Bringing Rights Back Home – Again? – Aidan O’Neill QC
9 March 2011
At the end of the Wizard of Oz Dorothy manages to find her way back from the land of Oz to her farmstead in Kansas by closing her eyes, clicking the heels of her ruby-red slippers together, and repeatedly murmuring the incantation “There’s no place like home; there’s no place like home …”.
In his Bringing Rights back home: making human rights compatible with parliamentary democracy in the UK (Policy Exchange, 2011) the political scientist Dr. Michael Pinto-Duschinsky attempts a similar feat, seeking to bring human rights back from the Land of Stras(bourg).
Lord Hoffmann’s foreword
In his commendatory foreword to the work, Lord Hoffmann states that:
[T]he most admirable part of Mr. Pinto-Duschinsky’s work is his discussion of how we might extricate ourselves from the jurisdiction of the Strasbourg Court. On the whole the tendency has been to say that there is nothing to be done. We are stuck with the Convention and the European Court of Human Rights and unless we are willing to cast ourselves as a pariah state and get expelled from the European Union, we must accept the court’s jurisdiction. But Mr. Pinto-Duschinsky shows that the situation is not so hopeless and there are means by which, with sufficient support from other States in the Council of Europe, we can repatriate our law of human rights. It is worth a try.
Dr. Pinto-Duschinsky certainly tries, in his Chapter 4, to set out a legal case for the possibility of the UK remaining a full member of the Council of Europe – and of the European Union – while repudiating the jurisdiction of the European Court of Human Rights but, contra Lord Hoffmann, it is not a case which stands up to any sustained legal examination.
Withdrawing from Strasbourg jurisdiction while remaining a signatory of the ECHR
Dr. Pinto-Duschinsky acknowledges that since the Protocol 11 emendations to that the European Convention on Human Rights (“ECHR”) came into force on 1 November 1998 all contracting States to the ECHR are obliged to accept – and do nothing to hinder the effective exercise of – the right of claimed victims of violations of their ECHR rights to apply to the Strasbourg Court under Article 34 ECHR. But he asserts, rather weakly, that “this would not prevent the UK’s attempting to negotiate … a position” of “remain[ing] a signatory of the ECHR without accepting the jurisdiction of the Strasbourg Court”. Rather bizarrely, he goes on to assert that “the projected measure would apply to England and Wales alone, unless the government were to undertake the more drastic step (sic) of amending the devolution acts.” Can he seriously be suggesting that Strasbourg’s authority and jurisdiction in the UK should be restricted to anywhere but England ? Such a suggestion certainly has novelty value, if little else to commend it.
Somewhat surprisingly, Dr. Pinto-Duschinsky makes no mention of the fact that Strasbourg Court has jurisdiction under Article 33 ECHR in cases brought by one Contracting State alleging breach of the provisions by another Contracting State. Ireland, of course, brought such a case against the UK in relation to the Convention compatibility of interrogation techniques used in the 1970s by British army personnel against certain detainees in Northern Ireland. It is not clear whether he recommends the UK’s repudiation of this jurisdiction also. Nor does he offer any assessment of how this might be done within the context of remaining within the ECHR and/or the Council of Europe. This is unfortunate given that any amendment of the ECHR would require the unanimity of all of the current member States of the Council of Europe. But why should they agree en masse to the kind of UK go it alone opt-out from Strasbourg jurisdiction which Dr. Pinto-Duschinsky appears to commend ? Or is he instead, suggesting instead the complete abolition, for all, of the European Court of Human Rights ? But again, why should the other Council of Europe State agree to this ? Some deeper analysis, or at the very least consideration of this issue, would have been welcomed.
Repudiating the ECHR while remaining a member of the Council of Europe
Dr. Pinto-Duschinsky notes that all new candidate members of the Council of Europe are obliged to sign up to the ECHR – and hence to the full individual and inter-State jurisdiction of the Strasbourg Court – but he would have it that no such requirement can be applied, as a matter of law, to original founding members of the Council of Europe such as the UK (or, indeed, Turkey). He does recognise that “there undoubtedly would be strong objections from the Council of Europe were the UK to consider rejecting the jurisdiction of the European Court of Human Rights” but contends that “they would be based on political and diplomatic rather than legal ones”. This is because, he says, that Article 3 of the Statute of the Council of Europe – which obliges every member of the Council of Europe to “accept the principle of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms – does not constitute a “clear legal provision …. which would oblige the UK to cease being a member [of the Council of Europe] were it to withdraw from the ECHR”. He offers no authority – or argument – for this proposition.
But then, one wonders, why bother ? If his wish is to withdraw (some of) the UK’s legal systems from Strasbourg supervision, what point is there in seeking to remain within the Council of Europe ? Would it not make much more sense – at least from Dr. Pinto-Duschinsky’s perspective – simply for the UK to exercise its residual Kompetenz-Kompetenz as a sovereign state and just make a clean break with it? After all, as one neo-Atlanticist Parliamentarian has observed, the United States is not a member of the Council of Europe.
Repudiating the ECHR while remaining a member of the European Union
But the heretofore radically novel proposals of Dr. Pinto-Duschinsky rather peter it in his third argument – which is, if anything, his weakest from a legal perspective – to the effect that withdrawal from the ECHR would not have any consequences for the UK’s continued membership of the EU.
Article 3(5) TEU of the Treaty on European Union (“TEU”) states that “in its relations with the wider world, the Union …. shall contribute to … the protection of human rights… as well as to the strict observance and the development of international law”. Article 6(1) TEU provides that “the Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights (“CFR”) of 7 December 2000 … which shall have the same legal value as the Treaties” and Article 52(3) CFR requires that those Charter rights which correspond to rights already guaranteed by the ECHR be given the same meaning and scope as, and no lesser degree of protection than that provided under the ECHR. In Case C-400/10 PPU J. McB. v L.E. 5 October  ECR I-nyr at paragraph 53 the Third Section of the Court of Justice of the European Union (“CJEU) interpreted ed this provision of the Charter as meaning that where Charter rights paralleled ECHR rights the CJEU should follow any clear and constant jurisprudence of the European Court of Human Rights.
Article 6(2) TEU also specifies that “the [European] Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms.” And Article 6(3) TEU state that “fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law”. Dr. Pinto-Duschinsky appears to be aware of the terms of some of these provisions but not, perhaps, of their meaning and import. For example, all that he says of Article 6(3) TEU that “the meaning and implication of this are far from clear”. The bibliography to his piece would appear, alas, to indicate he has paid no regard to the extensive and well-developed fundamental rights case-law of the Court of Justice of the European Union (CJEU) from which this phrase is a direct quotation, nor to the vast literature critically commenting on this line of CJEU jurisprudence.
Article 49 of the post-Lisbon Treaty on European Union (“TEU”) states that “any European State which respects the values referred to in Article TEU 2 and is committed to promoting them may apply to become a member of the Union”. The values listed in Article 2 TEU include “respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities… values [which] are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice and solidarity and equality between men and women prevail.” Provision is made – in Article 7(3) TEU and Article 354 TFEU – for the possibility of suspension of certain of the Treaty rights (but not obligations) of a Member State which has been found to be in serious and persistent breach of these principles. And under Article 260 TFEU, the EU Court has the power to impose financial penalties – in cases brought by the Commission – against a Member State for its failure to fulfil an obligation incumbent upon it under the Treaties. Thus the binding nature of EU law is ensured not simply by political pressure, but also by specific legal sanction.
Dr. Pinto-Duschinsky accepts that “if the United Kingdom withdrew from the jurisdiction of the Strasbourg Court and, if, for this reason, it was obliged to denounce the ECHR treaty in order to do so, it is conceivable that the other members of the European Union would vote unanimously that this action constitute a ‘risk of a serious breach’ of the core values of the EU” but blandly goes on that “it is hard to imagine” and “barely conceivable” that withdrawal from the jurisdiction of the European Court of Human Rights “would trigger such a response”. But it might have been easier for Dr. Pinto-Duschinsky to exercise his imagination if he had alluded to the only previous occasion in which these EU suspension powers have been invoked.
It was the mere possibility of the participation in the government of Austria (in coalition with theAustrian Peoples Party) by the far-right Freedom Party then headed by Jörg Heider in 2000 resulted in the invocation of the procedures for the suspension of Austria from full participation in the European Union under the then applicable provisions of Article 7 of the EU Treaty: (see, more generally, Alison Duxbury “Austria and the European Union: the report of the three wise men”  Melbourne Journal of International Law 10). And even if the other Member States were not minded to invoke the provisions of Article 7(3)/354 TEU, the possibility of the Commission bringing this issue before the CJEU by way of an Article 260 TFEU court action remains. The point about the EU is that (EU) law trumps (Member States’) politics. But these issues are given no consideration by Dr. Pinto-Duschinsky.
Dr. Pinto-Duschinsky accepts that “were a country to denounce the convention treaty, it would still be bound by its membership of the EU to adhere to the terms of the Convention in matters falling under EU jurisdiction”, but says that “this in itself would not necessitate its individual adherence to the Convention”. He fails, however, to give (or take) any account of the extent of the breadth of the impact of EU law within the member States. A quick glance at Article 3 of the Treaty on the Functioning of the European Union (“TFEU”) shows that EU has “exclusive competence” in the following areas: customs union; the establishing of the competition rules necessary for the functioning of the internal market; monetary policy for the Member States whose currency is the euro; the conservation of marine biological resources under the common fisheries policy; and common commercial policy.
Article 4(2) TFEU goes on to include among the areas of “shared” competence (where, if the EU decides to act, it pre-empts the Member States’ competence and occupies the field) the following: the internal market; social policy for the aspects defined in the Treaty; economic, social and territorial cohesion; agriculture and fisheries (excluding the conservation of marine biological resources); environment; consumer protection; transport; trans-European networks; energy; the European area of freedom, security and justice (which includes criminal law, asylum/refugee law and immigration law); common safety concerns in public health matters for the aspects defined in the Treaty. Finally, Article 6 TFEU lists among the areas in which it would be competent for the Union “to carry out actions to support, co-ordinate or supplement the actions of the Member States” the following: “protection and improvement of human health; industry; culture; tourism; education, youth, sport and vocational training; civil protection; administrative co-operation”.
The difficult thing within the contemporary legal systems of the EU Member States (including those of the United Kingdom) is to find an area of law which falls outside the ambit of EU law, rather than to define and delimit those areas which fall within it. What this means is – at least that once the EU signs up to the ECHR – vast swathes of law within the UK would continue to fall within Strasbourg jurisdiction because within the ambit of EU law, regardless of whether or not the UK might take up Dr. Pinto-Duschinsky suggestions of repudiating the ECHR and/or discontinuing its membership of the Council of Europe.
In his Preface and Acknowledgement Dr. Pinto-Duschinsky writes:
I am most grateful to Policy Exchange … for asking me to write on this important topic. n part I was chosen because I am not a lawyer but a political scientist. …. This project has forced me to learn a great deal that is new to me but is bread and butter to constitutional lawyers.
[T]he doctrine of parliamentary sovereignty deserves continuing reverence. Thus cornerstone of our democracy has been undeservedly attacked, not least by elite circles of human rights experts, lawyers and employees of public interest bodies.
How a modern liberal polity can properly reconcile the demands of majority-rule with the continued effective protection of the fundamental rights of individuals and (often unpopular) minorities is perhaps the most important political, constitutional, legal – and indeed moral – issue – of our (post-Nuremberg) time. It is to be regretted that Dr. Pinto-Duschinsky’s Bringing Rights back home fails to grapple with (or indeed to understand) the complexity of this issue, whether from a legal or from a political perspective. There is much work to be done on this topic. But unlike Dorothy’s, Dr. Pinto-Duschnisky’s repeated incantation of the unique virtues of home does not do that work. It turns out that we’re not in Kansas anymore.
This post first appeared on the UK Supreme Court Blog and is reproduced with permission and thanks.
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My concern about this proposed commission – (and we have yet to see any official announcement) – is that it will be precisely the circle of eminent people to which Dr P-D refers. A commission of the legal and political great and good. Everyone should be fully entitled to comment and this commission should give as many people as possible the opportunity to do so. Frankly, I do not expect that it will do so.
The European Convention is much more than statements of principle. They are “rights” and therefore interference by the State with those rights has to be strictly justifiable. In my view there is a big difference between a principle and a right though the two are clearly interlinked. The Convention is worded in a very different style to the traditional detailed legislative approach adopted by the UK – (numerous sections + schedules + subordinate legislation + Codes of Practice etc). Nevertheless, the convention style is one which are now much more used to working with than was the case in Lord Denning’s time. He retired in 1982 and we hardly every even looked at the European Convention in those far away days!! Only occasionally did some case from the distant Strasbourg court impact on our senses.
Denning was absolutely right about the law of what is now the EU when he referred to it as an incoming tide. I was never sure that his Lordship was speaking as a King Canute however. He appeared to almost welcome it and was a leader in trying to adapt us to it.
Without the living instrument approach the Convention would be stuck in the past. For instance, a “family” would still be only man/wife/child(ren) but now has a much wider interpretation. Laws against homosexuality were readily accepted when the Convention was first drafted in 1952. In attitudes towards this we have seen a sea change. Application of the living instrument approach requires care since clear evidence is needed that the views have altered and the judges should, I submit, only follow and not try to lead.
I think that talk of leaving the Convention / Council of Europe or the EU is premature. One suspects that the Commission will seek some “middle way” with the Convention.
Other interesting aspects of Dr P-D’s document relate to holding hearings re appointments to the Supreme Court etc. The document is worth revisiting to look at those ideas.
On derogation – the government’s and the popular press’s ire is frequently expressed in frustrated terms at the inability to deport foreigners to countries where there is a real risk of torture – Chahal v. The U.K and Ramzy v The Netherlands.
See Joint Committee On Human Rights Nineteenth Report – Section 2 The Prohibition on Torture –
“[24.] The Government has stated that it does not wish to tamper with the absolute [i.e. non-derogable] nature of the prohibition of torture or deportation to face torture. … Such statements sit uneasily, however, with the argument made in the Government’s intervention in Ramzy, which advocates the revision of Chahal on the grounds that:
If [the Chahal] judgment is accepted as currently understood, in a case in which substantial grounds are shown for believing that there is a real risk of ill-treatment in a receiving State, it is not possible to remove a person believed to threaten the Contracting State and its citizens through terrorism. …
[25.] This explicitly advocates the permissibility of deportation to face a real risk of torture. It is an argument which has far-reaching consequences for protection against torture. There must also be concern that any dilution of the absolute prohibition on torture in cases involving national security considerations will have an impact beyond that category of cases, and lead to a further erosion of the absolute nature of the right to freedom from torture, in cases where other pressing policy considerations apply. … Indeed, in Canada the Suresh [v Canada] exception has been relied on by the federal Government to justify deportation of a convicted criminal on grounds of public safety rather than national security. … ”
The Committee concluded:
“…  We reiterate our view … that the absolute nature of the prohibition on torture precludes any balancing exercise between considerations of national security and the risk of torture. In our view, the principle established in Chahal v UK is essential to effective protection against torture, and accordingly should be maintained and respected.
27. We consider it unlikely that the Government will succeed in its attempt to secure a revision of the Chahal decision. We note that even if the Government were to succeed, the absolute prohibition on torture, and on expulsion to face a real risk of torture, would in any event remain binding on the Government under the Convention Against Torture, and any expulsion carried out despite a real risk of torture or inhuman or degrading treatment would be likely to breach these obligations.”
This issue was determined in the case of Saadi v Italy, another case in which the UK Government intervened.
The issue at hand was whether terror suspects could be deported if there was a ‘real risk’ that they might be tortured on return.
The JCHR was correct in it’s assessment that the UK Government’s arguments would not succeed…
More is the pity, as far as everyone else is concerned. Once again any notion of the social contract seems to have been lost. A foreign national within the UK’s borders owes obligations to obey the law. If he or she plots acts of terror then that is a rather severe breach of the law, to say the least, and should result in expulsion whatever the consequences for the individual concerned.
Imagine you grant sanctuary to a person fleeing a violent household. Of course that is an admirable act, indeed an act of basic humanity. But suppose he or she then plots to blow up your children because of her religious beliefs. Most of us would not feel inhuman in ceasing to offer hospitality, even if it means the person may return to a violent household. It would be tragic that one would be reduced to balancing a person’s right not to be assaulted with another’s right not to be murdered, but it’s an imperfect world.
John Dowdle – in response to your earlier question @2:49, Article 15 of the ECHR provides for derogations “in time of emergency”. The really fundamental rights are non-derogable (see Article 15(2)) and any derogations in respect of other Convention rights should be only to the extent “strictly required by the exigencies of the situation.”
This later point is justiciable before the courts- see: A v Home Office, December 2004, where the House of Lords accepted that there was a “state of emergency” but not that the measures employed by the State were strictly required.
Denning predicted in the 1960s that European law would sweep across from the continent and then progressively work its way up every river, tributary and stream to work itself right the way across the whole of Britain.
His concerns were dismissed by most then leading politicans but time has proved him to be right.
It is time that people – and, in particular, the media – finally made their minds and either put up or shut up on the issue of whether or not we are part of Europe.
I think we have reached the point where it is becoming inconceivable that Britain would quit the EU but that does not mean we should not have an informed debate about the issue, with a resolutiion in the form of a referendum.
Over time, it becomes more and more unlikely that we will be able to disentangle ourselves from Europe in order to reclaim our national and parliamentary sovereignty.
National autonomy for us is a disappearing certainty.
Given Rosalind English’s civil and polished critique of Michael Pinto Duchinsky’s (MPD) report last month (http://ukhumanrightsblog.com/2011/02/09/its-time-we-packed-our-bags-at-strasbourg-says-report/), I question the need to reproduce this hostile and nitpicking piece by Aiden O’Neill QC.
MPD acknowledges that he is not a lawyer at the outset. He has, nonetheless, produced an interesting analysis of the current operation of the European Convention on Human Rights. This is because the questions raised are as much political as legal, and therefore commentators, such as Mr O’Neill should at least try to avoid falling into the habit of sounding exactly like the rather arrogant ‘elite circle of experts’ that MPD has identified.
Those commentators who would argue, as Lord Donaldson once did, that it is the job of the judges to ensure that the government of the day does not exceed its powers, may well be correct. Indeed, in an interesting speech promoting the merits of the Strasbourg court the other year, Lord Justice Sullivan did exactly that (noting the failings of the UK courts on the issue of the DNA database, Control Orders etc).
But that is not to say that one should not question whether the judiciary exceeds its own powers, while cloaking itself in fine words about the rule of law. Peter English correctly points out that principles contained in the ECHR were drafted by British lawyers. But as Lord Denning identified “the Convention is drafted in a style very different from the way in which we are used to in legislation. It contains wide general statements of principle.”
It is the use made of these wide ranging statements of principle that is at issue here. When used to protect fundamental legal rights most rational people are in agreement that they are a good thing. But what do we mean by “fundamental” and what when they are used for rather less obvious purposes, such as to ban crucifixes in classrooms in Italy?
Both MPD (and Lord Hoffmann) have identified dangers in the ECHR being used as a “living instrument” granting progressively higher levels of protection to rights and freedoms and having less regard to Member States’ “margin of appreciation”. One has to be careful how far one wishes to emasculate the democratic branch and how much power should be transfered to the judiciary.
As for Mr O’Neill’s comments, while the point on the EU is well made, one questions the need to resort to ad hominem attacks. MPD has produced an erudite and well researched report that does not descend into the gutter of tabloid politics or sensationalism. When one reads inaccurate nonsense in the Daily Mail, by all means mock it mercilessly. But when one reads a well crafted document, one should seek to grapple with its overarching message in a civil fashion.
It is a shame that Mr O’Neill could not maintain that tone in his piece.
I think you miss the point here, there is a seperation of powers, the judiciary in the form of the human rights act have been given the power by Parliament to interpret legislation, if possible to make it compliant with the HRA, and if not to return it for further discussion, they have also been given the power to strike down secondary legislation. If Parliament is at anytime unhappy with this devolution of power it is quite within its rights to ammend or change current legislation to remove the courts power, after all it gave it to them in the first place! However to date it has chosen not to, you must ask yourself why? You must not confuse the poltical rhetoric that comes after a higher court (or ECtHR) ruling against the Government with an acceptance of the Courts expertese in these matters. Do they always get it right? Of course not from certain subjective points of view, they never do, or can, that is the nature of judicial decision making. Should our Government have a check or balance on it, of course, when we have so little seperation of powers with the executive and legislative being one and the same, without the judicary who is there to protect the individual?
Olddog,I don’t wish to offend, but I’m afraid it is you who may have missed my point.
The report is aimed (at least in the main) at the Strasbourg court…
When the ECtHRs establishes new human rights ‘norms’ where are the checks or balances? With the ‘living instrument’ approach there is no legal certainty and the encroachment of rights in areas which are very contested (and not always clearly ‘fundamental’).
Whatever ones views on the EC, there are a whole host of checks and balances with the Parliament, Commission etc. In contrast, where the Strasbourg court makes a ruling, it becomes final and sometimes there is no clear way for national authorities to legislate around the problem.
Olddog I think it is you who has become carried away with the rhetoric.
The European courts apply much more ‘liberal’ interpretive techniques than the UK courts, and of course the Convention is drafted in such wide terms the ECtHR has enormous scope to make such rulings as it chooses. The idea is that it is supposed to leave states a ‘wide margin of appreciation’ to comply with its rulings (in most cases anyway, less so than with say Art 3), but of late the court has been less and less inclined to give that margin and more and more inclined to micromanage legal systems – one of the central themes in the paper discussed in the main post above.
With Parliament there is always the ballot box to remove a government which gets carried away with itself. With the court there is no stopping it, short of withdrawing from its jurisdiction.
This may seem unlikely, as indeed would full withdrawal from the EU, but then again no-one in 1984 would have said the Soviet Union had less than a decade left. It fell apart because of a collapsing economy, an excessive central bureaucracy, a failing war in Afghanistan and the rise of nationalism in its constituent states. Not like the EU at all then …
While I agree with Peter’s response above that we are not UK citizens – only subjects of The UK Crown – it could be argued that we are all now EU citizens.
This lack of understanding on the part of many UK nationals is understandable as these constitutional points have not been made obvious to most people living in the UK.
This is why – arguably – there should be a referendum on continuing membership of the EU. The costs and benefits of EU membership have never been fully explained and discussed with the UK electorate, who have – in the main – been given the “mushroom” treatment on the issue.
There is a line to be drawn between politicans and judges.
Politicans formulate the laws and judges interpret them.
I am not sanguine about vesting all power of legal and constitutional determination solely in the hands of judges.
Apart from anything else, it could be an unwelcome and unwanted burden on their part
There has to be a balance of power between politicans and judges. If either has too much of it, then it is as well to remember the Acton adage that “power tends to corrupt, and absolute power corrupts absolutely”.
Governments, no matter how they start out, always start wanting to oppress their citizens. And in the UK we aren’t even citizens; we’re subjects.
It would be madness to allow our own government to over-ride the ECHR.
Even if we do think a few things done in the name of the ECHR seem strange or objectionable, it’s surely far better to have the decision-making done by a more disinterested party than to allow our own government to rule in this area.
This applies to any one government, of course. The advantage of ECHR is that [representatives of ] no one government, but rather of several, make the decisions, based on a set of principles that were drafted by, err, British lawers.
Like Dr. Pinto-Duschinsky, my background is in political science and not in law. However, it is my understanding that it is possible to obtain agreed derogation rights under the ECHR.
If the UK finds satisfying some of the terms of the ECHR too onerous is it not possible for the government to obtain a temporary derogation from some articles or parts of articles of the ECHR?
*sigh* yes I suppose they could, but it would make the whole point of having a human rights act a bit point pointless….Imagine applying this thought to say…speed limits…I’m portant to have 30mph in a built up area, but when I’m late wouldn’t it just be ok just speed…Of course not…Human rights are about curbing the accesses of governement or executive power against the individual, hence when they work against the govenment, they tend not to like it!…Also currently derrogations are only allowed for certain rights, for example you cannot derrogate fro the right not to torture, and those you can should only be used in a national emergency ‘threatening the life of the nation’ and then only as much and for as long as is needed to overcome or until the emergency situation has passed. Human rights cannot be simply by passed over because it becomes a bit difficult for the Government…In any event what rights would you want to derrogate from why and for how long?….What is it about human rights we seem to have such problems in accepting?
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