Monthly Archives: July 2017

The Government’s European Union (Withdrawal) Bill: How the exception relating to the Charter of Fundamental Rights of the European Union will impact on the protection of Human Rights in UK

Introduction

 

On 13 July 2017 the Government of the UK published the long-awaited European Union (Withdrawal) Bill, a single legislative measure which is planned to enter into force in March 2019, when the two-year Brexit negotiation process comes to an end. In brief, the bill will revoke the European Communities Act of 1972 and transpose European Union (EU) law, ‘wherever practical’, into UK law. Any European Court of Justice’s case law issued until March 2019 will also acquire the legal strength and authority of a UK Supreme Court’s decision.

Although Parliament will be able to vote on it no sooner than next autumn, the publication of the Bill has already resulted in a great amount of criticisms, above all, on the exclusion of the Charter of Fundamental Rights of the EU (hereafter, ‘the Charter’) from the application of the Bill, pursuant to its section 5 (4). This post first argues that the Charter, as many EU laws, is currently part of UK domestic law, thanks to section 2(1) of the European Communities Act 1972; which contradicts the Government’s stance in this respect; then, it argues that after Brexit, and with regard to those cases currently governed by EU law, the exclusion of the Charter would diminish the level of protection of human rights in the UK. This notwithstanding the European Convention of Human Rights (ECHR), incorporated in UK law via the 1998 Human Rights Act will still be enforced, but it argues that the ECHR will not grant the same human rights protection.

 

The Charter of Fundamental Rights of the European Union and the European Convention of Human Rights

 

In 2000, at the Nice European Council, the EU Members States adopted the Charter of Fundamental Rights of the EU, which in some respects is broader than the ECHR in that it enlists, in addition to civil and political rights, economic and social and societal rights. In 2009, the Charter became binding pursuant to article 6(1) of the Treaty of Lisbon, which assigned to the Charter ‘the same legal value as the Treaties.’ EU Member States have a duty to observe it only in application of the EU law, namely: when a national legislation transposes an EU directive; 
a public authority applies EU law; or a national court applies or interprets EU law.

 

The Treaty of Lisbon, under article 6 (2), provides that the EU “shall accede” to the ECHR. While the accession has not taken place yet, all EU institutions and Member States are in any case obliged to interpret the Charter in light of existing jurisprudence of the ECtHR. Under Article 52(3) of the Charter, States have a legal obligation to give the same meaning and scope to the rights of the two instruments, insofar as they correspond.

 

On the applicability of the Charter to the UK

 

In Lisbon, Protocol 30 to the treaty related to the application of the Charter of fundamental rights of the European Union to Poland and to the United Kingdom was adopted. This Protocol generated a significant confusion with respect to the legal effects on the UK. Some have argued that this implied a sort of opting out, so that the Charter has no legal value in the UK. Others embraced an opposite view, so that the Charter could have created new justiciable rights. To sort out this controversy, in 2014 the European Scrutiny Committee of the House of Commons published a report with the evocative title of ‘The application of the EU Charter of Fundamental Rights in the UK: a state of confusion’. The Committee concluded that the Protocol had reaffirmed that the Charter has legal strength in so far as all national authorities had to apply and interpret EU law, but it did not create new independent rights. In this respect, the Charter is directly effective in the UK, by virtue of Section 2(1) of the European Communities Act 1972 which in its relevant parts reads as follows:

 

‘All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly'[emphasis added].

 

The Committee indeed recommended that, in order to disapply the Charter from the UK, ‘primary legislation be introduced by way of an amendment to the European Communities Act 1972’. Therefore, since the Charter has the same legal value as the Treaties, with respect of any EU law, it is automatically part of the UK domestic law, pursuant to the 1972 Act of Parliament. In fact UK Courts have often made reference to the Charter and checked its compatibility with the EU law as implemented in UK.[1] Furthermore, in 2013 the Grand Chamber of the Court of Justice of the EU held:

 

‘where a court of a Member State is called upon to review whether fundamental rights are complied with by a national provision or measure which, in a situation where action of the Member States is not entirely determined by European Union law, implements the latter for the purposes of Article 51(1) of the Charter, national authorities and courts remain free to apply national standards of protection of fundamental rights, provided that the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of European Union law are not thereby compromised’ [emphasis added].

 

Consequently, it is surprising that under Section 5(4) of the European Union (Withdrawal) Bill, ‘[t]he Charter of Fundamental Rights is not part of domestic law on or after exit’ [emphasis added].

 

On the protection of fundamental rights provided by the Charter and the ECHR

 

After Brexit, as provided by the European Union (Withdrawal) Bill, any public authority or national court in the UK could keep on applying or interpreting what was originally EU law, as this would become, ‘wherever practical’, UK law. However, so far, the relevant EU law has been interpreted in the case law of the Court of Justice of the EU in light of the Charter. If the Charter were not applicable to the UK any more, this might result in then-former EU law being significantly different from its ‘original’ version at the moment of its transposition; furthermore, its interpretation would be left to decisions to be taken on a case-by-case basis. These two factors taken together might have serious consequences in respect to the certainty of the law.

Concerning the application of the law, as far as the rights overlapping with the ECHR are concerned, this would result in a different kind of protection. Indeed, those civil and political rights provided by the Charter, in compliance with one of the most fundamental principles of the EU law, have a direct effect in the UK as many EU laws do. But if the Charter had no effect in the UK after Brexit, victims of human rights violations could only rely on the ECHR. Yet, under section 6 of the Human Rights Act 1998, while ‘[i]t is unlawful for a public authority to act in a way which is incompatible with a Convention right’, this does not apply to an act if

 

—(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or (b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.

 

Thus, the kind of protection provided by the ECHR is not comparable to what people in the UK currently have in the application of EU law, thanks to the Charter and the European Communities Act 1972.

The same kind of reasoning would a fortiori apply to all those rights that are not protected by the Human Rights Act, including many economic and social rights, when they already are justiciable rights in the UK and in the application of EU law. Indeed, while it is true that the Charter did not add any new justiciable right, it is currently relevant when it comes to verify whether any EU law is compatible with it; to the contrary, domestic law (as all former EU legislation will become after the European Union (Withdrawal) Bill is adopted) granting the same rights will not prevail over conflicting statutes.

 

Conclusion

 

On 13 July 2017 the Government of the UK published the European Union (Withdrawal) Bill, which is going to be discussed in Parliament no sooner than next autumn. Section 5(2) of the Bill, which is meant to enter into force when the UK actually leaves the EU, provides for the Charter of Fundamental Rights of the EU not to be considered domestic law in the UK at the moment of Brexit, nor after it. This post has shown how the Charter is currently part of UK domestic law, thanks to Section 2(1) of the European Communities Act 1972. It has also been argued that, should the Bill enter into force as it stands at the moment, there may arise a problem in terms of the certainty of the law because, lacking the possibility of making reference to the Charter when interpreting and applying it, former EU law would already miss something at the moment of its transposition and national authorities would be left with the burden of filling the gaps it would leave. As for the protection of fundamental rights in the UK, this might be subjected to a considerable change too. Indeed, concerning those civil and political rights that are also provided by the ECHR, national authorities are bound not to give priority to the Human Rights Act, incorporating the ECHR in the UK system, when this is in conflict with national legislation. Thus, the protection of these rights, when violated in application of a norm incorporated by the then former EU law, will be left to a different, less incisive, kind of remedy than that offered by the Charter (and many EU laws!) at present. This would be a fortiori true with regard to those rights, including economic and social rights, which are not protected by the Human Rights Act.

[1] See, for instance, [2017] EWCA Civ 431, [2017] EWCA Civ 397 at 74; [2017] EWHC 1174 (Admin) at 100-101; [2017] EWHC 931 (Admin) at 59; [2017] EWHC 577 (Admin) at 38; [2017] EWCA Civ 35; [2017] EWCA Civ 41 at 136; [2017] EWCA Civ 243 at 1; [2017] EWHC 331 (Admin) at 17; [2017] EWHC 827 (Admin) at 30; [2016] QB 1003 at [99]; [2017] CAT 9 at 80; [2017] UKUT 125 (IAC) at 34; [2017] UKFTT 167 (TC) at 435; on the Charter not conferring new rights nor expanding those rights stemming from EU law, see, e.g., [2017] EWHC 695 (QB) at 13-16; on the disapplication of a national measures conflicting with the Charter see, e.g., [2017] EWCA Civ 121 at 60; [2015] EWCA Civ 311, [2015] 3 WLR 409. Interestingly, the First Section of the ECtHR has recently reaffirmed the legally binding nature of the Charter in a case against the UK.May

 

 

 

 

 

 

 

 

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The International Community’s Approach to Reprisals against the Use of Chemical Weapons in Syria: a Risk for the Jus ad Bellum Regime?

Introduction

On 26 June 2017, the Government of the United States of America issued a statement to inform that Syria appeared to be preparing a chemical attack, and to threaten the use of force if one took place. Earlier, on 28 May, the President of France similarly declared to be ready to use force as a reprisal against the use of chemical weapons by Syria. Both declarations followed the actual military intervention of 7 April, when the United States launched a missile strike against the Syrian airbase of Shayrat, claiming to be acting in response to an alleged chemical attack by Syrian forces in Khan Shaykhun.

Most commentators defined the attack as a clear violation of international law, perpetrated  in the absence of self-defence justification and without any Security Council authorisation, which – as detailed below – are the only two exceptions to the prohibition to use force foreseen by the UN Charter. Conversely, the vast majority of States condemned the use of chemical weapons allegedly used by Assad, but not the forcible countermeasure taken against it.

Several observers and scholars argued that the silence of the international community on the violation of the prohibition to use of force is shaping a new customary norm, allowing States to use force in case of grave violations of international law. This post will question this assumption, which bears the risk of a dangerous rift in the jus ad bellum regime.

The Attacks in Khan Shaykhun and Shayrat and the Reactions of the International Community

With the bombardment of Shayrat on 7 April 2017, the US directly used force, for the first time, against the Syrian army. The US presented the attack as a reaction to the alleged use of Sarin gas by Syrian forces in an airstrike in Khan Shaykhun three days earlier. The parties to the conflict did not agree on the dynamics of the events and no independent investigation confirmed the use of chemical weapons by the Syrian government, despite the mandate of the Organization for the Prohibition of Chemical Weapons-United Nations Joint Investigative Mechanism to monitor their use in Syria. The Organisation for the Prohibition of Chemical Weapons did find traces of Sarin in Khan Shaykhun, but could not state which party to the conflict was responsible for its use. The US and French intelligence blamed the Syrian Government for the attack, whereas Russia, and Syria itself, denied any responsibility of Assad’s Government.

The US attack was in fact criticised as an act of aggression by Syria, by its main allies in the area, Russia and Iran, and other States like North Korea. The legitimacy of the attack was firstly affirmed by the US and its allies in the area. Interestingly, most States not involved in the conflict criticised Syria for using chemical weapons, but not the US aggression in itself. US and French statements issued in the following months reiterated this position. This may suggest an acquiescence towards the legality of limited military interventions, or rather just a certain diplomatic tolerance for limited interventions, which are qualified as legitimate but not legal.

The prohibition to use force in international law and its exceptions

The prohibition to use force against the sovereignty of States is the cornerstone of the UN Charter, which prohibits the use of force at art. 2(4): “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations”. The Charter foresees two limited exceptions: when the UN Security Council authorises States to take “action by air, sea, or land forces as may be necessary to maintain or restore international peace and security” (art. 42), and on the ground of self-defence (art. 51). The prohibition was reaffirmed by the International Court of Justice in several cases, and it may amount to a jus cogens norm.

The analysis of the compliance of the attack with the UN Charter is therefore uncontroversial: the US did not claim self-defence or seek a Security Council authorisation. The attack was consequently carried out in violation of the Charter.

However, a school of thought advocates the legitimacy of a third exception to the prohibition to use force. In the absence of self-defence claims and Security Council authorisation, a military intervention would be legitimate to respond to gross violations of international law involving atrocities perpetrated against civilian populations. The debate on the existence of such an exception usually refers to doctrine of humanitarian intervention. This doctrine has no generally shared definition – let alone recognition – in international law, but it is considered a particular form of use of force in a foreign State, characterised by a) the purpose to stop or oppose mass atrocities; b) the lack of consent of the State c) the absence of a legal mandate from the UN Security Council. Humanitarian intervention does not have a clear legal basis or a defined scope, but it is considered to involve a major military commitment, which comprehensively addresses the humanitarian crisis. In addition, humanitarian intervention concerns mass atrocities against civilian populations, which have taken place in Syria during the conflict, but without provoking interventions. Thus, the case at hand would not fall within the debate on humanitarian intervention – which was not invoked by the U.S. to justify the attack. The attack of 7 April on the Syrian base of Shayrat would rather constitute a single episode of forcible countermeasure against the use of chemical weapons.

Forcible countermeasures in international law

In cases of international wrongful acts, international law allows affected States to adopt countermeasures, subject to various limitations (e.g., the existence of a breach, the need of a prior demand for reparation, the necessity to comply with proportionality), including the prohibition to use force, as clearly stated in art. 50 the Draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the International Law Commission (ILC) in 2001. Thus, forcible countermeasures, sometimes referred to as reprisals, are in principle illegal under international law.

In the aftermaths of the 1998 NATO military intervention in Serbia, Antonio Cassese[1] – inter alia the first President of the ICTY – argued that a new international customary norm was in statu nascendi, modifying the status of the prohibition of forcible countermeasures in international law. According to this author, in cases of gross violations of human rights, the use of force as a countermeasure could be allowed, under certain conditions. Cassese acknowledged that this sort of derogation from the regulation of the use of force did not yet exist in international law[2] because of the lack of sufficient State practice, while there was already an opinio iuris ac necessitatis, given the diplomatic position of the majority of States concerning the NATO intervention.

Almost twenty years later, in the light of the development of the approach of States to the use of force, a consistent State practice did not evolve. The silence of States could arguably express an acquiescence to the adoption of forcible countermeasures against gross human rights violations. Even in this case, it would constitute an exception, and State practice does not show any crystallization of a similar customary norm.

In case of use of force without any Security Council authorisation, States have mostly relied on an extensive interpretation of the principle of self-defence. In contrast, States do not usually claim the possibility to use force as a reprisal for a violation of human rights.

Furthermore, in the last decades, the international community’s approach against military interventions like the bombing of Shayrat was strengthened by the criminalisation of the act of aggression. The crime of aggression was included in the Rome Statute of the International Criminal Court with a series of amendments at the 2010 Review Conference in Kampala. The ICC Assembly of States Parties is currently preparing to activate the Court’s jurisdiction over the crime. In its definition, the crime of aggression clearly covers actions like the 4 April attack on Syria.

Conclusion

To conclude, the statements against the use of chemical weapons by Syria raised the debate on the emergence of an opinion iuris allowing forcible countermeasures in case of gross violations of human rights. Still, the scarcity of State practice hinders the creation of a new customary norm which is capable to infringe the UN system of jus ad bellum. States do not seem ready to permit derogations from the prohibition to use force. In the lex lata, the bombardment of Shayrat, and the following threats to further use force against Syria constitute a clear violation of the jus ad bellum.

The absence of an explicit condemnation, without any consistent State practice, does not risk creating a customary derogation to the prohibition to use force as enshrined in the UN Charter with a new customary norm. Rather, it may suggest a certain diplomatic tolerance for limited interventions, which are sometimes defined as legitimate but not legal. This does not question the prohibition to use force, which is the key international rule to protect international peace and security.

[1]Antonio Cassese, ‘Ex iniuria ius oritur: Are We Moving Towards Legitimation of Forcible Humanitarian Countermeasures in the World Community?’ [1999] 10(1) European Journal of International Law 23-30

[2] Antonio Cassese, ‘A Follow Up: Forcible Humanitarian Countermeasures and Opinio Necessitatis’ [1999] 10 (4) European Journal of International Law 791-799; Bruno Simma, ‘NATO, the UN and the use of force: legal aspects’ [1999] 10(1) European Journal of International Law 1-22.

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