Category: Human rights

UDHR@75: Article 14 and Climate Refugees

Climate Change, Human rights, Inequalities, Refugees, UDHR

Photo credit: Priscilla Du Preez

This blog forms part of a series celebrating the 75th anniversary of the Universal Declaration of Human Rights (UDHR). Recognising the numerous conflicts and the daily breaches of human rights taking place across the globe, this series aims to highlight both the challenges and the opportunities to respect, protect and fulfil the human rights elaborated in the UDHR.

 

 

Article 14 and Climate Refugees 

Article 14(1) of the UDHR

‘Everyone has the right to seek and to enjoy in other countries asylum from persecution.’

Article 14 of the Universal Declaration of Human Rights (UDHR) states that people have the right to seek asylum from persecution. This right traditionally applies to those who are persecuted due to race, religion, nationality, membership of a particular social group or political opinion, as specified in the subsequently adopted Refugee Convention. However, the understanding of what necessitates seeking asylum has evolved over the last 75 years since its inclusion in the UDHR. In the 21st century, this is now changing again to adapt to new challenges such as climate and environmental displacement. According to the Institute for Economics and Peace, current predictions suggest that by 2050, there could be 1.2 billion people displaced from climate and environmental threats, making climate refugees a ‘top priority’ for the UNHRC going forward.  

Throughout its history, the right to asylum in the UDHR has evolved to encompass situations beyond its original understanding. Internally displaced persons (IDPs) are an example that demonstrates the dynamic nature of the right to asylum. IDPs are individuals who are forced to relocate on similar grounds as refugees, although they do not cross international borders. Despite bearing similar protection needs described in Article 14, internally displaced persons (IDPs) were not traditionally considered under the asylum framework. However, international protection gradually became applicable for IDPs, expanding the grounds for receiving protections under this right. Additionally, this framework has recently been applied to people displaced by natural disasters. Although the term “refugee” has been avoided, the support processes share many similarities with those of refugees and have therefore also been addressed under this framework. 

The ongoing changes to international protection needs that emerge as a result of climate change threats suggest the necessity to broaden the scope of Article 14. Inhabitants of certain island nations, such as Kiribati, have already needed international protection due to displacement from rising sea levels. However, with a traditional understanding of asylum, it remains difficult to extend protections to people displaced by environmental factorscreate an applicable framework to resolve the discrepancy between the need and access to protection. The current use of the asylum regime in state practice and the acknowledgement of the limitations of a persecution-based understanding of protection demonstrates both the opportunities and challenges of utilising this framework for future problems. 

The future is expected to bring an increasing number of individuals impacted and displaced by climate change and environmental threats. As a result, it is imperative to develop how international law can support these individuals. The past success of Article 14 and the broader asylum framework to adapt dynamically to changing necessities demonstrates its applicability in addressing climate refugees. Since the need for international protection remains the same from the traditional understanding of refugees to climate refugees, Article 14 is becoming highly significant in the search for solutions to this global problem.  

 

As part of the GJA UDHR@75 celebration, we invited present and past students to contribute their personal reflections on the relevance of the UDHR today. This blog is by Şükrü Kağan Sürücü and Lucy Tomkins. They are PhD Law Candidates at the University of Edinburgh.

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UDHR@75: Right to Effective Remedy

Human rights, Incorporation, Right to Remedy, UDHR

Photo credit: Priscilla Du Preez

This blog forms part of a series celebrating the 75th anniversary of the Universal Declaration of Human Rights (UDHR). Recognising the numerous conflicts and the daily breaches of human rights taking place across the globe, this series aims to highlight both the challenges and the opportunities to respect, protect and fulfil the human rights elaborated in the UDHR.

 

 

Right to Effective Remedy 

Article 8 of the UDHR

‘Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.’

The right to an effective remedy is the bedrock of human rights protection, offering a lifeline to those victimized by violations. It ensures access to justice through domestic courts, a critical element in upholding the rule of law and societal order. Without this avenue, vulnerable individuals are left without recourse, paving the way for unchecked impunity and the perpetuation of human rights abuses. However, pursuing an effective remedy isn’t a straightforward path, often proving practically unattainable, particularly for victims facing multiple violations or encountering legal and bureaucratic obstacles. Factors like exorbitant court fees, unfair time constraints, restricted legal aid, or the inability of domestic courts to apply international human rights law due to unincorporated treaties pose significant challenges, a reality observed in Scotland’s legal landscape. 

I was nominated by the University of Edinburgh’s School of Law for a Work-based Placement, in lieu of a traditional dissertation, to explore access to justice in collaboration with the Human Rights Consortium Scotland. This immersive experience delved deep into Scotland’s legal dynamics, emphasizing the complex relationship between the Scottish Government and the UK’s central Government, the limitations surrounding international human rights law within domestic contexts, and, most crucially, the barriers individuals encounter daily while accessing justice. At this pivotal juncture, the Scottish Government faces an opportunity—considering the incorporation of core human rights treaties. This step could empower the people of Scotland to assert their rights fully, especially in cases concerning economic, social, and cultural rights, thereby reinforcing the right to an effective remedy. 

My professional background in Sweden’s public sector and multiple publications on the topic of international criminal justice align closely with the insights gained during this program. In short, the necessity of the right to an effective remedy is as fundamental as core human rights such as the right to not be arbitrarily detained or the right not to be discriminated against. It serves as the linchpin ensuring the practical applicability of human rights, tearing down barriers for victims of abuses, and transforming the abstract as well as aspirational content of human rights treaties into tangible, actionable rights.  

The evolution of human rights and the ongoing quest for meaningful protection remain in constant flux. National contexts present diverse challenges at different stages of advocacy. Yet, this diversity underscores the immutable truth—human rights efforts must never stagnate. Despite past progress, the call to fortify human rights and advocacy remains unyielding. In conclusion, the right to an effective remedy is not merely a legal doctrine; it is a shield for the oppressed, a beacon guiding justice, and a cornerstone of a society built on fairness and equality. Scotland’s stride toward incorporating core human rights treaties could mark a transformative leap toward equitable justice. It’s a testament to the evolving landscape of human rights—an evolving journey where stagnation finds no room. The pursuit of justice and the fortification of human rights remain perpetual endeavours, resonating with the essence of Article 8—never static, always advancing. 

 

As part of the GJA UDHR@75 celebration, we invited present and past students to contribute their personal reflections on the relevance of the UDHR today. This blog is by Alexander Pedersen, who graduated from the LLM in Human Rights in November 2023.

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UDHR@75: Recognition Before the Law

Human rights, UDHR

Photo credit: Priscilla Du Preez

This blog forms part of a series celebrating the 75th anniversary of the Universal Declaration of Human Rights (UDHR). Recognising the numerous conflicts and the daily breaches of human rights taking place across the globe, this series aims to highlight both the challenges and the opportunities to respect, protect and fulfil the human rights elaborated in the UDHR.

 

 

 

Recognition Before the Law 

Article 6 of the UDHR

‘Everyone has the right to recognition everywhere as a person before the law.’

Article 6 is beautiful in its simplicity and profoundly important. It underpins all other rights within the UDHR. It is premised upon two interconnected ideas, that a person retains their humanity and the protection of human rights regardless of where they are on our planet, transcending borders; and that everyone is entitled to recognition as a person before the law.

A person has human rights, no matter where they are. Whether you are a ‘tourist, a student, a refugee or an immigrant,’ Article 6 brooks no distinctions upon the basis of nationality, citizenship or statelessness. Where human rights are premised upon nationality or citizenship, they are often denied to entire groups of people due to ethnicity and religion, such as the Rohingya in Myanmar. Statelessness becomes an unwanted gift of disenfranchisement, passed down to the next generation.

Historically, a denial of personhood in the law has been the handmaiden perpetuating the slave trade, colonialism, and the annihilation of indigenous peoples and their way of life; utilised to exclude women, persons with disabilities or with mental health issues, children and victims of enforced disappearance such as those in Argentina, from the succour of the law.

Article 6 underpins all other rights within the UDHR. It is the foundation upon which a person can hold rights such as equality within marriage (Article 16), own and dispose of property (Article 17), have their privacy and bodily integrity respected (Article 12) and rely upon their rights and seek redress when they are violated (Article 8). A denial of personhood before the law, means that a person no longer has rights, but is dependent upon charity, a state of vulnerability and likely servitude.

As a human rights lawyer, having represented people, who the law has historically denied personhood to – women, children, persons with physical disabilities and mental health issues; this is an article of faith for me.

 

As part of the GJA UDHR@75 celebration, we invited present and past students to contribute their personal reflections on the relevance of the UDHR today. This blog is by Smita Shah. Smita is a PhD researcher at the University of Edinburgh, examining how child fair trial rights are implemented by military courts. She has practised as family law and international human rights law barrister at Garden Court Chambers, UK.

[1] Article 16 ICCPR, Article 15(2) CEDAW, Article 24 of Convention on Migrant workers, Article 12 on Convention of Rights of persons with disabilities, and Article 5 of African Charter, linked to slavery.

[2] Shah, S ‘The Legal Status of Intersex Persons in India and the Decision of the Supreme Court of India’  in (Eds) Jens M. Scherpe, Anatol Dutta, Tobias Helms The Legal Status of Intersex Persons, (Intersentia 2018)

 

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UDHR@75: Dignity Brings About Change

Crime and Criminal Law, Global Justice Academy, Human Dignity, Human rights, incarceration, Punishment, UDHR

This blog forms part of a series celebrating the 75th anniversary of the Universal Declaration of Human Rights (UDHR). Recognising the numerous conflicts and the daily breaches of human rights taking place across the globe, this series aims to highlight both the challenges and the opportunities to respect, protect and fulfil the human rights elaborated in the UDHR.

 

 

 

Dignity Brings about Change 

Article 1 of the UDHR 

‘All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.’ 

When I was a prisoner at 19 in Taiwan, I slept on the floor of my cell between two other men. We did not have running water and so filled buckets to use for cleaning and washing. Twice a week we were allowed 20 minutes of exercise. We had no rights which I was aware of, but I felt deeply that this was not how people should be treated and convinced it would not reduce reoffending.  

I was eventually transferred to prison in the United Kingdom which had its own challenges. Prisoners would queue at a shuttered window clutching a stinking prison jumper or wet pair of joggers to trade for a fresh one, only to be told there weren’t enough to go around. During the Beast from the East, I piled everything I had around me, including a damp towel, so I wouldn’t freeze to death as there weren’t enough blankets. Days would sometimes pass without being let out of our cells, and when we were, we had to choose between a shower, posting important forms, or exercise. Grime and slime coated the showers, with only the foolhardy or unfortunate braving them barefoot. Dignity was nowhere to be found.

I reached an open prison and was elected by my fellow prisoners to lead the Prison Council. I was determined to act with reason and conscience to change the injustices which had so grated on me – and to discover new injustices and fight those also. Previously the Council had been viewed as self-serving, but I endeavored to change that, and proceed in the spirit of brotherhood.  

Alongside my co-leader, we set up targeted forums to identify issues affecting prisoners. Black, Asian, and minority ethnic offenders felt they were being overlooked for jobs within the prison. We drafted, negotiated, and implemented a new employment policy which ensured that all jobs were properly advertised and interviewed for. Prisoners complained of swarms of rats, lack of heating in winter, and broken showers. We liaised with the works department and put-up posters informing people of how to report such issues, which resulted in faster fixes. We held regular meetings with senior management, sat on the prison equalities board, and lobbied for better access to work and education. Essential forms for day or overnight release were overcomplicated, creating barriers to rehabilitation for those offenders with poor literacy. We leveraged the goodwill we had built up with management and were permitted to rewrite the forms ourselves to be far more accessible. The improvements I secured made the prison safer, more effective, and not by coincidence – more dignified.  

Despite what some in Government would have us believe, we should not be meeting demand for prisons, but reducing it. When we take a person’s freedom that they were born into, we must not rob them of their dignity also. For it is dignity which inspires hope, and hope which inspires change. 

 

As part of the GJA UDHR@75 celebration, we invited present and past students to contribute their personal reflections on the relevance of the UDHR today. This blog is by Chris Walters. Chris is a law student and Longford Trust scholar.

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The Ruth Adler Human Rights Lecture 2023 – Ms Mama Fatima Singhateh

Child participation, Children's Rights, Human rights, Incorporation, International Law, Sale and sexual exploitation, Scotland, Sexual Violence, UK, UNCRC

 

On 14 March 2023, the Global Justice Academy hosted the Ruth Adler Human Rights Lecture by  Ms Mama Fatima Singhateh, the UN Special Rapporteur on the Sale and Sexual Exploitation of Children. Focussed on the importance of child participation, she talked about her functions as Special Rapporteur, the human rights law regulating the principle of participation, the importance of applying this principle and the challenges and opportunities it faces. The connection between Ms Singhateh’s work as Special Rapporteur and focus on children’s participation is highly relevant here in Scotland in light of the role of child participation envisioned in the pending UNCRC Incorporation legislation and the Committee on the Rights of the Child’s most recent Concluding Observations on the UK’s implementation of the UNCRC.Ms Mama Fatima Singhateh is being presented by Dr Kasey McCall-Smith, Director of the GJA.

The Special Rapporteur began by explaining her functions: In annual reports to the UN Human Rights Council and UN General Assembly on thematic studies, she addresses thematic issues such as the sexual exploitation of children online, sexual exploitation of children in travel and tourism, including in the context of major sports events; the sale and sexual exploitation of children through prostitution and child trafficking; and sale of children for illegal adoption, transfer of organs, child marriage and forced labour. Furthermore, she analyses the root causes of the sale and sexual exploitation of children, identifies new patterns of the phenomena, exchanges good practices to combat this scourge, promote measures to prevent it, and make recommendations for the rehabilitation of child victims and survivors of sale and sexual exploitation, primarily targeted towards Governments, UN bodies, the business sector and non-governmental organisations. In addition to the annual reports, the Special Rapporteur undertakes country visits, sends out communications to States and other stakeholders on individual cases of reported violations and concerns of a broader nature, engages in awareness-raising and advocacy to promote and protect children’s rights, provides advice for technical cooperation, and contributes to the development of international human rights standard. In exercising these functions, the Special Rapporteur prioritises access to child-friendly spaces. Furthermore, she dialogues with children and hears their thoughts on the issues her mandate addresses.

Then, the Special Rapporteur turned to the issue of child participation and the human rights law regulating the topic. Children’s participation is a principle emanating from Article 12 of the UNCRC on the right to be heard. Even though the UNCRC does not expressly use the term’ child participation’, she affirmed that ‘the term has evolved and is now widely used to describe ongoing processes, which include information-sharing and dialogue between children and adults based on mutual respect, and in which children can learn how their views and those of adults are taken into account and shape the outcome of such processes.’  The Special Rapporteur also referred to the UNCRC, in general terms, as the most widely ratified human rights treaty in history. She recognised that children’s lives had been transformed by the UNCRC but affirmed that ‘there is, however, more work to be done to better promote and protect the rights of all children’. Finally, she made a particular reference to the UNCRC Incorporation (Scotland) Bill: While celebrating Scotland’s bold step in fully incorporating the UNCRC into Scottish legislation, she noted that the Scottish government must ensure that it follows through by reintroducing revised legislation so that effective implementation can begin.

When referring to the importance and application of child participation, the Special Rapporteur reminded the audience of the extent of article 12 of the UNCRC: ‘Children have a right to participate in any decision-making process affecting them as well as influence decisions taken on their behalf’. She affirmed that participation helps children develop confidence in their worldviews and value. Additionally, she recalled practical approaches that have created positive changes in ways of working with children, such as using child-friendly spaces and forums and including them in public policy development and monitoring.

End FGM

Scottish Women’s Right Centre

A concrete example helped the audience to clearly understand Ms. Singhateh’s argument. The case was about role that children participation played in work carried out by an NGO against female genital mutilation (FGM). She explained that this secret practice was part of an initiation rite in a particular country. From focus groups with girls between 12 to 18 years old, the NGO learned about FMG and the rejection and embarrassment that it caused among them. With the active involvement of children, the NGO proposed restructuring the rite towards an ‘initiation without mutilation’. This turned into a successful campaign that produced a change in the places where it intervened and that was replicated in other communities. The lesson the Special Rapporteur takes from this example is ‘that deliberate and strategic actions to facilitate and create a conducive environment for children to participate in decisions about their lives can make a great difference in how the world perceives, protect, and promote their rights’.

In the last part of her lecture, the Special Rapporteur addressed the challenges and opportunities to child participation. By taking the audience through real-life stories she learned from survivors during her country visits, she highlighted the importance of raising awareness of the different manifestations of sexual abuse and sexual exploitation. She also referred to the government’s responsibility to design child protection policies that provide education and awareness raising, as well as ensure children have access to professionals where they can speak freely on any issue happening to them at home. In addition, she highlighted the need to provide professionals with skills and tools to effectively communicate with children, especially victims and survivors who have suffered abuse. Ms Mama Fatima Singhateh with Dr Kasey McCall-Smith and students from human rights the legal clinic

The Special Rapporteur also recommended involving children as trainers and facilitators of child participation and explained how they could participate at international-level gatherings designed for children and adults. Ms Singhateh concluded her lecture by ’emphasising the need to provide children with the opportunity to be heard, influence decision-making and achieve change’.

In line with the practical approach that Ms Singhateh gives to her mandate, she also accompanied the director of the GJA, Dr Kasey McCall-Smith, to a session of the human rights clinic. Students working on issues relating to the prohibition against torture and child rights budgeting were able to share their work with her and receive her questions and comments.

Ms Singhateh’s mandate as Special Rapporteur on the Sale and Sexual Exploitation of Children was extended for another three years. We look forward to reading more about her innovative efforts on enhancing children participation in her endeavours on promoting and advancing their human rights.

 

 

Valentina Rioseco Vallejos

This post was written by Valentina Rioseco Vallejos. Valentina is a Chilean lawyer who holds an LLM in Human Rights from the University of Edinburgh. She is currently studying a PhD in Law, focused on incorporating a human rights approach to irregular migration. Valentina is a Research Assistant for the Global Justice Academy.

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Reflections on a Conversation with Mohamedou Ould Salahi

Africa, Enforced Disappearances, Guantanamo, Human rights, Terrorism, Torture, UNCAT, USA

On 14 March 2022, the Global Justice Academy hosted a conversation between Mohamedou Ould Salhi, author of the best-seller Guantánamo Diary, and Dr Kasey McCall-Smith, director of the Global Justice Academy. The event was part of Mohamedou’s United Kingdom tour to talk about his experiences and what happens in the aftermath of torture and arbitrary detention. In the conversation, Mohamedou and Dr McCall-Smith, together with the audience’s participation, reflected on the post-9/11 human rights legal and political landscape.

Mohamedou was born in Mauritania, and as a young man studied and worked in Germany and Canada before moving back to Mauritania in 2000. Between 2000 and 2001, he was three times detained at the behest of the United States, questioned about the so-called “Millennium Plot”, and later released. However, in November 2001, Mohamedou was arbitrarily arrested in Mauritania, later transferred to Jordan and then Guantánamo Bay. Mohamedou eventually spent 15 years arbitrarily detained and was subjected to multiple forms of torture and ill-treatment under the ‘enhanced interrogation programme’. He was ultimately released without any charge or any form of redress by the US.

In his best-selling book, Guantánamo Diary, Mohamedou tells a Mauritanian proverb about a man who was afraid of a rooster. As the story goes, a psychiatrist asks this man why he is afraid of a rooster, an animal considerably smaller than human beings. The man replies that the rooster thinks he is corn. The psychiatrist says that the man is not corn, but a man indeed, so he should not be afraid of the rooster. Then, the man answers that he knows he is not a corn, but the rooster does not, which is why he is afraid. Unfortunately, this is the allegoric story about the many US ‘War on Terror’ detainees. Mohamedou and many other detainees tried for years to convince the US government that they were not terrorists just because they filled the ‘terrorist boxes’. In other words, they tried to convince the rooster they were not corn. Without access to fundamental human rights it was an almost insumountable task.

The event’s central theme was the conflict between national security and human rights. Through the ‘War on Terror’, led by the US after the events of 9/11, many men were arbitrarily incarcerated and tortured in order to gather information with the aim of protecting national security. These arbitrarily detained men, most of them Muslim, were deprived of their basic human rights, including the prohibition of torture and access to justice. The post-9/11 era is marked by states’ overwhelming concern for national security over human rights. Consequently, people are subjected to many forms of human rights infringements. Such abuses vary significantly from the most imperceptible and sometimes even consented breaches, such as infringements to the right to privacy and or access information, to the most gruesome violations as experienced and narrated by Mohamedou, including torture and ill-treatment, arbitrary arrest, inaccessibility to justice, and presumption of guilt instead of innocence.

One of the most shocking observations Mohamedou shared was the absence of justice and the rule of law in Guantánamo Bay. After years of being incarcerated without criminal charge or prosecution, Mohamedou petitioned for habeas corpus and was granted a release order in 2010. However, Mohamedou was only released in 2016. The six-year gap between the court order and its compliance is the result of the US judicial system’s lack of power in the Guantánamo Bay detention facilities. Although judges may grant habeas corpus orders, the judicial system does not have the power to enforce them. According to Dr McCall-Smith, the unreasonable amount of time it took for Mohamedou’s release indicates the disconnect between the US justice system and the organs that wield power in the context of national security. Even after his release, Mohamedou still faces the shadows of his arbitrary detention as the US keeps him blacklisted.

Guantánamo Bay must be closed.

In closing the event, Mohamedou and McCall-Smith discussed possible ways to move forward after the horrifying human rights violations perpetrated in the ‘War on Terror’. First, McCall-Smith and Mohamedou agreed that Guantánamo Bay must be closed. Of the 780 men detained in Guantánamo Bay, 38 men are currently imprisoned there, and less than 20 men have been charged with a crime, let alone convicted. The Obama administration promised to close Guantánamo, but only the US Congress has the power to do so. Thus, in this particular situation, McCall-Smith pointed out that the US ‘checks and balances’ system worked against the rule of law. Second, Mohamedou highlighted the necessity to hold accountable those who violated international law and the prohibition on torture. Without accountability, there is no possibility of democracy as the people become powerless in the face of the government. Finally, Mohamedou stressed the importance of forgiveness and reconciliation through actions. More than a beautiful thought, this idea entails states’ responsibility to reflect and reconsider the undermining of human rights as the formula to guarantee national security. Mohamedou’s experiences and scholarly debates have both shown that the suppression and outright violation of human rights has not guaranteed the security of peoples or states.

The recording of the event can be viewed here.

This post is authored by Helena de Oliveira Augusto. Helena is currently undertaking the Human Rights LLM at the University of Edinburgh. Helena is from Brazil, where she completed a Bachelor of Laws degree at the Pontifical Catholic University of São Paulo.

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Reflections on Your Human Rights: Know them. Engage them. Defend them.

Constitutional Change, Democracy, ECHR, Engagement, Freedom of Expression, Global Justice Academy, Human rights, Human Rights Act, UK

On 23 and 24 February 2022, the Global Justice Academy, together with the Strathclyde Centre for the Study of Human Rights Law and Newcastle Forum for Human Rights and Social Justice, and other partners in the Northern UK Human Rights Network, held two webinars that gathered human rights experts to provide insights to the questions set out in the Ministry of Justice Human Rights Act Reform Consultation. The idea behind the webinars was to help the public — especially those who are not experts but are interested in protecting human rights — to respond to the Consultation, which puts forward ideas contrary to the Human Rights Act and may have devastating effects on human rights.

This GJA blog post presents the common themes and shared concerns that get to the heart of why experts find the Consultation proposals problematic and regressive. The post contains four parts, each focused on a central issue raised by the expert panellists.

The mismatches between the IHRAR and the Consultation

In 2019, the Conservative Party claimed the necessity to update the Human Rights Act (HRA) to modern times. The Secretary of Justice then set the terms for the Independent Human Rights Act Review (IHRAR), which commenced in December 2020. The IHRAR examined independent expert opinions and many submissions from civil society, ultimately completing its work in October 2021. The IHRAR recommended some changes but overall concluded that the HRA led to positive outcomes to human rights protection in the UK. However, the Ministry of Justice only published the IHRAR report in December 2021 together with the Consultation document, which no longer proposed to update the HRA but rather substitute it for a ‘Modern Bill of Rights’. Human rights experts are sceptical of the government’s claims to legitimacy of the Consultation as a follow on to the expert panel. Experts understand that the Consultation does not follow the IHRAR as it ignored several IHRAR recommendations and introduced a series of new issues that will significantly diminish human rights protection.

 

Priority of freedom of expression when in conflict with the right to respect for private and family life

One of the Consultation proposals is to create a legal provision to direct courts to prioritise the right to freedom of expression when in conflict with the right to respect for private and family life. The Consultation outlines that the European Court of Human Rights (or Strasbourg Court) has shown priority to privacy over freedom of expression, which has had a negative repercussion on the protection of rights related to the press. However, human rights experts disagree with this observation. Experts concluded that both the UK Supreme Court and the Strasbourg Court treat freedom of expression and the right to privacy equally when in conflict, without generally prioritising one over the other. The current provision of article 10 of the European Convention on Human Rights (ECHR), which contains the right to freedom of expression, has been effective in protecting journalists and their sources. Although it is important to widen the protection of rights related to the press, the way to do so is to enhance the HRA provisions instead of substituting them.

 

The permission stage and access to justice

One central issue in the Consultation is the belief that ‘frivolous or spurious’ human rights claims, which do not ‘merit court time and public resources’, has undermined public confidence in human rights.[1] The Consultation aims to create a permission stage for human rights claims that requires demonstration of ‘significant disadvantage’, or, exceptionally, a matter of ‘overriding public importance’, for human rights claims to be brought before UK courts.[2] Human rights experts strongly disagree with adding a permission stage. Article 34 of the Convention, incorporated into the UK by the HRA, together with extensive legal texts, have already established who is a victim and who can be a human rights claimant. Further requirements for initiating human rights actions would restrict judicial protection of rights. The permission stage proposal closely relates to the (deeply) problematic question 10 of the Consultation, which states that courts should only focus on ‘genuine human rights abuses’, perpetuating the false perception that many human rights claims are not genuine.[3] Human rights experts fear that the vague and potentially discriminatory ‘genuine’ standard for human rights abuse and the unnecessary permission stage will diminish human rights protections, especially for those in vulnerable situations.

 

The mischaracterised relationship between the UK Supreme Court and the European Court of Human Rights

A major theme throughout the Consultation — which some experts believe is the central political motivation leading to the Consultation— is the relationship between the UK Supreme Court and the Strasbourg Court. The Consultation presumes that the Strasbourg Court has been improperly intervening in the UK jurisdiction. On the basis of this unsupported presumption, the Consultation proposals point to the government’s desire to distance UK law from the Strasbourg Court. Nevertheless, the experts highlighted that the government’s desired distance between jurisdictions, together with the regressive protection of rights, will backfire. The Consultation was clear that the UK will not withdraw from the Convention or the Strasbourg Court. Thus, if human rights claimants are unsuccessful in bringing their cases to UK courts because their claims are not considered ‘genuine’, they can still go to the Strasbourg Court for their claims to be heard. This possible scenario would weaken UK human rights protections as domestic courts would not have the first say in interpreting ECHR cases in the UK though the UK would remain bound to give effect to eventual Strasbourg’s judgments that find the UK in breach of the Convention rights.

Ultimately, the webinar offered insight and assistance to people developing their responses to the Ministry of Justice Consultation. Although embedded in a language of protection of rights, the Consultation’s proposals will produce harmful effects for human rights in reality. Therefore, the webinar highlighted that it is important that as many people as possible engage and respond to the Consultation until its deadline on 8 March 2022 in order to oppose Consultation’s proposals and fight against the undermining of human rights.

 

The Global Justice Academy’s response to the consultation can be found here:  March 2022 – GJA – Consultation Response – HRA Reform

This post is authored by Helena de Oliveira Augusto. Helena is currently undertaking the Human Rights LLM at the University of Edinburgh. Helena is from Brazil, where she completed a Bachelor of Laws degree at the Pontifical Catholic University of São Paulo.

 

 

[1] Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights – A consultation to reform the Human Rights Act 1998, available at <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1040409/human-rights-reform-consultation.pdf> accessed at 27 February 2022, p. 65

[2] Ibid p. 65

[3] Ibid p. 66

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Your Human Rights: Know them. Engage them. Defend them

Constitutional Change, Constitutional Law, ECHR, Human rights, Human Rights Act, Knowledge Exchange, Law and Legal, Uncategorized, United Kingdom

On 23 and 24 February, the Global Justice Academy (GJA), Strathclyde Centre for the Study of Human Rights Law and Newcastle Forum for Human Rights and Social Justice, along with other partners in the Northern UK Human Rights Network, hosted a sandpit webinar on responding to the Ministry of Justice Human Rights Act Reform Consultation. The events brought together experts across public law, international law and human rights to offer concise insight on the key issues raised by the Ministry of Justice consultation on human rights reform.

 

 

Human rights experts’ preliminary views of the consultation paper are that the UK government aims to dismantle important human rights protections. The events were designed to assist individuals with different levels of engagement with human rights to distil the main legal tensions presented in the consultation paper and respond to the questions posed therein. The underpinning purpose is to assist those who have little time or experience responding to government consultations to develop their own responses by the consultation deadline of 8 March 2022.

 

Speakers included:

  • Ed Bates, Leicester University
  • Helen Fenwick, Durham University
  • Elisenda Casanas Adam, Univeristy of Edinburgh
  • Hélène Tyrrell ,Newcastle University
  • Conall Mallory, Newcastle University
  • Lynsey Mitchell, University of Strathclyde
  • Lewis Graham, Wadham College, Oxford University
  • Dimitrios Kagiaros, Durham University
  • Nicole Busby, University of Glasgow
  • Elizabeth O’Loughlin, Durham University
  • Douglas Jack, University of Strathclyde
  • Alison Seaman, University of Edinburgh

The recording of day 2 can be found HERE.

If you would like to develop your own response using the working document developed by the speakers and other contributing colleagues, it can be accessed here: March 2022 – Consultation Response – Mod Bill of HR – Shareable. We encourage you to build on our work and add your own thoughts. In a democratic society it is essential that we use our voices to let the government know our views.

The Human Rights Act has protected the people of the UK for two decades. Use your voice to let the Ministry of Justice know that we will not give it up without a fight.

Useful documents:

  • Ministry of Justice, Human Rights Act Reform: A Modern Bill of Human Rights, consultation paper
  • Independent Human Rights Act Review, Final Report
  • Joint statement, Amnesty International Scotland, the Human Rights Consortium Scotland, JustRight Scotland, Making Rights Real, and the Scottish Human Rights Commission
  • Scottish Government Response to consultation paper
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AHRI Statement on the Russian Aggression against Ukraine

Conflict, Eastern Europe, Human rights, ICCPR, International Law, Russian Federation, Security, Ukraine, UN

The Secretariat for the Association of Human Rights Institutes (AHRI), hosted by the Global Justice Academy (GJA) and Strathclyde Centre for the Study of Human Rights Law, along with the full AHRI Executive Committee, today published its statement on the Russian Federation’s violations of fundamental international law, including human rights law, and the danger it poses to the post-World War II peace and security architecture.

The Russian Federation’s invasion of sovereign Ukrainian territory is a clear violation of international law and endangers the post-World War II peace architecture that has prevailed over Europe these last seven decades.

The Russian Federation is bound by seven of the core UN human rights treaties as well as the European Convention on Human Rights. We recall the position of the Human Rights Committee that States parties of the International Covenant on Civil and Political Rights who are engaged in acts of aggression as defined in international law, resulting in deprivation of life, violate ipso facto the right to life as protected by Article 6 of the Covenant. Each step it takes in Ukraine negates its commitment to respect and protect the rights of civilians in Ukraine and those in Russia who are unable to safely voice their opposition to their government. This unprecedented use of force and blatant breach of the UN Charter, the Charter of Paris, and the Helsinki Final Act brings suffering and misery to Ukraine and its people.

As the largest global network of human rights research institutes, AHRI stands together with its colleagues, students and friends in the Ukraine and those in Russia who have been intimidated and forced to remain silent in the face of Russia’s acts of aggression.

Photo of protestors holding Ukraine flags

Photo by: Beth LaBerge

Read the full statement here: AHRI Statement on Russian Aggression against Ukraine

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Interpretive Convergence at the European Court of Human Rights: Strength in numbers or a cause for concern

Case Law, ECHR, Europe, Global Justice Academy, Human rights, International Law, Law and Legal, Uncategorized


On 25 January, the Global Justice Academy hosted its first event of the new year, ‘Interpretive Convergence at the European Court of Human Rights: Strength in numbers or a cause for concern?’. In this seminar, Dr Conall Mallory, Senior Lecturer at the University of Newcastle School of Law, presented his current research on the voting patterns of the judges within the European Court of Human Rights (ECtHR). In particular, his research scrutinizes judgments of the ECtHR that seem to often be unanimous with infrequent dissents. Drawing on extensive quantitative data analysis he furthermore explores potential wide-ranging implications on the authority of the court, the cohesion of Convention rights and the credibility of the judges.

It is widely acknowledged that the provisions of the European Convention on Human Rights (ECHR) are peppered with grey language that requires the judges to interpret the Convention’s specifications. The fact that the 17 grand chamber judges, deriving from various cultural, legal, educational, professional and linguistic backgrounds unanimously agree on the interpretation of highly contentious human rights provisions, motivated Dr Mallory to further investigate the judges’ convergence. In the two ECtHR judgments Banković v Belgium and Al-Skeini v United Kingdom which were both concerned with the extraterritorial application of human rights law, the Court in both cases voted unanimously. However, the second case substantially deviated from the principles set out in its previous judgment.

Analysing approximately 400 Grand Chamber judgments between 1998 and 2021, Dr Mallory considered each judge’s individual vote on individual issues. He found that almost every time there was coherence across the judges’ votes. The judges took differing stances in only 10% of the votes on individual questions on whether a Member State had violated an article of the Convention.

Image credit: ECHR

Scholars before Dr Mallory have examined the motivation and incentives behind judges’ decision-making process in the courtroom. These previous studies revealed that judges tend to vote strategically, whether for individual benefits, to embed personal ideologies in judgments, or to pursue broader goals serving stakeholders. However, Dr Mallory’s research is focused more on the general legal culture of the Court and the implications for the Court as a whole. He suggests that by predominantly voting unanimously the judges aim to seek sociological legitimacy to remain a credible force in the European human rights adjudication. Contrary to normative and legal legitimacy, sociological legitimacy is concerned with the external perception of the court. In order to secure its authoritative and influential status the court attempts to project legitimacy in a manner that is compatible with the objectives of stakeholders.

In international law, sociological legitimacy is characterized by judicial constraint, consistency, coherence, and fair and unbiased decision making. The convergence of the judges voting pattern in Dr Mallory’s data implies that the court’s strategy is to adhere to those standards through voting in agreement. Notably, Dr Mallory was also able to identify voting patterns regarding the affected context of the violation. Namely, the Court disagrees more when voting on potential violations of the right to privacy and freedom of expression.

Dr Mallory concluded his talk by addressing the question whether this interpretative convergence is a cause for concern. In his opinion, the findings are not as alarming as one might think at the first glance. However, the voting patterns may suggest a sense of group thinking in the courtroom which may lead judges to develop a personal aversion for dissenting. This should be considered seriously, as the Court’s apparent strategy in striving for sociological legitimacy through convergent voting may create cascade conformity – meaning that judges who would normally disagree abandon their conviction and follow suit with the other judges. Returning to the initial consideration of the divergent rulings in Banković v Belgium and Al-Skeini v United Kingdom, Dr Mallory observed that the main problem is the fact that the court, depending on the composition of judges, may deviate so fundamentally in its judgments that it will fail to offer reliability and consistency.

 

 

This post was written by Juliane Müller. Juliane is currently reading the LLM in International Law at the University of Edinburgh. She is from Germany, where she completed her LLM in Law at the University of Mannheim. Juliane is also an Ambassador for the Global Justice Academy.

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