What a week that was! The Human Rights Roundup

11 July 2011 by

Welcome back to the human rights roundup, a regular bulletin of all the law we haven’t quite managed to feature in full blog posts. The full list of links, updated each day, can be found here. You can also find our table of human rights cases here.

by Melinda Padron

In the news – it’s all about the Als

This week the long-awaited judgments of the Al-Skeini and Al-Jedda cases both against the UK before the European Court of Human Rights were finally released. These will undoubtedly be regarded as landmark judgments of the Court.

They raise many fundamental legal issues, including but not limited to: the question of the extraterritorial application of the ECHR, whether responsibility for human rights violations is attributable to military forces of a state when under a United Nations mandate (or only to the UN itself), and how the European Convention on Human Rights and the Law of Armed Conflict/International Humanitarian Law (IHL) apply in times of armed conflict.

Unsurprisingly the judgments received widespread coverage in the media, academic circles and law blogs. For an academic appraisal of the decisions, see William Schabas’ post in the PhD Studies in Human Rights blog. Amongst the legal blogs coverage we have Fiona de Londras commentary in the Human Rights in Ireland, and our posts by Adam Wagner here and here. The BBC reported the story here, as did the Guardian.

If you do wish to read an in-depth analysis of the decisions, we thoroughly recommend Marko Milanovic’s post in the European Journal of International Law blog. Milanovic particularly analyses what the judgments mean in terms of where the ECtHR actually stands in the midst of all of its case law on the question of extraterritoriality.

Amongst the boldest steps taken by the ECtHR in its reasoning is the creation, effectively, of a presumption that the Security Council does not intend to impose any obligation on Member States to breach fundamental principles of human rights. With an unreviewable UN Security Council, this is a significant step forward as it provides a – very limited – form of oversight of the Council’s measures.

The decisions may also pave the way towards allowing the ECtHR to provide some form of accountability for violations of IHL (which may also be violations of the European Convention on Human Rights). As the accountability mechanisms within the IHL framework are generally deeply flawed and/or ineffective, the ECtHR system could serve as both a means of redress for victims of those violations and of guaranteeing that states comply with obligations to investigate and (if warranted) prosecute those responsible for such violations.

We can already envisage some of the consequences of this ruling. With the Detainee Inquiry on the horizon, any findings of unlawful activity or complicity of British agents in prohibited practices which were committed extraterritorialy may now potentially be within the reach of the European Convention (incidentally, see Dapo Akande’s post on Complicity by UK Intelligence Agencies in Torture Abroad in the EJIL blog). These issues are far from being definitively determined and we will surely see more cases relating to these difficult legal questions in the near future.

Phone hacking saga far from over

Last week we also saw that the phone-hacking saga is far from over, leaving us wondering whether this can possibly get any worse. The scandal undoubtedly raises several moral, ethical, political and legal issues. It gives us the opportunity to reconsider the functions of journalism. It is beyond question that the role of brave journalism within a free society is a fundamental one, as stated by Shami Chakrabarti.

The scandal also gives us the opportunity to reconsider the relationship between politicians and the media, something we hope will be addressed in the pubic inquiry which, following calls from prominent politicians, was promised by David Cameron. The Law and Lawyers blog offers and succinct overview of the issue, with various useful links to the many ramifications of the phone hacking scandal, and the Inforrm blog makes the case for statutory regulation.

Professor Richard Moorhead asks an important question which is by no means answered: where were the lawyers in all this?

New head of the European Court of Human Rights

Joshua Rozenberg’s prediction came to fruition and Sir Nicholas Bratza, UK judge of the ECtHR, has been appointed the new president of the court. I do however believe his appointment was not for the purpose of appeasing the anti-ECtHR sentiment surrounding the UK as proposed by Joshua Rozenberg, but because of the judge’s merits. See coverage of his nomination in the ECHR blog and in the Guardian.

The cost of care plans

The case of  McDonald, R (on the application of) v Royal Borough of Kensington and Chelsea, where the Supreme Court held that the Council’s decision to replace a woman’s £22,000/yr night carer with incontinence pads was lawful, generated some very interesting posts in the blogosphere last week.

In particular, Lucy Series wrote yet another great post on the question of dignity and human rights. There is no question that dignity is a key underlying aspect of human rights, and indeed it was enshrined as such in the preamble of the Universal Declaration of Human Rights. But dealing with questions of what is dignity before courts has not been easy. Lucy Series gives two social care cases as examples (one of which is McDonald) and highlights fundamental questions which arise from them such as who decides what is dignified? Does one’s view of what is dignified to him/her matter? Or can others impose their own view of what is dignified irrespective of the view of the person affected by the situation?

Carl Gardner of the Head of Legal blog also commented on the case, concluding:

Judges can if they wish heroically order a particular form of care for people in real need… But if they do, local government and social work soon become merely administrative exercises in implementing the not necessarily very consistent diktats of Whitehall and the courts

See also a related post in Halsbury’s Law Exchange by Craig Rose. Incidentally, the report on Fairer Care Funding produced by the Commission on Funding of Care and Support was published last week. Click here to download it.

And finally

Don’t forget to check out the roundup of last week’s legal news in the Law and Lawyers blog and in Charon QC. And watch out for two very important judgments on secret evidence coming from the Supreme Court on Wednesday – for more background, see Adam Wagner’s most recent post on the topic.

And… finally! Two interesting speeches by Supreme Court judges, Lord Neuberger: Towards a European Law and Lord Hope: Sovereignty in Question.

In the courts (do also check out our case table here):

AL-SKEINI AND OTHERS v. THE UNITED KINGDOM – 55721/07 [2011] ECHR 1093 (7 July 2011)

Iraqi civilians killed during security operations carried out by UK soldiers in Basrah within ECHR jurisdiction as the UK assumed authority and responsibility for security. UK failed to conduct effective investigations into the deaths compatible with Art. 2.

AL-JEDDA v. THE UNITED KINGDOM – 27021/08 [2011] ECHR 1092 (7 July 2011)

Iraqi detained for 3 years by UK forces without trial within Article 1 ECHR jurisdiction of the UK, therefore entitled to the protections of Article 5 ECHR.

McDonald, R (on the application of) v Royal Borough of Kensington and Chelsea [2011] UKSC 33 (6 July 2011)

Supreme Court: Council replacement of woman’s £22k/yr night carer with incontinence pads lawful, no human rights breach. See the Guardian’s coverage of the case here.

Case Comment: R (Cart) v The Upper Tribunal; R (MR (Pakistan)) (FC) v The Upper Tribunal (IAC) [2011] UKSC 28 « UKSC blog

Family Lore: MK v. CK: Relocation application by a care sharer

Father granted permission to appeal against decision to grant mother leave to relocate to Canada with children.

…and don’t forget our recent posts:

1 comment;

  1. ObiterJ says:

    Many thanks for the links to my blog – it is much appreciated. Just a few thoughts on your excellent post:

    The Al-Skeini and Al-Jedda cases are indeed interesting. A key factor in the European Court of HR’s decision is the territorial control which the UK had in Basrah at the time. It seems entirely just and reasonable to attribute responsibility to the UK in those circumstances.

    With UN “blue beret” missions it may be that much would depend on the command and control arrangements. However, I do not see why operations under UN mandate should necessarily remove any liability from the States who supply the forces.

    The UN Security Council makes resolutions and empowers Member states to do various things. Usually, the SC remains apprised of the situation. I submit that it is implicit in all these SCRs that States have to implement the resolution taking due account of all relevant international law. Any doubt as to the interpretation of a SCR should really be referred back to the SC and not, as seems to often happen, decided by national governments to suit their own convenience.

    The Gibson Inquiry is interesting because there was a recent report that some lawyers will not support the inquiry if it is held in secret etc. The UK is a signatory to the UN torture convention. I argue that this places all elements of UK government (in a broad sense) to do all it can to prevent torture. Thus, the supplying of questions by UK agents to agents of many regimes is unacceptable since it is known that those regimes use torture. The previous Labour government did not come clean on this. The present government issued new “guidance” which is, I believe, itself the subject of legal challenge. In these cases, it is the UK government which has personal control over what UK agents are allowed to do. Liability here will not usually depend on territorial control since UK agents operate in many nations over which the UK has no jurisdiction.

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