained that they had been dismissed for refusing to carry out certain parts of their duties which they considered condoned homosexuality.

The European Court of Human Rights held that Ms Eweida’s and Ms Chaplin’s wish to wear a cross in a visible manner was a manifestation of their belief (paragraphs 89 and 97). In relation to Ms Eweida, the Court held that a fair balance had not been struck between her right to freely manifest her religion and British Airways wish to protect its corporate image and that the domestic courts had given too much weight to the latter (paragraph 94). Therefore, her right to manifest her religion under Article 9 was violated and it was not necessary to examine the claim under article 14 separately (paragraph 95).

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Filed under: EJIL Analysis, European Convention on Human Rights, Freedom of Religion, Prohibition of Discrimination
 
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