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Eroding Religious Freedom Step by Step: France and the Baby Loup Case

Published on July 1, 2014        Author: 

cour de cassationLast Wednesday, the French Cour de Cassation (pictured left), in the Baby Loup case, permitted yet another restriction to be placed on the right to manifest religion in France.  The applicant had been fired from her job at Baby Loup, a private crèche and nursery, for violating the organisation’s rules of procedure. By wearing the hijab, the applicant purportedly breached the rule that

the principle of freedom of conscience and of religion of each staff member may not impede respect for the principles of laïcité [secularism] and neutrality that apply in the exercise of developmental activities, either on the premises of the crèche or during outside activities in which staff accompany children enrolled in the crèche.

The applicant will now take the case to the European Court of Human Rights (ECtHR). The decision of the Cour de Cassation in Baby Loup is made all the more significant by the pending judgment in SAS v France, due to be handed down by the ECtHR today. Will the ECtHR continue to permit the creeping erosion of the right to manifest religion (article 9 European Convention of Human Rights (ECHR)) by deferring to the State’s margin of appreciation?

The decision of the Cour de Cassation was based on Articles L. 1121-1 and L. 1321-3 of France’s Labour Code, which require any restrictions on an employee’s freedom of religion to be proportionate and justified by the nature of the employment. The Courtfound that the private nursery could not justify the restriction of the freedom of religion of the employee by direct reference to the principle of laïcité, as the principle applies only to public bodies. Nonetheless, it was willing to accept that the adoption of the principle of laïcité in the organisation’s rules of procedure was designed to protect children and to promote gender equality, rather than promoting and defending laïcité as a religious, political or philosophical belief. Consequently, the Cour de Cassation found that the restriction on the applicant’s freedom of religion was permissible.

The ECtHR is also likely to consider whether the freedom of religion of the applicant in Baby Loup can be justified by either the principle of secularism or ‘the rights and freedoms of others’ (article 9(2) ECHR). The recent cases of Ahmet Arslan and others v Turkey and Eweida and others v United Kingdom are directly relevantas previous ECtHR cases addressing the restriction of the right to manifest religion in the private sphere.

Ahmet Arslan concerned the arrest of members of the Aczimendi tankaı religious community for wearing religious clothing in public. The ECtHR found that the restrictions placed on the community by the authorities could not be justified by reference to the principle of secularism as the applicants were not State officials (para 48) and were not wearing religious clothing in a State institution such as a State school (para 49). Thus, Ahmet Arslan limits the circumstances in which States may justify the restriction of freedom of religion on the grounds of the principle of secularism to public officials and institutions. Consequently, it seems unlikely that France will be able to rely on the principle of laïcité in the Baby Loup case, as the nursery was a private organisation. Read the rest of this entry…

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Keep Calm and Call (no, not Batman but …) Articles 31-32 VCLT: A Comment on Istrefi’s Recent Post on R.M.T. v. The UK

Published on June 19, 2014        Author: 

Panos MerkourisPanos Merkouris, LL.M (Athens) 2004; LL.M (UCL, London) 2005; Dr. iur. (Queen Mary, London) 2010 is Lecturer in Public International Law in the Faculty of Law at the University of Groningen.

In a recent post on R.M.T. v. The UK: Expanding Article 11 of the ECHR Through Systemic Integration’ Kushtrim Istrefi raises important issues with respect to the application and content of Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT). Although I agree with the general conclusion that Article 31(3)(c) is not a panacea and should not be used as a backdoor for judicial activism, I think it pertinent to highlight certain issues as to the manner in which this conclusion is reached and in particular regarding the presumed content of Article 31(3)(c).

Firstly, let me clarify that this post is not about evolutive interpretation to which the ECtHR seems to be partial. Nonetheless, I agree with Eirik Bjorge’s comment to the above post, that this idea of ECHR as a living instrument is included in the preamble (‘…further realisation of human rights and fundamental freedoms’). Furthermore, the connection of evolutive interpretation with Article 31(3)(c) is particularly evident in ‘generic terms’. A ‘generic term’ can be understood either as ouverture du texte or renvoi mobile (Georgopoulos (2004) 108 RGDIP 132-134). In the former case, the openness of the term allows the content of the norm to change alongside the factual situation contemplated (‘evolution of fact’). Such an interpretation probably falls under Article 31(1). In the case of renvoi mobile, the norm, whenever interpreted, reflects the ‘evolution of the law’. As the law changes so does the content of that norm. In this case, evolutive interpretation could be understood as also being based on Article 31(3)(c).

Kushtrim’s main argument is that because ILO Convention No. 87 and the European Social Charter (ESC) are not binding on all member States of the Council of Europe (CoE), they probably do not fall within the scope of Article 31(3)(c). This conclusion is based on a restrictive interpretation of Article 31(3)(c), which holds that the Article should be read as ‘any relevant rules of international law applicable in the relations between the parties to the treaty’ and not expansively, as ‘…between the parties to the dispute’. This restrictive interpretation allegedly finds support in EC-Biotech:

7.68… This understanding of the term “the parties” leads logically to the view that the rules of international law to be taken into account in interpreting the WTO agreements at issue in this dispute are those which are applicable in the relations between the WTO Members…

7.69 … Accordingly, based on our interpretation of Article 31(3)(c), we do not consider that in interpreting the relevant WTO agreements we are required to take into account other rules of international law which are not applicable to one of the Parties to this dispute.

With respect to this restrictive interpretation I would like to raise the following three issues: Read the rest of this entry…

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Gray v. Germany and the Extraterritorial Positive Obligation to Investigate

Published on May 28, 2014        Author: 

Last week a chamber of the European Court of Human Rights decided Gray v. Germany, no. 49278/09. The applicants were the sons of a British man who died in the UK after a doctor gave him the wrong drugs on a house visit. The doctor was German, and was hired by the UK National Health Service to provide out-of-hours home service to NHS patients. The doctor returned to Germany after the applicants’ father’s death. After a criminal malpractice investigation was conducted in the UK, Germany refused to extradite the doctor on the basis that criminal proceedings would ex officio take place in Germany. Those proceedings were later summarily completed, with the doctor sentenced to a fine, without notifying the applicants that the case would be disposed of summarily. The applicants claimed that this violated the procedural limb of Article 2 ECHR, read jointly with the overarching Article 1 obligation to secure human rights.

For various reasons, the Court rejected the applicants’ claim on the merits. But what makes this case interesting is that neither the German government, nor the Court sua sponte, thought that there was any Article 1 jurisdiction issue in saying that Germany had the positive obligation to investigate an unintentional death that took place in the United Kingdom, and at that at the hands of a private individual. Look at just how broad this position is – broader, indeed, than what I have argued for, since in my view a positive obligation would only apply if the death took place in an area controlled by the state or with state involvement.

Again, neither the Court nor the German government apparently thought that any Article 1 problem arose, presumably because the doctor was on German territory even though the applicant’s father had been in the UK. This well shows how in the small, politically unimportant cases people just tend to follow the universalist impulse and are oblivious to the existence of threshold applicability problems. Note, however, that the Court must ex officio confirm that the Convention applies and accordingly mind that it has subject-matter jurisdiction. If the issue was raised perhaps the Court would have decided it differently, but even so the case stands for the proposition that ECHR states parties have the duty to investigate even accidental deaths that took place outside any area under their control if the alleged perpetrator is located in such an area.

Stated in these terms, the implications of such an expansive approach are I think clear. Remember Alexander Litvinenko’s assassination in London, ostensibly at the hands of Russian agents? His family took a case against Russia to Strasbourg, which (I’ve been told) is on standby while issues around possible inquiry proceedings are being resolved in the UK. Suddenly that case becomes much easier for the applicants – regardless of whether the radioactive poison was administered by a Russian agent, if the alleged perpetrator is in Russia then Russia would have an Article 2 obligation to investigate. Similarly, if say a British tourist killed somebody in Thailand but then managed to escape back to the UK, the family of the deceased person in Thailand would have Article 2 rights vis-à-vis the UK and the UK would have to investigate the death, at least if it refused extradition. And this approach would a fortiori apply to cases where there is state involvement, e.g. when a soldier kills a civilian in an area not under the state’s effective control, but later returns to the state’s own territory.

In short, the Court seems to have actually created a comprehensive aut dedere, aut judicare principle under the ECHR, that applies even to unintentional taking of life, and probably did so unwittingly. Obviously we’ll have to wait and see whether Gray will have such an impact, or whether the Court will somehow manage to reverse course.

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Crimea after Cyprus v. Turkey: Just Satisfaction for Unlawful Annexation?

Published on May 19, 2014        Author: 

On 13 March 2014 Ukraine lodged an inter-state application under Article 33 of the European Convention against the Russian Federation. Philip Leach has addressed in this forum the likely implications, suggesting that the occupation of Crimea will present a situation for the European Court similar to that in Ilaşcu v. Moldova and Russia.

The other decided case of the European Court that writers are speculating may be relevant to Ukraine is Cyprus v. Turkey. The Court’s just satisfaction judgment in Cyprus v. Turkey, adopted on 12 May 2014, is the first ever to award just satisfaction in an inter-State case under the Convention. Judge Pinto de Albuquerque and Judge Vučinić declared the judgment “the most important contribution to peace in Europe in the history of the European Court of Human Rights.”

What is important about Cyprus v. Turkey? And how, if at all, might Ukraine use the just satisfaction judgment to advance its own application against Russia?

Read the rest of this entry…

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The Successes and Challenges for the European Court, Seen from the Outside

Published on May 14, 2014        Author: 

Helfer photo croppedLaurence R. Helfer is the Harry R. Chadwick, Sr. Professor of Law and Co-director of the Center for International and Comparative Lawat Duke University.

Cross-posted on AJIL Unbound.

In this post I wish to address the successes and challenges for the European Court of Human Rights (ECtHR), as seen from the outside.  I will take this opportunity to draw upon my research on human rights systems outside of Europe to explain how these systems have responded to some of the same challenges now facing the Council of Europe and the ECtHR.  My main contention is that international human rights courts, wherever they are located, require sustained political and material support if they are to thrive and grow over time.

I will illustrate my points with examples from the Inter-American and African courts of human rights and from lesser-known courts of sub-regional legal systems in Africa—the Economic Community of West African States (ECOWAS), the East African Community (EAC) and the Southern African Development Community (SADC).  The judges of these courts often look to ECtHR case law for guidance.  They are also aware of the high level of political and material support for the Strasbourg supervisory system.  Just as these courts have drawn inspiration from the ECtHR, so too those who will shape the Court’s long-term future should consider both the achievements and the challenges that these regional and sub-regional systems have faced.  In describing these positive and negative developments, I will focus on three issues—the evolution of human rights jurisprudence, the politics of compliance with court judgments, and government resistance and backlash.

I will begin with jurisprudential trends.  The innovative doctrines and principles pioneered by judges in Strasbourg are alive and well in other human rights systems.  Interpretive tools such as the evolutionary nature of human rights, the presumption that rights must be practical and effective, the creative and strategic approach to remedies, and cross-fertilization of legal norms are commonplace in the case law of all regional and sub-regional courts.  For example, Inter-American judges have applied these doctrines in several types of cases, including the obligation to investigate, prosecute and punish the perpetrators of past human rights violations, the prohibition of amnesty for such violations, the rights of LGBT persons, and affirmative measures to combat violence against womenMtikila v. Tanzania, the first merits judgment of the African Court of Human and Peoples’ Rights decided in 2013, analyzes the decisions of the other two regional human rights courts and the U.N. Human Rights Committee to support its conclusion that a ban on independent candidates standing for election violates the African Charter.  Among the most striking examples of creative legal interpretation appear in the case law of the East African Court of Justice and the SADC Tribunal.  The judges of those courts have cited references to human rights, the rule of law and good governance in the principles and objectives clauses of treaties establishing the economic communities to justify expanding their jurisdiction to include human rights.

These capacious interpretations have broadened the scope and reach of international human rights law.  But they have also engendered significant compliance challenges.  All other things equal, the more expansive and far-reaching remedies a court requires, the greater the likelihood of delay or resistance in implementing its judgments—in terms of political will, capacity, and commitment of resources.  The Inter-American Court has by far the most ambitious approach to remedies, often specifying in exquisite detail the measures states must adopt.  Governments have responded by implementing the easier and less politically costly remedies, with the result that partial compliance with the Inter-American Court’s judgments is now commonplace. Read the rest of this entry…

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R.M.T. v. The UK: Expanding Article 11 of the ECHR Through Systemic Integration

Published on May 12, 2014        Author: 

Court building exterior - autumn Medium PortraitOn 8 April 2014, the ECtHR rendered a decision in the RMT v. the UK. The case represents an example of using systemic integration as a tool of judicial activism. In applying Article 31(3)(c) VCLT, the Court expanded rights under Article 11(1) ECHR through international instruments that were not binding on all parties to the Convention. This approach adds to the perplexity of the effects of the principle of systemic integration.

In the RMT case, the ECtHR responded to the novel question of whether secondary action—or the so-called sympathy strike that is performed by a trade union in support of the cause of another group of strikers involved in a dispute—comes within the scope of Article 11(1) of the Convention. The Court ruled in the affirmative by relying exclusively on international instruments that recognize secondary action as part of trade union freedom. Although the Court considered that a different outcome could have been reached if one read the wording of Article 11(1) on its own (para 76), it deemed that

the Convention cannot be interpreted in a vacuum but must be interpreted in harmony with… any relevant rules of international law applicable in relations between the parties, and in particular the rules concerning the international protection of human rights.

Referring to Article 31(3)(c) VCLT, the Court utilized the International Labour Organization (ILO) Convention No. 87 and the European Social Charter (ESC) to conclude that secondary action formed part of Article 11(1) of the Convention. The Court viewed that such reception of international law was in line with the Demir and Baykara judgment, which read in the relevant part as follows:

[t]he Court, in defining the meaning of terms and notions in the text of the Convention, can and must take into account elements of international law other than the Convention, the interpretation of such elements by competent organs, and the practice of European States reflecting their common values.

Against that background, the Court continued, Read the rest of this entry…

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Does IHL Provide a Legal Basis for Detention in Non-International Armed Conflicts?

Published on May 7, 2014        Author: 

In their excellent posts on Serdar Mohammed v. Ministry of Defence [2014] EWHC 1369 (QB), both Kubo Mačák and Marko recognise the importance and hugely impressive analysis of Mr Justice Leggatt’s judgment. We will not reiterate the coverage of the judgment. Rather, we wish to focus on one part of it, that is, the question of whether international humanitarian law (IHL) provides a legal basis for detention in non-international armed conflicts (NIACs). Whilst Kubo also focuses on this issue in his post, we will take the opposite view to him, and thus will argue that Mr Justice Leggatt correctly concluded that IHL does not contain a legal basis to detain in NIACs. To be clear, our argument is not that detention in NIACs is necessarily unlawful. The argument is simply that authorization to detain in a NIAC cannot be found in IHL, but must rest elsewhere, principally in domestic law (either of the state that detains or of the state on whose territory the detention occurs). Exceptionally, the authorization to detain may arise out of other branches of international law, in particular, it may be contained in United Nations Security Council resolutions authorizing the use of force.

It is worth spending a few moments considering why we are even asking the question whether IHL contains a legal basis for detention in NIACs. In the particular context of the Sedar Mohammed case – and other detention in armed conflict cases brought under the European human rights system – the question is relevant in considering whether Art 5 ECHR might be regarded as inapplicable in NIACs by virtue of the argument that more specific rules of IHL apply to regulate those detentions. More generally, international human rights law (IHRL) requires that any deprivation of liberty be both lawful and non-arbitrary and in the context of NIACs, it is natural to ask first whether the legal basis might be found in IHL, as it can for international armed conflicts (Arts 27(4), 42-3 and 78 GCIV; Art 21 GCIII).

In the Serdar Mohammed case, Mr Justice Leggatt provided a number of reasons for rejecting the MoD’s contention that IHL provides a sufficient legal basis for detention in the context of NIACs. We will address the key ones here. First, he considered that such a legal basis would have been made explicit in the relevant treaty provisions (common Article 3 and Additional Protocol II) had that been intended. This is a reasonable point – coercive powers should not too readily be read into applicable treaty rules without clear evidence that this is the collective intentions of the states parties. Read the rest of this entry…

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No Legal Basis under IHL for Detention in Non-International Armed Conflicts? A Comment on Serdar Mohammed v. Ministry of Defence

Published on May 5, 2014        Author: 

On any account of the events that transpired one early April morning four years ago in northern Helmand in Afghanistan, the plight of Mr Serdar Mohammed is not to be envied. For reasons that are still in dispute, he was captured by the UK armed forces close to his home. Shot at, bitten by a military dog, and finally caught, he was brought into UK custody on suspicion of being an insurgent, perhaps even a Taliban commander. In the end, he was detained on British military bases for over 100 days before being handed over to the Afghan authorities.

Mr Mohammed brought a claim before the High Court of Justice of England and Wales for unlawful detention, seeking compensation from the UK government. In Serdar Mohammed v. Ministry of Defence [2014] EWHC 1369 (QB), a judgment delivered last Friday, Mr Justice Leggatt decided that Mr Mohammed’s detention after the initial 96 hours violated Article 5 of the European Convention on Human Rights and that he was therefore entitled to compensation.

The judge openly says at the outset of the ruling that it is ‘a long judgment which discusses many issues and arguments’ (para. 2). Unlike Marko’s excellent post, which provides a more comprehensive overview of the judgment, my text takes a closer look at one of the key issues in the judgment only. This is the question of lawfulness of detention of persons in non-international armed conflicts under international humanitarian law (IHL), summarised by Marko in section 5 of his post.

It is well known that while the law of international armed conflict (IAC) provides an express legal basis for the detention of civilians in Articles 42 and 78 of the Fourth Geneva Convention, there is no counterpart in the treaty norms regulating non-international armed conflict (NIAC). The MOD argued that a power to detain is nonetheless implicit in Common Article 3 and Additional Protocol II. Although Mr Justice Leggatt acknowledged academic opinion in support of the MOD view, quoting extensively from texts written by Jelena Pejić and Jann Kleffner (see para. 240), he eventually came down against it on the basis of five very articulate reasons (paras. 241–251).

I will not revisit the academic debate on this topic (for which, in addition to the texts quoted in the judgment, see, e.g., here, here, or here), but rather subject the specific reasons advanced by Mr Justice Leggatt to somewhat closer scrutiny. It appears to me that even though the reasons are very well made, there are strong considerations not reflected in the judgment, which militate in favour of the opposite view.

Read the rest of this entry…

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High Court Rules that the UK Lacks IHL Detention Authority in Afghanistan

Published on May 3, 2014        Author: 

Yesterday the High Court of England and Wales, per Mr Justice Leggatt, delivered a comprehensive judgment in Serdar Mohammed v. Ministry of Defence [2014] EWHC 1369 (QB), holding that the United Kingdom lacks detention authority under international humanitarian law/law of armed conflict with regard to individuals it captures in the course of the non-international armed conflict in Afghanistan, and that any detention of such individuals longer than 96 hours violates Article 5 ECHR, as well as relevant Afghan law. The judgment is on any account a heroic effort, with the single judge grappling with a host of complex, intertwined issues of international law and acquitting himself admirably in the process. Para. 6 contains a summary of the judgment for those who don’t want to read the whole thing.

Here are some of the highlights of the Court’s analysis:

(1) The ECHR applies extraterritorially to any person detained by the UK in Afghanistan.

(2) Derogations under Article 15 ECHR could also be used in an extraterritorial context.

(3) The detention of SM by UK forces in Afghanistan was attributable to the United Kingdom, and not to the UN .

(4) No conflict arose between relevant UNSC resolutions, which did not authorize SM’s continued detention, and Article 5 ECHR, and Article 103 of the Charter was inapplicable.

(5) SM’s detention was not authorized by IHL either, since IHL in NIACs contains no detention authority, and cannot prevail over Article 5 ECHR as lex specialis.

(6) SM’s detention violated Article 5 ECHR. While the detention up to 96 hours was Article 5-compliant, the 110 days that SM spent in UK detention were not.

The Court makes it clear that the position the UK government found itself in is largely its own doing (para. 417 ff). This is exactly right. The government’s own legal advisers informed it of the limited extant legal authority for prolonged detention. The UK government failed to enact its own domestic legislation on detention in Afghanistan, or to come to different arrangements with Afghan authorities. Similarly, the UK government chose not to derogate from the Convention, preferring instead to argue that the Convention does not apply. And now that this strategy has failed (and on several levels), much of what it has been doing is exposed as unlawful.

I imagine that the judgment will be appealed, and we shall we see what happens there. But whatever the appellate courts’ conclusions, I can only hope that their judges will show as much diligence and analytical precision as Mr Justice Leggatt.

Here are the highlights, with some commentary:

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More on the UN and Surveillance and Privacy in the Digital Age

Published on April 17, 2014        Author: 

The Office of the High Commissioner for Human Rights is now conducting a consultation for the purpose of preparing the High Commissioner’s report pursuant to the UN General Assembly’s resolution on privacy in the digital age. Some of the major privacy/human rights NGOs have now made their submissions public: here is the paper submitted jointly by Privacy International, Access, Electronic Frontier Foundation, Article 19, Association for Progressive Communications, Human Rights Watch, and the World Wide Web Foundation; and here is the submission by the Center for Democracy and Technology. The NGOs argue, inter alia, that Article 17 ICCPR applies to (extraterritorial) surveillance activities and that the bulk collection of communications data is inherently disproportionate.

UPDATE: All of the submissions are now available on the OHCHR website.

Quoting verbatim from the GA’s resolution, the Human Rights Council has also decided to convene a panel on the right to privacy in the digital age at its 27th session, to be held in September. The multi-stakeholder panel is to discuss ‘the promotion and protection of the right to privacy in the digital age in the context of domestic and extraterritorial surveillance and/or the interception of digital communications and the collection of personal data, including on a mass scale, also with a view to identifying challenges and best practices, taking into account the report of the United Nations High Commissioner for Human Rights requested by the General Assembly in its resolution 68/167.’

Readers may also recall that a few months ago I did a series of posts on human rights and foreign surveillance. I’ve since written up a more developed and expanded article based on that series, which takes into account developments as of March 2014, including the Koh memos and the concluding observations of the Human Rights Committee on the US fourth periodic report. The article will be published in the Harvard International Law Journal, and the draft is now available on SSRN. Comments are as always welcome; the abstract is below the fold.

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