#3118 - Intro To Human Rights - GDL Constitutional and Administrative Law

Introduction – The Idea of Human Rights

• modern idea: protecting human rights through the law.

- Philosophical explanation: humans have rights just by virtue of being human.

• vs. other bases for rights: citizenship, membership of racial or social group.

- Source of human rights uncertain.

• debate: religious teachings vs. humanist/philosophical traditions.

• but does not matter: no need for formalistic authority as justification – rights derive from humanity, not appeal to any historical process.

- Historical development as legal concept.

• 1. Natural Law and International Law: Enlightenment attempt to explain legal obligations.

  • Natural Law: innate canon of legal values (‘rights of man’) – superior to any national legal rule (e.g. Hobbes, Locke, Paine, Rousseau).

    • vs. idea of (regnal) authority: validity of laws from sanction of ruler.

  • International Law: philosophical basis from Natural Law (no international king) + principle that superior to national law in obligation.

    • mid-17C – 20C: evolution of international law most states accept superiority.

      • international law of human rights as well as domestic liberties/rights.

    • BUT: national law still dominates – inertia.

• 2. 18C Radicalism in National Legal Orders: Revolutions.

  • USA (1776) + French (1789) revolutions declarations of rights.

  • France: revolutionary settlement did not last long.

  • US Constitution: comprehensive statement of rights + judicial mechanism of protection.

    • background: 1776 – Declaration of Independence (inc. individual human rights) 1787 – Constitution Bill of Rights: first 10 amendments to the US Constitution.

    • enforcement: dev. of judicial principles for using HR by US courts wider influence.

• 3. 1945 and beyond.

  • before 1945: some attempts beyond USA to protect rights, but not comprehensive.

    • mid-19C abolition of slavery: trend towards humanising function of rights – but driven by international law (treaties) not much dev. of domestic rights.

    • League of Nations: failure – no viable institution to promote universal rights.

  • 1945: United Nations (UN) – founded to provide mechanism for resolution of int’l disputes.

    • 1948: Universal Declaration of Human Rights (UDHR): only resolution of General Assembly (not ‘law’) – but: universal acceptance binding as customary int’l law?

      • plan for expansion: UDHR as base for binding human rights treaties – slow.

    • 1948: Genocide Convention.

    • 1966: International Covenant on Civil and Political Rights (ICCPR) + International Covenant on Economic, Social and Cultural Rights (ICESCR) – both: inc. reporting + complaint mechanisms.

    • ideal: universal, judicial system of rights protection – so far, modest results.

      • but success: inspiration for more effective regional mechanism.

- Regional arrangements.

• problem – cultural relativism: varying social, ethical + religious traditions of different regions truly international standards of human rights difficult, but regional systems easier.

• Europe: most effective regional system – but: still some problems of cultural relativism.

Background to the ECHR and the need for the HRA

- Background: Council of Europe + ECHR.

• 1949: Council of Europe founded – HQ in Strasbourg, composed of Member States.

  • rationale: post-WW2 need for int’l forum to promote democracy, rule of law + human rights.

• 1950: Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR, ‘the Convention’) adopted by Member States – influenced by UDHR (1948).

  • UK: 4 Nov 1950 – ratified; 3 Sept 1953 – came into force; 1966 – UK individuals given right to lodge complaints under ECHR after domestic remedies exhausted.

• now 47 Member States: N.B. Council of Europe/ECHR not connected to EU (but: all 27 EU members first belonged to Council of Europe) – esp. growth after fall of communism.

• since 1989: 3 main aims for Council of Europe.

  • 1. political anchor + human rights watchdog for post-communist democracies.

  • 2. assisting c. + e. European countries in reform (political, legal, constitutional, economic).

  • 3. providing know-how: human rights, local democracy, education, culture, environment.

- Legal Status of the Convention in Member States

• Convention – international law: designed to empower individuals (+ most states: right of petition) BUT: remains international, not domestic law.

• most European states – monist system: international law binding on domestic legal system + superior to domestic law.

• BUT UK – dualist system: 2 separate legal orders – international law binds state/government, but not directly binding on domestic law/courts international law only significant if:

  • 1. UK before international court: e.g. ECtHR – UK voluntarily placed itself in jurisdiction by signing Convention legal responsibility to comply with rulings under international law.

  • 2. enabling Act of Parliament incorporating international law into domestic system: UK courts obligated to uphold as any other domestic legislation Human Rights Act 1998.

- Need for Human Rights Act 1998: competence, not intent.

• 1950-1998: UK in contradictory position.

  • 1. worst ECHR offender in Europe: until 1990s (Italy, Turkey, Russia worse).

  • 2. BUT: followed judgments + recommendations of ECtHR: rectified identified failings promptly + fully.

• need for HRA 1998: good faith of UK in meeting obligations, but: lack of competence of UK judges + UK parliament in developing laws.

Structure of the European Convention of Human Rights

- ECHR: 3 sections.

• Section I: ECHR seeks to protect civil + political + some social rights.

  • Art 1: states must ‘secure to everyone within their jurisdiction’ the defined rights.

  • Arts 2-14: list of rights + freedoms.

    • Art 2: right to life.

      • exceptions: capital punishment; absolutely necessary use of force (defence from unlawful violence; to arrest fugitive; lawful action to quell riot/insurrection).

    • Art 3: prohibition of torture.

    • Art 4: prohibition of slavery + forced labour.

    • Art 5: right to liberty + security (inc. right to speedy trial when arrested).

      • exceptions: lawful arrest + imprisonment.

    • Art 6: right to a fair trial.

    • Art 7: no punishment without law.

    • Art 8: right to respect for private + family life.

    • Art 9: freedom of thought, conscience + religion.

    • Art 10: freedom of expression.

    • Art 11: freedom of assembly + association.

    • Art 12: right to marry.

    • Art 13: right to an effective remedy (before national authority).

    • Art 14: prohibition of discrimination.

  • Art 15: derogations in time of emergency.

• Sections II and III

  • Arts 19-57: procedural aspects of operation of Convention.

- Rights: no formal hierarchy, but can be divided into 3 categories.

• 1. absolute rights: cannot be legitimately interfered with by the State – Arts 3 + 4.

• 2. limited rights: can be interfered with by State in prescribed circumstances (‘limitations’ in article).

• 3. qualified rights: can be legitimately interfered with in broader circumstances (2^nd para of article).

  • Arts 8-11: interference allowed under prescribed conditions – must be legally authorised + proportionate (‘necessary in a democratic society’) response.

- The European Court of Human Rights (ECtHR): judicial arm of the Convention.

• permanent court: own judges + rules of procedure; languages: English + French.

• judges: elected by Parliamentary Assembly of Council of Europe, from nominees from states; tenure – 6 years + can be re-elected.

• composition:

  • Committees (3 judges): determine admissibility of applications;

  • Chambers (7 judges): determine admissibility + merits of applications;

  • Grand Chamber (17 judges): det. requests for review of judgments or matters where Chamber passes up jurisdiction – constituted for 3 years; only deals with serious issues.

• Committee of Ministers: supervises execution of final judgments.

- Procedures for bringing an application.

• 1. jurisdiction and locus standi

  • who may lodge application?

    • Art 33: any state party to ECHR.

    • Art 34: ‘any person, NGO or group of individuals’ claiming to be victim of violation of EXHR by contracting state.

      • no requirement of citizenship: Art 1 – ‘jurisdiction’ enough (e.g. tourist) – R (on app. of Abassi) v SoS for Foreign and Commonwealth Affairs.

  • exceptionally: claim for acts outside geographical jurisdiction of contracting state.

    • Al-Skeini and Others v UK [2011]: relatives of 6 Iraqi civilians killed by UK forces in Basra in 2003 – arguing breach of Art 2.

      • R (on app. of Al-Skeini and Others) v SoS for Defence [2007]: HoL – ECHR protects rights outside jurisdiction only in v. limited circumstances 5/6 claims fail because of insufficient control (6^th: Baha Mousa – in UK jurisdiction because killed while in custody).

        • analogy with embassies: Bankovic v Belgium [2007] ECHR ruling.

      • Al-Skeini and Others v UK: ECtHR widened scope of jurisdiction – degree of control in Iraq by UK military sufficient to render subject to ECHR.

        • cf. similar approach: Al-Jedda v UK [2011] – Art 5.

    • R (on app. of Smith) v SoS for Defence [2010]: Supreme Court – rights of UK armed forces more limited – TA private who died of heatstroke because of bad advice + treatment not protected because death result of conditions in field.

      • but N.B.: CoA had applied a personal jurisdiction test – covered; + inconsistent with recent Al-Skeini v UK decision?

  • standing: to be ‘victims’ (Art 34) applicants must be…

    • directly affected by in/action of state – Klass v Germany [1978].

      • exceptional circumstances: indirect – e.g. relatives of deceased re: Art 2.

    • ‘persons’ (inc. legal persons, e.g. corporations) – The Sunday Times v UK [1979].

      • N.B. organisations can only bring action when...