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Home Archive for category "Human Rights"

The Naked Rambler in the European Court

Published on October 30, 2014        Author: 

Readers may recall that a couple of years ago I wrote about the story of Stephen Gough, aka the Naked Rambler, a man who has been repeatedly incarcerated in British prisons since 2006 for his refusal to wear any clothing in public. Indeed, he has spent most of that time in solitary confinement, since he could not join the rest of the prison population while refusing to wear clothes. Gough’s behaviour is due to a strongly and sincerely held belief that there is nothing shameful about the naked human body. And while Gough certainly has been obstinate (and has for some unfathomable reason sacrificed his family and other relationships for the sake of this cause), he is not crazy – indeed, his psychiatric evaluations have been stellar.

This case is so interesting precisely because it juxtaposes the expressive interests of a single individual against the preferences of the vast majority of ordinary people, who disapprove of public nudity, and because of the way that the machinery of the state is used to enforce a societal nudity taboo. Indeed, Gough’s case now rambled all the way to Strasbourg. This week, a unanimous Chamber of the European Court of Human Rights rejected Gough’s claims that his freedom of expression and right to private life were violated by his convictions in the UK (app. no. 49327/11).

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A Few Thoughts on Hassan v. United Kingdom

Published on October 22, 2014        Author: 

Lawrence Hill-Cawthorne has written an excellent analysis of the European Court’s recent Hassan v. UK judgment, which I fully subscribe to and have nothing substantive to add. Rather, I wish to use this post to outline some thoughts on the practical impact of Hassan, its bottom line and possible future influence.

(1) When it comes to the extraterritorial application of the Convention, the Court has now reaffirmed that de facto physical custody will ipso facto constitute Article 1 jurisdiction, within the personal model of jurisdiction as authority and control over an individual. The Court did not seem to put any limits on this principle (and rightly so), not even the vague idea of ‘public powers’ that it invented in Bankovic and imported into the personal model of jurisdiction in Al-Skeini (cf. the Court’s finding in Hassan, para. 75 that the events took place before the UK assumed responsibility for the maintenance of security in South East Iraq, which was the basis for the ‘public powers’ in Al-Skeini). Similarly, the Court (again, rightly) focused on factual control, disregarding some of the formal arrangements under a memorandum of understanding between the UK and the US (para. 78), and finding that ‘Tarek Hassan fell within the jurisdiction of the United Kingdom from the moment of his capture by United Kingdom troops, at Umm Qasr on 23 April 2003, until his release from the bus that took him from Camp Bucca to the drop-off point, most probably Umm Qasr on 2 May 2003 ‘ (para. 80).

The bottom-line of this approach is that whenever the military forces of a European state capture any individual, no matter where that individual is located (note how the Court again, like in Al-Skeini, explicitly avoided ruling whether the territory of South Iraq was under UK control for the purpose of the spatial conception of jurisdiction (para. 75)), the Convention will apply by virtue of the personal conception of Article 1 jurisdiction as authority and control over individuals. The Convention will apply on this basis not only to detention operations in Afghanistan, but also to situations such as the French intervention in Mali, the capture of Ukrainian soldiers by Russian forces in Crimea, etc. This is fully consistent with the English High Court’s Serdar Mohammed judgment, which rejected the UK government’s attempts to confine Al-Skeini to the facts of Iraq (for our previous coverage of Serdar Mohammed, see here).

In short, European soldiers carry the ECHR with them whenever they engage in capture operations. Military legal advisers and other officials will hence inevitably have to take the Convention into account (as many have been doing anyway). Use of force operations are not so comprehensively covered – at least for the time being.

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On the Phylum and Logic of Human Rights

Published on October 20, 2014        Author: 

Back CameraDino Kritsiotis is Chair of Public International Law in the University of Nottingham, where he heads the International Humanitarian Law Unit of the Human Rights Law Centre (established in November 2012).

The question of the existence of a ‘general’ international human rights law suggests a discrete system of traditions, practices and routines that have taken form following the ‘heuristic references’ to human rights found in the Charter of the United Nations (Crawford, Brownlie’s Principles of Public International Law, 8th ed., 2012, p. 234). The idea of this exercise seems to be to extract the operating principles or systemic themes of this ‘specialist regime’ (Chinkin ‘Sources’, in International Human Rights Law, 2nd ed., 2014, p. 75),  even though this regime has evidently taken root ‘within general public international law’ (ibid.). It is thus because of this older, overarching system that human rights law possesses normative authority at the international level, though some have argued that its relationship with/in the discipline of public international law may now need to be reconfigured or rethought (for example, in introducing his International Human Rights Law: Cases, Materials and Commentary, 2nd ed., 2014, De Schutter considers that ‘the colonization of international law by human rights perfectly illustrates the formation of a “self-contained regime” (at p. 1)).

Perhaps it is important at this point to identify the level of our analysis. We are not concerned here with a functional assessment of how ‘human rights’ may or may not have been protected by public international law before their official conceptualization after World War II. Such an analysis was instructively undertaken by Brownlie for environmental protection in the Natural Resources Journal (1973), Vol. 13, pp. 179-189, where he concluded that ‘[t]hough the position may soon change, general international law (or customary law) contains no rules or standards related to the protection of the environment as such’ (p. 179; my emphasis). He went on nevertheless to specify how three aspects of the lex lata of that time had ‘major relevance’ for the realization of environmental protection: the rules relating to State responsibility; the territorial sovereignty of States and, finally, the concept of the freedom of the seas. If we were to attempt a similar exercise for human rights, we would presumably find that (general) public international law did aim towards the protection of human rights before they were known eo nomine as it were. We would find that the rules on State responsibility yielded their own dividends for human rights protection through the  notion of diplomatic protection, as well as the fact that, for the most part, the territorial sovereignty of States rejected assertions of male captus bene detentus. Furthermore, under the jus ad bellum, Oppenheim’s treatise on international law adverted to the number of jurists who believed that intervention ‘even has a basis of right, when exercised in the interest of humanity for the purpose of stopping religious persecution and endless cruelties in time of peace and war’ (Vol. I, 2nd ed., §137). The Martens Clause, too, instructed High Contracting Parties of the 1899 Hague Convention (II) on the Laws and Customs of War on Land that populations and belligerents stood to benefit from the protections offered by ‘the laws of humanity’ (amongst other things).

Against such functional assessments, we can imagine the possibilities of the technical identification of this ‘general’ international human rights law—of what it is and how it may have come to ‘colonize’ aspects (perhaps even the greater cohort) of public international law. Reflecting back on Simma and Alston’s seminal article on ‘The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles’, AYbIL (1988-1989), Vol. 12, pp. 82-108, it is striking to observe how, for the most part, the analysis of that article is organized around a series of disciplinary narratives (e.g. the dichotomization of conventional and customary arrangements, the focus on ‘inter-State relations’ (p. 87)). And, from here, the context of human rights becomes the occasion for developing alternative approaches toward their ultimate realization (at pp. 100-101: ‘there are strong grounds for arguing that States Parties to the Charter [of the United Nations], having in good faith undertaken treaty obligations to respect “human rights”, are subsequently bound to accept, for the purposes of interpreting their treaty obligations, the definition of “human rights” which has evolved over time on the basis of the virtually unanimous practice of the relevant organs of the United Nations’; at p. 102: ‘[general] [p]rinciples brought to the fore in this “direct” way … would (and should) then percolate down into domestic fora, instead of being elevated from the domestic level to that of international law by way of analogy’). Accordingly, methodologies on human rights must therefore work from within existing structures and realities; it is through ‘trojan’ strategies of assertion and influence that change will be brought to bear upon public international law as a whole and inform how it is to be used and put to use in practice, all in the name of the realization of human rights.

Time and again, we are thus reminded of the system of public international law to which human rights in fact belong and from whose cloth they are actually cut: Read the rest of this entry…

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Filed under: EJIL Analysis, Human Rights
 

We Need to Look at International Human Rights Law (Also) as a Whole

Published on October 17, 2014        Author: 

Eva bootEva Brems is a Professor of Human Rights Law and Director of the Human Rights Center at Ghent University, Belgium.

As a political and ethical project, human rights are one, indivisible and universal. As law however, they are fragmented. Yet most situations of alleged human rights violations fall within the scope of several human rights provisions from different sources at the same time. Hence the relevance of a holistic perspective on international human rights law.

Fragmentation

The complex architecture of international human rights law is characterized by a multitude of highly diverse sources. These sources can be differentiated in several cross-cutting ways: by governance level (regional, world), by their material scope (general, categorical , single issue), by their personal scope (universal or specific target group), by their legal force (hard or soft law) and by the type of monitoring mechanism that accompanies them.

The fragmentation of human rights law is accompanied by increasing specialization of human rights scholarship. As the field has grown, general human rights experts have largely been replaced by experts of ‘religious freedom’, ‘children’s rights’, ‘the European Convention on Human Rights’ and such. While this has brought the discipline to a higher lzevel, it has also contributed to creating a fragmented, compartmentalized view of human rights law.

Agents’ Perspectives

In all this, there is a risk to overlook the basic fact that rights holders as well as public authorities and other duty bearers under human rights norms are confronted simultaneously with a multitude of these sources. To any particular situation, a dozen relevant human rights sources may apply. Read the rest of this entry…

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Filed under: EJIL Analysis, Human Rights
 

Is There General International Human Rights Law?

Published on October 16, 2014        Author: 

Nigel RodleySir Nigel Rodley KBE, PhD (Essex) is Professor of Law and Chair of the Human Rights Centre at the University of Essex. He is also Chair of the UN Human Rights Committee.

One can’t begin to answer this question without posing two prior questions:

(1) is there general international law (GIL); and

(2) if so, what are its indicia?

I shall offer brief answers as my personal take on the questions, fully conscious that the answers I choose are likely to predetermine the answer to the specific question posed.

As to the first question, I do believe that there is such a thing as GIL.  If I’m wrong, then by definition there is no such thing as general international human rights law (GIHRL). Assuming that there is GIL, then we are confronted by the second question. Here I offer my own understanding of the term.  GIL is that set of obligations presumptively binding on all states independently of any treaty-based obligation.  So, to find a category of GIL, one would look to any plausible combination of the so-called sources of international law, that is, in addition to treaties, customary international law (CIL), general principles of law, judicial decisions (especially international ones) and doctrine, as found in article 38 of the Statute of the International Court of Justice (ICJ). Evidently, CIL will be crucial, if only because a rule or an area of GIL will need at least not to be inconsistent with CIL.

Coming closer to content, GIL would have to include norms of jus cogens, but that would not close the list.  It is significant that one of the few incontrovertible rules of jus cogens is the human right not to be subjected to torture (see Prosecute or Extradite (Belgium v Senegal) in 2012).  The prohibitions of genocide, slavery and racial discrimination and, I venture to suggest, discrimination on grounds of gender probably also qualify, as do other ‘non-derogable’ rights.  Still, if only jus cogens represented GIL, then that would evidently not be enough to establish a GIHRL.  But, by the same token, there would be no GIL of anything.  Just a few rules recognized as jus cogens would be the sum total of GIL.  One only has to state it, I hope, to demonstrate the unsustainability of the proposition. Read the rest of this entry…

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Filed under: EJIL Analysis, Human Rights
 

ESIL-IHRL Online Symposium: Is There General International Human Rights Law?

In June 2014, we launched the ESIL-IHRL interest group online symposia.  In our first blog post we identified three overarching challenges for researchers of international human rights law. These are resistance to containment as a sub-branch; internal-fragmentation; and interdisciplinary expansion.  We start our symposia with a basic question about international human rights law (a question that cuts through both resistance to contentment as a sub-branch and internal fragmentation): Is there general international human rights law?

Any question of general international law queries which international laws attain sufficient generality as to bind all members of the international community. General international law is distinguished from particular international law. The latter only binds a small number of state parties to treaties. Some also argue that there is a third category in between: some norms can be ‘more or less general’. That is they bind a large number of states – including major powers (Oppenheim-Lauterpacht, International Law: A Treatise, Vol. I, 1948, 4-5). Whether one agrees with a definition of general international law and how one accesses it is a matter of controversy. Some hold that general international law is just another name for customary international law (see, famously, Brownlie, ‘Problems Concerning the Unity of International Law, in A. Giuffre ed. International Law in the Time of its Codification. Essays in Honour of Roberto Ago (1987) VoL 1,15). Others argue that general international law is a hybrid form of international law made up of both customary law and conventional law of a general character (Tunkin, ‘Is general International Law Customary Law only?’ 4 European Journal of International Law (1993) 534-541).

In the field of international human rights law, perhaps due to the availability of a diverse number of specialised interpretive bodies ranging from regional human rights courts to UN human rights committees, this question has not been at the forefront of debates within the sub-discipline. Yet, the question of  ‘is there general international human rights law’ is not only timely but also in need of a deeper analysis. This is down to  a) the nearly universal ratification of the United Nations Human Rights treaties and b)  the new turn towards holistic interpretations of human rights law, either through comparative methods à la the European Court of Human Rights (seen most recently in the case of  Centre for Legal Resources on Behalf of Valentin Campeanu v. Romania), or through explicit provisions to take other international human rights law obligations of state parties into account (Article 29(b) of the American Convention on Human Rights and Article 7 of the Protocol to the African Charter on Human and People’s Rights on the Establishment of an African Court on Human and People’s Rights). From the perspective of the domestic judge, the question of what the wide array of international human rights obligations amounts to as a whole when interpreting rights also has urgent practical importance. Read the rest of this entry…

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Filed under: EJIL Analysis, Human Rights
 

MH 17 Goes to Strasbourg: Some Remarks on Obligations of Prevention, Foreseeability and Causation

Published on October 9, 2014        Author: 

pusztaiDavid Pusztai is a PhD candidate in international law at Gonville and Caius College, University of Cambridge.

The families of the German victims of the tragic MH 17 incident have reportedly decided to claim compensation from Ukraine. Although the details and the legal foundations of the claim have not been disclosed, what we know is that Professor Elmar Giemulla, representing the claimants, intends to bring this case before the European Court of Human Rights [ECtHR]. According to Professor Giemulla, “[e]ach state is responsible for the security of its air space […] If it is not able to [protect its air space] temporarily, it must close its air space. As that did not happen, Ukraine is liable for the damage.”

At the present stage many specific details are unclear, such as the admissibility of the claim or its articulation in the language of human rights law instead of international air law. There is, however, one apparently clear choice of legal strategy based on Professor Giemulla’s announcement: the identification of the internationally wrongful act in question, namely, Ukraine’s omission to close its airspace and to permit continued traffic.

Ukraine was indeed required to “take all practicable measures” to prevent offenses against the safety of international aviation under the 1971 Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Article 10). Given its sovereignty over its airspace, the customary duty to take reasonable steps to protect aliens within its territory required the same from Ukraine, just as its human rights obligations did under the European Convention of Human Rights. In Ilaşcu v. Moldova and Russiathe ECtHR held that the State’s positive obligations do not cease to exist when de facto it is not able to control a part of its territory. Ukraine, to use the Court’s language, “must endeavour, with all the legal and diplomatic means available to it vis-à-vis foreign States and international organisations, to continue to guarantee the enjoyment of the rights and freedoms defined in the Convention”, even within the territory controlled by separatists (see para. 333 of Ilaşcu).

The legal basis of MH 17′s presence in Ukraine’s airspace was Article 1 of the 1944 International Air Services Transit Agreement, conferring the right on foreign aircraft engaged in scheduled international air services to fly across its territory (both Ukraine and Malaysia are parties to the Agreement). Closing the airspace would have been one of  the “legal means” available for Ukraine under the same Article, given that the exercise of this privilege (the “first freedom of the air”) is subject to the specific approval of Ukrainian authorities in “areas of active hostilities”according to the same Article 1. Further, Article 9 of the 1944 Chicago Convention on International Civil Aviation provides that States may, “for reasons of military necessity or public safety”, restrict or prohibit foreign aircraft from using certain parts of their airspace. One important constraint is that such restriction “shall be of a reasonable extent and location so as not to interfere unnecessarily with air navigation.”  In fact, Ukraine exercised this right before the MH 17 tragedy and closed its airspace up to flight level 320 (32 000 ft); MH 17 was flying at flight level 330.

The question whether Ukraine’s failure to completely close its airspace before the incident is in itself a breach of international law (may it be international air law, international human rights law or law of the treatment of aliens) is an intriguing one, yet the present post focuses on a second possible hurdle for this claim:  the issue of causation (for more on air law aspects, see Professor Abeyratne’s article here) . Article 31 of the ILC Articles on the Responsibility of States for Internationally Wrongful Acts [ARSIWA] provides that the obligation to provide reparation is conditional upon a causal nexus between the internationally wrongful act and the damage. Did Ukraine’s decision to leave open its airspace above flight level 320 in the Dnipropetrovsk Flight Information Region cause the downing of MH 17?  Read the rest of this entry…

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The Tories and the ECHR: Mere Incompetence or Deliberate Deception?

Published on October 7, 2014        Author: 

The Conservative Party in the UK has released a paper entitled ‘Protecting Human Rights in the UK – The Conservatives’ Proposals for Changing Britain’s Human Rights Laws’. This is in the aftermath of David Cameron’s pledge during the Conservative Party conference last week to scrap the Human Rights Act 1998, the domestic statute which transformed the European Convention of Human Rights into UK law, allowing for ECHR rights, as transformed through the HRA, to be directly invoked before and applied by UK courts. This is to be replaced by a ‘British Bill of Rights and Responsibilities’, a draft of which the Tories have pledged to shortly publish for consultation.

The pledge, and the paper, have already provoked a flurry of responses, both in the press and in numerous blog posts (though the best summary is aptly given by the Daily Mash in an article entitled ‘Human rights laws to be replaced by gut instinct‘). Many of these articles and blog posts, including the post here by Martin Browne,  have made a number of important points regarding the impact of such a change in UK law and international law, as well as with respect to devolution and the Good Friday Agreement. This short post aims to simply highlight the impact of the proposed Conservatives’ changes from the perspective of public international law. This impact would be rather minimal, except that the proposed changes will increase the danger of the UK running afoul of its international obligations, of it engaging its international responsibility. That is, of course, unless the real aim is to withdraw from the ECHR.

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The UK Conservative Party Proposes Changes to Human Rights Protection

Published on October 6, 2014        Author: 

For those accustomed to the debate surrounding the European Convention on Human Rights in the UK, it is a refreshing to hear a clear statement from Chris Grayling, the Secretary of State for Justice, that the Convention is “an entirely sensible statement of the principles which should underpin any democratic nation,” and this on the 14th anniversary of the Human Rights Act 1998 taking legal effect, which allowed any individual to seek redress for human rights violations directly in UK courts.

Headlines have trailed that the Secretary of State, on behalf of the Conservative Party and in advance of the UK general election in May 2015, has issued a threat that the UK will denounce the Convention and repeal the Human Rights Act unless the European Court of Human Rights changes its approach and respects parliamentary sovereignty. Leaving aside the fact that the Court does respect parliamentary sovereignty, subjecting human rights protection to the control of one nation State would be dangerous and would reverse in an instant the progress made in the setting of human rights standards in the last 60 years.

Beyond the headlines are more damning proposals, accurately summarised here – that essentially would remove the right of some individuals to hold the State to account and establish asymmetrical application of human rights dependent upon the qualities of an individual’s ‘responsibilities in society’, the seriousness of the case, and the wonderfully vague threshold of whether the case arises in an area of law that already applies human rights law.

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UN Human Rights Council Panel Discussion on Drones

Published on October 1, 2014        Author: 

Last week the United Nations Human Rights Council convened a panel to  discuss the use of armed drones (remotely piloted aircraft) in counter-terrorism and military operations in accordance with international law. The panel was convened as part of the Human Rights Council’s 27th regular session, which finished last week.  The session held last Monday took the form of an interactive dialogue between a panel of experts, members of the Human Rights Council (i.e States), as well as observers. I had the honour to be invited to moderate what turned out to be a very interesting panel discussion. The panellists were Christof Heyns, UN Special Rapporteur on extrajudicial, summary or arbitrary executions; Ben Emmerson QC, UN Special Rapporteur on human rights and counter-terrorism; Shahzad Akbar, Legal Director, Foundation for Fundamental Rights; Alex Conte, Director of International Law and Protection Programmes, International Commission of Jurists;  and Pardiss Kebriaei, Senior Attorney, Centre for Constitutional Rights. Flavia Pansieri, the UN’s Deputy High Commissioner for Human Rights opened the discussion.

There was a really interesting exchange of views, not only amongst members of the panel but also between states and NGOs. Over 20 states spoke, including all the permanent members of the UN Security Council, as did the ICRC. There was discussion of the entire range of legal issues relating to targeted killings in counterterrorism and other operations. In particular, there was consideration of the applicable legal framework regulating the use of armed drones with much attention given to the applicability of international human rights law and international humanitarian law (IHL). In this context there was discussion of the substantive legal issues relating to the determination of the applicable legal framework – such as the classification of situations of violence (for the purpose of determining the applicability of IHL) and the extraterritorial application of the right to life. However, perhaps the most significant disagreement between states related to the question of institutional competence for discussing and monitoring compliance with the law. In a divide which appeared to mirror the range of views as to whether norms of human rights or IHL constitute part of, or the main applicable legal framework, some states (like the US, the UK and France) insisted that the Human Rights Council was not an appropriate forum for discussion of the use of armed drones whereas many other states, observers and panellists insisted that the Council was such a forum.

A significant part of the discussion also covered the applicable human rights  and IHL rules that apply to the use of drones. The panellists spoke about the right to life as it might apply to drones; the principles relating to targeting under IHL; and other potentially applicable human rights, such as the right to a remedy.  A key part of the discussion was about accountability with respect to the use of drones. All the panellists spoke about the obligations of states under IHL and human rights law to conduct investigations in cases where there was a credible allegation of violations, as well as the obligations relating to transparency with respect to drone operations. This issue was also raised by a number of states with some seeking examples of best practices that may be employed with respect to disclosure of data relating to drone operations.

A press release summarising the discussion is available here and a video of the entire panel discussion is available on UN Web TV. Christopher Rodgers of the Open Society Foundations has also written an excellent report of the session on Just Security. The Office of the High Commissioner for Human Rights will submit a report on this discussion to the Human Rights Council’s 28th regular session which will take place early in 2015. At this point, the matter will return to the Council for further consideration.

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