Intro to Human Rights

Question 1

Development of human rights as a legal concept in natural and international law

Answer 1

• developed from Greco-Roman tradition
• Locke, Paine, Rousseau, Hobbes
• before this law was described in regional way
• middle of seventeenth to turn of twentieth century saw natural law develop into international law
• national law continues to dominate though

Question 2

Eighteenth century radicalism in national legal orders

Answer 2

• natural law exerted influence on states across Europe, encouraged compliance with ‘rights of man’ higher code
• other distinct developments: revolutions in America and France
• these led to statement of rights, most notably Constitution of USA
• SC developed these principles and this has had significant effect throughout the world

Question 3

1945 and beyond

Answer 3

• USA remained unique, although did not abolish slavery until 1865
• League of Nations after WW1 significant but after WW2 real change because of human rights abuses
• 1945 UN formed, year later UDHR

Question 4

Regional arrangements

Answer 4

• difficulty in creating international standards of HR has been issue of cultural relativism

Question 5

Background to ECHR and HRA

Answer 5

• post WW2 perceived need for international forum for democracy, rule of law and human rights in Europe
• Council of Europe created and in 1950 adopted Convention for Protection of Human Rights and Fundamental Freedoms (ECHR) highly influenced by UDHR
• UK one of earliest signatories, ratifying soon after
• in 1966 UK gave individuals right to lodge complaints under ECHR if exhausted all domestic legal remedies

Question 6

Council’s main functions post 1989

Answer 6

• aside from overseeing ECHR

1. acting as political anchor and human rights watchdog for Europe’s post-communist democracies
2. assisting countries of central and eastern Europe in carrying out and consolidating political, legal, and constitutional reform in parallel with economic reform
3. assistance in knowledge

Question 7

Legal status of convention in MS - Convention as international law

Answer 7

• empowers individuals and other legal persons, almost all states have provided for right of individual petition
• what status in legal systems of Conventions states?

Question 8

Most European states are monist systems

Answer 8

• meaning one
• perceive all forms of law as belonging to single, binding legal system
• treat international law as binding on domestic legal terms
• in clashes treat international law as superior
• … intention of ECHR drafters

Question 9

UK = dualist system

Answer 9

• treating two legal orders as wholly separate
• UK state may be bound by international law, but court system of UK not bound in same way

… means international law can only be significance to UK in two distinct circumstances

1. where UK itself is before international law i.e. by violating rules of international law - Convention states signatories agree to be bound, so when ECtHR rules on issue it is responsibility of UK gov to ensure UK law fits
2. where UK has incorporated international law rules into domestic legal system through AoP UK courts obligated to uphold those rules as legal rules

Question 10

Need for HRA 1998

Answer 10

• why did it decide needed to enact HRA after almost five decades inside ECHR system but without such domestic provision?
  two important factors:
  1. for most of that time UK led Europe in ECHR violations - only changed with Italy, Turkey and Russia since 90s
  2. given this UK enjoyed unparalleled record in following ECtHR judgements and recommendations: so rectified failings promptly and fully, as is required in its treaty commitment
• clear that good faith and integrity of UK is evident
• also clear lack of competence of UK Parliament and UK judiciary in developing laws to match this commitment
• was felt important for UK to have positive statement about its values

Question 11

ECHR divided into three sections

Answer 11

1 - about protection of civil and political rights, and social rights
- arts 2-14 inc listing rights and freedoms
- art 15 derogations
2 and 3 about procedural aspects

Question 12

ECHR: three main categories of rights

Answer 12

1. Absolute rights - cannot legitimately be interfered with by state: 3, 4, 7
2. Limited/narrow rights - can in certain prescribed circumstances be legitimately interfered with by state: 2, 5, 6
3. Qualified rights - arts 8-11 are qualified Convention rights

Question 13

ECtHR

Answer 13

• Strasbourg, judicial arm, permanent court, own judges, rules of procedure, English and French

Question 14

Procedures of bringing an application

Answer 14

1. Jurisdiction
2. Standing
3. Admissibility
4. Against whom?
5. Concept of Positive obligation
6. Hearing stage and appeals
7. Effects of judgements and enforcements

Question 15

Procedures for bringing an application: jurisdiction

Answer 15

• Art 33: any contracting state may bring app against another contractive state - rare
• Art 34: person, NGO, group of individuals claiming to be victim of violation of Convention right may bring application - test is whether person is within jurisdiction, so could be US tourist in UK
• person can make claim for acts that have occurred outside geographical jurisdiction of contracting state i.e. Bankovic v Belgium: bombing of Belgrade by NATO forces, ECtHR recognised extraterritorial jurisdiction recognised in some very limited circumstances i.e. diplomatic activities, military occupation
• number of cases arisen from UK military involvement in Iraq i.e. Al-Skeini and Others about relative of six Iraqi civilians killed by UK armed forces: HoL decided ECHR would extend to human rights abuses outside UK in very limited situations
• even before this scope widened such as in Al-Jedda v UK
• Smith v SoS for Defence - British army soldier in Iraq who died of heatstroke, whether jurisdiction applied there and held did not extend to this jurisdiction when outside of UK control
• Smith, Ellis, Allbutt v MoD - SC decided land rover claims did attract protection of convention, Lord Hope said about degree of control and authority by state over individual - held servicemen relinquish almost total control of lives to state

Question 16

Procedures for bringing application: standing

Answer 16

• applicants must show they are directly affected by state action or inaction to be a ‘victim’ for purpose of article 34: Klass v Germany
• must be a person in legal sense so can be natural or legal like corporate bodies - Sunday Times v UK - trade unions, political parties
• NGo can bring actions on behalf of people whose rights may have been violated by contracting state i.e. Re Northern Ireland Human Rights Commission SC found did not have standing to challenge compatibility of highly restrictive law in Northern Ireland relating to abortion
• NGO can only bring action when claim state is violating rights that it enjoys itself as organisation i.e. Liberty v UK - interception of its communications
• applicant can be indirect victim of violation in exceptional circumstances i.e. if close relative. If do not have this status can be given standing still i.e. Valentin Campeanu v Romania where case lodged by non-governmental organisation CLR on behalf of eighteen year old who died
• concept of ‘person’ raised difficult issues for ECtHR i.e. ‘right to life’ of foetus in relation to article 2 proven impossible to resolve, court avoided issue: Vo v France

Question 17

Procedure for bringing app: admissibility

Answer 17

• made in writing to ECHR in Strasbourg
• bringing application is not appeal from national court, proceedings entirely separate from legal proceedings brought in contracting state
• article 35 sets out eight criteria for admissibility
• only requirement of significance: domestic remedies must be exhausted before ECHR action

Question 18

Procedure for bringing app: against whom?

Answer 18

• individual in ECHR action can only bring action against state if violated their rights
• case: Individual v MS
• almost always because also rarely used inter-state procedure of MS v MS i.e. Ireland v UK

Question 19

Procedure: concept of positive obligation

Answer 19

• situations in which actual violating activity has not been carried out by state or its agents but private individuals
• to address this ECtHR developed ‘positive obligation’ concept: contracting states are in certain circumstances under duty to prevent violation of human rights being committed by non-state actors from occurring
• one way to fulfil: require to enact laws to prohibit, deter and punish individuals who commit violations i.e. X and Y v Netherlands: lack of specific criminal sanction in Dutch law allowed man to evade conviction for sexual assault of girl with learning difficulties
• Osman v UK - positive obligation on state for its authorities to take preventative measures to protect individual whose life at risk

Question 20

Procedure: hearing stage and appeals

Answer 20

• ECtHR hearings held in public unless exceptional circumstances
• adversarial
• majority vote

Effect:
- all final judgements are binding on respondent states

Question 21

Derogations in times of public emergency and reservations

Answer 21

Article 15 allows where:

a. public emergency threatening life of nation
b. measure strictly required by exigencies of situation
c. measure consistent with any other obligations under international law
d. timely written notification to SG of council

According to 15(2) no derogation allowed with respect to 2 (unless war), 3, 4(1), 7

• Lawless v Ireland interpreted ‘threatening life of nation’
• courts of state and finally ECtHR decide if relevant circumstances have been met for derogation
• to pass Anti-Terrorism, Crime and Sec Act 2001 UK needed derogation from 5(1) on part of UK to detain foreign nations without trial/charge indefinitely
• A and Others - HoL quashed derogation order in respect to sections of act as said not strictly required
• reservations under article 57
• UK has reservation to art 2 Right to Education … ECtHR will not always passively accept reservation i.e. Belilos v Switzerland it removed much from gov’s reservation as too vague and similar in Loizidou v Turkey as defeated object of cConvention

Question 22

Key judicial principles and techniques of ECtHR - margin of appreciation

Answer 22

• reflects subsidiary role of Convention in protecting HR
• contracting states allowed to retain certain measure of discretion in taking measures
• based on respect for cultural, social, political variations
• not unlimited state discretion, subject to ECtHR supervision
• application of margin of appreciation to contracting state varies in each state, is dependent on context
• dependent on issue
• scope wider: morality, public emergency and nat security, areas national authorities best-equipped to assess

Question 23

Key judicial principles and techniques of ECtHR: principle of proportionality

Answer 23

• Soering: “inherent in whole of Convention is search for fair balance between demands of general interest of community and requirements for protection of individual’s fundamental rights”
• 8-11 qualified Convention rights - require restrictions ‘necessary’, democratic

Question 24

Key judicial principles and techniques of ECtHR: purposive interpretation

Answer 24

• interpreted purposively to give effect to Convention’s central aims and objectives: interpretation by current standards of society and not those prevailing at time ECHR drafted: ‘living instrument’

Question 25

Key judicial principles and techniques of ECtHR: prescription by law

Answer 25

• interferences by state must be ‘prescribed by law’ or ‘in accordance with law’, Strasbourg set test for this
• must be shown interference has some basis in national law (Silver v UK)… can be legislative provision or case law: gives individual protection against arbitrary interferences with relevant rights
• Sunday Times v UK - identified legal basis must have certain qualities: adequately accessible, must be able to foresee action, does not have to be absolutely clear and precise

Question 26

prescription by law: clear and precise

Answer 26

Muller v Switzerland - prohibition against ‘obscene’ publications held not to be too vague. ECtHR emphasised need to avoid excessive rigidity, keep pace with changes.

Wingrove v UK - ECtHR - rejected submission that criminal offence of blasphemy in England was so uncertain it was inordinately difficult to foresee whether particular publication would constitutie offence

• Steel v Others - had to consider whether order to be ‘bound over’ for breach of peace was sufficiently clear. ECtHR held elements of breach adequately defined by case law and while terms unclear bound over was clear
• contrast with Hashman and Harrup v UK where applicants had been bound over for fox hunt disruption, found not to have committed or threatened breach of peace unlike in Steel. ECtHR found requirement of ‘good behaviour’ too imprecise so violation of freedom of expression under article 10

Question 27

prescription by law: foreseeable

Answer 27

• depend to considerable degree on content of legal provision in issue, field it is designed to cover and number and status of those it is addressed i.e. Harshman and Harrup v UK

Question 28

prescription by law: sufficient safeguards to prevent arbitrary interference with relevant right

Answer 28

• especially where power would otherwise be unfettered, trace this back to Silver v UK - legal basis must indicate scope of discretion, must provide sufficient safeguards against abuse
• Malone v UK - ECtHR held contrary to rule of law for executive to be given unfettered power to interfere with right i.e. police telephone call interception violated right to respect for private life article 8

Question 29

Following body of case law developed from decisions, ECtHR made important declaration in Gillan and Quinton v UK

Answer 29

• domestic law must afford measure of legal protection against arbitrary interferences by public authorities
• law must indicate with sufficient clarity any discretion

Question 30

Contrast Gillan with R (Roberts) v MPC

Answer 30

• similarities on facts and about stop and search, after granting of authorisation police could stop and search any pedestrian or vehicle in area for offensive weapons or dangerous instruments
• power challenged on basis of article 8 by youth support worker searched after failing to pay bus fare
• SC noted benefits of random searches in detecting weapons, held combination of requirements in 1994 CJaPOA as well as in PACE ensured stronger safeguards than those in Gillan