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Home Archive for category "Human Rights"

The New UK Government Wants To Scrap the Human Rights Act. Does the Act Matter, and Can Anything Be Done To Save It?

Published on May 27, 2015        Author: 

The quick answers to the above two questions are Yes and Maybe.  Despite the statutory framework that devolved power to legislative bodies in Scotland, Northern Ireland and Wales, the UK parliament has the power to repeal the 1998 Human Rights Act (“HRA”).  Yet there are significant legal, constitutional and political aspects that will determine the future of the HRA.  Before delving into these, it is worth asking why repeal is even on the agenda.

This proposal is not new. The Conservative party promised to repeal the HRA in 2010 and replace it with a British Bill of Rights, but ended up governing in coalition with the Liberal Democrats. A Commission on a Bill of Rights was set up instead, but failed to reach a consensus. In the 2015 manifesto the pledge re-emerged.  Having won a majority on the May 7th Prime Minister David Cameron is now pressing ahead. (Also high on his legislative agenda is a referendum on EU membership). The government claims scrapping the HRA would:

  • Break the formal link between British courts and the European Court of Human Rights and make our own Supreme Court the ultimate arbiter of human rights matters in the UK” and,
  • “Stop terrorists and other serious foreign criminals who pose a threat to our society from using spurious human rights arguments to prevent deportation.”

It also intends to go ahead with a “British Bill of Rights” to:

  • “Remain faithful to the basic principles of human rights, which we signed up to in the original European Convention on Human Rights.”
  • “Reverse the mission creep that has meant human rights law being used for more and more purposes, and often with little regard for the rights of wider society”, and
  • “Ensure our Armed Forces overseas are not subject to persistent human rights claims that undermine their ability to do their job.” This argument will be familiar to readers of recent posts on the second of the two “Fog of Law” reports (2013 & 2015, Policy Exchange).

Readers will see the many legal reasons why most of these aims cannot be achieved by abolishing the HRA, Read the rest of this entry…

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A Brief Response to Pizzutelli and Sitaropoulos

Published on May 22, 2015        Author: 

The argument that I made focused on the selection for admission of foreigners on the basis of economic worth, and I denominate this selection ‘discriminatory’. In his response Nikolaos Sitaropoulos argues that he is “not convinced that, in itself, such differentiation constitutes discriminatory, and hence unlawful, treatment”. However, the fact that it may not be, at least according to the European Court of Human Rights ‘unlawful’, or rather, in breach of the European Convention of Human Rights, although perhaps in breach of other international rules, does not mean that it is not ‘discriminatory’. The international human rights analysis of Sitaropoulos points in the direction of lawfulness for this discrimination in the context of admission. Allowing for this analysis to be correct, and at least suspending an important new argument, I would reframe the title of my argument to argue that it is international human rights law, and not just international migration law, that provides a license to discriminate on the basis of economic worth, exactly because it considers it lawful to do so. Referring to this practice as ‘differentiating’, rather than ‘discriminatory’, ignores the fact that we are talking about a very binary selection process: you are either admitted, or you are not. To differentiate is to identify difference. To discriminate is to grant somebody a right, or to deny it, on the basis of that difference.

Francesca Pizzutelli provides a welcome overview of international legal limitations that may protect people from discrimination according to economic worth. How should we, however, qualify these limitations? Do they indicate a new legal development? Or are they instead scattered exceptions that confirm a rule? Her analysis strongly reminds me of two very telling and almost identical anecdotes in which a refugee lawyer in the UK and an immigration officer in Germany were advising some prospective asylum seekers to seek entry through employment or ‘knowledge migration’, because that offered much better prospects. In addition, how should we assess these rather humble limitations against a backdrop in which citizenship of EU countries is increasingly for sale? And what to make of the fact that as this piece goes online, the UN Security Council is preparing military action against smugglers and accepting that this may result in the killing of ‘migrants’, as ‘collateral damage’? This author at least finds it hard to see in the limitations highlighted by Pizzutelli a significant obstacle to the right to discriminate according to economic worth.

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The Human Rights of Migrants as Limitations on States’ Control Over Entry and Stay in Their Territory

Published on May 21, 2015        Author: 

As Juan Amaya-Castro points out, (domestic) migration legislation is about selecting among potential or prospective migrants, i.e. creating two categories of migrants: ‘documented’ or ‘regular’ migrants, whose migration status complies with established requirements, and ‘undocumented’ or ‘irregular’ migrants, whose migration status does not so comply. Where does this leave international law and, as Juan Amaya-Castro calls it, its humanist-egalitarian tradition?

This post will argue that Amaya-Castro underestimates the strict and strong limitations on the sovereignty of states established by international human rights law, international refugee law and international labour law. In particular, states’ discretion in the adoption and enforcement of migration policies is limited by their obligation to respect, protect and promote the human rights of all individuals within their territory and subject to their jurisdiction (UN Human Rights Committee, General Comment No. 15, para. 5). This post discusses some of the far-reaching consequences of this principle, focusing on three types of limitations on state sovereignty with respect to migration: limitations on the prerogative to control entry; limitations on the prerogative to establish conditions for entry and stay; and limitations on the treatment of irregular migrants.

Limitations on the prerogative to control entry

The obligation not to reject refugees and asylum-seekers at the frontier may be an exception to state sovereignty conceptually, but it is far from exceptional in practice, especially in certain European contexts. Of the 19,234 people “intercepted” along EU borders by the joint border control operation Mos Maiorum between 13-26 October 2014, 11,046 people (57%) claimed asylum (Mos Maiorum final report, p. 25). More than a quarter of those “intercepted” were Syrians, followed by Afghans, Eritreans, Somalis, Iraqis – individuals whose need for international protection can easily be argued (ibid., p10).

Nikolaos Sitaropoulos expertly discussed the limitations imposed on states’ sovereign prerogative to control entry and stay by the Council of Europe human rights framework, in particular its obligation of non-discrimination. Outside that framework, the guidance provided by the UN Committee on the Elimination of Racial Discrimination (CERD) is also worth mentioning. In 1998 the Committee criticised Switzerland’s so-called three-circle-model migration policy, which classified foreigners on the basis of their national origin, as ‘stigmatizing and discriminatory’ (UN Doc. CERD/C/304/Add.44, para. 6). Four years later, the Committee expressed concern at the possible discriminatory effect of Canadian migration policies (in particular, a high ‘right of landing fee’) on persons coming from poorer countries (UN Doc. A/57/18, para. 336). On these grounds, this post argues that the general principle of non-discrimination is a limitation to states’ discretion in the adoption and enforcement of all migration policies, including their prerogative to control entry. Read the rest of this entry…

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Why International Migration Law Does Not Give a License To Discriminate

Published on May 20, 2015        Author: 

Juan Amaya-Castro argues that states’ selective immigration policies are discriminatory, and that this discrimination has been legitimized by international (migration) law. From a legal point of view, this is rather a misperception that confuses differential with discriminatory treatment. The latter is not allowed by contemporary international law as this post will show.

International migration law is not a self-contained legal regime. It is a multi-layered body of law consisting of various international, regional or bilateral treaties and agreements which leave “the alien’s body protected by a varying number of layers (legal regimes) depending upon the sartorial tastes of the State involved” (Richard Lillich, The Human Rights of Aliens in Contemporary International Law, Manchester UP, 1984, 122). Some of the most migrant-protective layers are certainly those provided by international and European human rights law and principles.

As regards migrants’ entry, the UN Human Rights Committee in its 1986 General Comment No 15 noted that the International Covenant on Civil and Political Rights

“does not recognize the right of aliens to enter or reside in the territory of a State party. It is in principle a matter for the State to decide who it will admit to its territory. However, in certain circumstances an alien may enjoy the protection of the Covenant even in relation to entry or residence, for example when considerations of non-discrimination, prohibition of inhuman treatment and respect for family life arise”.

This is true also under another core law-making treaty, the European Convention on Human Rights (ECHR), as interpreted by the Strasbourg Court (see below).

Differential treatment of migrants does not always equal discrimination

Migration control measures that differentiate among (prospective) migrants are not automatically unlawful. Whether such state action affecting migrants constitutes  discrimination is grounded in the principle of prohibition of discrimination enshrined notably in Article 14 ECHR and in Protocol No. 12 to the ECHR. Non-discrimination grounds indicatively enlisted therein are: “sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”. Read the rest of this entry…

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A New Case on Torture in Europe: Cestaro v. Italy

Published on May 13, 2015        Author: 

In its judgment of 7 April 2015, the European Court of Human Rights unanimously found that Italy had violated the prohibition of torture in Article 3 of the European Convention on Human Rights (Cestaro v. Italy, application no. 6884/11).

Apart from its confirmation of the well-established principles of the ECtHR on the prohibition of torture, the judgment is important for at least two other reasons: the in-depth evaluation of the behaviour exhibited by the authorities of the State involved in the affair and, above all, the Court’s statements concerning the structural nature of the problem of torture.

The case concerned events that occurred during the night of 21 July 2001, after the end of the G8 summit held in Genoa from 19 to 21 July 2001 in the “Diaz-Pertini” school used by some demonstrators as a night shelter (for an overview of the serious incidents caused by demonstrators, including some “black blocks”, see also Giuliani and Gaggio v. Italy, application no. 23458/02).

The “substantive” and “procedural” violations of the prohibition of torture

The violation of Article 3 was “dual” in nature: on “substantive” grounds owing to the ill-treatment of the applicant and on “procedural” grounds owing to the lack of adequate investigations and punishment for the officers who were responsible for the acts of torture.

Regarding the substantive violation, the Court found that anti-riot police units had stormed the school and, as the Italian courts and the ECtHR determined, had used force in a totally disproportionate way, with no real justification and completely ignoring the absence of any form of resistance by the applicant (then aged 62) and by the other occupants of the school (paras. 178-180 of the ECtHR judgment). The Court not only criticised the modus operandi of the police officers but also the planning of the whole operation, taking into account that the police officers had not been given any precise indication or instructions on the use of force and its limits. Read the rest of this entry…

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UN Working Group on Arbitrary Detention Adopts Principles and Guidelines on Habeas Corpus

Published on May 5, 2015        Author: 

A couple of days ago the UN Working Group on Arbitrary Detention adopted an important document, the “Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of His or Her Liberty by Arrest or Detention to Bring Proceedings Before Court,” and submitted the text to the Human Rights Council. The document was developed by the WG at the Council’s request. The project is meant to guide Member States on principles on the judicial review of the lawfulness of detention. The drafting process was completed after extensive consultations with states and other stakeholders. A press release is available here, the full text of the Guidelines and Principle is here, while the submissions by interested states and other actors are here.

This is a rich document dealing with many different issues. Perhaps most interesting – and certainly bound to be the most controversial – are the WG’s conclusions with regard to deprivation of liberty in armed conflict. The WG takes a very strong position regarding the right of habeas corpus in wartime, which it sees as non-derogable in common to a number of other human rights bodies, finding for example that in international armed conflict even prisoners of war have the right of access to a judicial mechanism that would establish the lawfulness of their status-based preventive detention. The WG also takes the view that IHL does not authorize internment in NIACs, and that internment would only be lawful if it is prescribed by domestic law, after a derogation in a public emergency. Some of the most important paragraphs are reproduced below the fold.

Read the rest of this entry…

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Are Human Rights Hurting Migrants at Sea?

Published on April 24, 2015        Author: 

Every year hundreds of thousands of irregular migrants, including asylum seekers and refugees, cross the Mediterranean Sea to enter Europe. More than 200.000 are thought to have crossed in 2014, reaching the coasts of Italy, Greece, Spain, Malta and Cyprus.

The reasons for the crossing are obvious. Some migrants flee conflict and persecution; others simply seek a better life in Europe. Regardless of motivations, crossing is not without perils. The UNHCR estimates that 3.500 lives were lost in 2014 while more than two thousand people have died since 1 January 2015.

After more than 300 migrants drowned near the island of Lampedusa in 2013, the Italian Government established the so-called Operation Mare Nostrum. Mare Nostrum was a humanitarian success. The International Organization for Migration applauded the “heroic work of Italy’s maritime forces”, which rescued some 100.000 people between 2013 and 2014. Despite widespread praise, Mare Nostrum ended in October 2014.

In its place, the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (known by the more palatable name Frontex) established operation Triton. Read the rest of this entry…

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The Fog of Law

Published on April 21, 2015        Author: 

Eirik Bjorge and Marko Milanovic have written trenchant critiques of the Policy Exchange Report: Clearing the Fog of Law. They have pointed out the Report’s flaws with regard to the travaux of the Convention, the intention of the drafters, the evolution of the case-law on extraterritoriality, and the relationship between human rights law and the law of war. I wish to add three small points to the discussion.

First, it is worth dwelling on the Report’s subtitle: ‘Saving our Armed Forces from Defeat by Judicial Diktat.’ All of us who write, whether in the academy or policy-circles, face the challenge of thinking up interesting titles for our pieces, predominantly in the hope that they will be read. We are not always successful. But to retreat to hysterical overstatement is no solution, especially when it rests on flawed analysis and insufficiently motivated argument. Leaving aside the strained relationship between the parochial ‘our’ in the sub-title and the purposes of academic freedom, the Report produces little evidence of any real threat of grave defeat. We are simply told that the ‘spectre’ of the ‘imperial judiciary’ now ‘haunts’ commanders; that the departure from the European Court of Human Rights’ decision in Bankovic and its decision in Al-Jedda entail ‘human rights imperialism’ and ‘judicial imperialism’ respectively; and that the UK Supreme Court’s decision in Smith has already ‘compromised the warfighting capabilities of the British Armed Forces.’

Second, there is an obvious disjuncture in the Report between cases such as Smith involving British troops and cases such as Al-Skeini involving foreign citizens. In response to the second class of cases, the authors argue that their intention isn’t to make the law fall silent amid the clash of arms but to apply and strengthen the laws of war. In response to the first class – Smith and its ilk – this is not an option: there is no Geneva Convention V for the Amelioration of the Rights of State Parties’ Own Soldiers. Read the rest of this entry…

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A Really, Really Foggy Report

Published on April 15, 2015        Author: 

Eirik Bjorge has written an excellent critique of the Policy Exchange report Clearing the Fog of Law: Saving Our Armed Forces from Defeat by Judicial Diktat, by Richard Ekins, Jonathan Morgan, and Tom Tugendhat. I now write only to add a few additional (and apologetically undiplomatic) comments which I think the report warrants. I do so not because it may be substantively wrong in its conclusions and prescriptions, although some of these may be subject to reasonable disagreement. In fact, when it comes to one of the report’s main recommendations, that the UK (and other states parties) should derogate from the ECHR in (extraterritorial) situations of armed conflict, I at least am on the record as arguing that extraterritorial derogations are both permissible and that they can be a good idea.

My problem with the report is hence not with (some of) its conclusions, but with the quality of its analysis, leading to the misdiagnosis of the chief ailment that it identifies – allegedly extravagant judicial overreach. I have to say, regretfully, that the report’s analysis is crude and unsophisticated. It is in fact so crude and unsophisticated that it does a disservice to the overarching position it advances. The report is moreover manifestly clouded by the politics of its authors. Not that there is anything necessarily wrong, mind you, with the report of a right-of-centre (or left-of-centre, or whatever) think-tank demonstrating a distinct political bent. The problem here is rather that the authors allow their political predilections to solidify into a type of confirmation bias that all too easily leads to errors in judgment, argument, and method. Let me explain how and why.

Read the rest of this entry…

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The Fogmachine of War: A Comment on the Report “Clearing the Fog of Law”

Published on April 13, 2015        Author: 

In the Policy Exchange report Clearing the Fog of Law: Saving Our Armed Forces from Defeat by Judicial Diktat, Richard Ekins, Jonathan Morgan, and Tom Tugendhat criticize the European Court of Human Rights at Strasbourg for not disapplying the rights of the European Convention on Human Rights (ECHR) in cases where British troops act abroad. Together the authors have written a report which impresses with its eloquence and conviction, but ultimately leaves something to be desired in terms of how it treats the sources and the method of international law.

The authors focus their attention on what they refer to as ‘a new form of judicial imperialism’(p 7), ‘the cavalier expansion’ of the ECHR (p 46), a development which, in their view, has at least two problematic aspects. First, the provisions of the ECHR, a convention which in their view was meant to be applicable only in time of peace, have been allowed to apply in war. Second, not only has the ECHR, in their view, illegitimately been allowed to apply; it ‘is supplanting and undermining the older and far more suitable body of International Humanitarian Law’ (p 9), for this purpose the four Geneva Conventions.

According to the report, the Strasbourg Court is wrong to have applied the ECHR to the actions of British troops acting abroad, and the Strasbourg Court is wrong to have let the ECHR supplant the rules of international humanitarian law. Such developments, the authors say, are not ‘properly supported by sound legal method’ but rather ‘an instance of over-bearing judicial power’ (p 9), the report arguing in essence that the courts have discarded what the authors term the traditional interpretation of the ECHR which could be summed up as ‘the general understanding that the ECHR did not apply extraterritorially’ (p 11& 46).

Read the rest of this entry…

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