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Home International Tribunals Archive for category "European Court of Human Rights"

Charlie Gard: An Ethical Analysis of a Legal non-Problem

Published on August 9, 2017        Author: 

For those with an internet connection and an interest in current affairs, the story of Charlie Gard been hard to avoid recently. A decent précis is available here; but it’s worth rehearsing.

Shortly after his birth, Charlie’s health began to deteriorate, and he was diagnosed with a terminal and incurable mitochondrial DNA depletion syndrome. By March 2017, Charlie needed artificial ventilation, and doctors at Great Ormond Street Children’s Hospital (GOSH) applied to the High Court for confirmation that removing that ventilation would be lawful, having judged that it was not in his best interests. This was contested by his parents, Chris Gard and Connie Yates; the High Court ruled in favour of GOSH. This was confirmed by the Supreme Court and the European Court of Human Rights. During all this time, Charlie remained ventilated.

In the High Court, Mr Justice Francis said that his decision was subject to revision should new evidence emerge favouring continued treatment; in July, Charlie’s parents returned to the High Court, claiming that Charlie might benefit from an experimental treatment being offered by Professor Michio Hirano of Columbia University. However, as proceedings advanced, it became clear that Hirano’s proposed treatment had never been used on patients like Charlie, that he had neither seen Charlie nor read his notes when he offered the treatment, and that he had a financial interest in that treatment. The position statement issued by GOSH on the 24th July barely hides the hospital’s legal team’s exasperation. On the 24th July, Charlie’s parents dropped their request for continued treatment. The details of Charlie’s palliative care were still disputed; his parents wanted it to be provided at home, with ventilation maintained for a few days. The High Court ruled against this on the 27th July. Charlie was moved to a hospice; his ventilator was removed, and he died on the 28th July, a few days before his first birthday. Read the rest of this entry…

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Encounters and their Consequences: A Review of Itamar Mann’s “Humanity at Sea”

Published on August 3, 2017        Author: 

Humanity at Sea explores the outer frontiers and inner tensions of human rights law in its treatment of migrants who, intercepted at sea, challenge the interpretive boundaries of international law as well as the literal boundaries of states.

In providing an impressive and often moving overview of legal and administrative responses to migrants at sea, Mann also seeks to offer a “new theory of human rights” (p.6). The jurisprudential focus lies with whether states can be obligated to assist. Though international law confers a duty of rescue on the high seas, that duty extends only to immediate emergency assistance: once out of physical danger, it would not prevent migrants from being returned to their home territories.  By contrast, the duty of non-refoulement, which compels states not to “expel or return” migrants to territories where they could be persecuted (Art. 33, 1951 Refugee Convention), has traditionally been interpreted to apply only to receiving states’ territories, not to interception outside territorial waters on the high seas.

Mann’s theory provides a framework for understanding how states may come to extend this obligation, through a more general conceptualization of how new human rights come to be recognized. Whereas international legal thought has oscillated between positive law and natural law as a basis for state obligation, Mann’s innovation is to reject this dyad.  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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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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Tackling Non-Implementation in the Strasbourg System: The Art of the Possible?

Published on April 28, 2017        Author: 

Slow, partial or sometimes even non-implementation of judgments of the European Court of Human Rights is the Achilles heel of the European Convention system. The latest annual report of the Council of Europe’s Committee of Ministers attests to some positive trends — a record number of cases closed in a single year and a decrease in the number of pending cases revealing systemic or structural problems — yet still 9,944 judgments remain unimplemented. While this is the first time since 2010 that the figure has dipped below 10,000, it remains a substantial caseload for the Committee of Ministers, the body formally tasked with monitoring implementation.

How, then, to tackle the problem? A thought-provoking contribution to this debate has been made by Kanstantsin Dzehtsiarou and Fiona de Londras in their article, ‘Mission Impossible? Addressing Non-Execution through Infringement Proceedings in the European Court of Human Rights’.

Infringement proceedings under Article 46(4) of the Convention were introduced by Protocol No. 14 to the Convention in order to provide a means of increasing pressure on obstructive states short of the extreme sanction of suspension or expulsion. This — as yet unused — mechanism empowers the Committee of Ministers to refer a state back before the Court if it refuses to implement a judgment.

Dzehtsiarou and de Londras argue that invoking Article 46(4) would be ‘futile and counterproductive’ because, among other reasons, it risks overburdening the Court (specifically its Grand Chamber, which would consider any referrals) and further delaying implementation while proceedings are pending. Moreover, they venture, infringement proceedings would do nothing to address the root causes of non-execution and could provoke a backlash by impugned states, potentially damaging both the effectiveness and legitimacy of the Convention system. Read the rest of this entry…

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Irregular Migrants and the Prohibition of Slavery, Servitude, Forced Labour & Human Trafficking under Article 4 of the ECHR

Published on April 26, 2017        Author: 

On 30 March 2017, the ECtHR delivered the Chowdury and Others v. Greece judgment (currently available only in French), where the Court found a violation of Article 4(2) of the ECHR (the right not to be subjected to forced labour). This judgment is an important addition to the gradually growing body of case law under Article 4 of the ECHR. Against the background of the overall prolific output of the Strasbourg Court, it might come as a surprise that the case law under Article 4 is very limited. In addition to the line of cases where the state demands services, which could amount to forced labour (see, for example Chitos v. Greece), there have only been seven cases in which the Court had to address circumstances where abuses inflicted by non-state actors (i.e. employers) qualify as slavery, servitude, forced labour or human trafficking under Article 4. Chowdury and Others v. Greece is the eighth one. It is, however, the first case where the Court found that exploitation of irregular migrant labour amounts to forced labour. The previous cases (Siliadin v. France and C.N. and V. v. France), where the Court determined that the factual circumstances amounted to forced labour, involved children who provided domestic services.  Chowdury is also the first case where the Court found that the victims were subjected to forced labour, but not to servitude.

Chowdury and Others v. Greece has already received wide media coverage (see the Guardian, New York Times) and has been assessed as constituting an important advancement. After briefly describing the factual circumstances and the findings, in this post I would like to take a more critical approach to that part of the judgment where the Court addresses the definitions of servitude, forced labour and human trafficking in human rights law. Despite the positive outcome, the judgment Chowdury is in some respects lacking in rigor in terms of delineating the definitional boundaries of the above mentioned concepts. Read the rest of this entry…

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Strasbourg Judgment on the Beslan Hostage Crisis

Published on April 13, 2017        Author: 

The European Court today issued a landmark right to life judgment in Tagayeva and Others v. Russia, dealing with the hostage crisis in the school in Beslan in 2004, in which hundreds of hostages lost their lives. The exceptionally detailed (and for the most part unanimous) judgment does the Court great credit, as does the nuance it shows in much of its factual assessment. (Kudos are also due to Kirill Koroteyev and the EHRAC/Memorial team representing some of the applicants). Together with the Finogenov v. Russia judgment, on the Dubrovka theatre hostage crisis, this will be a leading case on the right to life in extraordinary situations. Unlike in Finogenov, the Court here finds a violation of the preventative aspect of Article 2 – indentifying the risk engaging the positive obligation is perhaps the most innovative part of the judgment. The Court also finds violations with regard to the effectiveness of the investigation and the planning of the operation. All in all its approach is somewhat less deferential towards the state than in Finogenov. UPDATE: Ed Bates has some early comments here.

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