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Home Archive for category "Human Rights"

Non-State Actors and Non-Refoulement: The Supreme Court’s Decision in Zain Taj Dean

Published on July 28, 2017        Author: 

Lord Advocate v. Zain Taj Dean [2017] UKSC 44 concerned an extradition request, made by the Republic of China in Taiwan (‘ROC’). Dean, a British national, had lived in Taiwan for many years. In 2011, he was convicted for manslaughter, drunk-driving and leaving the scene of an accident by an ROC court. While on bail, pending an appeal, he fled to Scotland. His convictions and four-year sentence were upheld, in absentia, in 2012. The request was made pursuant to an ad hoc ROC/UK MOU, and in accordance with section 194 of the Extradition Act 2003. The Edinburgh District Court ruled that Dean could be extradited but the Scottish Appeal Court disagreed. The Supreme Court had to decide whether Dean’s extradition, to serve out the remainder of his sentence in Taipei prison, would violate Article 3 of the ECHR.

As the greatest risk of harm emanated from other prisoners – rather than from public officials or the prison conditions themselves – the Supreme Court decided that the correct test was whether the requesting ‘State’ had offered to put in place reasonable protective measures to obviate this risk. To this end, it drew a distinction between State agents and non-State actors for this purpose despite the fact that the prison would be under the public authorities’ direct authority and control at all times. This post argues that this approach amounts to a misapplication of the Strasbourg jurisprudence, invoked by the Supreme Court, with potentially serious consequences for the interpretation of the non-refoulement principle in detention cases.   Read the rest of this entry…

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The Charlie Gard Case: Behind the Hyperbole

Published on July 21, 2017        Author: 

This post is intended to be both a reply to Jakob Cornides’s post on the judgment of the European Court of Human Rights (‘ECtHR’) in the case of Charlie Gard and, relatedly, to provide clarification on several points raised in that post (and pervading content elsewhere) regarding the nature of the decisions confronting both the domestic courts and the ECtHR.

There is no need to repeat the facts underpinning Charlie’s case. They have been canvassed in considerable detail in the judgments of the English High Court and the European Court of Human Rights (ECtHR). It is incontrovertible that Charlie suffers from a life-threatening illness which, at this stage, requires that he be ventilated and receive artificial nutrition and hydration to survive. The available medical evidence (which Charlie’s parents dispute) indicates that he is not responsive to his surrounds. Despite declarations being made by the High Court to the effect that maintaining life-sustaining treatment is not in Charlie’s best interests nor is proposed experimental treatment, and those declarations being upheld on appeal to the UK Supreme Court, the matter persists with experts meeting this week to discuss the medical evidence.

It is beyond the scope of this post to address each of the aspects of the reasoning (and practice) of the domestic courts and the ECtHR which Mr Cornides’s post flags as being extremely problematic in the depth they deserve. Instead, I will respond to three specific issues raised by Mr Cornides, issues which together I consider reflect a wider misunderstanding of the domestic law which has been repeated by various media outlets, and which are central to the broader discussion regarding assisted dying in the United Kingdom (particularly within the context of the European Convention on Human Rights (‘ECHR’)). Those issues are: Read the rest of this entry…

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Forcible “euthanasia”: the ECtHR´s Charlie Gard Decision

Published on July 14, 2017        Author: 

When – first in the Netherlands, and later in other countries such as Belgium and Luxembourg – laws were adopted to legalize euthanasia, the selling argument was that this was a decisive step forward in order to ensure everyone’s self-determination. The ECtHR’s recent decision in the case of Gard and Others v. the United Kingdom reveals quite a different reality.

The decision is lengthy and contains a lot of medical terminology, but the underlying facts are simple: a child suffers from a medical condition that the treating doctors qualify as terminal, and for which no recognized treatment exists. Not only for argument’s sake, but also because we really have no reason to believe otherwise, let us assume that that assessment is correct and has been made by experts lege artis. Yet the child’s parents place their desperate last hope in an experimental treatment, which has so far never been tested on human beings (and, to believe what is noted in the ECtHR Decision, not even on animals). That treatment would have to be carried out, either in the UK or the US, by a leading researcher and expert on this kind of therapy, who has declared his willingness to administer it even though he qualifies the chances of success as “theoretical” and, on another occasion, as “unlikely”.

Read the rest of this entry…

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The Dissent in Bayev and Others v. Russia: A Window into an Illiberal World View

Published on July 7, 2017        Author: 

A previous post discussed the majority opinion in Bayev and Others v. Russia, where the ECtHR found that Russia’s anti-gay propaganda law violated the European Convention on Human Rights. I want to focus on the dissent. While the majority is important for its legal impact, the dissent is important for the window it provides into a non-Western world view. The previous post discusses the facts of the case, so I will dive right in.

One may dismiss a lone dissenter, especially one who decided in favor of the country he is from, but Judge Dedov shouldn’t be dismissed so quickly. Dedov didn’t dissent out of a bias in favor of his country, but from a fundamentally different world view than that of the Western judges. His world view isn’t isolated to Russia. I have been doing human rights work for the last few years in Armenia, and his views on LGBT people are shared by the majority in Armenia, if not by Eastern Europe generally. This view is part of the cultural divide between the “decadent West” and the “traditional East”. His dissent is significant because it may be the most thorough and rigorous articulation of the illiberal narrative. Read the rest of this entry…

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A Sermon from the Bench: Some Thoughts on the ECtHR Judgment in Bayev and Others v Russia

Published on June 27, 2017        Author: 

On 20 June 2017, the ECtHR rendered a judgment in the Bayev and Others v Russia. The judgment brought some much needed good news for LGBT rights. Against the backdrop of persecution of gay men in Chechnya and the steady deterioration of the position of LGBT people in Russia generally, the ECtHR showed its activist colours in ruling that Russia’s so-called ‘gay propaganda’ law violates human rights. The authors enthusiastically welcome and applaud the outcome. That being said, the Bayev judgment at times seems to leave the law ‘behind’ and strays from judicial decision to sermon, in a way that may ultimately undermine the efforts of the Court to move protections forward. Of note in this regard is the wording at times employed by the Court, and its understanding of the boundaries of its competence.

The Bayev case is the result of a challenge, brought by three gay activists, against what is often referred to as Russia’s ‘gay propaganda’ law. Read the rest of this entry…

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President Erdogan versus Jan Böhmermann: Do Bad Poems Make Bad Law? – Reforming the Defamation of Foreign Heads of States under German Criminal Law

Published on June 23, 2017        Author:  and

Note: Revised and translated version of a statement made before the Legal Committee of the German Bundestag at an expert hearing on 17 May 2017, further elaborating on questions that were raised by Veronika Bílková in her EJIL:Talk! post “Thouh shalt not Insult the (Foreign) Head of State?”, dated 28 April 2016 and commenting on subsequent developments.

1. Prologue

In 2016, after the Turkish government had requested the deletion of a satirical song about Turkish President Erdogan, aired on a German TV show, the Turkish Head of State became the subject of another, rather vulgar, satirical poem fittingly titled “Schmähkritik” (“defamatory critique”), recited by the German comedian Jan Böhmermann on his TV show in March, 2016. This in turn led to the initiation of a criminal investigation against the said German comedian, instigated both by the Turkish government, as well as by Turkish President Erdogan personally. Thereafter, President Erdogan also pressed civil charges against Böhmermann before German courts. As far as the criminal proceedings initiated by the Turkish government were concerned, a violation of Section 103 Criminal Code was claimed which currently still provides as follows:

Section 103 German Criminal Code
Defamation of organs and representatives of foreign states

(1) Whosoever insults a foreign head of state, or, with respect to his position, a member of a foreign government who is in Germany in his official capacity, or a head of a foreign diplomatic mission who is accredited in the Federal territory shall be liable to imprisonment not exceeding three years or a fine, in case of a slanderous insult to imprisonment from three months to five years.

Section 104a German Criminal Code further provides that before any such criminal proceedings under Section 103 German Criminal Code may be initiated, the German government has to formally authorize such proceedings: Read the rest of this entry…

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Corporations Suing in Defense of Human Rights? Lessons from Arkansas

Published on June 13, 2017        Author: 

Debates regarding corporate responsibility and human rights have centered on claims that corporations or their contractors are directly violating certain human rights or assisting states in doing so.  Whether in the extractive industries (Shell in Nigeria), the apparel industry (the Bangladesh apparel factory collapse), or even software (Google searches in China), many civil society groups see the multinational corporation as a right-violator or at least rights-violation enabler.  But a recent episode in Arkansas – the home of Bill Clinton and the 1957 school desegregation crisis, but also one of the 31 U.S. states with the death penalty — shows corporations taking the offensive for human rights.

Over the last decade, the manufactures of the drugs involved in lethal injections have adopted policies asserting that they will not sell their drugs for that purpose.  A typical example is the 2015 policy of Akorn:

“Akorn strongly objects to the use of its products to conduct or support capital punishment through lethal injection . . . . To prevent the use of our products in capital punishment, Akorn will not sell any product directly to any prison or other correctional institution and we will restrict the sale of known components of lethal injection protocols to a select group of wholesalers who agree to use their best efforts to keep these products out of correctional institutions.”

The companies’ commitment to avoid participation in lethal injection extends to creating an internal protocol in their sales practices, with a goal of keeping the drugs out of the hands of the executioners.

The stakes were raised in Arkansas in April when McKesson Medical-Surgical Inc. sued the state, seeking a preliminary injunction to obtain the return of chemicals it sold to the state corrections department or a guarantee that they would not be used for executions.  McKesson asserted that prison officials deceived the company into selling them one hundred vials of vecuronium bromide, a chemical that causes paralysis during executions.  McKesson claimed that the officials called a sales representative they knew and that McKesson filled the order without knowing their ultimate use.  The legal claims were based on state contract law as well as a violation of the takings clause in the Arkansas Constitution. The next day, a judge in Pulaski County (which covers Little Rock) issued the preliminary injunction.  The state immediately appealed the ruling to the state supreme court, which stayed the injunction.  Over the next week, Arkansas executed four prisoners using the three-drug method that includes vecuronium bromide, although the source of the drug actually used remains publicly unavailable.

McKesson’s legal case may have sounded in Arkansas contract law, but it had human rights written all over it.  Here are the key international legal issues – and some moral aspects — and implications of the case:

Read the rest of this entry…

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Filed under: EJIL Analysis, Human Rights
 

Back to Old Tricks? Italian Responsibility for Returning People to Libya

Published on June 6, 2017        Author: 

On 10/11 May 2017 various news outlets reported a maritime operation by the Libyan authorities, in coordination with the Italian Search and Rescue Authority, in which 500 individuals were intercepted in international waters and returned to Libya. This operation amounted to refoulment in breach of customary international law and several treaties (including the Geneva Refugee Convention and the European Convention on Human Rights), and an internationally wrongful act is one for which Italy bears international legal responsibility.

According to reports, the migrant and refugee boat called the Italian Maritime Rescue Coordination Centre (MRCCC) whilst it was still in Libyan territorial waters. MRCC contacted both the Libyan coastguard and an NGO vessel (Sea Watch-2) with the latter sighting the boat after it had left Libyan waters and was in international waters. During preparations for the rescue, the NGO boat was informed by the Italian authorities that the Libyan coastguard boat which was approaching had “on scene command” of the rescue operation. Attempts by the NGO vessel to contact the Libyan authorities were not picked up. The Coastguard proceeded instead to cut the way of the Sea Watch 2 at high speed and chase its rescue boat. It then stopped the refugees and migrant boat. Reports indicate that the Libyan coastguard captain threatened the refugees and migrants with a gun and then proceeded to take over the migrant boat. Read the rest of this entry…

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Minnesota Protocol on the Investigation of Unlawful Death Gets a New Life

Published on May 26, 2017        Author: 

The Revised Minnesota Protocol on the Investigation of Potentially Unlawful Death has just been published. It sets out the international human rights and criminal justice standards applicable to national investigations into alleged summary executions and other suspicious deaths, while also providing detailed advice on crime scene investigation and forensic methodology.

The document is highly relevant for human rights lawyers and criminal justice practitioners.  As I also discuss here [pp. 204ff], human rights cases dealing with suspicious killings regularly turn on the quality of the national criminal investigation into the crime. If the investigation was done properly, international human rights mechanisms will typically defer to its findings; if not, they will find a procedural violation of the right to life, even if state responsibility for the killing itself cannot be proven.

The original Minnesota Protocol was prepared in 1991 by a small group of lawyers from that icy state and later published by the United Nations Secretariat. Formally also known as the United Nations Manual on the Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, the document has been cited with approval by the Inter-American and European human rights courts.

The just published version of the Minnesota Protocol/U.N. Manual maintains the established brand names. But the text has been completely overhauled by the drafting team around outgoing U.N.  Special Rapporteur on Summary Executions, Christof Heyns (note: the author was not involved). A biopsy of the old and new versions of the Minnesota Protocol goes to show how far human rights law has advanced over the last quarter century. Read the rest of this entry…

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