Category Archives: Human Rights

Trump’s Travel Bans and Extreme Vetting: How They Violate Basic Human Rights

Caleb Wheeler, PhD Student in International Law, Middlesex University, London

One of Donald Trump’s first actions as president of the United States was to issue an Executive Order banning the citizens of seven Muslim majority countries, Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen from entering the United States for a period of 90 days. He justified the ban on the grounds that it would be detrimental to the United States if citizens of those states were permitted to enter the country while a review was being conducted of the existing screening and vetting procedures utilized to determine whether a person should be issued an entry visa. The implementation of the ban was halted by the issuance of temporary restraining orders by multiple federal district courts, and on 9 February, the Ninth Circuit Court of Appeals refused to stay enforcement of those temporary restraining orders. Unperturbed, President Trump issued a second executive order on 6 March in which he sought to ban citizens from six of the seven countries identified in the first ban (having removed Iraq from the original list) from entering the United States. That executive order was also challenged in Court, and federal district courts in Hawai’i and Maryland again prevented its implementation through the issuance of restraining orders. While much of the attention given to the travel bans focuses on the discriminatory effects they have on Muslims from certain countries, considerably less consideration has been given to the types of screening and vetting procedures the administration wishes to impose and the potential effects these new measures would have on the rights of all travelers to the United States. This blog post will demonstrate that policies requiring foreign travelers to reveal private electronic data are impermissible under United States’ domestic law and international law and should be avoided.

 

Both bans are titled ‘Executive Order Protecting the Nation from Foreign Terrorist Entry into the United States’ and have the stated purpose of improving “the screening and vetting protocols and procedures associated with the visa-issuance process”. The goal of these improvements is to identify those individuals seeking to fraudulently enter the United States, and those that support terrorism, violent extremism, acts of violence towards any group of people within the United States or who prevent a risk of causing harm following entry. A number of specific techniques have been suggested to promote the proper identification of individuals falling into these categories, including: in-person interviews, the creation of a database of identity documents and amending application forms so as to better identify fraudulent answers. More general methods have also been proposed involving the development of mechanisms to determine whether applicants are not misrepresenting their identities, whether they may commit, aid or support violent terrorist acts after entering the United States and a catch-all category permitting the government to use “any other appropriate means for ensuring the proper collection of all information necessary for a rigorous evaluation of all grounds of inadmissibility”.

 

It is these latter, more general, categories that cause consternation, particularly in light of recent media reports suggesting that the new screening and vetting requirements could require foreign visitors to reveal their mobile phone contacts, social media passwords and financial data before gaining entry to the country. According to a senior Department of Homeland Security official, the goal of collecting mobile phone contact information is to learn the identities of those individuals who potential visitors are communicating with. Additionally, the secretary of the Department of Homeland Security previously stated that the purpose of demanding that people reveal their passwords is to allow the United States government to “see what they do on the internet.”

 

These proposals raise significant national and international right to privacy concerns. Domestically, the Fourth Amendment of the United States Constitution prohibits the unreasonable search and seizure of a person’s property and requires that search warrants be supported by probable cause. In 2014, the United States Supreme Court held in Riley v California that the police need a warrant to search the information contained on a mobile phone confiscated during a lawful arrest. That decision was based on a finding that mobile phone owners have a privacy interest in the data contained therein that can only be intruded upon through a valid warrant. Recently introduced bills in the Senate and House of Representatives seek to extend the warrant requirement set out in Riley v. California to searches of “electronic equipment and online accounts” occurring at the United States’ borders. The bills specifically state that there is a reasonable expectation of privacy about a persons’ digital content of their electronic information and online accounts and that it is unreasonable under the Fourth Amendment to permit border agents to access electronic equipment without a warrant. The bills do explicitly limit that right to privacy to “United States Persons” as described in 50 U.S. Code § 1801, a designation which encompasses citizens of the United States, lawful aliens with permanent residence and corporations incorporated in the United States. Despite this limitation, the general proposition remains that the right to privacy limits access to information contained on mobile devices. Further, the Fourteenth Amendment of the Constitution entitles non-citizens to equal protection under the law and the Supreme Court has specifically granted non-citizens the right to challenge government actions infringing on rights delineated in the Constitution. Therefore, any measures requiring individuals to produce that information would be unlawful.

 

International law also invalidates any argument that the right to privacy only extends to American citizens and other lawful residents. Article 17 of the International Covenant on Civil and Political Rights (ICCPR, or ‘the Covenant’), which the United States ratified in 1992, explicitly forbids the arbitrary or unlawful interference with an individual’s privacy. When delineating what sort of information States Parties must put in their reports to the Human Rights Committee, interference was described as unlawful when it does not comply with the laws of the State seeking to interfere with an individual’s privacy, and it is arbitrary when it does comply with the State’s laws, but where those laws are not in accord with the provisions, aims and objectives of the Covenant. The Committee goes on to find that interference with the right to privacy must be reasonable under the particular circumstances and should only be authorised to the extent that it is essential to the interests of society that such information is disclosed. This is a high bar to clear, and requires a case-by-case inquiry into each situation. Therefore, even if it could be shown that the information sought is essential to the interests of the United States, that it is reasonable to infringe on the right to privacy and that the right to privacy as it is understood in the United States does not prevent access to the information, a blanket demand that all foreign visitors provide contact, password and financial information will fail as it will not comply with the required fact specific inquiry.

 

In a 2013 resolution, the General Assembly of the United Nations clarified the parameters of the right to privacy as it pertains to digital information. The General Assembly specifically indicated that it was “deeply concerned” about the collection of personal data and its impact on the exercise and enjoyment of civil rights and emphasised that the unlawful or arbitrary collection of personal information is a highly intrusive act that violates the right to privacy. It called upon all states to respect the right to privacy and to establish measures meant to implement their human rights obligations. Although non-binding, this resolution indicates a rejection by the world community of the sort of measures the Trump administration hopes to impose. The General Assembly resolution also requested that the United Nations Commissioner for Human Rights submit a report addressing the right to privacy in the digital age. Although the resulting report primarily focused on information accumulated through mass surveillance programmes, it did clarify that, in addition to the requirements set out by the Human Rights Committee, any limitation on the right to privacy has to comply with other human rights and must not render the right meaningless. Limitations failing to meet these criteria are considered unlawful and/or arbitrary.

 

Therefore, it is important to examine whether limitations to the right to privacy also impact other human rights. In this instance, the proposed new screening and vetting requirements could act as an infringement on the First Amendment right to free speech. The First Amendment prevents the government from abridging the freedom of speech and allows people to make political statements critical of the government without fear of punishment, unless such statements are meant to incite imminent lawless action or constitute a legitimate threat to the president’s life. Knowing that their private statements could be subject to scrutiny by the United States’ government, and possibly act as a barrier to their entry into the country, could prevent individuals from speaking freely out of fear of the possible repercussions. This is particularly true where, as here, a person can enter the United States is left to the discretion of an individual Customs and Border Protection officer, and entry can be denied even if the traveler possesses a valid visa.

 

The ICCPR also forbids the infringement of free speech, although it characterizes it as two rights: the freedom of expression and the freedom of opinion. The freedom of opinion, as set out in Article 19, is not subject to any exception or restriction, meaning the government is not permitted to infringe upon it in any way. By comparison, the freedom of expression, which includes any type of dissemination of ideas, can be limited for national security reasons. Therefore, the proposed screening and vetting cannot limit a person’s ability to hold an opinion but they can limit whether the person can express that opinion. However, the standard for implementing such a restriction is high and they will only be found lawful if they are necessary to protect national security and are not overbroad so as to exceed their protective function.

 

Screening and vetting procedures that require foreign visitors to disclose private digital information raise First Amendment and Fourth Amendment concerns and are of dubious constitutionality. Further, even if these significant Constitutional issues can be overcome, such measures are also impermissible under international law. That is unlikely to act as much of a impediment on President Trump’s attempts to implement these procedures as he has demonstrated hostility towards international human rights law during his presidency. The best hope to avoid this proposed widespread violation of the Constitution is for the Federal Courts to continue to play their important role in upholding the rights of individuals.

*Picture courtesy of usa.gov

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The 2016 Rojava Social Contract: a Democratic Experiment of Civil and Social Rights in Northern Syria

The region of Rojava, in the north of Syria, also known as Syrian Kurdistan, received international attention for its innovative system of autonomous administration, which was self-proclaimed in January 2014. Through an original Constitution, the so-called Social Contract, the de facto authorities proposed a pioneering political system based on participatory democracy, gender equality, minority rights, ecology and secularism.

After a brief introduction on the region, this post will present the main point of interest from a human rights perspective: the Constitution of Rojava, whose last version, designated as the Social Contract of the Federation of Northern Syria – Rojava, was presented in July 2016. This analysis will then attempt to put the legal instrument in context, presenting its cultural origins. It will, finally, reflect upon the potential impact and broader political and cultural relevance of the political experiment.

The Self-Proclaimed Autonomous Federation of Northern Syria – Rojava

Following years of hostilities with governmental forces, in the context of the Syrian conflict which broke out in 2011, Rojava proclaimed its autonomy from the Syrian Government in January 2014. The Kurdish “Democratic Union Party” (PYD, Partiya Yekîtiya Demokrat‎) led the self-proclaimed autonomous region to elections and to the adoption of its first Constitution: the “Charter of the Social Contract”. The Charter promoted the democratic participation and human rights of minorities within the multicultural region of Rojava, by means of a polity system called “democratic confederalism”. This theory aims to foster coexistence in multicultural societies by transcending the notion of the nation state. The region implemented its autonomous administration without claiming independence, but by choosing to remain part of a united Syria. In May 2014, Daesh started carrying out attacks in the region. The most notable success of the local army, the People’s Protection Unit, YPG (Yekîneyên Parastina Gel‎), was their resistance in the siege of Kobane, one of the three Cantons of Rojava, which lasted from September 2014 to March 2015. The resistance to the siege is considered a turning point in the war against Daesh.

Beyond the military aspect, the most remarkable feature of the region is its innovative system of governance. The system, formalised as the “Charter of Social Contract of Rojava”, was approved in January 2014. The Charter was reformed in July 2016 as the “Social Contract of Rojava – Northern Syria Democratic Federal System” (hereinafter, the Social Contract). The provisions of the reformed version, which is expected to become the definitive Constitution after popular consultation, are examined below.

The Social Contract of Rojava – Northern Syria Democratic Federal System

The first notable element that emerges in the analysis of the grundgesetz of Rojava is that, since its first version in 2014, it has been designated as a “Social Contract” instead of a “Constitution”. The wording refers directly to natural law theory. The expression “Social Contract” implies the idea of an agreement among people aimed to regulate the essential aspects of their coexistence. The name itself distinguishes it from a Constitution, which generally defines the ground norm of States. The notion of the State, and of the nation-state in particular, is presented in the Preamble of the Social Contract as the root of the crises and problems of the people of Rojava. The administration accordingly does not aim to self-proclaim an independent state. At the same time, it does not enter into conflict with the Syrian State but recognizes its territorial integrity and maintains a “tacit alliance” with the government. Article 7 of the Social Contract reiterates that the region does not aim to build a new State. Other rebel groups have criticised the PYD administration for this ambiguous relationship with Assad’s Government.

The Preamble of the 2016 Social Contract lays down a non-exhaustive list of different geographical, ethnic and religious identities living in the community[1]. This marks an improvement from the 2014 version, which listed a closed number of identities solely on an ethnic basis[2]. The Preamble also defines the cultural and spiritual roots of the Rojava society, with a specific reference to the “culture of Mother Goddess”, in addition to apostles, prophets and other spiritual roots, as a means of underlining respect for all spiritual beliefs. Making explicit reference to specific divinities in the constitutional document might be counter-productive for the purpose of building a secular political system, in which different faiths and beliefs coexist. The 2014 Preamble was silent about religious roots and it only called for the construction of a “society free from authoritarianism, militarism, centralism and the intervention of religious authority in public affairs”.

The first 10 articles of the contract establish the basis of the coexistence between different identities within the autonomous region. Articles 10 to 13 concern ecology, protection of the environment and sustainable development. Articles 14 to 17 establish gender equality and the promotion of women participation in all areas of life: in the family as well as in political, social and cultural life. Article 18 specifically covers the promotion of the role of youth in the democratic life of the society. Articles 20 to 40 deal with civil and political rights, including the prohibition of the death penalty and of torture, the right to self-determination, and the principle of non-discrimination, against women and youth in particular. Articles 40 to 54 concern economic and social rights, from free education to specific care for people with special needs. The last part of the Social Contract regulates the institutional side of democratic confederalism: the organization of the democratic participation of people, from the local communities to the Northern Syria Federation.

Participation to the democratic process is guaranteed by a multi-level representation system. The structure consists of Communes, a Neighborhood People’s Council, a District People’s Council, and the Rojava People’s Council. Each level elects co-presidents (the plurality of presidents encourages gender equality and representation of cultural minorities) for decisions pertaining to the local community, and elects delegates which represent them at the higher administrative level. The entire system is grounded on the principles of popular participation and federalism.

Cultural Origins of the Rojava Social Contract

The Social Contract appears to be particularly innovative for the most advanced democratic standards, and more so when compared to its neighboring systems. Kurdish sources insist that the outcome of their political theory and constitutionalism is the result of a shared legislative process, which saw the participation of different parts of the society. It is important, however, not to neglect the role of the Kurdish charismatic leader Abdullah Ocalan as a theorist of the Rojava administration.

Ocalan is among the founders of PKK (Partiya Karkerên Kurdistanê) the Kurdish political force that fought for the independence of Kurdistan from Turkey. The PKK was included by many countries, including the European Union, on their lists of terrorist organizations for their armed attacks which targeted, amongst others, civilians. Ocalan has been detained since 1999 in an isolated Turkish facility. During his detention, Ocalan experienced a deep change in his political thought. Influenced by authors such as Bookchin, Foucault, Wallerstein, and Braudel, he abandoned the Marxist-Leninist ideology that characterized PKK, in order to promote democratic confederalism as the ideal political system to administer multicultural societies. Ocalan authored several books on the matter. In 2006, he rejected the use of violence and proposed the start of peaceful negotiations with Turkey on the Kurdish issue. The crucial novelty in the political struggle, besides the choice of nonviolence, consisted in abandoning the request to establish a Kurdish nation state.

As a former military and political leader, Ocalan maintained a strong charismatic authority on Kurdish people of Rojava, who accepted his nonviolent approach and his democratic confederalist proposal. Despite the participatory processes that characterises institution building in Rojava, the contribution of Ocalan as a political theorist remains decisive to the introduction of principles such as sustainable development, restorative justice, secularism and feminism.

Potential Broader Impact of the Political Experiment

In the midst of the armed conflict in Syria, it is difficult to foresee possible developments in the political system in Rojava. On the one hand, the local administration achieved a certain degree of stability in the region, first gaining autonomy from the central government, then defeating the attacks of Daesh.

On the other hand, the de facto authorities are seeking to improve their legitimacy in the eyes of other Syria rebel forces (which are skeptical of the ambiguous relation between Rojava and the central Government) and also those of the Rojava population, where elections shall take place in 2017.

The main challenge to the potential of the Rojava experience, however, is exclusion from representation at the negotiating table at the Geneva Peace talks, last held in February 2016 and currently suspended. The talks constitute the main international forum where the parties to the conflict in Syria (among which the Syrian government, Turkey, and various rebel groups, but not Daesh) can dialogue and negotiate. UN Special Envoy to Syria, Staffan de Mistura, has accepted the request of Turkey, as well as of other Syrian opposition groups, to exclude the de facto Rojava authorities from the talks. An inclusion to the international forum would have strengthened the Rojava administration, in terms of both its stability in the field and its visibility as an ambitious model, for the international community, to administer a multicultural society.

Conclusions

The Social Contract of the Federation of Northern Syria – Rojava represents an innovative legal system, under an international law perspective, for the Middle East region and for the entire international community. The political success of the Rojava system highly depends on the developments on the field of the Syrian armed conflict. From a cultural and theoretical point of view, however, it already constitutes a model to be followed as an example to administer a democratic and multicultural society.

[1]“We, the people of Rojava: Northern Syria, Kurds, Arabs, Assyrians, Turkmen, Armenians, Chechens, Circassians, Muslims, Christians, Yazidis and various others”.

[2]“We, the people of the Democratic Autonomous Regions of Afrin, Jazira and Kobane, a confederation of Kurds, Arabs, Assyrians, Chaldeans, Arameans, Turkmen, Armenians and Chechens”.

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The European Court’s Grand Chamber decision in Biao v. Denmark: A case of indirect discrimination against nationals of non-Danish ethnic origins

Introduction

Within the context of the on-going EU migration crisis, Denmark has been subjected to huge criticisms with regard to a recent bill that is considered to violate asylum seekers’ fundamental rights. More recently, on 24 May 2016 the Grand Chamber of the European Court of Human Rights (ECtHR) issued its decision in the case Biao v. Denmark, regarding matters of family reunification and held that Denmark had unjustifiably violated the prohibition of non-discrimination towards some of its nationals.[1] The Court found, by twelve votes to five, that there has been a violation of Article 14 of the European Convention of Human Rights (ECHR) read in conjunction with Article 8 of the Convention.[2] The Government had indeed failed to show that there were compelling or very weighty reasons unrelated to ethnic origin to justify the indirect discrimination to which the applicants had been subjected arising from the relevant national legislation.[3] Notably, this decision came after the Chamber, in 2014, had found that the Danish authorities had struck ‘a fair balance between the public interest in ensuring effective immigration control and the applicants’ need to be granted family reunion in Denmark and concluded that there had been no violation of Article 8 taken alone.[4]

In order to reach its conclusions, and consistently with its practice, the Grand Chamber considered ‘instructive’ to interpret the Danish legislation on family reunification in the light of the relevant EU law, including the Court of Justice of the European Union’s case law in the matter.[5] This post aims at examining the Grand Chamber’s decision in light of the recent developments in the relationship between the Courts of Strasbourg and Luxembourg. It will be concluded that the decision in Biao v. Denmark is perfectly consistent with the ECtHR’s practice of not only making reference to EU law and the case law of the Court of Luxembourg, but also verifying the compatibility of national legislations or practice with the ECHR, trying to look at the former through the lens of the relevant EU law or case law. Some comments on the political value of this decision when it comes to Denmark and migration issues are also included among the conclusions.

 

The facts

 

The case of Biao v. Denmark concerns the applicants’ complaint about the Danish authorities’ refusal to grant them family reunification in Denmark. Mr Biao is a Danish national of Togolese origin who is married to Asia Adamo Biao, a Ghanaian national. They live in Sweden and have a son who got Danish citizenship due to his father’s nationality. Their application for residence permit in Denmark and, therefore, their family reunification got refused in 2003 and 2004. The Danish Supreme Court upheld such a refusal in January 2010.

Before the ECtHR the applicants claimed to have been subjected to indirect discrimination in the application of the attachment requirement provided by the Danish Aliens Act as amended in December 2003, which introduced the so-called 28-year rule.[6] Pursuant to such a rule, in order for a Danish national, who has not acquired his/her nationality from the moment he/she was born and that is married to a third country national, to enjoy the privileges associated to citizenship in matters regarding family reunification, he/she needs to prove that he/she has got stronger ties with Denmark than with any other country by residing in Denmark for at least 28 consecutive years. The 28-year rule thus resulted in a differential treatment between Danish-born citizens and other nationals, as Danish nationals who had acquired nationality from the moment they were born were exempted from such a requirement.[7] This treatment was also an indirect discrimination on the basis of race or ethnic origin because persons acquiring Danish nationality later in life ‘would overwhelmingly be of different ethnic origins, that is other than Danish’.[8]

The conclusions of the Court

Having recalled that ‘a difference in treatment may take the form of disproportionately prejudicial effects of a general policy or measure which, though couched in neutral terms, discriminates against a group’,[9] and that indirect discrimination does not necessarily require a discriminatory intent,[10] the Grand Chamber considered it to be a reasonable assumption that people, who have acquired a Danish nationality later in life, would be more likely to be of non-Danish ethnic origins and that, to the contrary, Danish-born people were more likely to belong to the Danish ethnic group.[11]

According to the Court, the burden of proof was then on the Government to show that the difference in the impact of the legislation pursued a legitimate aim and was the result of objective factors unrelated to ethnic origin. Indeed,

‘no difference in treatment based exclusively or to a decisive extent on a person’s ethnic origin is capable of being justified in a contemporary democratic society and a difference in treatment based exclusively on the ground of nationality is allowed only on the basis of compelling or very weighty reasons.’[12]

Although the Court noted that Article 8 ECHR when taken alone ‘cannot be considered to impose on a State a general obligation to respect a married couple’s choice of country for their matrimonial residence or to authorise family reunification on its territory’,[13] it also held that it could apply to the present case what had been concluded in Konstantin Markin v. Russia with regard to difference in treatment on the ground of sex. That is, that ‘general biased assumptions or prevailing social prejudice in a particular country do not provide sufficient justification’.[14] The Court found that similar reasoning should apply to discrimination against naturalised nationals and therefore excluded that the problems relating to integration could be sufficient justification for the 28-year rule.

The Court also affirmed that thanks to Article 5 (2) of the European Convention on Nationality, which has been ratified by 20 states, including Denmark, there was a trend towards a European standard aiming to eliminate the discriminatory application of rules in matters of nationality between nationals from birth and other nationals.[15]

Hence, it concluded that, ‘having regard to the very narrow margin of appreciation in the present case’,[16] the Government had ‘failed to show that there were compelling or very weighty reasons unrelated to ethnic origin to justify the indirect discriminatory effect of the 28-year rule’.[17]This rule indeed has ‘a disproportionately prejudicial effect on persons who acquired Danish nationality later in life and who were of ethnic origins other than Danish.’[18]

EU Law and the ECtHR

It is well known that the two legal regimes pertaining to the EU and the ECHR are quite different when it comes to the principle of non-discrimination.[19] Moreover, although the Treaty of Lisbon, under article 6 (2), provides for the possibility for the EU to accede to the ECHR, in December 2014 the Court of Justice of the European Union (CJEU) issued a negative opinion in this respect. Furthermore, in its recent practice the Court of Luxembourg has increasingly avoided making explicit reference to the ECtHR’s case law.[20] As for the European Convention, according to the CJEU,

‘[i]t must be borne in mind that, in accordance with Article 6(3) TEU, fundamental rights, as guaranteed by the ECHR, constitute general principles of the EU’s law. However, as the EU has not acceded to the ECHR, the latter does not constitute a legal instrument which has been formally incorporated into the legal order of the EU.’[21]

The Strasbourg Court, on its side, has been constantly referring to both EU law and the case law of the CJEU. For instance, in its recent case Arlewin v. Sweden,[22] the Court has pronounced itself on the compatibility of the Swedish courts’ practice in application of Brussels I Regulation (44/2001) with the ECHR. In this respect, it has been observed that:

‘[t]he Court of Strasbourg relies upon the findings of the Luxembourg Court and reaffirms the existence of a direct dialogue between the two jurisdictions, with the first affirming the findings of the second in a noteworthy manifestation of its endeavour to choose –whenever possible- an interpretation of the ECHR that facilitates the proper application of EU law by national authorities.’

Consistently with this view, in Biao v. Denmark the Grand Chamber also took into consideration the relevant EU law and CJEU’s case law. Indeed, although, ‘[t]he rules for family reunification under EU law did not apply to the applicants’ case in August 2004’, the ECtHR noted that:

‘it is instructive to view the contested Danish legislation in the light of relevant EU law. Given that the first applicant has moved to Sweden, by virtue of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the member States, and in the light of the CJEU’s judgment of 25 July 2008 in Metock v. Minister for Justice, Equality and Law Reform (…), the applicants and their child now have a prospect of success in applying from Sweden for a residence permit in Denmark.’[23]

Conclusions

Different legal issues arise from migration, as it is a multifaceted and complex phenomenon. Apart from the current EU migration crisis, which mostly relates to non-EU nationals, some national policies regulating issues concerning migrants can have an impact on the rights of EU nationals. If it is true that the non-discrimination prohibition contained in Article 14 ECHR has not acquired a perfectly overlapping application with the EU non-discrimination legislation, it is also worth noticing that the Strasbourg Court has examined the relevant Danish legislation in the light of the relevant EU law and affirmed that the applicants’ new applications could now possibly have ‘a prospect of success in applying from Sweden for a residence permit in Denmark’.

This decision will probably lead Danish authorities to amend their Aliens Act and abolish the 28-year rule. It is however striking that at a time when ‘no difference in treatment based exclusively or to a decisive extent on a person’s ethnic origin is capable of being justified in a contemporary democratic society’, a national legislation of both an EU member and CoE state has been considered to have indirect discriminatory effects on the sole ground of race/ethnicity.

[1]Case of Biao v. DenmarkApp no. 38590/10 (ECHR, 24 May 2016).

[2]Ibid. at 154.

[3]Ibid. at 138 [emphasis added].

[4]Ibid. at 64.

[5]Ibid. at 135.

[6]Ibid. at 35.

[7]Case of Biao v. DenmarkApp no. 38590/10 (ECHR, 24 May 2016) at 25.

[8]Ibid. at 102.

[9]Ibid. at 103.

[10]Ibid.

[11]Ibid. at 112.

[12]Ibid. at 114 [emphasis added].

[13]Ibid. at 117.

[14]Ibid. at 126.

[15]Ibid. at 132.

[16]Ibid. at 138.

[17]Ibid.

[18]Ibid.

[19] See, e.g., See also European Union Agency for Fundamental Rights, Handbook on European non-discrimination law (Publication Office of the European Union 2011).

[20]OddnýMjöllArnardóttir and Antoine Buyse, Shifting Centres of Gravity in Human Rights Protection: Rethinking Relations Between the ECHR, EU, and National Legal Orders(Routledge 2016) 19-24.

[21] Opinion 2/13, Delivered on 18 December 2014 (full court), at 179.

[22]Case of Arlewin v. Sweden App no 22302/10 (ECHR, 1 March 2016).

[23]Ibid. at 135 [emphasis added]. See also European Union Agency for Fundamental Rights, Handbook on European non-discrimination law (Publication Office of the European Union 2011) 58-59.European-Court-of-Human-Rights.jpg

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The Hutchinson and Hammerton cases. The Human Rights Act within the case law of the European Court of Human Rights

Introduction.

The Human Rights Act 1998 (HRA) is a piece of legislation incorporating the rights set out in the European Convention on Human Rights (ECHR) into UK law. The Act allows individuals to challenge a decision of a public authority within UK Courts, on the grounds that it violates their rights under the ECHR. It places upon domestic courts the duty to interpret all existing legislation in a manner that it is compatible with the ECHR. Whenever this is not possible, the Act allows for a ‘declaration of incompatibility’ to be issued by the UK Supreme Court; however, this declaration does not affect the validity of the legislation contested. This remains exclusive competence of the Parliarment.

The Act was passed into law in 1998 with overwhelming cross-party support and the backing of the then Conservative Party leadership. However, today, the same Act is at the centre of a hot debate originating in the Conservative Party’s intention to repeal this piece of legislation. The Conservative Manifesto 2015 promised to “scrap the Human Rights Act, and introduce a British Bill of Rights” and statements have been made by Prime Minister David Cameron and Home Secretary Theresa May to the effect that the Act constitutes an unbearable intrusion by a foreign Court into UK politics and affairs. Furthermore, Prime Minister David Cameron has declared that the UK may even consider withdrawing from the European Convention system. The upcoming referendum on ‘Brexit’, althought formally unrelated, will probably revive the debate on both issues.

The present post wishes to contribute to the debate on the possibility of repealing the Human Rights Act by discussing its role in relation to the case law of the European Court of Human Rights (EctHR), with specific reference to two recent judgments in which the HRA has played a substantial role.

Hutchinson and Hammerton

Only a very small percentage of the applications lodged against the UK before the ECtHR passes the initial threshold of admissibility: between 1999 and 2010, the estimated number was around three per cent.1 Among inadmissibility decisions, many are motivated by the non-exhaustion of domestic remedies. The exhaustion rule, set forth in Article 35 of the European Convention, expresses a general principle of international law2 and is grounded in the principle of subsidiarity, according to the notion that “it falls, firstly, to the national authorities to redress any violation of the Convention.”3 The rationale behind the rule is to grant national authorities the opportunity to prevent or put right the alleged violations of the Convention.4 Thus, the ECtHR declares inadmissible applications which are not preceded by the activation of available and effective domestic remedies designed to redress the violation(s) contested.

The case law of the ECtHR demonstrates that non-exhaustion of remedies provided by the Human Rights Act often constitutes the ground for the inadmissibility of complaints lodged against the UK.5 Whenever claimants lodge an application against the UK, they must have relied, at least in substance, on the Human Rights Act before British courts in order for their application to be admissible. Accordingly, the Human Rights Act represents an important “filter”, which is capable of preventing the European Court of Human Rights from finding against the UK. British courts, well-aware of the importance of this filter, make use of their powers to interpret domestic law in accordance with the Human Rights Act so as to prevent the possibility that a certain piece of legislation gives rise to a violation of the European Convention.

This happened, for instance, in the recent Hutchinson case, whereby the European Court of Human Rights found no violation of the Convention thanks to the interpretative developments achieved at the domestic level by the Court of Appeal.6 The issue at stake was the indefinite duration of life sentences which, according to the European Court of Human Rights’ case law, is compatible with Article 3 of the Convention (prohibition of torture and inhuman and degrading treatments) only where there is both a prospect of release and a possibility of review.7 In the UK, the Secretary of State has the discretion to release a whole-life prisoner under Section 30 of the Crime (Sentences) Act 1997. However, chapter 12 of the so-called Lifer Manual provides that release can be only ordered if a prisoner is terminally ill or physically incapacitated.8 This restrictive provision has been at the centre of a debate between UK Courts and the European Court of Human Rights.9 Eventually, in R v. Newell; R v. McLoughlin, the Court of Appeal supported a wide interpretation of Section 30, allowing the Secretary of State to exercise his power of release outside the strict limits of the Lifer Manual.10 Acknowledging the importance of such an interpretation, the European Court of Human Rights concluded, in Hutchinson, that “the power to release under section 30 of the 2003 Act, exercised in the manner delineated in the Court of Appeal’s judgments in Bieber and Oakes, and now R. v. Newell; R v. McLoughlin, is sufficient to comply with the requirements of Article 3”.11

The case law of the ECtHR also demonstrates that flaws in the system delineated by the Human Rights Act may result in adverse judgments against the UK. An example can be found in the recent Hammerton case, which originated in a violation of the due process of law: the applicant had been sentenced for contempt of court after a committal hearing where he had not benefitted from the assistance of a lawyer.12 The Court of Appeal acknowledged that the lack of legal representation constituted a violation of the right to legal assistance set out in Article 6 § 3 c ECHR. However, the High Court dismissed the applicant’s claims for damages under common law, noting the lack of malice of the County Court. Furthermore, it refused the applicant’s claim for damages under the Human Rights Act 1998, noting that section 9(3) precludes damages in respect of a judicial act done in good faith, with the exception of damages required by Article 5 § 5 of the Convention, which was deemed not to be applicable in the applicant’s case because the irregularity was not so gross or obvious as to be not in accordance with the law.13 Thus, the applicant had not been afforded appropriate redress, nor it was possible for him to argue that the relevant legislation ought to be read in a manner compatible with Article 13 ECHR (right to an effective remedy) or to seek a declaration of incompatibility, because the Human Rights Act excludes from the scope of “Convention rights” the right guaranteed by Article 13 ECHR. Because of this lacuna in the British system of protection for human rights, the ECtHR dismissed the Government’s objection as to non-exhaustion of domestic remedies and eventually found a violation of Article 6 ECHR (fair trial), because “the domestic remedies available to the applicant in relation to his complaint under Article 6 were not fully “effective” for the purposes of Article 13, since they were not capable of affording adequate redress for the prejudice suffered by him in the form of the lengthened deprivation of liberty”.14

The Human Rights Act and the case law of the ECtHR.

The above mentioned decisions demonstrate the by the Human Rights Act: on the one hand, it represents a valuable tool for adjusting the British legal system to the values enshrined in the European Convention on Human Rights, thereby avoiding adverse judgments by the European Court; on the other hand, it encourages domestic authorities to step in to protect citizens where a lacuna in the domestic law endangers their rights.

A recent study has underlined that the number of adverse judgments against the UK has shown a slight downward trend since 2005, possibly motivated by the entry into force of the Human Rights Act.15 Even though the same study warns that the annual figures are so low that it is not possible to discern a clear trend pre- and post- Human Rights Act, the figures for the years following the release of this study appear to confirm the existence of such a trend. Indeed, in 2011, only eight adverse judgments were released, against 1,553 applications allocated to a judicial formation; in 2012, there were ten adverse judgments against 1,732 allocated applications; in 2013, eight adverse judgments against 912 allocated applications; in 2014 four adverse judgments against 720 allocated applications; and in 2015, four adverse judgments against 575 allocated applications. These numbers confirm the downward trend noted by the study, and also a slight downward trend in the number of allocated applications. It would be beyond the limits of the present contribution to investigate elements such as the number of inadmissibility decisions grounded on the presence of an effective remedy provided by the Human Rights Act: however, the two judgements analysed above clearly demonstrate the relevance that the Act plays in the determinations reached by the European Court of Human Rights.

On a general note, it is worth reiterating that the Human Rights Act was adopted by the UK Parliaments with an overwhelming cross-party majority and that the same European Convention on Human Rights has been the result of the work of prominent British lawyers, such as Sir David Patrick Maxwell Fyfe, a Conservative politician who was the Chair of the Committee on Legal and Administrative Questions of the Council of Europe’s Consultative Assembly from 1949 to 1952. Repealing the Human Rights Act might risk not only increasing the number of adverse judgments by the ECtHR, but also undermining the prominent position established by the UK within the Council of Europe and taint its international reputation as a pioneer in the protection of human rights. Using the words of human rights lawyer Jonathan Cooper, “there is nothing more British than the Human Rights Act. And through it, our values are being woven into human rights law across the globe.

1

A. Donald, J. Gordon, P. Leach, The UK and the European Court of Human Rights,Equality and Human Rights Commission Research report 83, 2012, p 34

2

ICJ, Interhandel (Switzerland v Unted States) Judgment of 21 March 1959; Article 41(1)(c) ICCPR; Article 46 American Convention on Human Rights; Articles 50 and 56(5) African Charter of Human and People’s Rights

3

Gafgen v Germany (GC), App no 22978/05, 1 June 2010; Siliadin v France, App no 73316/01, 26 July 2005

5

Amongst many others, see: Peacock v UK (Decision), App no 52335/12, 5 January 2016; Bahmanzadeh v UK (Decision), App no 35752/13, 5 January 2016; Roberts v UK (Decision), App no 59703/13, 5 January 2016

6

Hutchinson v. UK, App no 57592/08, 3 February 2015

7

Kafkaris v Cyprus [GC] Application no. 21906/04, 12 February 2008

8

Indeterminate Sentence Manual (the Lifer Manual), issued as Prison Service Order 4700

9

R v Bieber [2009] 1 WLR 223; R v David Oakes and others [2012] EWCA Crim 2435, [2013] 2 Cr App R (S) 22; Vinter and others v UK [GC], Apps nos 66069/09, 130/10, 3896/10, 9 July 2013

11

Hutchinson v. UK, App no 57592/08, 3 February 2015

12

Hammerton v UK, App no 6287/10, 17 March 2016, paras 6-15

13

Hammerton v UK, paras 26-35

14

Hammerton v UK, paras 146-147

15

A. Donald, J. Gordon, P. Leach, The UK and the European Court of Human Rights, Equality and Human Rights Commission Research report 83, 2012, p 36

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The European Court of Human Rights decision in Nasr and Ghali v. Italy: Impunity for Enforced Disappearance in Milan

Introduction

On 23 February 2016 the Chamber of the European Court of Human Rights (ECtHR, the Court) issued a judgment in the case of Nasr and Ghali v. Italy. The Court unanimously found Italy responsible for violations of Article 3 of the European Convention of Human Rights (ECHR) (prohibition of torture and inhuman or degrading treatment), Article 8 ECHR (right to respect for private and family life), Article 13 ECHR (right to an effective remedy) with respect to both applicants, and of Article 5 (right to liberty and security) with respect to Mr Nasr.

The Egyptian national Hassan Mustafa Osama Nasr, aka Abu Omar, was granted asylum in Italy and settled in Milan, where he married Ms Ghali. On 17 February 2003 he was kidnapped by a team of agents of the U.S. Central Intelligence Agency, with the cooperation of Italian agents. Leaving from the Aviano U.S. air base, he was transferred, through the Ramstein US air base in Germany, to Egypt, where he was secretly detained and tortured for over 12 months. He was released on 19 April 2004, when he contacted his wife and stated his version of the events. The details of the abduction were later confirmed by proceedings before Italian courts. The Italian judiciary was able to establish the facts, but not to fully dispense justice and prosecute those responsible, because of the shield of state secrecy imposed by the Italian Government. Mr Nasr’s kidnapping is an example of the post-9/11 counter-terrorism practice of “extraordinary renditions”, which, as argued below, can be characterized as enforced disappearances.

This analysis aims to contextualise Nasr and Ghali v. Italy in the broader jurisprudence of the extraordinary renditions cases examined before the ECtHR, while focusing on the findings of the case at stake concerning the responsibility of Italian institutions (namely, the Government, Chief of State and Constitutional Court) in providing impunity to those responsible. Furthermore, it will examine the practice of extraordinary renditions in international law, to establish whether the case can fit the definition of enforced disappearance, and how this could enhance the protection of renditions victims.

Extraordinary Renditions Before the ECtHR

“Extraordinary rendition” refers to the illegal arrests and secret transfers of alleged terrorists from the countries of arrest to black sites, where detainees are subjected to interrogations which include torture or inhuman or degrading treatments. The U.S. carry out extraordinary renditions with the cooperation of several states, with the aim to question “high value detainees” through “enhanced interrogation techniques” that could not be performed on U.S. soil. The practice is secret and, notwithstanding documentation by NGOs and institutions,[1] its details remain largely unknown. It apparently started in the aftermath of 11 September 2001 and was limited, but not abolished, by the Obama Administration with the “Ensuring Lawful Interrogations” Executive Order of 22 January 2009. Within the context of the current electoral debate, Presidential candidates express various and inconsistent opinions about such practice.

Before Nasr and Ghali, the ECtHR had handed down two decisions relating to extraordinary renditions. First, in the 2012 case of El-Masri v. “The former Yugoslav Republic of Macedonia”, which concerned a German citizen, Khaled El Masri, who was arrested by CIA agents the night of 1 January 2004. He was detained in secret, in a Skopje hotel, for 3 weeks and then transferred to Kabul. He was released after 4 months of interrogations. The El Masri case is possibly the most blatant example of an erroneous rendition: the agents mistakenly believed to have arrested and questioned Khalid Al Masri, a person allegedly involved in the 9/11 attacks. The Grand Chamber held that such extraordinary rendition violated a combination of Articles of the European Convention: namely, Articles 3, 5, 8 and 13.

The second decision was issued in the case of Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland and concerned a black site on European territory: Stare Kiejkuty facility. In addition to the violations of Articles 3, 5, 8 and 13 ECHR found in El Masri, the decision referred to Poland’s failure to cooperate with the Court in violation of its obligation under Article 38 ECHR. After the detention in Poland, furthermore, Al Nashiri was transferred to Guantanamo Bay, where he risked facing the death penalty, entailing the violation of Articles 2 (right to life) and 6 (right to a fair trial) of the European Convention, along with Article 1 (abolition of the death penalty) of Protocol No. 6 to the ECHR.

In the most recent Nasr and Ghali, Mr Nasr’s extraordinary rendition has been defined as “the most disturbing case” and “the most grotesque rendition”[2] because of the amount of evidence left by the agents involved.[3] A reporter defined the mission, which involved luxurious restaurants and hotels in Venice and Florence, as “La Dolce Vita War on Terror”. Since details of the operation were available to the prosecutor, and generally to the public, the Court (para 254) found that State secrecy was not relied on to genuinely protect sensitive information, but rather to grant impunity to those responsible. Differently from El Masri and Al Nashiri, the ECtHR (para 265) found that, in this case, domestic proceedings had already taken place, establishing the truth, identifying the persons responsible and securing their convictions (the 4 November 2009, the District Milano Court convicted 22 CIA agents in absentia). However, due the intervention of the executive, the judgments have not been enforced.

Various institutions have hindered judicial proceedings. First, the Italian Government, under successive Presidents, imposed State secrecy over the acts committed by the Italian intelligence agency (SISMI), shielding the agents involved in Nasr’s rendition. In addition, the ECtHR affirmed (para 270) that US agents never sought extraditions. Second, the Chiefs of State (namely, Presidents Napolitano and Mattarella) granted pardons to three US agents involved. Third, the Constitutional Court affirmed the supremacy of State secrecy over any other constitutional concern in two separate decisions (that is, decisions no. 106/2009 and no. 24/2014). In addition to the violations identified in earlier cases, the Court further held that the rendition constituted a treatment towards Ms Ghali, Mr Nasr’s wife, that violated Articles 3 and 8 ECHR.

Extraordinary Rendition in International Law: Possible Characterisation as Enforced Disappearance

Extraordinary rendition as such does not constitute a specific crime in international law. It can however fall within the legal definition of enforced disappearance. Enforced disappearances are defined by Article 7 of the Rome Statute of the International Criminal Court (ICC) relating to crimes against humanity. A broader definition is provided by Article 2 of the International Convention for the Protection of All Persons from Enforced Disappearance (CED), entered into force in 2010, which reads as follows: “For the purposes of this Convention, ‘enforced disappearance’ is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law”. The United States, primary responsible for the practice, are not party to the ICC Statute and have not ratified the CED. Still, extraordinary renditions are perpetrated by nationals, and on the territory, of States that have ratified both instruments, which is the case of Italy.

As described above, extraordinary rendition entails the cumulative violation of a number of rights, in the course of a single, if complex, pattern of conduct. In the ECtHR case law, violated rights include the right to personal liberty and security, the respect for private and family life, the right to access effective remedy, and in certain cases, the right to life. Extraordinary rendition, furthermore, generally involves the perpetration of torture and other inhuman or degrading treatment, which is not a necessary element of the crime of enforced disappearance.

In Al Nashiri (para 520), the Court affirmed that “the rationale behind the program was specifically to remove those persons from any legal protection against torture and enforced disappearance”. In El Masri (par. 240),the Grand Chamber held that “the applicant abduction and detention amounted to ‘enforced disappearance’ as defined in international law”. In El Masri, the Court furthermore found another feature pertaining to enforced disappearances: the right to truth, which should not be obstructed by the concept of State secrecy (par. 191) and has both a private and public dimension.

The characterization of extraordinary renditions as enforced disappearances has various advantages in enhancing the protection of the victims. First, it provides a clear definition of an otherwise complex criminal conduct, which involves a combination of human rights violations; second, it excludes any possible derogation, including cases relating to national security, regularly alleged in these types of counter-terrorism operations; third, when it is contextualized as part of a widespread or systematic attack against a civilian population, it envisages the potential to define the practice as a crime against humanity. 

Conclusion

The decision of the Chamber in Nasr and Ghali v. Italy marked a remarkable step in addressing the issue of extraordinary renditions in Europe. The decision finds state secrecy, which had notably be confirmed by two judgements of the Italian Constitutional Court, not to be compatible with the rights protected by the European Convention. Finally, the possible characterisation of the conduct as enforced disappearance opens new avenues for a stronger protection of the victims of extraordinary renditions.

[1]              Council of Europe, Committee for Legal Affairs and Human Rights, “Secret detentions and unlawful inter-state transfers involving Council of Europe member states, 2007;  European Commission for Democracy Through Law; “Opinion on the International  Legal Obligation of Council of Europe Member States in Respect of Secret Detention Facilities and Inter-State Transport of Prisoners”, 2006.  European Parliament, Temporary Committee on the alleged use of European countries by the CIA for the transport and illegal detention of prisoners, 2007; Amnesty International, Below The Radar, Secret flights to torture and ‘disappearance’, 2006; Human Rights Watch, The United States’ “Disappeared” The CIA’s Long-Term “Ghost Detainees”, 2004.

[2] “La più grottesca extraordinary rendition”, Claudio Fava, “Quei bravi ragazzi”, Sperling, 2007.

[3]Tullio Scovazzi, “Tortura e formalismi giuridici di basso profilo” in Rivista di diritto internazionale, 4, 2006.

 

European court of human rights

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Time and definitions in the interpretation of the ECHR. ‘Private life’ and the legal recognition of post-operative transsexuals

Introduction

The European Court of Human Rights (ECtHR) has jurisdiction over all matters concerning the interpretation of the European Convention of Human Rights (ECHR) and its Protocols,1 but neither the ECHR nor its Protocols give any indication as to the appropriate interpretative techniques. In principle, being an international treaty, the ECHR should be interpreted in accordance with the Vienna Convention on the Law of Treaties 1969 (VCLT).2 However, it has been rightly pointed out that the ECtHR pays only ‘lip-service’ to the interpretative tools of the VCLT.3 The reason lies in the peculiar nature of the European Convention of Human Rights, a law-making, human rights treaty,4 that can hardly be interpreted with the traditional tools of International Law (mainly borrowed by the private law of contracts).5 Therefore, the Court has autonomously developed its own interpretative methodology.

Within this methodology, a central role is played by the principle of evolutive interpretation, according to which ‘the Convention is a living instrument which … must be interpreted in the light of present-day conditions’.6 For this reason, the Court’s evaluation of the infringement of human rights develops in accordance with the changes occurring in the domestic law of the member States and in society.7 The present contribution aims at providing a better understanding of how time significantly impacts evolutive interpretation, and how the latter relates to other interpretative principles.

The analysis focuses on the extension of the notion of ‘private life’ (Article 8 ECHR) to cover certain rights pertaining not only to sexuality, but also to the legal recognition of post-operative transsexualism. The ECtHR’s case law on this topic is an interesting example of evolutive interpretation, because the inclusion of the rights of transsexuals came as a result of a progressive shift in the European judges’ attitude. Furthermore, the extension has been facilitated by the peculiar notion of ‘private life’, thus demonstrating the connection of evolutive interpretation with the autonomous notion principle.

Private life and sexuality

Article 8 ECHR protects the right to respect for private and family life, home and correspondence. Each element of the right has an autonomous meaning under the ECtHR’s case law, because the definition of the legal terms within the European Convention is held to be independent from that in use among State Parties (‘autonomous notions’ principle).8

With regard to the notion of ‘private life’, the ECtHR has established that this concept ‘is a broad term not susceptible to exhaustive definition”.9 Furthermore, it has held that ‘it would be too restrictive to limit the notion to an “inner circle” in which the individual may live his own personal life as he chooses’, and that ‘respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings.’10 Accordingly, the Court acknowledges that ‘private life’ is a notion encompassing not only rights relating to the personal identity of individuals (e.g.: name, honour, reputation)11 but also those pertaining to their social identity. On this basis, the Court recognised the rights associated with the free manifestation of sexual orientation relatively early.12 On the other hand, the extension of ‘private life’ to include the legal recognition of post-operative transsexualism occurred at a much later stage.

Rights of post-operative transsexuals

One of the very first cases in which the Court was faced with a request to protect the rights of transsexuals was the 1986 case concerning Rees, a British citizen who had undergone a female-to-male operation.13 He complained that no provision under British law allowed transsexuals to obtain a modification of their birth certificate in accordance with their new sex. This had certain implications e.g., on their right to marry and on their pension rights. Therefore, in the applicant’s opinion, the lacuna in the British law had infringed upon his right to respect for private life, protected by Article 8 ECHR.

The Court pointed out that the notion of ‘respect’ for private life was not ‘clear-cut’ and that there was little common ground among the Contracting States with regard to the rights of transsexuals, since the domestic law of most States was still ‘in a transitional stage’.14 As a consequence, the Court held that Article 8 ECHR could not be extended so far as to require the United Kingdom to adopt ‘detailed legislation as to the effects of the change in various contexts and as to the circumstances in which secrecy should yield to the public interest’, at least ‘for the time being’.15 At the same time, the Court pointed out that the Convention ‘has always to be interpreted and applied in the light of current circumstances’. On this basis, the Court declared that appropriate legal measures should ‘be kept under review, having regard particularly to scientific and societal developments’.16

In the subsequent case of Cossey (a male-to-female transsexual, complaining about the same lacuna in British law) in 1990, the Court noted that there had been no significant developments since the Rees case. There was still the same ‘diversity of practice’ among Member States, and a departure from the Court’s earlier decision was not justified since there was no change in the ‘present-day conditions’.17 This conclusion, however, was coupled with many dissenting opinions which pointed out the ‘clear developments’ in the law of some Member States, or expressed a desire for a stronger activism by the Court.18

In the 1998 Sheffield & Horshman case, the Court recognized an increased social acceptance of transsexualism, and an increased recognition of the problems which postoperative transsexuals encounter.19 However, the majority of the Court’s judges were still not convinced that the legislative European trends were sufficient to establish the existence of any common European approach to the recognition, at law, of postoperative gender status.20 The rejection of the applicants’ claims was accompanied, again, by dissenting opinions.

The slow, but evident, evolution in the Court’s attitude towards the rights of transsexuals culminated in 2002, with its judgement in the Goodwin case.21 Here, the Court recognized ‘the clear and uncontested evidence of a continuing international trend in favour not only of increased social acceptance of transsexuals but of legal recognition of the new sexual identity of postoperative transsexuals’. The consequence was that the unsatisfactory situation in which postoperative transsexuals lived was considered to be ‘no longer sustainable’, and a violation of Article 8 ECHR was finally declared.22

Conclusion

The right to legal recognition of post-operative transsexualism took twenty years to be established. It is worth noting that the extension of the protection afforded by Article 8 ECHR has been favoured by the ‘undefined’ nature of the notion of private life. Indeed, the evolutive interpretation of the Convention is more easily achieved when legal concepts lack a clear definition. From this point of view, it can well be said that the autonomous notion principle allows the Court to retain a power of non-definition of certain notions, facilitating the extension of those notions to the changing needs of society. Accordingly, one should never look at the developments of the Court’s case law without examining, first, the extent to which the Convention notions are (un)defined; the principle of evolutive interpretation should always be considered together with the autonomous notions principle.

To conclude, time manifests the limits of a historically determined text such as the European Convention of Human Rights. The ECtHR reacts to these limitations by adapting the text to the changing needs of society. The result is assisted by the margin of discretion retained by the Court on the limits of the Convention notions, which, in turn, is strengthened by the autonomous notion principle.

1 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as emended) (ECHR), Art 32

2 United Nations, Vienna Convention on the Law of Treaties (VCLT) 23 May 1969, United Nations, Treaty Series, vol. 1155, p. 331

3 I SINCLAIR, The Vienna Convention on the Law of Treaties (Manchester, 2nd ed, MUP 1984) 140

4 Wemhoff v Germany (1968) Series A no 7

5 LG LOUCAIDES, The European Convention on Human Rights. Collected Essays (Leiden, 2007) 10

6 Tyrer v United Kingdom (1978), Series A no 26, par 31; Marckx v Belgium (1979), Series A no 31, par 41

7 Dudgeon v United Kingdom (1981), Series A no 45, par 23

8 Marckx v Belgium (1979) Series A no 31, para 31; Engel And Others v The Netherlands (1976) Series A no 22, para 81. On this topic, see eg: G. Letsas, The Truth in Autonomous Concepts: how to interpret the ECHR, in European Journal of International Law, 15, 2004, p 279

9 Niemietz v Germany (1992) Series A no 251-B, par 29

10 Niemietz v Germany (1992) Series A no 251-B, par 29

11 Burghartz v Switzerland (1994), Serie A n 280-B; Sanchez Cardenas v Norway, App no 12148/03, ECHR 2007; Pfeiffer v Austria, App no 12556/03, ECHR 2007 ; Schussel v Austria (dec), App no 42409/98, ECHR 2002

12 Niemietz v Germany (1992) Series A no 251-B; Dudgeon v UK (1981) Series A no 45

13 Rees v United Kingdom (1986) Series A no 106

14 Rees, par 37

15 Rees, par 44

16 Rees, par 47

17 Cossey v United Kingdom (1990) Series A no 184, par 40

18 Cossey, (1990) Series A no 184 (Judges Macdonald & Spielmann) (Judge Martens)

19 Sheffield & Horshman v United Kingdom, ECHR 1998-V

20 Sheffield & Horshman, par 57-60

21 Goodwin v United Kingdom, ECHR 2002-VI

22 Goodwin, par 84-90

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The African Court on Human and Peoples’ rights and its case law: towards a Supreme Court for Africa?

  1. Introduction

The African Court on Human and Peoples’ rights’ (hereinafter ‘the Court’) was established in 1998 with the aim to complement the protective mandate of the African Commission on Human and Peoples’ Rights (hereinafter ‘the Commission’).[1] The Court’s jurisdiction ratione materiae covers the interpretation and application of the African Charter on Human and Peoples’ Rights (hereinafter, ‘the Charter’), as well as that of its Protocols and of any other relevant Human Rights instrument ratified by the States concerned. [2] According to article 34 (6) of the 1998 Protocol, the Court can receive cases brought by individuals or NGOs having acquired the observing status before the Commission, but only if the interested states make a declaration accepting its competence. To date, seven African Union States allow individuals and NGOs to petition the Court directly, namely: Burkina Faso, Ghana, Malawi, Mali, Rwanda, Tanzania and Republic of Côte d’Ivoire.

Probably because of this relatively small number of states, so far, the protection of human rights has been largely performed by the Commission through its system of communications. The Court, for its part, has mainly decided on jurisdictional matters, concluding to have no competence because the complaints were brought by NGOs or citizens of states which had not made a declaration based on article 34. [3] Nevertheless, over the last years the Court has started developing its own jurisprudence and acting as if it had powers similar to those which, in a great number of national legal systems, pertain to Supreme courts. For instance, the Court has assessed the ‘constitutionality’ of national legislations and state Constitutions, by using the Charter as a parameter. Moreover, the Court has taken advantage of the generic wording of the 1998 Protocol to develop its powers with regard to reparations. In particular, article 27 of the Protocol provides that ‘if the Court finds that there has been violation of a human or peoples’ rights, it shall make appropriate orders to remedy the violation, including the payment of fair compensation or reparation’. This broad formulation has already led the Court to order states to amend their legislation, or resume the investigation of a criminal case. In the near future, it might also bring the Court to pronounce itself on the legal findings of a national Supreme Court. The present post focuses on the Court’s most recent case law and concludes that the Court could play a leading role in promoting the international rule of law, by granting a uniform application of the international law of human rights in Africa.

  1. The Court’s case law

In the consolidated case of Tanganyika Law Society and The Legal and Human Rights Centre v the United Republic of Tanzania and Reverend Christopher Mtikila v the United Republic of Tanzania, the Court assessed the compatibility with the Charter of certain national constitutional provisions. As the Court has subsequently affirmed in Peter Joseph Chacha v The United Republic of Tanzania, indeed, ‘[a]s long as the rights allegedly violated are protected by the Charter or any other human rights instrument ratified by the State concerned, the Court will have jurisdiction over the matter.’[4] Thus, the Court considers itself competent to assess whether and to what extent national constitutions comply with the African Charter and any other human rights instruments ratified by the state. This is particularly surprising in the light of the trend currently experienced by another regional court of human rights, i.e., the Strasbourg Court, in its dialogue with some ‘nationalistic’ constitutional courts.

In terms of reparations, in Peter Joseph Chacha v The United Republic of Tanzania, the Court has performed some of the functions generally associated with the power of judicial review, which is a prerogative of national constitutional courts.[5] In particular, it has held that ‘[t]he Respondent [State] is directed to take constitutional, legislative and all other necessary measures within a reasonable time to remedy the violations found by the Court and to inform the Court of the measures taken.’[6] More recently, it has gone even further and specifically ordered Burkina Faso how to amend its national legislation. Indeed, in the case of Lohé Issa Konaté v Burkina Faso it required ‘to amend its legislation on defamation by repealing custodial sentences for acts of defamation, and by adapting its legislation to ensure that other sanctions for defamation meet the test of necessity and proportionality.’[7]

Lastly, in December 2014 the Court has condemned Burkina Faso for violating article 7 of the Charter due to the lack of an effective investigation in relation to the death of Norbert Zongo, a journalist killed in 1998 while investigating the former president’s brother. Following this decision, on 5 June 2015, the Court has ordered Burkina Faso ‘to resume the investigations with a view to finding, charging and trying the perpetrators of the murders of Norbert Zongo and his three companions.’ In similar cases, the Strasbourg Court has never gone so far, considering it sufficient declaring the violation,[8] awarding the victims with non-pecuniary damage,[9] or, in case of systemic violations, affirming that is up to the interested State, together with the Committee of Ministers, ‘to identify appropriate general measures to prevent future similar violations.[10] The Strasbourg Court has never, in fact, ordered states to resume an investigation. Notably, other cases before the African Court might constitute an opportunity for the Court to further develop its powers.

One of the most important cases currently pending before the Court is Ingabire Victoire Umuhoza v The Republic of Rwanda. Due to the political implications which may arise from any Court’s decision, this is also a very sensitive case. The applicant, Ingabire Victoire Umuhoza, is a Rwandan leader of political opposition who has been in prison since 2010, when she run for the Rwandan General Elections. She was accused of having committed a number of serious crimes, including: spreading the ideology of genocide; aiding and abetting terrorism; sectarianism and divisionism; and undermining the internal security of a state, spreading rumours which may incite the population against political authorities and mount the citizens against one another; establishment of an armed branch of a rebel movement; attempted recourse to terrorism, armed force and any form of violence to destabilise established authority and violate constitutional principles. She was then condemned to a 15-year imprisonment by the Supreme Court of Rwanda.

Before the African Court, Ingabire Victoire Umuhoza alleges violations of three human rights instruments, namely: the Universal Declaration of Human Rights (UDHR), the African Charter on Human and Peoples’ Rights, and the International Covenant on Civil and Political Rights (ICCPR). Apart from the substantial aspects, this case might allow the Court to shape and stretch again the limits of its mandate. The applicant asks the Court to order Rwanda to: repeal with retroactive effect the two laws grounding her conviction,[11] review the case, annul all the decisions that had been taken since the preliminary investigation up till the pronouncement of the last judgment, release her on parole, and pay costs and reparations. The request relating to the review of the case and the annulment of all the decisions issued by any national courts, including the Supreme Court, might have a significant impact on the shaping of the limits of the Court’s mandate. Indeed, it will be on the Court to decide whether or not it would be appropriate to order the annulment of a definitive judgment by the Rwandan Supreme Court. If the Court upholds this pray, it will put itself in a much more advanced position than the other regional courts. As showed above, the Court has already deemed to be competent to ask states to repeal their national legislation. If, in the Ingabire Victoire case, the Court also orders the review of the case and the annulment of all decisions based on the law that the Applicant preys to be repealed, it will exercise new powers similar to those that are often associated with a national Supreme Court. Interestingly, Rwanda has not claimed that the Court lacks the competence in this regard. Rather, it has based its counterclaims on different grounds, somehow taking for granted that the Court would not act ultra vires.

3 Conclusion

Notwithstanding the very small number of decisions issued so far, over the last years, the Court has progressively become a key actor for the protection of fundamental rights in Africa. Taking advantage of the vague wording of article 27 of the Protocol, and with the general acceptance of all States, the Court has developed its competences and enlarged its mandate to the point of assuming functions similar to those often associated with national Supreme Courts. Therefore, thanks to its broad ratione materiae jurisdiction, which extends to all human rights’ instruments ratified by the respondent state, the Court can potentially end up by guaranteeing a uniform application of the international law of human rights in Africa. It remains to be seen whether and to what extent the Court will keep on enlarging its mandate, in spite of the political sensitiveness of certain cases. The Court’s most recent position in the Zongo case gives good reasons to believe that the Court will go on with its activism.

[1] See article 2 of the 1998 Protocol.

[2] Article 3 of the Protocol. See C. Zanghí, La Promozione Internazionale dei Diritti dell’Uomo (2006) 451.

[3] See Michelot Yogogombaye v The Republic of Senegal App. no 001/2008 (ACtHPR, 15 December 2009); Soufiane Ababou v People’s Democratic Republic of Alger App no 002/2011 (ACtHPR, 16 June 2011); Daniel Amare & Mulugeta Amare v Mozambique Airlines & Mozambique App no 005/201 (ACtHPR, 16 June 2011); Association Juristes d’Afrique pour la Bonne Gouvernance v La Côte d’Ivoire App no 006/2011 (ACtHPR, 16 June 2011); Ekollo Moundi Alexandre v Republic of Cameroon and the Federal Republic of Nigeria App no 008/2011 (ACtHPR, 23 September 2011); National Convention of Teachers Trade Union v The Republic of Gabon App no 012/2011 (ACtHPR, 15 December 2011); Delta International Investments v Republic of South Africa App no 002/2012 (ACtHPR, 30 March 2012); Emmanuel Joseph Uko and Others v Republic of South Africa App no 004/2012 (ACtHPR, 30 March 2012); Amir Adam Timan v Republic of the Sudan App no 005/2012 (ACtHPR, 30 March 2012); Baghdadi Ali Mahmoudi v Republic of Tunisia App no 007/2012 (ACtHPR, 26 June 2012).

[4] Peter Joseph Chacha v The United Republic of Tanzania, Application No. 003/2012 (ACtHPR, 28 March 2014 ) at 114. [5]          R. Rogowsky and T. Gawron, ‪Constitutional Courts in Comparison: The U.S. Supreme Court and the German Federal Constitutional Court (2002) 5-6.

[6] Tanganyika Law Society and The Legal and Human Rights Centre v the United Republic of Tanzania and Application 011/2011 Reverend Christopher Mtikila v the United Republic of Tanzania (Consolidated Applications) Applications No. 009/2011 and 011/2011 (ACtHPR, 14 June 2013) at 126. Similarly, Peter Joseph Chacha v The United Republic of Tanzania Application No 003/2012 (ACtHPR, 28 March 2014) at 82.

[7] Lohé Issa Konaté v Burkina Faso App. No. 004/2013 (ACtHPR, 5 December 2014).

[8]          See ,e.g., Husayn (Abu Zubaydah) v. Poland Application No. 7511/13 (ECtHR, 24 July 2014) at 568.

[9]          See, e.g., Identoba and others v. Georgia Application No. 73235/12(ECtHR, 12 May 2015) at 110.

[10]         See Vasil Hristov v. Bulgaria Application No. 81260/12   (ECtHR, 16 June 2015) at 49.

[11]         Sections 116 and 463 of Organic Law N° 01/2012 of 2 May 2012 relating to the Penal Code, as well as Law N° 84/2013 of 28 October 2013 to the punishment of the crimes of the ideology of the Genocide.African Court

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Grand Chamber judgment in Lambert v France. Personal autonomy within the right to life opens the door to the ‘right to die’

Introduction

On the 5th of June 2015, the Grand Chamber of the European Court of Human Rights (ECtHR) has released its judgment in the case of Lambert v France. The judgment’s core lies in the decision, taken by twelve votes to five, that the withdrawal of Mr Lambert’s artificial nutrition and hydration under the procedure prescribed by French law would not (if implemented) constitute a violation of Article 2 ECHR (right to life).

The facts of the Lambert case and the relevant domestic legislation have been described by this Author in this same blog. Therefore, the present contribution focuses only on the legal reasoning developed by the Grand Chamber. It is worth reminding that the judgment is a unicum in the panorama of the Strasbourg case law, being the first occasion in which the Court has been called to rule on the withdrawal of medical treatments from an adult patient unable to express his will.

The applicants’ standing before the ECtHR

The applicants were the parents and two siblings of Mr Lambert. They alleged that the domestic authorities’ decision to withdraw Mr Lambert’s nutrition and hydration would violate Article 2 (right to life), Article 3 (prohibition of torture) and Article 8 (right to private and family life) of the Convention. As a general rule, applications can be brought to the ECtHR only by the victims of an alleged violation of the Convention rights.1 The Court’s case law allows exceptions in two cases: when the violation is ‘closely linked to a death or disappearance in circumstances allegedly engaging the responsibility of the State’, or when the victims are vulnerable subjects, unable to personally lodge a complaint. In this second case, the Court applies two criteria: the risk that, otherwise, the victim would be deprived of effective protection, and the absence of a conflict of interest between victim and applicant. The Grand Chamber acknowledged the standing of the applicants under the first exception, thus allowing them to claim a potential violation of Mr Lambert’s right to life. Vice versa, it did not admit their standing under the second exception, holding that the two criteria had not been met.

The legal reasoning

On the basis of a subtle distinction between ‘euthanasia’ and ‘therapeutic abstention’, the Grand Chamber decided that the case of Mr Lambert involved only the positive obligations deriving from Article 2 ECHR. In other words, the issue at stake was declared to be whether the French State had taken the appropriate steps to safeguard Mr Lambert’s life (positive obligation), and not whether it had the intention of causing Mr Lambert’s death (negative obligation).

The Court recalled its previous case law on ‘related issues’, highlighting the evolution on the relationship between Articles 2 and 8 ECHR. It then referred to the only two previous cases involving the administering or withdrawal of medical treatments2, assessing that the factors taken into account on those occasions were: the existence in domestic law and practice of a regulatory framework compatible with the requirements of Article 2; whether account had been taken of the applicant’s previously expressed wishes and of those of the persons close to him, as well as the opinions of other medical personnel; the possibility to approach the courts in the events of doubts as to the best decision to take in the patient’s interest.

The Court acknowledged the absence of a consensus among the Council of Europe member States as to whether the withdrawal of ‘artificial life-sustaining treatment’ should be allowed (par 147). Accordingly, it declared that ‘in this sphere concerning the end of life (…) States must be afforded a margin of appreciation (…) as regards the means of striking a balance between the protection of patients’ right to life and the protection of their right to respect for their private life and their personal autonomy’ (par 148).

After having thus defined the context, the Grand Chamber analysed the applicants’ claims. In the first place, they argued that the domestic legislative framework lacked precision and clarity as to its scope of application, and as to the notions of ‘medical treatment’ and ‘unreasonable obstinacy’. The Court considered the relevant legislative provisions and the interpretation given to them by the Conseil d’État, coming to the conclusion that the legal framework thus defined ‘is sufficiently clear, for the purposes of Article 2 of the Convention, to regulate with precision the decision taken by doctors’. As for the decision itself, the applicants alleged that it was vitiated, because the doctors had not tried to compose the contrast between the different positions expressed by Mr Lambert’s family. The Court assessed that the organisation of the decision-making process (including the designation of the person who takes the final decision, and the arrangements for the final taking of the decision) falls within the margin of appreciation of the State (par 168). It pointed out that the process had taken into consideration all points of view (including the presumed wish of Mr Lambert’s himself), and that effective domestic remedies had been available to the applicants.

To conclude, the Grand Chamber assessed that the legislative framework laid down by French law, and the decision taken by the doctors of Mr Lambert on this basis, were compatible with the positive obligations flowing from Article 2 ECHR, in view of the margin of appreciation left to the State in this case (par 181). The complaint raised by the applicants with regard to Article 8 (right to respect for private life) was declared to be absorbed by the one under Article 2.

Analysis

In previous posts on the Lambert case, this Author had anticipated the Grand Chamber’s focus on Article 2 ECHR and on the respect for legal certainty. Indeed, referring to Article 2 (right to life) looked more reasonable than referring to Article 8 (right to private life, encompassing personal autonomy) because Mr Lambert is currently unable to express his will. Furthermore, the focus on legal certainty was predictable because the Strasbourg Court has so far avoided taking a stance on the substance of the issue at stake (i.e., the corret balance between life and dignity). A closer look at the final judgment, however, reveals that these predictable choices hide an interesting mix of parameters, apparently causing contradictions in the Court’s reasoning, but actually pushing further than ever the ECtHR’s position on end-of-life situations.

In motivating the refusal to accept the applicants’ standing in the name and behalf of Mr Lambert, the Grand Chamber declared that it ‘does not consider it established that there is a convergence of interest between the applicants’ assertion and what Vincent Lambert would have wished’. In addition, it declared that there was no risk for Mr Lambert to be deprived of effective protection, because ‘it is open to the applicants (..) to invoke before the Court on their own behalf the right to life’. Such motivation oddly mixes arguments concerning Articles 2 and 8. If the focus were on Mr Lambert’s right to life, no argument could be brought to assess that he and his parents had different ‘interests’. As correctly pointed out by the partly dissenting opinion of Judges Hajiyev, Šikuta, Tsotsoria, De Gaetano and Gritco, obviously Mr Lambert and his parents had similar concerns as regard the protection of his physical integrity. A different conclusion can be reached only if the focus is on the right to private life (Art. 8), hence on Mr Lambert’s right to freely determine the extent of his own life. However, if this were the case, one cannot see how this right would be ‘effectively protected’ by allowing his parents to invoke a different right, namely the right to life (Art. 2). A further contradiction is the following: the Court applied the parameters elaborated in previous judgments involving the administering or withdrawal of medical treatments. Those cases focused on alleged violations of Article 8, which, unlike Article 2, does not entail an absolute right. The use of parameters elaborated in the context of a non-absolute right for assessing whether a certain framework is sufficiently protective of an absolute right is, at the very least, a peculiar choice.

It is this Author’s belief that behind these apparent contradictions in the Court’s reasoning there is actually a conscious choice, grounded on the following assertion:

‘[I]n a case such as the present one reference should be made, in examining a possible violation of Article 2, to Article 8 of the Convention and to the right to respect for private life and the notion of personal autonomy which it encompasses (par 142).

The Court’s previous case law connected Article 8 to Article 2, in order to reach the conclusion that the right to private life entails the right to freely determine the extent of one’s own life.3 What is new in Lambert, is that this connection is reversed, allowing the Court to establish the extent and scope of Article 2 in the light of Article 8. In other words, the previous case law on end-of-life situations is used in Lambert to justify that the content of the right to life is partly determined by the right to private life and by personal autonomy. Even if not evident, this is a considerable opening by the Strasbourg Court to reverse its previous position, according to which the right to life ‘cannot entail, without a distortion of language, the right to die’.4

1 Article 34 ECHR

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Detention of asylum-seekers in the UK: a continuous violation of human rights

Introduction

Immigration detention is the detention of migrants who are seeking entry to a territory, or awaiting deportation, removal, or return from a territory.1 It might affect, inter alia, asylum-seekers; for this reason, EU law and international law have developed standards of protection for the human rights involved, with a special focus on applicants for international protection.

In the UK, immigration detention concerns, in the majority of cases, persons who have sought asylum at some stage during their immigration processes.2 The present post explores how the UK legal system deals with their detention and concludes that the current UK regime infringes the standards of protection set out by EU law and international law on many grounds, and it is in urgent need of reformation.

EU law

The main instruments of EU law regulating the detention of third-country nationals (TCN) applying for international protection are the Reception Conditions Directives3 and the recast Reception Conditions Directives.4 The recast Directives provide detailed rules, allowing for the detention of asylum-seekers only in a limited number of case,5 and only when other, less coercive measures cannot be effectively applied instead.6 They impose specific procedural guarantees on the decision to detain,7 and they require detention to be applied ‘only for as short a period as possible’.8 The UK has not opted in: thus, it is only bound by the less detailed regime provided by the Reception Directives.

Under the Reception Directives, TCNs applying for international protection cannot be considered as ‘illegally staying’ in the EU.9 Limitation to their freedom of movement is allowed only in exceptional circumstances.10 Member States have the duty to provide them with living conditions that are ‘adequate for the health of applicants and capable of ensuring their subsistence’.11 They must also ensure that applicants receive the necessary health care,12 and that persons who have been subjected to torture, rape or other serious acts of violence are granted the necessary treatment.13

It is to be noted that, in implementing EU directives, member states should be guided by the relevant principles enshrined in the Charter of Fundamental Rights.14 The Charter acknowledges the right to asylum:15 however, the European Court of Justice has not pronounced itself, yet, on the implications of this right.

International law

The most important international instrument regulating asylum is the UN Convention relating to the Status of Refugee (RC).16 The Convention precludes the imposition of penalties against refugees coming directly from a territory where their life or freedom was threatened, on the mere account of their illegal entry or presence in the State Party.17 More generally, international law is inspired by the principle that ‘seeking asylum is not an unlawful act’.18 Accordingly, the restriction of asylum-seekers’ right to liberty cannot be arbitrary, and must have a ‘legitimate purpose’ (namely: protection of public order, public health, and national security).19 The decision to detain must be taken on a case-by-case basis, with an assessment of whether it is necessary, reasonable in all the circumstances and proportionate to the purpose.20 Furthermore, national laws must establish a temporal limit for detention.21

In terms of regional Human Rights law applicable to the UK, it is noteworthy that the right to asylum is not enshrined in the European Convention on Human Rights and Fundamental Freedoms (ECHR)22or its Protocols, and no specific provision regulates the detention of asylum seekers.23 However, even if States Parties have the ‘right to control the entry, residence and expulsion of aliens’,24 they must still exercise this right in compliance with their human rights obligations.25 This includes Article 3 ECHR, which provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment.26 When assessing which conditions of detention amount to ill-treatment, the European Court of Human Rights (ECtHR) generally applies greater protection to ‘extremely vulnerable’ persons (such as asylum-seekers).27 Thus, applicants for international protection benefit from additional guarantees under the ECHR system.

UK law

In the UK, the detention of an asylum-seeker can be either criminal or administrative in nature. Under Section 24 of the Immigration Act 1971, any foreigner who ‘knowingly enters the United Kingdom in breach of a deportation order or without leave’ has committed a criminal offence. The Immigration Act also gives immigration authorities the discretional power to decide whether to detain migrants pending an examination of their qualification for entry or their removal or departure from the UK.28

The wide discretionary powers conferred upon UK administrative authorities on immigration detention are partly limited by the ‘Hardial Singh’ common law principles.29 However, there are still other issues, such as the absence of a fixed limit on the time that a person (even an asylum-seeker) may be held in immigration detention.30 In the absence of such a limit, the High Court has found that detention for a significant number of years was not unlawful.31 Moreover, there is no automatic or independent review of the appropriateness, lawfulness, or length of detention,32 and migrants subjected to administrative detention are not automatically brought to court with the opportunity to apply for bail.33

After the 1990s, successive Governments have applied a restrictive immigration regime.34 In the 2000s, the Labour Government expressly declared its intention to ‘introduce a new asylum process, detaining more people’,35 and launched the use of a ‘detained fast-track’ for asylum procedures, targeting ‘failed’ asylum seekers.36 The fast track procedure has now been extended to all claimants for asylum whenever ‘it appears that a quick decision is possible’.37 Obviously, this has radically increased the number of detention cases. 38 Indeed, since this extension, the UK has detained more asylum seekers and for longer periods than any other European State, except Greece.39

UK law and EU/international standards

Although the UK is the European country with the highest number of claimants for asylum protection, its legal system does not comply with many obligations under EU law and international law.

The first issue is the qualification of illegal entry as a criminal offence: all migrants, including applicants for international protection, can be held criminally responsible simply for entering the UK without leave. This provision clearly violates the UN Refugee Convention, which prohibits the imposition of penalties against asylum-seekers on the mere account of their illegal entry or presence in a State Party.40 It also runs counter to EU law, under which applicants for international protection cannot be considered as illegally staying in the territory of the EU, until the end of the procedure examining their application.41

The second issue is the indiscriminate detention of all illegal migrants under the immigration authorities’ wide discretionary powers. The ECtHR has held that the UK policy of assimilating the detention of asylum-seekers to the detention of all other migrants does not, per se, constitute a violation of their right to liberty and security.42 Furthermore, since the UK has not opted in to the recast Reception Directives, it is not bound by the EU provisions requiring Member States to use immigration detention only as a measure of ‘last resort’.43 However, the indiscriminate detention of asylum-seekers under the ‘fast-track’ procedure runs counter to the EU provisions requiring Member States to provide asylum-seekers with adequate living conditions.44 It also violates international law, under which the decision to detain should always be made on a case-by-case basis, with an assessment of whether it is necessary, reasonable in all the circumstances and proportionate to the purpose.45 In fact, the Council of Europe Commissioner for Human Rights has condemned the UK practice of approving detention for the sole purpose of processing asylum applications.46

A third issue relates to the conditions of detention, which are suspected of being degrading and inappropriate.47 International and domestic NGOs have reported that, at the time of being detained, migrants were not told whether there was judicial scrutiny of their detention48 and were not given adequate access to legal representation or funding.49 Additionally, the use of gender-mixed accommodation puts women at risk of sexual violence, and creates distinct problems for children. 50

A fourth issue is that in the UK there is no fixed limit to the time a person may be held in immigration detention. The United Nations Committee Against Torture has urged the UK to ‘introduce a limit for immigration detention and take all necessary steps to prevent cases of de facto indefinite detention’.51 However, no limit has been introduced, either in statute or in case law.

Conclusion

The current UK regime on the detention of asylum-seekers is very poor. Despite clear European and international standards, there is an absence of minimum procedural and substantive safeguards for asylum-seekers. In addition, the State’s unwillingness to opt in to the recast Reception Directives allows situations which, in most EU member states, would be regarded as violations of EU law.

This year, a cross party-group of MPs has ‘called for an end to the indefinite detention of migrants, warning that too many people are being unnecessarily detained, under a system they deemed to be “expensive, ineffective and unjust”’.52 One cannot but share this opinion and hope that future UK governments will work concretely to guarantee better compliance with EU and international obligations. At the same time, the UK should opt in the recast Reception Directives, and bring its regime in line with current EU standards.

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Killer Robots: The future of Lethal Autonomous Weapons Systems

The exponential advancement in technology since the second part of the 20th Century has had a significant impact on warfare. One of the most notable developments has been the increasing autonomy of weapon functions. To date, a variety of weapons with some autonomous functions have been developed, but these largely operate within fairly restricted temporal and spatial contexts. Moreover, they are often used for defensive purposes.[1]  As the technology continues to advance, however, further autonomy could lead to the continued development of a “class of systems capable of selecting targets and initiating the use of potentially lethal force without the deliberate and specific consideration of humans”, known as Lethal Autonomous Weapons Systems (LAWS).[2]

While the use of autonomous robots in war has notable strategic, operational and tactical military advantages, it can have profound consequences on international peace and security, the nature of warfare and the protection of human lives. Between 13th and 17th April 2015, a group of States, civil society members, and experts convened at the second informal meeting on LAWS that was held under the auspices of the Convention on Certain Conventional Weapons (CCW). The meeting addressed some of the most serious legal, technical, security and ethical concerns relating to the use of LAWS, including the implications for international humanitarian law (IHL) and international human rights law (IHRL).

While, currently, States express a clear preference for maintaining humans-in-the-loop, increased research in the field has sparked concerns about the development and future use of LAWS. In the meantime, there is a strong call from parts of civil society to pre-emptively ban Killer Robots due to concerns about their incompatibility with international law and their potential impact on global peace and security. Opponents of a ban, however, argue that it is too early to rule out the possibility that future technological advancements might not only overcome these problems, but could also limit the extent of civilian casualties in conflict. They hold that the existing international legal framework provides adequate safeguards to ensure that weapons systems that would breach international law do not make it onto the battlefield.

In relation to IHL, one of the main questions is whether the use of LAWS could ever comply with the principles of distinction, proportionality, and necessity. The application of IHL on the battlefield is so complex, and the decision-making process so nuanced and situation-dependent, that it would be very difficult for the machines to comply with the law, particularly based upon an algorithm that is necessarily programmed ex-ante.

The difficulty stems from the fact that IHL rules are “unlike the rules of chess in that they require a great deal of interpretative judgement in order to be applied appropriately.” Therefore, for instance, the principle of proportionality “requires a distinctively human judgement (“common sense”, “reasonable military commander standard)”; the realities of a rapidly-changing situation render weighing up military advantages against collateral harm complex. LAWS “lack discrimination, empathy, and the capacity to make the proportional judgments necessary”. The same applies to the assessment on necessity.

Similarly, in relation to the principle of distinction, while “[w]e might like to believe that the principle […] is like a sorting rule […] however complex, that can definitively sort each individual into one category or the other”, in practice, determining whether a person is actively participating in hostilities, thereby rendering them a legitimate target, is far from straightforward. Delegating this assessment to a machine is difficult, if not impossible.

Nevertheless, supporters of continued research into LAWS suggest that future technological advancements might lead to the development of weapons systems capable of compliance with IHL and, additionally, of offering superior civilian protection by relying upon: the advanced technical and sensory capabilities of machines; speed in decision making and action; and clarity of judgment that is not swayed by emotions such as fear or anger. For instance, roboticist Prof. Ronald Arkin argues that “being human is the weakest point in the kill chain, i.e., our biology works against us in complying with IHL”. Subject to future technological advancements, Prof. Eric Talbon Jensen has illustrated the following possible scenario:

Instead of putting a soldier on the ground, subject to emotions and limited by human perceptions, we can put an autonomous weapon which […] tied to multiple layers of sensors [is] able to determine which civilian in the crowd has a metal object that might be a weapon, able to sense an increased pulse and breathing rate amongst the many civilians in the crowd, able to have a 360 degree view of the situation, able to process all that data in milliseconds, detect who the shooter is, and take the appropriate action based on pre-programmed algorithms that would invariably include contacting some human if the potential response to the attack was not sufficiently clear.

Despite the potential benefits that future technologies may bring, however, they are still hypothetical. As the International Committee of the Red Cross (ICRC) has observed, “[b]ased on current and foreseeable robotics technology, it is clear that compliance with the core rules of IHL poses a formidable technological challenge […] there are serious doubts about the ability […] to comply with IHL in all but the narrowest of scenarios and the simplest of environments”. Therefore, while the utopian prospect of LAWS that operate in the best interests of civilians is a possibility, it is by no means a certainty. What is certain is the development of weapons systems with very concerning autonomous functions.

Even in the event of significant technological advancements, delegating life and death decisions to an autonomous machine can create a serious criminal and civil accountability gap.[3]  This would run counter to the preventative and retributive functions of criminal justice; breach the right to an effective remedy; and, in the light of the very serious crimes that can be perpetrated by the machines, it would, arguably, be immoral. It has been aptly observed that  “[t]he least we owe our enemies is allowing that their lives are of sufficient worth that someone should accept responsibility for their deaths”. This poignant reflection holds equally true in relation to civilians and friendly casualties.

For these reasons, there has been a strong drive towards regulating the further development and eventual use of these machines.  Some are advocating a ban on killer robots while others, like the ICRC, are “urging States to consider the fundamental legal and ethical issues raised by autonomy in the ‘critical functions’ of weapon systems before these weapons are further developed or deployed”.

Still, opponents of a ban deem it unnecessary since IHL is “sufficiently robust to safeguard humanitarian values during the use of autonomous weapon systems”.  They argue, for instance that an adequate safeguard against the use of weapons that violate IHL is contained in Article 36 of Additional Protocol I (API) of the 1949 Geneva Conventions which obliges States to determine in the “study, development, acquisition or adoption of a new weapon, means or method of warfare… whether its employment would in some or all circumstances, be prohibited by this Protocol or by any other rule of international law applicable”.

However, proponents of the ban have argued that this is insufficient. Some have suggested that opinion regarding whether Article 36 assessments form part of customary international law may still be divided. Other experts, however, disagree. They argue that customary international law does indeed create an obligation upon all states to carry out the assessment  in relation to new means of warfare acquired, and that a question mainly arises in relation to new methods of warfare. Therefore, they maintain that weapons reviews provide sufficient protection. In any case, it has been argued that an assessment is a corollary of the obligation to ensure compliance with IHL; if the machines cannot comply, they will inevitably breach other provisions of the law when they are deployed .

Nevertheless, from a practical perspective, it is questionable whether Article 36 reviews, which depend on the transparency, openness, and uniform application of IHL to LAWS in such a nebulous context, are sufficient. Moreover, as computer scientist and robotics expert Prof. Noel Sharkey notes, there are serious questions about future consequences on IHL if LAWS continue to be developed while efforts at making them compliant with the laws of war fail.

Furthermore, Article 36 does not sufficiently consider the IHRL implications of LAWS.  In particular, the use of LAWS might lead to a violation of IHRL norms including: the right to life; the prohibition of torture and other cruel, inhuman or degrading treatment or punishment; the right to security of person; and, in view of the fact that a weapons review will not necessarily close the accountability gap, the right to an adequate legal remedy. Finally, proponents of the ban argue that delegating life and death decisions to a machine, effectively “death by algorithm”, violates the basic tenets of human dignity, the principle of humanity and the dictates of public consciousness, therefore, contrary to the Martens Clause.[4]

Discussions on the way forward have centered round the possibility of necessitating ‘meaningful human control’ over the operation of weapons systems.   However, as William Boothby has observed, a machine requiring meaningful human control is not fully autonomous; while useful from a policy perspective, he advised refraining from elevating the concept to ‘some sort of legal criterion’ and suggested focusing on Article 36 weapons reviews. Conversely, supporters of the ban have argued that it is precisely because ‘meaningful human control’ implies that machines are not fully autonomous, and in light of the significant State support for maintaining  such control, that a ban is the most obvious course of action.

At this stage, a consolidated way forward needs to be established before States and private contractors invest too much public and private money, time and energy, in the further development of LAWS, thereby rendering future regulation much more complex. Time is of the essence; the “opportunity will disappear […] as soon as many arms manufacturers and countries perceive short-term advantages that could accrue to them from a robot arms race”. The consequences on civilians, combatants, and international peace and security generally, could be devastating.


[1] For an overview see this 2012 Human Rights Watch report and P.W. Singer’s Wired for War

[2] Although a precise definition of LAWS has not yet been agreed upon, see here and here for their general characteristics

[3] see Human Rights Watch and Harvard Law School’s International Human Rights Clinic’s report Mind the Gap: The Lack of Accountability for Killer Robots

[4] See here for a discussion on some of the challenges  T-1

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