African (Banjul) Charter for Human and People’s Rights (1981/6)
PART I: RIGHTS AND DUTIES
CHAPTER I: HUMAN AND PEOPLES’ RIGHTS
[The first portion of the document lists mostly familiar individual rights, though there is no right to privacy and some view rights to fair trial and political participation as insufficiently clear. Looking ahead, the individual economic and social rights that are listed are not made subjects to qualification as in other documents we will later read, for example conditioning their fulfillment on available resources.]
All peoples shall be equal; they shall enjoy the same respect and shall have the same rights. Nothing shall justify the domination of a people by another.
1. All peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self-determination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen.
2. Colonized or oppressed peoples shall have the right to free themselves from the bonds of domination by resorting to any means recognized by the international community.
3. All peoples shall have the right to the assistance of the State Parties to the present Charter in their liberation struggle against foreign domination, be it political, economic or cultural.
1. All peoples shall freely dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it
2. In case of spoilation, the dispossessed people shall have the right to the lawful recovery of its property as well as to an adequate compensation.
3. The free disposal of wealth and natural resources shall be exercised without prejudice to the obligation of promoting international economic cooperation based on mutual respect, equitable exchange and the principles of international law.
4. State Parties to the present Charter shall individually and collectively exercise the right to free disposal of their wealth and natural resources with a view to strengthening African Unity and solidarity.
5. State Parties to the present Charter shall undertake to eliminate all forms of foreign exploitation particularly that practised by international monopolies so as to enable their peoples to fully benefit from the advantages derived from their national resources.
1. All peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind.
2. States shall have the duty, individually or collectively, to ensure the exercise of the right to development….
All peoples shall have the right to a general satisfactory environment favourable to their development. …
CHAPTER II: DUTIES
Every individual shall have the duty to respect and consider his fellow beings without discrimination, and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance.
The individual shall also have the duty:
1. To preserve the harmonious development of the family and to work for the cohesion and respect of the family; to respect his parents at all times, to maintain them in case of need.
2. To serve his national community by placing his physical and intellectual abilities at its service;
3. Not to compromise the security of the State whose national or resident he is;
4. To preserve and strengthen social and national solidarity, particularly when the latter is strengthened;
5. To preserve and strengthen the national independence and the territorial integrity of his country and to contribute to his defence in accordance with the law;
6. To work to the best of his abilities and competence, and to pay taxes imposed by law in the interest of the society;
7. To preserve and strengthen positive African cultural values in his relations with other members of the society, in the spirit of tolerance, dialogue and consultation and, in general, to contribute to the promotion of the moral well being of society;
8. To contribute to the best of his abilities, at all times and at all levels, to the promotion and achievement of African unity.
Source: International Justice Resource Center
Seat: Arusha, Tanzania
Instrument: Protocol to ACHPR
Operating Since: 2006
The African Court on Human and Peoples Rights (AfCHPR) is a regional human rights tribunal with advisory and contentious jurisdiction concerning the interpretation and application of the African Charter on Human and Peoples’ Rights, which is also referred to as the Banjul Charter. Its jurisdiction extends to those States that have ratified the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights. The AfCHPR decided its first case in December of 2009 and has taken up over two dozen other cases since then.
Complaints against any State that has accepted the Court’s jurisdiction may be referred to the Court by: the African Commission on Human and Peoples’ Rights, States Parties (as respondent or petitioner in a case before the Commission, or on behalf of a individual citizen), and African intergovernmental organizations. As of July 2013, 27 States had accepted the Court’s jurisdiction. To see the most recent ratification information, visit the African Court’s Basic Documents webpage.
The Court also has jurisdiction to hear cases instituted by individuals and non-governmental organizations with observer status before the African Commission, provided that the relevant State has made the necessary declaration under Article 34 of the Protocol to allow these complaints, described in Article 5(3). To date, seven States have accepted the Court’s jurisdiction to receive complaints referred by individuals and NGOs; these are: Burkina Faso, Cote d’Ivoire, Ghana, Malawi, Mali, Rwanda, and Tanzania.
The eleven judges of the court are elected for renewable, six-year terms. The Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, along with the AfCHPR’s Rules of Court, set out the Court’s functions and operating procedures.
Additionally, the States of the African Union have agreed to establish an African Court of Justice and Human Rights, intended to hear disputes arising under all African Union instruments, including the human rights agreements, and to prosecute individuals for serious international crimes. This new tribunal would replace the African Court on Human and Peoples’ Rights. However, the protocol must be ratified by 15 States before the African Court of Justice and Human Rights comes into being.
In a controversial decision, the African Union has decided to specifically exempt senior government officials from prosecution by a proposed regional human rights court, which will otherwise be authorized to try individuals accused of crimes against humanity and other serious international crimes. At its 23rd Ordinary Session in Malabo, Equatorial Guinea last week, the Assembly of the African Union (AU) adopted an amendment to the Protocol on the Statute of the African Court of Justice and Human Rights to immunize African leaders accused of committing serious human rights violations from criminal prosecution before the proposed African Court of Justice and Human Rights. While it is hoped that the amendment will foster greater cooperation and compliance with the future Court, the limitation on its mandate has been the subject of intense criticism by civil society groups.
The African Court of Justice and Human Rights is intended to replace the African Court on Human and Peoples’ Rights (AfCHPR) and the African Court of Justice, to become the main judicial organ of the African Union and predominant human rights court for the African continent. The scope of the African Court of Justice and Human Rights’ mandate will be greater than that of its predecessors, as its jurisdiction will extend beyond inter-State disputes and State responsibility for human rights violations to deciding individuals’ responsibility for genocide, war crimes, and crimes against humanity.
Owing to the newly adopted immunity provision, however, its jurisdiction would not extend to sitting heads of state and senior government officials while they are in office. This limitation has raised serious doubts about the potential efficacy of the future court.
Article 46A bis of the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (“the Protocol on Amendments”) provides: “No charges shall be commenced or continued before the Court against any serving African Union Head of State or Government, or anybody acting or entitled to act in such capacity, or other senior state officials based on their functions, during their tenure of office.” (While the current text of the Protocol on Amendments is not available online, a 2012 draft version can be viewed here.)
This immunity provision differs from the mandates of other supranational criminal courts, including the International Criminal Court (ICC), the International Criminal Tribunal for the Former Yugoslavia (ICTY), and the International Criminal Tribunal for Rwanda. Article 27(1) of the Rome Statute of the ICC, for example, states that the Statute applies “equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute.”
The wording of Article 7(2) of the Statute of the ICTY and Article 6(2) of the Statute of the ICTR are identical; both state that the “official position of any accused person, whether as Head of state or government or as a responsible government official, shall not relieve such person of criminal responsibility nor mitigate punishment.”
In this way, all three courts – the ICC, the ICTY, and the ICTR – have the authority to prosecute sitting heads of state and senior officials. This is consistent with international law, which allows international courts to lift immunity from current heads of state and senior officials.
The African Court of Justice and Human Rights would be unique among regional human rights bodies, which typically do not have jurisdiction to prosecute individuals.
Heads of state and high officials do usually enjoy a degree of immunity by virtue of their positions, however. They have immunity from national courts when they are on the territory of a foreign State, and former heads of state and senior officials enjoy immunity for official duties carried out while they were in office.
Over 40 civil society groups have expressed disapproval at the inclusion of immunity for heads of state and senior officials in the mandate of the African Court of Justice and Human Rights. [African Legal Aid] In an open letter to the African Union, many of these groups argued that the authority to prosecute government officials is critical to ensuring justice and accountability for the most serious crimes. [Amnesty International: Open Letter] There is concern that immunity will insulate those most responsible for international crimes, as well as those in the best position to prevent such crimes.
These groups also argued that the immunity provision goes against the founding principles of the AU. The Constitutive Act of the African Union enumerates principles by which the African Union must function; Article 4(o) provides that the African Union must respect the sanctity of human life and condemn and reject impunity. Civil society groups contend that granting immunity for heads of state and senior officials is a step backwards. “Africa should be moving forward in the fight against impunity, not regressing,” said Stephen Lamony of the Coalition for the International Criminal Court.
Furthermore, the immunity provision has led some to worry about the ability of the future African Court of Justice and Human Rights to achieve its objectives. Netsanet Belay, Amnesty International’s Africa Director for Research and Advocacy, has said that “it is impossible to justify this decision which undermines the integrity of the African Court of Justice and Human Rights, even before it becomes operational.”
Proponents of the immunity provision argue that “guaranteed immunity for presidents and senior officials might actually encourage African states to engage more enthusiastically with the proposed new court, and to abide by its rulings.” Simon Allison of the Institute for Security Studies reasoned that “[i]f Africa’s leaders aren’t worrying about their own fate, they won’t have anything to lose by cooperating.” This argument potentially overlooks the fact that former heads of state do not have immunity for non-official duties, which have been found to include torture. Civil society groups have thus warned that immunity for heads of state and high officials “would carve out a sphere of impunity for high-level perpetrators, and create an incentive for such perpetrators to hold on to power indefinitely.
The AU adopted this immunity provision in the context of ongoing tensions between African States and the International Criminal Court, which has been accused of singling out African leaders for prosecution. Currently, two sitting presidents face prosecution at the ICC for crimes against humanity and other crimes; they are Kenya’s President Uhuru Kenyatta and Sudan’s President Omar al-Bashir. Kenya’s Deputy President William Ruto has also been charged with indirectly committing crimes against humanity.
The perception that the ICC is disproportionately focusing on situations in Africa has prompted African States to threaten to withdraw from its jurisdiction. In October 2013, the AU held an Extraordinary Summit on the ICC to discuss the ICC’s treatment of African cases. The Assembly decided that no sitting head of state should ever appear before an international court.
Despite these calls to withdraw from the jurisdiction of the ICC, more African States are party to the Rome Statute than in any other region. Out of the 122 States Parties to the Rome Statute, 34 are African, 27 are Latin American and Caribbean, 25 are Western European and other States, 18 are Asia-Pacific States, and 18 are Eastern European.
…The last fifty years represent the entire period of the African postcolonial state, and give us a fantastic window through which to interrogate the performance of the human rights project in Africa. But first, I want to lay aside some misconceptions about the human rights corpus and the movement. At the outset, though, I want to level with you about the subject of intellectual bias or normative location. Even though objectivity is the name of our game, we are nevertheless products of the legacies and heritages that have forged our identity and philosophical outlooks. In that sense, true objectivity is an academic fiction, for no one could be truly objective. In any case, if we were truly objective, we would be truly boring. And so, I want to plead my biases at the outset. But I also want to warn you that with respect to the subject at hand—that of the utility of human rights and liberalism in Africa—I adopt the view of an insider-outsider, an engaged skeptic who completely believes in human dignity but is not sure about the typology of political society that ought to be constructed to get us there.
Third World scholars like myself come to the study of human rights with a considerable degree of discomfort and an in-built sense of alienation. Neither human rights, nor liberalism, has been germinated in the African garden. To be sure, my native ears are not deaf to many of the substantive issues addressed by both disciplines. I have a keen interest in the relationships between states and citizens. My alienation comes not from these facts, but from the particularized historical, cultural, and intellectual traditions and tongues in which both human rights and liberalism law are steeped. It is in that sense that I am an outsider. Though an outsider to human rights and liberalism, I am in a very real sense an insider to both. I am part of the international elite that benefits personally from the norms and structures of international liberalism. My reality is not that of marginal and downtrodden citizens in Latin America, Africa, Asia, or for that matter, North America. I do not strain under the daily avalanche of the cruelties of globalization, state repression, and abuse.
But I am also an outsider because of that other consciousness which I carry, the consciousness of the historical, political, and cultural realities of the Africa that I am a part of, indeed of the Third Word to which I belong, as distinct from the West. In human rights, I see a system of ordering the world, of understanding the world, a system and normative edifice that makes me accurately aware of my subordinate and marginal place in it, as the “other.” This is not to say that I completely reject the human rights project or dismiss its redemptive impulses and purposes. It is rather to say that human rights are not for me a final, inflexible truth, or a glimpse of eternity, so to speak. That is to say that I do not see the human rights project as some kind of a sacred gospel with armies of missionaries poised to save savage cultures from themselves so that they can stop churning out victims. Human rights do not have a holy writ, nor could they, because like all rights regimes, they are just a genre of socially constructed tenets that have come to define modern civilization. Nor should human rights be, as its most dominant proponents have constructed them, a part of the colonial project that forms the unbroken chain of the Christian missionary, the early merchant of capital, and the colonial administrator. I guess these observations mean that I am not a true liberal, a label that I do not want to wear anyway. …
It is very strange that the founding documents of the human rights movement studiously avoided—did not even mention once—the most important words and terms of the past several hundred years. They still don’t. Is it not very curious that neither the UDHR, the ICCPR (International Covenant on Civil and Political Rights), nor the ICESCR (International Covenant on Economic, Social and Cultural Rights) uses the terms “capital,” “market,” “colonize,” “imperial,” “political democracy,” “liberalism,” or any of their derivatives? The exceptions are the oblique and dubious references to “democracy” in the UDHR and the ICCPR. The UDHR appears to sanction political democracy as the presumptive choice of the human rights corpus, although it does not explicitly say so, or explain why. The reference to “democracy” in the ICCPR is similarly vague. There are possible explanations for these omissions, or the reluctance to identify the human rights movement with a particular normative tradition, philosophy, or ideology. Were any of these deficits deliberate or calculated? Whatever the case, the lack of extended theories and philosophical justifications for the human rights corpus has left the doctrine vulnerable to attack. Importantly, it has mystified and obfuscated the normative and cultural gaps in the corpus.
That is why I contend that the human rights corpus is a moral project of political democracy, and that the failure of the framers to openly base the doctrine on this irrefutable premise has done more damage than good. First, it leaves human rights discourse as a project that orbits in space, not anchored in historical, cultural, and ideological choices. This abstraction is either debilitating, if you are critic, or empowering, if you are a true believer. As a critic, one starts from the disadvantage of disproving a negative. But as a believer, all one has to do is deny the negative. Second, the distortion of the true identity of the corpus masks its deficits, and makes it difficult to debate them in the open. It is an exercise that is akin to shadow boxing. The target is elusive, and the energy expended is not productively applied. Third, because of historical delinking of political democracy from human rights, a critique of the former is not necessarily the unveiling of the latter. Soon the problem becomes obvious. The human rights corpus has a mercurylike quality: elusive and slippery. This is not a fingerprint that augurs well for a truth-searching inquiry. Nor does it render the corpus to a reformist impulse. My argument is that identifying—equating—political democracy with human rights would provide us with a solid foundation for debating, articulating, and formulating an ideology that can better respond to powerlessness, human indignity, and the challenges of markets and globalization.
The human rights movement is presented by its scholars and advocates as above politics. Even though its basic texts assume a genre of political and social organization, the literature and discourse of human rights are divorced from self-interest, ideology, materialism, and partisanship. Instead, movement scholars and activists paint it as a universal creed driven by nobility and higher human intelligence. The idiom of human rights is tinged with metaphors and language that suggest eternity or a final resting point in human history. The basic human rights documents are not presented as either instrumentalist, utilitarian, experimental, or convenient. Rather, the authors speak as though such documents are the final truth. This elusive, yet lofty, idealism is almost biblical in its forbidding language. It implies that questioning its doctrine is perverse and unwelcome. The reality, however, is that human rights norms address mundane human problems and are routine politics. That is why the veneration of human rights, together with the attempt to clean the movement of partisanship, requires close and critical scrutiny. …
how can human rights as conceived be of any help to the reconstruction and recovery of the African postcolonial state? Five decades after decolonization, the African state is still haunted by crises of geographic, political, and moral legitimacy. It is beset by the protracted reality of national incoherence and the ills of economic underdevelopment. At its dawn, the African postcolonial state was handed a virtually impossible task: Assimilate the norms of the liberal tradition overnight within the structures of the colonial state while at the same time building a nation from disparate groups in a hostile international political economy. Instead, the newly minted African postcolonial elites chose first to consolidate their own political power. We can blame them now, as I have, but we must also understand that the first instinct of the political class is to consolidate itself and concentrate power in its own hands.
In the Cold War context, this frequently meant stifling dissent, dismantling liberal constitutions, retreating to tribal loyalties or sycophantic cronies, and husbanding state resources for corruption or patronage purposes. In other words, any viable fabric of the postcolonial state started to crumble even before it was established. We know the rest—coups and countercoups, military regimes, and one-party dictatorships with the inevitable results of economic decay; collapse of infrastructure; the fragmentation of political society; bilious retribalization; religious, sectarian, and communal conflicts and civil wars; and state collapse in a number of cases. The achievement of political independence from colonial rule turned into a false renaissance as one African country after another experienced transitional difficulties. While the African state retained some form of international legitimacy, its domestic writ was wafer thin. It was a miracle that many African states did not implode altogether, given the challenges to internal legitimacy. Whatever the case, the liberal tradition failed to take hold as human rights were violated across the board.
However, the 1980s saw a resurgence of civil society and the reemergence of the political opposition. This started what has come to be loosely referred to as the Second Liberation. The entire continent was rocked by a wave of political liberalization not witnessed since the 1950s and 1960s. Virtually all states succumbed to some version of political reform. In all cases, the civil society and the political opposition sought a new social compact framed by the tenets of the liberal tradition. These were the rule of law, political democracy through multipartyism, checks on executive power, limitations on the arbitrary use of state power, judicial independence, directly elected and unencumbered legislatures, separation of powers, freedoms of the press, speech, assembly, and association—in a word, the whole gamut of civil and political rights or the full complement of so-called basic human rights.
It was as though Africans were asking to go back to the liberal constitutions imposed by the departing colonial powers. In some cases, new constitutional orders were established to respond to these demands. But a decade and a half after the frenzy to reintroduce the liberal tradition to the politics of Africa, we cannot count many blessings because the tumult of political liberalization has yielded very mixed results. Optimists see a steady progression, even though the reversals have been many and discouraging. Pessimists, or what one might even want to call realists, see an African state that is a stubborn predator, unable and unwilling to accept reform. For every one step forward, there seem to be several steps back. The near melt-down of Kenya in the aftermath of the December 2007 election is only one case in point.
Is the African state impervious to human rights and the liberal tradition, or is the problem much more serious? The fault is variously placed on a bankrupt elite or political class; structural impediments within the state (ethnicity, religious zealotry, underdevelopment, the failure to establish a legitimate political order, social cleavages); an unyielding international economic order. Whatever the case, the jury on the current process of political liberalization, which is taking place simultaneously with economic globalization, is still out. It is still too early to say for certain whether the African postcolonial state is out of the woods.
The Limitations of Human Rights
The human rights corpus is defined by a variety of pathologies—both of choice and substance—that are limited and limiting. Many of these pathologies arise not only from the internal logic of the corpus but also the tactical and strategic choices that its proponents have made over the past sixty years. One of these is the equation of the containment of state despotism with the attainment of human dignity. This “hands off” logic is an integral, if not the essential, signature of the corpus. Without going into a discussion about the critique of rights—indeterminacy, elasticity, and their double-edge signature—suffice it to note that the human rights project basically polices the space between the state and the individual, and not between individual citizens. As put by Karl Klare, the dominant understanding of “the human rights project is to erect barriers between the individual and the state, so as to protect human autonomy and self-determination from being violated or crushed by governmental power.” Yet there is nothing intrinsic about human beings that requires only their protection from the state and not the asymmetries of power among them.
This definition of the nature of human dignity, which draws heavily from liberalism and political democratic theory, has an atrophied understanding of the role of the state. Admittedly, the thick welfare state is an attempt to emphasize a more robust view of liberalism. In human rights doctrine, this fuller iteration of liberalism is ostensibly contained in the ICESCR. However, the flaccidity, impotency, and vagueness of the ICESCR are evidence of the bias of the corpus to the more limited vision. As is the case with political democracy, the human rights regime appears to be more concerned with certain forms of human powerlessness than with others. This has certainly been the practice of human rights by the most influential human rights NGOs and institutions. In fact, there does not exist a major human rights NGO in the West that focuses on economic, social, and cultural rights. The problem is not simply one of orientation, but a fundamental philosophical commitment by movement scholars and activists to vindicate “core” political and civil rights over a normative articulation that would disrupt vested class interests and require a different relationship between the state and citizens and among citizens. It seems to have been convenient for human rights NGOs to shy away from questions of economic powerlessness during the Cold War because charities and Western governments frowned upon them. If so, it was a bias that was more than strategic—it was ideological.
One of the more interesting pathologies of the human rights texts is their avoidance or reluctance to employ a certain vocabulary to describe powerlessness. What is striking about the key human rights documents is their failure to use some of the most important terms of the modern era to describe and formulate societal responses. In terms of power or lack of it, and the consequent violations, there are no more important words than “capitalism,” “imperialism,” “colonialism,” and “apartheid.” Yet the UDHR—the single most important human rights document—sanctions the right to private property (Article 147). How credible is a document that calls itself a “common standard of achievement for all peoples and nations” (Preamble) if it does not recognize that at its writing most of the global South was under European colonial rule and subject to the vilest economic exploitation by the merchants of capital? It is difficult to believe that such an omission was an oversight. At the time, there was an epochal contest between socialism and capitalism. This too appears to have been conveniently overlooked in the basic texts. Or was it? My submission is that there was a surreptitious recognition of secularism, capitalism, and political democracy through the guarantee of the rights that yield a society framed by those systems.
The failure to wrestle with the types of economic philosophies and systems that would best protect and nurture a fuller definition of human dignity has had a devastating effect on the human rights movement. From the start, the movement and its founders did not see themselves as charged with the responsibility to address economic powerlessness. Even though the UDHR addresses some economic, social, and cultural rights, it is clear that they are an afterthought and marginalized within the document. Only the last six articles are devoted to these rights. But even so, the rights are not scripted in a way that directly confronts powerlessness and exploitation. The rights relating to work and labor assume, for example, the fact and legitimacy of capitalism and free markets (see Articles 23–25). Working people are therefore expected to fight for their rights within those systems and structures. The same logic is the basis for the ICESCR, which presumably grants rights within a system of free enterprise that protects workers from the worst excesses of global capitalism. In this regard, the ICESCR should be understood as a normative project for a thick welfare state within a market economy. It is a document that seeks to mitigate the harshness of capitalism and give it a more human face.
This failure of imagination and acquiescence to a free market vision of political democracy has robbed the human rights corpus and the movement of the impetus to think beyond markets and systems of exploitation that produce ugly social structures. Fundamentally, the human rights corpus has no philosophy on money and whether, for example, the creation of a Bill Gates would itself be a violation of human rights norms. In political society, an absolute dictator would be impermissible under human rights norms and contemporary understandings of political democracy. Analogously, Bill Gates is the market equivalent of the political dictator, although that is not how he is understood in a political democracy or by the human rights corpus. In fact, Gates is a celebrated and venerated individual, the pinnacle of success in society. Yet the existence of his economic empire, which he holds personally, is a radical perversion of any egalitarian or equitable notions of human dignity. The multiplication of Gates by the number of other obscenely rich individuals and corporate interests yields a graphic over-concentration of power in the hands of a tiny majority. It is very difficult, if not impossible, to articulate a plausible argument of how a system that permits such vast differences among citizens does not violate basic notions of human dignity. In an era of globalization, in which capital knows no borders and is virtually unaccountable, questions of economic justice and fairness should obsess the human rights corpus and the movement. It is not enough to decry, as human rights NGOs do, the worst excesses of globalization, or the most shocking practices such as sweatshops and cruel labor and slavelike conditions of work. The corpus must develop a defensible normative project to address economic and social arrangements and systems. Rather than treat the government simply as the regulator of markets—as is the case in a political democracy—human rights norms must do more.
Perhaps one way of addressing this pathology is to reassess the place and role of the individual in society relative to the greater public good of the community and the environment. One of the problems here is the elevation of the individual and his placement above society. This runaway notion of individualism, which is a central tenet of liberalism, has retarded the capacity of human rights thinkers to moderate selfishness with community interests. In other words, the individual should be placed within the society and constructed in such a way that he does not overwhelm his fellow beings or the society itself. There is nothing natural, inevitable, or frozen in time about how the individual ought to be constructed. Nor should a reconstruction of the individual necessarily wreak havoc with more defensible notions of popular sovereignty, individual autonomy, and political freedom. But this is an exercise that will require thinkers to look beyond Eurocentric lenses to build a more universal vision of the individual. The individual need not necessarily be placed at the center of the moral universe. Otherwise, the vices and abominations of globalization are bound to overcome the human race.
Finally, the human rights corpus and movement focus too much on process and rights at the expense of politics and substance. This distinction is both a product of the rights idiom in which the corpus is expressed and tactical and strategic choices by movement activists. The movement sees itself as vindicating rights that are coded in positive law. In contrast, politics is partisan, sloppy, and lacking in neutrality. By casting themselves as doing the work of the law, movement activists perpetuate the myth of objectivity. In fact, during the Cold War the human rights community in the West deliberately distanced itself from the overt promoters of democracy in the global South and the Soviet bloc. Instead, human rights activists presented themselves as a community interested in process and the rule of law, not politics or the ideological project of democracy. …
This diffidence has been limiting to the human rights movement. Why hide the ball? Everything should be placed on the table so that we can openly debate questions of power and powerlessness and how to reformulate the human rights corpus to address pressing crises. Perhaps we will decide that human rights is not the right language for this struggle. Perhaps it is. In any case, we will never know until we take off the veil. What is clear today is that the movement will lose its relevance unless it can address—seriously and as a priority—human powerlessness in all its dimensions.
The limitations that curtail the ability of the human rights corpus to respond to Africa’s crises are conceptual and normative. The first limitation is simply one of the idiom in which the rights discourse is formulated. The language of rights, which is central to liberalism, is fraught with limitations which could be detrimental to the project of transforming deeply distorted societies. Inherent in the language of rights are indeterminacy, elasticity, and the double-edged nature of the rights discourse. All these characteristics open the rights language to malleability and misuse by malignant social elements, and they turn it into a tool in the hands of those opposed to reform. A case in point is South Africa, where a rights-based revolution has been unable to fundamentally transform deeply embedded social dysfunction and the perverse legacy of apartheid. The choice of the rights idiom as the medium of choice to unravel the ravages of apartheid has been less than successful in spite of continued economic growth.
Another problem of the liberal tradition, which has been inherited by the human rights movement, is its unrelenting focus on individualism. This arises from liberalism’s focus on formal equality and abstract autonomy. The human rights corpus views the individual as the center of the moral universe, and therefore denigrates communities, collectives, and group rights. This is a particularly serious problem in Africa, where group and community rights are both deeply embedded in the cultures of the peoples and exacerbated by the multinational nature of the postcolonial state. The concept of self-determination in Africa cannot simply be understood as an external problem: it must, of necessity, be understood as encompassing the many nations within a given postcolonial state. In reality, this means that individual rights of citizens within the state must be addressed in the context of group rights. Thus group rights or the rights of peoples become important entitlements if the state is to gain the loyalties of its diverse citizens.
I do not deny that individualism is a necessity for any constitutional democracy, but I reject the idea that we can, or should, stop there in Africa. That would be a stunted understanding of rights from an African point of view. Indeed, for rights to make sense in the African context, one has to go beyond the individual and address group identities in the political and economic framework of the state. Even in South Africa, for example, one of the states with an avowedly liberal interpretation of the rights language, there was an accommodation of group rights to language, culture, and other forms of identity. One way political democracy deals with the question of multiple nations within one state is to grant autonomous regimes for groups or to devolve powers through forms of federalism. But the paradox for Africa is that autonomous regimes or federalist arrangements have not worked well wherever they have been tried. These schemes have been unable to stem the combustible problem of ethnicity and reduce the legitimacy of the state. Ethnic groups retain a consciousness that stubbornly refuses to transfer loyalty from the group to the whole nation.
Second, the human rights movement’s primary grounding and bias toward civil and political rights—and the impotence and vagueness of economic, social, and cultural rights—is one of its major weaknesses in the African postcolonial context. Political democracy alone—without at least a strong welfare state or a social democracy—appears to be insufficient to recover the African state. The bias toward civil and political rights favors vested, narrow class interests and kleptocracies which are entrenched in the bureaucratic, political, and business sectors of society and represent interests that are not inclined to challenge the economic powerlessness of the majority of postcolonial Africans. Yet the human rights movement assumes the naturalness of the market and the inevitability of employer–employee, capitalist–worker, and subordinated labor relations. It seeks the regulation of these relationships, but not their fundamental reformulation.
By failing to interrogate and wrestle with economic and political philosophies and systems, the human rights movement indirectly sanctions capitalism and free markets. Importantly, the human rights corpus wrongly equates the containment of state despotism with the achievement of human dignity, so that it seeks the construction of a political society in which political tyranny—not economic tyranny—is circumscribed. But in so doing, it sidesteps economic powerlessness—the very condition that must be addressed if the African state is to be recovered. Clearly, political freedoms are important, but as South Africa has demonstrated, these are of limited utility in the struggle to empower populations and reduce the illegitimacy of the state. It is an illusion to think of powerlessness and human indignity in the African context in purely political terms, as the human rights movement does, and to prescribe political democracy and the human rights doctrine as a panacea.
Real human powerlessness and indignity in Africa—the very causes of the illegitimacy of the African state—arise from social and economic conditions. That is why the human rights movement’s recognition of secularism, capitalism, and political democracy must be discussed openly to unveil its true identity so that we can recalculate its uses, and the limitations of those uses, to the reconstruction of the African state. To be useful to Africa’s reconstruction, human rights cannot simply be advocated as an unreformed Eurocentric doctrine that must be gifted to native peoples. Nor can it be imposed on Africa like an antibiotic, or be seen as a cure for the ills of a dark continent. I am afraid that this is how many in the West imagine what for them is a human rights crusade toward Africa. So far, this law-and-development model has not—and will not—work. Not only is it an imposition, but it would also deal mostly with symptoms, while leaving the underlying fundamentals untouched.
To be of utility to Africa, and fundamentally transform the continent’s dire fortunes, human rights must address economic powerlessness and the scandalous international order. Otherwise, it will promise too much while delivering too little, as it did in the case of Rwanda with the establishment of the International Criminal Tribunal for Rwanda and a false peace within the country. It will promise too much, while delivering too little, as it did in the wave of the so-called Second Liberation. The challenge for us is to figure out how we can retool and rethink the human rights project as one of the vehicles for the reconstruction of the African postcolonial state. I am afraid that this is a task for which we have been found wanting. …
Velásquez Rodríguez v. Honduras, Inter-Am.Ct.H.R. (Ser. C) No. 4 (1988)
…3. According to the petition filed with the Commission, and the supplementary information received subsequently, Manfredo Velasquez, a student at the National Autonomous University of Honduras, " was violently detained without a warrant for his arrest by members of the National Office of Investigations ( DNI ) and G-2 of the Armed Forces of Honduras. " The detention took place in Tegucigalpa on the afternoon of September 12, 1981. According to the petitioners, several eyewitnesses reported that Manfredo Velasquez and others were detained and taken to the cells of Public Security Forces Station No. 2 located in the Barrio E1 Manchen of Tegucigalpa, where he was " accused of alleged political crimes and subjected to harsh interrogation and cruel torture. " The petition added that on September 17, 1981, Manfredo Velásquez was moved to the First Infantry Battalion, where the interrogation continued, but that the police and security forces denied that he had been detained. ...
56. The Court will first consider the legal arguments relevant to the question of exhaustion of domestic remedies and then apply them to the case.
57. Article 46( 1 )( a ) of the Convention provides that, in order for a petition or communication lodged with the Commission in accordance with Articles 44 or 45 to be admissible, it is necessary
"that the remedies under domestic law have been pursued and exhausted in accordance with generally recognized principles of international law."
58. The same article, in the second paragraph, provides that this requirement shall not be applicable when
"a. the domestic legislation of the state concerned does not afford due process of law for the protection of the right or rights that have allegedly been violated;
b. the party alleging violation of his rights has been denied access to the remedies under domestic law or has been prevented from exhausting them; or
c. there has been unwarranted delay in rendering a final judgment under the aforementioned remedies." …
61. The rule of prior exhaustion of domestic remedies allows the State to resolve the problem under its internal law before being confronted with an international proceeding. This is particularly true in the international jurisdiction of human rights, because the latter reinforces or complements the domestic jurisdiction ( American Convention, Preamble ).
62. It is a legal duty of the States to provide such remedies, as this Court indicated in its Judgment of June 26, 1987, when it stated:
"The rule of prior exhaustion of domestic remedies under the international law of human rights has certain implications that are present in the Convention. Under the Convention, States Parties have an obligation to provide effective judicial remedies to victims of human rights violations ( Art. 25 ), remedies that must be substantiated in accordance with the rules of due process of law ( Art. 8( 1 ) ), all in keeping with the general obligation of such States to guarantee the free and full exercise of the rights recognized by the Convention to all persons subject to their jurisdiction ( Art. 1 ). ( Velásquez Rodríguez Case, Preliminary Objections, supra 23, para. 91 )."
63. Article 46( 1 )( a ) of the Convention speaks of "generally recognized principles of international law. " Those principles refer not only to the formal existence of such remedies, but also to their adequacy and effectiveness, as shown by the exceptions set out in Article 46( 2 ).
64. Adequate domestic remedies are those which are suitable to address an infringement of a legal right. … If a remedy is not adequate in a specific case, it obviously need not be exhausted. A norm is meant to have an effect and should not be interpreted in such a way as to negate its effect or lead to a result that is manifestly absurd or unreasonable…
65. Of the remedies cited by the Government, habeas corpus would be the normal means of finding a person presumably detained by the authorities, of ascertaining whether he is legally detained and, given the case, of obtaining his liberty. … If, however, as the Government has stated, the writ of habeas corpus requires the identification of the place of detention and the authority ordering the detention, it would not be adequate for finding a person clandestinely held by State officials, since in such cases there is only hearsay evidence of the detention, and the whereabouts of the victim is unknown.
66. A remedy must also be effective - that is, capable of producing the result for which it was designed. Procedural requirements can make the remedy of habeas corpus ineffective: if it is powerless to compel the authorities; if it presents a danger to those who invoke it; or if it is not impartially applied.
67. On the other hand, contrary to the Commission's argument, the mere fact that a domestic remedy does not produce a result favorable to the petitioner does not in and of itself demonstrate the inexistence or exhaustion of all effective domestic remedies. For example, the petitioner may not have invoked the appropriate remedy in a timely fashion.
68. It is a different matter, however, when it is shown that remedies are denied for trivial reasons or without an examination of the merits, or if there is proof of the existence of a practice or policy ordered or tolerated by the government, the effect of which is to impede certain persons from invoking internal remedies that would normally be available to others. In such cases, resort to those remedies becomes a senseless formality. The exceptions of Article 46( 2 ) would be fully applicable in those situations and would discharge the obligation to exhaust internal remedies since they cannot fulfill their objective in that case. …
74. The record before the Court shows that the following remedies were pursued on behalf of Manfredo Velásquez: [The opinion details multiple habeas corpus petitions and criminal complaints.]
76. The record … contains testimony of members of the Legislative Assembly of Honduras, Honduran lawyers, persons who were at one time disappeared, and relatives of disappeared persons, which purports to show that in the period in which the events took place, the legal remedies in Honduras were ineffective in obtaining the liberty of victims of a practice of enforced or involuntary disappearances ( hereinafter " disappearance " or " disappearances " ), ordered or tolerated by the Government. The record also contains dozens of newspaper clippings which allude to the same practice. According to that evidence, from 1981 to 1984 more than one hundred persons were illegally detained, many of whom never reappeared, and, in general, the legal remedies which the Government claimed were available to the victims were ineffective. …
78. The evidence offered shows that lawyers who filed writs of habeas corpus were intimidated, that those who were responsible for executing the writs were frequently prevented from entering or inspecting the places of detention, and that occasional criminal complaints against military or police officials were ineffective, either because certain procedural steps were not taken or because the complaints were dismissed without further proceedings. …
80. The testimony and other evidence received and not refuted leads to the conclusion that, during the period under consideration, although there may have been legal remedies in Honduras that theoretically allowed a person detained by the authorities to be found, those remedies were ineffective in cases of disappearances because the imprisonment was clandestine; formal requirements made them inapplicable in practice; the authorities against whom they were brought simply ignored them, or because attorneys and judges were threatened and intimidated by those authorities.
81. …The evidence offered by the Commission … is sufficient to reject the Government's preliminary objection that the case is inadmissible because domestic remedies were not exhausted.
82. The Commission presented testimony and documentary evidence to show that there were many kidnappings and disappearances in Honduras from 1981 to 1984 and that those acts were attributable to the Armed Forces of Honduras ( hereinafter " Armed Forces " ), which was able to rely at least on the tolerance of the Government. Three officers of the Armed Forces testified on this subject at the request of the Court. …
107. According to the testimony of his sister, eyewitnesses to the kidnapping of Manfredo Velásquez told her that he was detained on September 12, 1981, between 4:30 and 5:00 p.m., in a parking lot in downtown Tegucigalpa by seven heavily-armed men dressed in civilian clothes ( one of them being First Sgt. José Isaías Vilorio ), who used a white Ford without license plates ( testimony of Zenaida Velásquez. See also testimony of Ramón Custodio López ). …
113. The former member of the Armed Forces who claimed to have belonged to the group that carried out kidnappings told the Court that, although he did not take part in the kidnapping of Manfredo Velásquez, Lt. Flores Murillo had told him what had happened. According to this testimony, Manfredo Velásquez was kidnapped in downtown Tegucigalpa in an operation in which Sgt. José Isaías Vilorio, men using the pseudonyms Ezequiel and Titanio, and Lt. Flores Murillo himself, took part. The Lieutenant told him that during the struggle Ezequiel's gun went off and wounded Manfredo in the leg. They took the victim to INDUMIL ( Military Industries ) where they tortured him. They then turned him over to those in charge of carrying out executions who, at the orders of General Alvarez, Chief of the Armed Forces, took him out of Tegucigalpa and killed him with a knife and machete. They dismembered his body and buried the remains in different places ( testimony of Florencio Caballero ). …
115. One witness testified that he was taken prisoner on September 29, 1981 by five or six persons who identified themselves as members of the Armed Forces and took him to the offices of DNI. They blindfolded him and took him in a car to an unknown place, where they tortured him. On October 1, 1981, while he was being held, he heard a moaning and pained voice through a hole in the door to an adjoining room. The person identified himself as Manfredo Velásquez and asked for help. According to the testimony of the witness, at that moment Lt. Ramón Mejía came in and hit him because he found him standing up, although the witness told the Lieutenant that he had gotten up because he was tired. He added that, subsequently, Sgt. Carlos Alfredo Martínez, whom he had met at the bar where he worked, told him they had turned Manfredo Velásquez over to members of Battalion 316 ( testimony of Leopoldo Aguilar Villalobos )….
117. The Commission also presented evidence to show that from 1981 to 1984 domestic judicial remedies in Honduras were ineffective in protecting human rights, especially the rights of disappeared persons to life, liberty and personal integrity. …
122. Before weighing the evidence, the Court must address some questions regarding the burden of proof and the general criteria considered in its evaluation and finding of the facts in the instant proceeding.
123. Because the Commission is accusing the Government of the disappearance of Manfredo Velásquez, it, in principle, should bear the burden of proving the facts underlying its petition.
124. The Commission's argument relies upon the proposition that the policy of disappearances, supported or tolerated by the Government, is designed to conceal and destroy evidence of disappearances. When the existence of such a policy or practice has been shown, the disappearance of a particular individual may be proved through circumstantial or indirect evidence or by logical inference. Otherwise, it would be impossible to prove that an individual has been disappeared. …
126. … If it can be shown that there was an official practice of disappearances in Honduras, carried out by the Government or at least tolerated by it, and if the disappearance of Manfredo Velásquez can be linked to that practice, the Commission's allegations will have been proven to the Court's satisfaction, so long as the evidence presented on both points meets the standard of proof required in cases such as this.
127. The Court must determine what the standards of proof should be in the instant case. Neither the Convention, the Statute of the Court nor its Rules of Procedure speak to this matter. Nevertheless, international jurisprudence has recognized the power of the courts to weigh the evidence freely, although it has always avoided a rigid rule regarding the amount of proof necessary to support the judgment ( Cfr. Corfu Channel, Merits, Judgment, I.C.J. Reports 1949; Military and Paramilitary Activities in and against Nicaragua ( Nicaragua v. United States of America ), Merits, Judgment, I.C.J. Reports 1986, paras. 29-30 and 59-60 ).
128. The standards of proof are less formal in an international legal proceeding than in a domestic one. The latter recognize different burdens of proof, depending upon the nature, character and seriousness of the case.
129. The Court cannot ignore the special seriousness of finding that a State Party to the Convention has carried out or has tolerated a practice of disappearances in its territory. This requires the Court to apply a standard of proof which considers the seriousness of the charge and which, notwithstanding what has already been said, is capable of establishing the truth of the allegations in a convincing manner.
130. The practice of international and domestic courts shows that direct evidence, whether testimonial or documentary, is not the only type of evidence that may be legitimately considered in reaching a decision. Circumstantial evidence, indicia, and presumptions may be considered, so long as they lead to conclusions consistent with the facts.
131. Circumstantial or presumptive evidence is especially important in allegations of disappearances, because this type of repression is characterized by an attempt to suppress all information about the kidnapping or the whereabouts and fate of the victim. …
134. The international protection of human rights should not be confused with criminal justice. States do not appear before the Court as defendants in a criminal action. The objective of international human rights law is not to punish those individuals who are guilty of violations, but rather to protect the victims and to provide for the reparation of damages resulting from the acts of the States responsible.
135. In contrast to domestic criminal law, in proceedings to determine human rights violations the State cannot rely on the defense that the complainant has failed to present evidence when it cannot be obtained without the State's cooperation.
136. The State controls the means to verify acts occurring within its territory. Although the Commission has investigatory powers, it cannot exercise them within a State's jurisdiction unless it has the cooperation of that State.
137. Since the Government only offered some documentary evidence in support of its preliminary objections, but none on the merits, the Court must reach its decision without the valuable assistance of a more active participation by Honduras, which might otherwise have resulted in a more adequate presentation of its case.
138. The manner in which the Government conducted its defense would have sufficed to prove many of the Commission's allegations by virtue of the principle that the silence of the accused or elusive or ambiguous answers on its part may be interpreted as an acknowledgment of the truth of the allegations, so long as the contrary is not indicated by the record or is not compelled as a matter of law. This result would not hold under criminal law, which does not apply in the instant case ( supra 134 and 135 ). The Court tried to compensate for this procedural principle by admitting all the evidence offered, even if it was untimely, and by ordering the presentation of additional evidence. This was done, of course, without prejudice to its discretion to consider the silence or inaction of Honduras or to its duty to evaluate the evidence as a whole. …
147. The Court now turns to the relevant facts that it finds to have been proven. They are as follows:
"a. During the period 1981 to 1984, 100 to 150 persons disappeared in the Republic of Honduras, and many were never heard from again ( testimony of Miguel Angel Pavón Salazar, Ramón Custodio López, Efraín Díaz Arrivillaga, Florencio Caballero and press clippings ).
b. Those disappearances followed a similar pattern, beginning with the kidnapping of the victims by force, often in broad daylight and in public places, by armed men in civilian clothes and disguises, who acted with apparent impunity and who used vehicles without any official identification, with tinted windows and with false license plates or no plates ( testimony of Miguel Angel Pavón Salazar, Ramón Custodio López, Efraín Díaz Arrivillaga, Florencio Caballero and press clippings ).
c. It was public and notorious knowledge in Honduras that the kidnappings were carried out by military personnel or the police, or persons acting under their orders ( testimony of Miguel Angel Pavón Salazar, Ramón Custodio López, Efraín Díaz Arrivillaga, Florencio Caballero and press clippings ).
d. The disappearances were carried out in a systematic manner, regarding which the Court considers the following circumstances particularly relevant:
i. The victims were usually persons whom Honduran officials considered dangerous to State security ( testimony of Miguel Angel Pavón Salazar, Ramón Custodio López, Efraín Díaz Arrivillaga, Florencio Caballero, Virgilio Carías, Milton Jiménez Puerto, René Velásquez Díaz, Inés Consuelo Murillo, José Gonzalo Flores Trejo, Zenaida Velásquez, Cesar Augusto Murillo and press clippings ). In addition, the victims had usually been under surveillance for long periods of time ( testimony of Ramón Custodio López and Florencio Caballero );
ii. The arms employed were reserved for the official use of the military and police, and the vehicles used had tinted glass, which requires special official authorization. In some cases, Government agents carried out the detentions openly and without any pretense or disguise; in others, government agents had cleared the areas where the kidnappings were to take place and, on at least one occasion, when government agents stopped the kidnappers they were allowed to continue freely on their way after showing their identification ( testimony of Miguel Angel Pavón Salazar, Ramón Custodio López and Florencio Caballero );
iii. The kidnappers blindfolded the victims, took them to secret, unofficial detention centers and moved them from one center to another. They interrogated the victims and subjected them to cruel and humiliating treatment and torture. Some were ultimately murdered and their bodies were buried in clandestine cemeteries ( testimony of Miguel Angel Pavón Salazar, Ramón Custodio López, Florencio Caballero, René Velásquez Díaz, Inés Consuelo Murillo and José Gonzalo Flores Trejo );
iv. When queried by relatives, lawyers and persons or entities interested in the protection of human rights, or by judges charged with executing writs of HABEAS corpus, the authorities systematically denied any knowledge of the detentions or the whereabouts or fate of the victims. That attitude was seen even in the cases of persons who later reappeared in the hands of the same authorities who had systematically denied holding them or knowing their fate ( testimony of Inés Consuelo Murillo, José Gonzalo Flores Trejo, Efraín Díaz Arrivillaga, Florencio Caballero, Virgilio Carías, Milton Jiménez Puerto, René Velásquez Diaz, Zenaida Velásquez, Cesar Augusto Murillo and press clippings );
v. Military and police officials as well as those from the Executive and Judicial Branches either denied the disappearances or were incapable of preventing or investigating them, punishing those responsible, or helping those interested discover the whereabouts and fate of the victims or the location of their remains. The investigative committees created by the Government and the Armed Forces did not produce any results. The judicial proceedings brought were processed slowly with a clear lack of interest and some were ultimately dismissed ( testimony of Inés Consuelo Murillo, José Gonzalo Flores Trejo, Efraín Díaz Arrivillaga, Florencio Caballero, Virgilio Carías, Milton Jiménez Puerto, René Velásquez Díaz, Zenaida Velásquez, César Augusto Murillo and press clippings );
e. On September 12, 1981, between 4:30 and 5:00 p.m., several heavily-armed men in civilian clothes driving a white Ford without license plates kidnapped Manfredo Velásquez from a parking lot in downtown Tegucigalpa. Today, nearly seven years later, he remains disappeared, which creates a reasonable presumption that he is dead ( testimony of Miguel Angel Pavón Salazar, Ramón Custodio López, Zenaida Velásquez, Florencio Caballero, Leopoldo Aguilar Villalobos and press clippings ).
f. Persons connected with the Armed Forces or under its direction carried out that kidnapping ( testimony of Ramón Custodio López, Zenaida Velásquez, Florencio Caballero, Leopoldo Aguilar Villalobos and press clippings ).
g. The kidnapping and disappearance of Manfredo Velásquez falls within the systematic practice of disappearances referred to by the facts deemed proved in paragraphs a-d. To wit:
i. Manfredo Velásquez was a student who was involved in activities the authorities considered " dangerous " to national security ( testimony of Miguel Angel Pavón Salazar, Ramón Custodio López and Zenaida Velásquez ).
ii. The kidnapping of Manfredo Velásquez was carried out in broad daylight by men in civilian clothes who used a vehicle without license plates.
iii. In the case of Manfredo Velásquez, there were the same type of denials by his captors and the Armed Forces, the same omissions of the latter and of the Government in investigating and revealing his whereabouts, and the same ineffectiveness of the courts where three writs of HABEAS corpus and two criminal complaints were brought ( testimony of Miguel Angel Pavón Salazar, Ramón Custodio López, Zenaida Velásquez, press clippings and documentary evidence).
h. There is no evidence in the record that Manfredo Velásquez had disappeared in order to join subversive groups, other than a letter from the Mayor of Langue, which contained rumors to that effect. The letter itself shows that the Government associated him with activities it considered a threat to national security. However, the Government did not corroborate the view expressed in the letter with any other evidence. Nor is there any evidence that he was kidnapped by common criminals or other persons unrelated to the practice of disappearances existing at that time."
148. Based upon the above, the Court finds that the following facts have been proven in this proceeding: ( 1 ) a practice of disappearances carried out or tolerated by Honduran officials existed between 1981 and 1984; ( 2 ) Manfredo Velásquez disappeared at the hands of or with the acquiescence of those officials within the framework of that practice; and ( 3 ) the Government of Honduras failed to guarantee the human rights affected by that practice.
149. Disappearances are not new in the history of human rights violations. However, their systematic and repeated nature and their use not only for causing certain individuals to disappear, either briefly or permanently, but also as a means of creating a general state of anguish, insecurity and fear, is a recent phenomenon. Although this practice exists virtually worldwide, it has occurred with exceptional intensity in Latin America in the last few years.
150. The phenomenon of disappearances is a complex form of human rights violation that must be understood and confronted in an integral fashion. …
154. Without question, the State has the right and duty to guarantee its security. It is also indisputable that all societies suffer some deficiencies in their legal orders. However, regardless of the seriousness of certain actions and the culpability of the perpetrators of certain crimes, the power of the State is not unlimited, nor may the State resort to any means to attain its ends. The State is subject to law and morality. Disrespect for human dignity cannot serve as the basis for any State action.
155. The forced disappearance of human beings is a multiple and continuous violation of many rights under the Convention that the States Parties are obligated to respect and guarantee. The kidnapping of a person is an arbitrary deprivation of liberty, an infringement of a detainee's right to be taken without delay before a judge and to invoke the appropriate procedures to review the legality of the arrest, all in violation of Article 7 of the Convention which recognizes the right to personal liberty …
156. Moreover, prolonged isolation and deprivation of communication are in themselves cruel and inhuman treatment, harmful to the psychological and moral integrity of the person and a violation of the right of any detainee to respect for his inherent dignity as a human being. Such treatment, therefore, violates Article 5 of the Convention, which recognizes the right to the integrity of the person …
157. The practice of disappearances often involves secret execution without trial, followed by concealment of the body to eliminate any material evidence of the crime and to ensure the impunity of those responsible. This is a flagrant violation of the right to life, recognized in Article 4 of the Convention…
158. The practice of disappearances, in addition to directly violating many provisions of the Convention, such as those noted above, constitutes a radical breach of the treaty in that it shows a crass abandonment of the values which emanate from the concept of human dignity and of the most basic principles of the inter-American system and the Convention. The existence of this practice, more over, evinces a disregard of the duty to organize the State in such a manner as to guarantee the rights recognized in the Convention, as set out below. …
161. Article 1( 1 ) of the Convention provides:
"Article 1. Obligation to Respect Rights
1. The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition." …
164. Article 1( 1 ) is essential in determining whether a violation of the human rights recognized by the Convention can be imputed to a State Party. In effect, that article charges the States Parties with the fundamental duty to respect and guarantee the rights recognized in the Convention. Any impairment of those rights which can be attributed under the rules of international law to the action or omission of any public authority constitutes an act imputable to the State, which assumes responsibility in the terms provided by the Convention.
165. The first obligation assumed by the States Parties under Article 1( 1 ) is " to respect the rights and freedoms " recognized by the Convention. …
166. The second obligation of the States Parties is to " ensure " the free and full exercise of the rights recognized by the Convention to every person subject to its jurisdiction. This obligation implies the duty of the States Parties to organize the governmental apparatus and, in general, all the structures through which public power is exercised, so that they are capable of juridically ensuring the free and full enjoyment of human rights. As a consequence of this obligation, the States must prevent, investigate and punish any violation of the rights recognized by the Convention and, moreover, if possible attempt to restore the right violated and provide compensation as warranted for damages resulting from the violation. …
169. According to Article 1( 1 ), any exercise of public power that violates the rights recognized by the Convention is illegal. Whenever a State organ, official or public entity violates one of those rights, this constitutes a failure of the duty to respect the rights and freedoms set forth in the Convention.
170. This conclusion is independent of whether the organ or official has contravened provisions of internal law or overstepped the limits of his authority: under international law a State is responsible for the acts of its agents undertaken in their official capacity and for their omissions, even when those agents act outside the sphere of their authority or violate internal law. …
172. Thus, in principle, any violation of rights recognized by the Convention carried out by an act of public authority or by persons who use their position of authority is imputable to the State. However, this does not define all the circumstances in which a State is obligated to prevent, investigate and punish human rights violations, nor all the cases in which the State might be found responsible for an infringement of those rights. An illegal act which violates human rights and which is initially not directly imputable to a State ( for example, because it is the act of a private person or because the person responsible has not been identified ) can lead to international responsibility of the State, not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention.
173. … What is decisive is whether a violation of the rights recognized by the Convention has occurred with the support or the acquiescence of the government, or whether the State has allowed the act to take place without taking measures to prevent it or to punish those responsible….
174. The State has a legal duty to take reasonable steps to prevent human rights violations and to use the means at its disposal to carry out a serious investigation of violations committed within its jurisdiction, to identify those responsible, to impose the appropriate punishment and to ensure the victim adequate compensation.
175. This duty to prevent includes all those means of a legal, political, administrative and cultural nature that promote the protection of human rights and ensure that any violations are considered and treated as illegal acts, which, as such, may lead to the punishment of those responsible and the obligation to indemnify the victims for damages. …Of course, while the State is obligated to prevent human rights abuses, the existence of a particular violation does not, in itself, prove the failure to take preventive measures. On the other hand, subjecting a person to official, repressive bodies that practice torture and assassination with impunity is itself a breach of the duty to prevent violations of the rights to life and physical integrity of the person, even if that particular person is not tortured or assassinated, or if those facts cannot be proven in a concrete case.
176. The State is obligated to investigate every situation involving a violation of the rights protected by the Convention. If the State apparatus acts in such a way that the violation goes unpunished and the victim's full enjoyment of such rights is not restored as soon as possible, the State has failed to comply with its duty to ensure the free and full exercise of those rights to the persons within its jurisdiction. The same is true when the State allows private persons or groups to act freely and with impunity to the detriment of the rights recognized by the Convention.
177. In certain circumstances, it may be difficult to investigate acts that violate an individual's rights. The duty to investigate, like the duty to prevent, is not breached merely because the investigation does not produce a satisfactory result. Nevertheless, it must be undertaken in a serious manner and not as a mere formality preordained to be ineffective. An investigation must have an objective and be assumed by the State as its own legal duty, not as a step taken by private interests that depends upon the initiative of the victim or his family or upon their offer of proof, without an effective search for the truth by the government. This is true regardless of what agent is eventually found responsible for the violation. Where the acts of private parties that violate the Convention are not seriously investigated, those parties are aided in a sense by the government, thereby making the State responsible on the international plane.
178. In the instant case, the evidence shows a complete inability of the procedures of the State of Honduras, which were theoretically adequate, to carry out an investigation into the disappearance of Manfredo Velásquez, and of the fulfillment of its duties to pay compensation and punish those responsible, as set out in Article 1( 1 ) of the Convention.
179. As the Court has verified above, the failure of the judicial system to act upon the writs brought before various tribunals in the instant case has been proven. Not one writ of habeas corpus was processed. No judge had access to the places where Manfredo Velasquez might have been detained. The criminal complaint was dismissed.
180. Nor did the organs of the Executive Branch carry out a serious investigation to establish the fate of Manfredo Velasquez. There was no investigation of public allegations of a practice of disappearances nor a determination of whether Manfredo Velásquez had been a victim of that practice. The Commission's requests for information were ignored to the point that the Commission had to presume, under Article 42 of its Regulations, that the allegations were true. The offer of an investigation in accord with Resolution 30/83 of the Commission resulted in an investigation by the Armed Forces, the same body accused of direct responsibility for the disappearances. This raises grave questions regarding the seriousness of the investigation. The Government often resorted to asking relatives of the victims to present conclusive proof of their allegations even though those allegations, because they involved crimes against the person, should have been investigated on the Government's own initiative in fulfillment of the State's duty to ensure public order. This is especially true when the allegations refer to a practice carried out within the Armed Forces, which, because of its nature, is not subject to private investigations. No proceeding was initiated to establish responsibility for the disappearance of Manfredo Velásquez and apply punishment under internal law. All of the above leads to the conclusion that the Honduran authorities did not take effective action to ensure respect for human rights within the jurisdiction of that State as required by Article 1( 1 ) of the Convention.
181. The duty to investigate facts of this type continues as long as there is uncertainty about the fate of the person who has disappeared. Even in the hypothetical case that those individually responsible for crimes of this type cannot be legally punished under certain circumstances, the State is obligated to use the means at its disposal to inform the relatives of the fate of the victims and, if they have been killed, the location of their remains.
182. The Court is convinced, and has so found, that the disappearance of Manfredo Velásquez was carried out by agents who acted under cover of public authority. However, even had that fact not been proven, the failure of the State apparatus to act, which is clearly proven, is a failure on the part of Honduras to fulfill the duties it assumed under Article 1( 1 ) of the Convention, which obligated it to ensure Manfredo Velásquez the free and full exercise of his human rights. …
184. According to the principle of the continuity of the State in international law, responsibility exists both independently of changes of government over a period of time and continuously from the time of the act that creates responsibility to the time when the act is declared illegal. The foregoing is also valid in the area of human rights although, from an ethical or political point of view, the attitude of the new government may be much more respectful of those rights than that of the government in power when the violations occurred.
185. The Court, therefore, concludes that the facts found in this proceeding show that the State of Honduras is responsible for the involuntary disappearance of Angel Manfredo Velásquez Rodríguez. Thus, Honduras has violated Articles 7, 5 and 4 of the Convention.
186. As a result of the disappearance, Manfredo Velasquez was the victim of an arbitrary detention, which deprived him of his physical liberty without legal cause and without a determination of the lawfulness of his detention by a judge or competent tribunal. Those acts directly violate the right to personal liberty recognized by Article 7 of the Convention ( supra 155 ) and are a violation imputable to Honduras of the duties to respect and ensure that right under Article 1( 1 ).
187. The disappearance of Manfredo Velásquez violates the right to personal integrity recognized by Article 5 of the Convention ( supra 156 ). First, the mere subjection of an individual to prolonged isolation and deprivation of communication is in itself cruel and inhuman treatment which harms the psychological and moral integrity of the person, and violates the right of every detainee under Article 5( 1 ) and 5( 2 ) to treatment respectful of his dignity. Second, although it has not been directly shown that Manfredo Velásquez was physically tortured, his kidnapping and imprisonment by governmental authorities, who have been shown to subject detainees to indignities, cruelty and torture, constitute a failure of Honduras to fulfill the duty imposed by Article 1( 1 ) to ensure the rights under Article 5( 1 ) and 5( 2 ) of the Convention. The guarantee of physical integrity and the right of detainees to treatment respectful of their human dignity require States Parties to take reasonable steps to prevent situations which are truly harmful to the rights protected.
188. The above reasoning is applicable to the right to life recognized by Article 4 of the Convention ( supra 157 ). The context in which the disappearance of Manfredo Velasquez occurred and the lack of knowledge seven years later about his fate create a reasonable presumption that he was killed. Even if there is a minimal margin of doubt in this respect, it must be presumed that his fate was decided by authorities who systematically executed detainees without trial and concealed their bodies in order to avoid punishment. This, together with the failure to investigate, is a violation by Honduras of a legal duty under Article 1( 1 ) of the Convention to ensure the rights recognized by Article 4( 1 ). That duty is to ensure to every person subject to its jurisdiction the inviolability of the right to life and the right not to have one's life taken arbitrarily. These rights imply an obligation on the part of States Parties to take reasonable steps to prevent situations that could result in the violation of that right.
[In the remedies phase, the Inter-American Court awarded money damages for lost income and reparations.]
[Compare Human Rights Committee General Comment 24: 8. The article 2, paragraph 1, obligations are binding on States [Parties] and do not, as such, have direct horizontal effect as a matter of international law. The Covenant cannot be viewed as a substitute for domestic criminal or civil law. However the positive obligations on States Parties to ensure Covenant rights will only be fully discharged if individuals are protected by the State, not just against violations of Covenant rights by its agents, but also against acts committed by private persons or entities that would impair the enjoyment of Covenant rights in so far as they are amenable to application between private persons or entities. There may be circumstances in which a failure to ensure Covenant rights as required by article 2 would give rise to violations by States Parties of those rights, as a result of States Parties' permitting or failing to take appropriate measures or to exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities. States are reminded of the interrelationship between the positive obligations imposed under article 2 and the need to provide effective remedies in the event of breach under article 2, paragraph 3. The Covenant itself envisages in some articles certain areas where there are positive obligations on States Parties to address the activities of private persons or entities.]
European Court of Human Rights, History of the Court’s Reforms (2015)
Since the Court opened in 1959, the member States of the Council of Europe have adopted a number of protocols to the European Convention on Human Rights with the aim of improving and strengthening its supervisory mechanism. In 1998 Protocol No. 11 thus replaced the original two-tier structure comprising the Court and the Commission on Human Rights, sitting a few days per month, by a single full-time Court. This change put an end to the Commission’s filtering function, enabling applicants to bring their cases directly before the Court.
A second major reform to address the considerable increase in the number of applications and the Court’s backlog was brought about by the entry into force of Protocol No. 14 in 2010. This Protocol introduced new judicial formations for the simplest cases and established a new admissibility criterion (existence of a “significant disadvantage” for the applicant); it also extended the judges’ term of office to 9 years (not renewable).
Since 2010, four high-level conferences on the future of the Court have been convened to identify the means to guarantee the long-term effectiveness of the Convention system. These conferences have, in particular, led to the adoption of Protocols 15 and 16 to the Convention.
Protocol No. 15, adopted in 2013, inserts a reference to the principle of subsidiarity and the doctrine of the margin of appreciation into the Convention’s preamble; it also reduces from 6 to 4 months the time within which an application must be lodged with the Court after a final national decision.
2013 has also seen the adoption of Protocol No. 16, which will allow the highest domestic courts and tribunals to request the Court to give advisory opinions on questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto. Protocol No. 16 is optional.
The following is adapted from recent supplementation to Henkin et al., Human Rights (2009)
In November 2011, the United Kingdom assumed the Chairmanship of the Committee of Ministers of the Council of Europe and announced that it would make reforming the ECHR a priority. The UK government’s relationship with the court had become contentious following the judgment in Hirst v. United Kingdom (No. 2), App. No. 74025/01, 2005–IX Eur. Ct. H.R. (Grand Chamber), in which a majority of the ECHR held that a British law denying convicted prisoners the right to vote contravened Article 3 of Protocol No. 1. The Hirst judgment was highly unpopular in the UK. British Prime Minister David Cameron publicly stated that giving prisoners the right to vote “makes me feel sick.” Alison Little, PM: Giving Prisoners Vote Makes Me Feel Sick, Daily Express (Nov. 4, 2010). Some British politicians and news media outlets heavily criticized other ECHR judgments as unduly interfering with domestic laws and practices. By 2011, polls indicated that a majority of British voters favored the country’s withdrawal from the European Convention. Sunday Times Survey Results, Feb. 10-11, 2011.
The public backlash against the Strasbourg Court in the United Kingdom colored the third high-level conference on the future of the ECHR convened in Brighton, England in March 2012. A draft of the Brighton Declaration was leaked on the eve of the conference. The draft included statements that many NGOs and academics—as well as some government officials and members of the court—viewed as weakening the ECHR’s review powers and calling into question its independence. For example, one proposal would have deemed inadmissible any application which alleged violations of the European Convention that were substantially identical to those that a domestic court had previously considered. Joshua Rozenberg, Leaked proposals set out Britain’s tough line towards Strasbourg, The Guardian, Feb. 28, 2012.
The final text adopts a somewhat more moderate approach. High Level Conference on the Future of the European Court of Human Rights: Brighton Declaration (Apr. 19-20, 2012). The Declaration reaffirms the member states’ “deep and abiding commitment” to the Convention, its institutions, and the right of individual petition, id. ¶¶ 1-2, and it recognizes their responsibility to ensure the effective domestic implementation of the Convention and to abide by ECHR judgments against them. Id. ¶¶ 3-4. The Declaration also reiterates recommendations adopted at the Interlaken and Izmir conferences to reduce the court’s workload and backlog of pending cases. Other sections of the Brighton Declaration, however, propose to amend the Convention in ways that will arguably limit the ECHR’s authority. These provisions include:
• adding to the Convention’s preamble express references to the principle of subsidiarity and to the doctrine of the margin of appreciation—references that many observers view as a signal to the ECHR to give greater deference to member states, id. ¶ 12.b;
• shortening the limitations period for individuals to file applications with the ECHR from six to four months, id. ¶ 15.a;
• eliminating, from the “significant disadvantage” ground for declaring an application inadmissible, the safeguard clause that permits the ECHR to review the application if it “has not been duly considered by a domestic tribunal,” id. ¶ 15.c;
• removing the parties’ ability to object to a Chamber’s decision to relinquish a case to the Grand Chamber, a venue considered more sympathetic to national governments, id. ¶ 25.d.
Supplementing these provisions are several statements that suggest, to greater or lesser degrees, that the ECHR should rein in its scrutiny of national governments:
• an assertion that “the role of the Court is to review whether decisions taken by national authorities are compatible with the Convention, having due regard to the State’s margin of appreciation,” id. ¶ 11;
• a recommendation that the ECHR “take a strict and consistent approach” to declaring inadmissible complaints that have “been duly considered by a domestic court applying the rights guaranteed by the Convention in light of well-established case law of the Court including on the margin of appreciation,” id. ¶ 15.d;
• an invitation to the Court “to have regard to the importance of consistency where judgments relate to aspects of the same issue, so as to ensure their cumulative effect continues to afford States Parties an appropriate margin of appreciation,” id. ¶ 25.c; and
• a timetable for the Committee of Ministers to determine whether existing reforms have “proven to be sufficient to assure sustainable functioning” of the ECHR, or whether “more profound changes are necessary,” id. ¶ 34.
On 24 June 2013, the Council of Europe opened for signature Protocol No. 15 to the European Convention, which implements the first four bullet points listed above. In particular, once ratified by all Contracting States, Protocol No. 15 will add to the Preamble to the European Convention the following paragraph:
“Affirming that the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention;”
The Explanatory Report accompanying the Protocol No. 15 describes this amendment as follows:
7. A new recital has been added at the end of the Preamble of the Convention containing a reference to the principle of subsidiarity and the doctrine of the margin of appreciation. It is intended to enhance the transparency and accessibility of these characteristics of the Convention system and to be consistent with the doctrine of the margin of appreciation as developed by the Court in its case law. In making this proposal, the Brighton Declaration also recalled the High Contracting Parties’ commitment to give full effect to their obligation to secure the rights and freedoms defined in the Convention.
8. The States Parties to the Convention are obliged to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, and to provide an effective remedy before a national authority for everyone whose rights and freedoms are violated. The Court authoritatively interprets the Convention. It also acts as a safeguard for individuals whose rights and freedoms are not secured at the national level.
9. The jurisprudence of the Court makes clear that the State Parties enjoy a margin of appreciation in how they apply and implement the Convention, depending on the circumstances of the case and the rights and freedoms engaged. This reflects that the Convention system is subsidiary to the safeguarding of human rights at national level and that national authorities are in principle better placed than an international court to evaluate local needs and conditions. The margin of appreciation goes hand in hand with supervision under the Convention system. In this respect, the role of the Court is to review whether decisions taken by national authorities are compatible with the Convention, having due regard to the State’s margin of appreciation…
In 2009, the ECHR adopted a Priority Policy for processing applications. “[T]he new policy establishes a clear order of adjudication at a time when the Court’s pending caseload exceeds 130,000 applications, a number which rose by 17 percent in 2010.” Michael Becker, European Court Institutes Priority Policy For Hearing Claims, Hum. Rts. Br. (Mar. 2011). The essence of the new policy is expressed in amended Rule 41 of the Rules of Court: “In determining the order in which cases are to be dealt with, the Court shall have regard to the importance and urgency of the issues raised on the basis of criteria fixed by it. The Chamber, or its President, may, however, derogate from these criteria so as to give priority to a particular application.” To implement this policy, the Court will now place each pending claim into a category—number numbered I through VII—based on the level of importance set out in the following table: https://perma.cc/PBJ9-9Y78
￼European Court of Human Rights, Priority Policy.
In a 2012 report adopted by the Parliamentary Assembly characterizes the Priority Policy as a “bold step,” which, “if implemented rigorously, will ensure that the most serious cases and the cases which disclose the existence of widespread problems capable of generating large numbers of additional cases are dealt with more rapidly.” The report further states that the policy will “re-focus discussion away from the obsessive concern with the rising backlog of applications before the Court and instead grapple with problems of ‘persistent defaulters’ in which serious human rights problems exist.” Report of the Committee on Legal Affairs and Human Rights, Guaranteeing the authority and effectiveness of the European Convention on Human Rights, para. 60 (Jan. 3, 2012) (adopted by the Parliamentary Assembly on Jan. 24, 2012).
According to one commentator, however, the “subjective nature of labeling priorities raises concerns regarding the introduction of bias into the process, and could possibly encourage violators to commit low-priority offenses with no fear of punishment.” For example, should an individual “who was deprived a fair and public hearing be any less aggrieved because his claim falls fourth on the spectrum? What about those who have been denied their rights to free speech and religion, who now may wait years or decades behind those whose claims are deemed ‘more urgent?’” Becker, supra.
High-level Conference on the “Implementation of the European Convention on Human Rights, our shared responsibility”
Brussels Declaration 27 March 2015
The High-level Conference meeting in Brussels on 26 and 27 March 2015 at the initiative of the Belgian Chairmanship of the Committee of Ministers of the Council of Europe (“the Conference”):
Reaffirms the deep and abiding commitment of the States Parties to the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) and their strong attachment to the right of individual application to the European Court of Human Rights (“the Court”) as a cornerstone of the system for protecting the rights and freedoms set forth in the Convention;
Acknowledges the extraordinary contribution of the Convention system to the protection and promotion of human rights in Europe since its establishment and reaffirms its central role in maintaining democratic stability across the Continent;
Recalls, in this respect, the interdependence between the Convention and the other activities of the Council of Europe in the field of human rights, the rule of law and democracy, the objective being to develop the common democratic and legal space founded on respect for human rights and fundamental freedoms;
Reaffirms the principles of the Interlaken, Izmir and Brighton Declarations and welcomes the very encouraging results achieved to date by the Council of Europe in the framework of the reform of the Convention system, through the implementation of these declarations;
Welcomes, in particular, the efforts of the Court as regards the swift implementation of Protocol No. 14 to the Convention, which entered into force on 1 June 2010, and that the backlog of manifestly inadmissible cases is expected to be cleared in 2015;
Welcomes, in the light of the positive results obtained, the new working methods of the Committee of Ministers for the supervision of the execution of the Court’s judgments, which entered into force on 1 January 2011 and which inter alia strengthen the principle of subsidiarity;
Reiterates the subsidiary nature of the supervisory mechanism established by the Convention and in particular the primary role played by national authorities, namely governments, courts and parliaments, and their margin of appreciation in guaranteeing and protecting human rights at national level, while involving National Human Rights Institutions and civil society where appropriate;
Underlines the obligations of States Parties under Article 34 of the Convention not to hinder the exercise of the right to individual application, including by observing Rule 39 of the Rules of the Court regarding interim measures, and under Article 38 of the Convention to furnish all necessary facilities to the Court during the examination of the cases;
Underlines the importance of Article 46 of the Convention on the binding force of the Court’s judgments, which stipulates that the States Parties undertake to abide by the final judgments of the Court in any case to which they are parties;
Stresses the importance of further promoting knowledge of and compliance with the Convention within all the institutions of the States Parties, including the courts and parliaments, pursuant to the principle of subsidiarity; Recalls in this context that the execution of the Court’s judgments may require the involvement of the judiciary and parliaments;
Whilst noting the progress achieved by States Parties with regard to the execution of judgments, emphasises the importance of the full, effective and prompt execution of judgments and of a strong political commitment by the States Parties in this respect, thus strengthening the credibility of the Court and the Convention system in general;
Is convinced that further to the improvements already carried out, emphasis must now be placed on the current challenges, in particular the repetitive applications resulting from the non-execution of Court judgments, the time taken by the Court to consider and decide upon potentially well-founded cases, the growing number of judgments under supervision by the Committee of Ministers and the difficulties of States Parties in executing certain judgments due to the scale, nature or cost of the problems raised. To this end, additional measures are necessary in order to:
The Conference therefore:
(1) Reaffirms the strong attachment of the States Parties to the Convention to the right of individual application;
(2) Reiterates the firm determination of the States Parties to fulfil their primary obligation to ensure that the rights and freedoms set forth in the Convention and its protocols are fully secured at national level, in accordance with the principle of subsidiarity;
(3) Invites each stakeholder to ensure that the necessary means are available to fulfil its role in the implementation of the Convention, in conformity with the Convention providing for shared responsibility between the States Parties, the Court and the Committee of Ministers;
(4) Welcomes the work carried out by the Court in particular regarding the dissemination of its judgments and decisions, through its information notes, its practical guide on admissibility, as well as its case-law guides and thematic factsheets;
(5) Reaffirms the need to maintain the independence of the judges and to preserve the impartiality, quality and authority of the Court;
(6) Acknowledges the role of the Registry of the Court in maintaining the highest efficiency in the management of applications and in the implementation of the reform process;
(7) Invites the Court to remain vigilant in upholding the States Parties’ margin of appreciation;
(8) Stresses the need to find, both at the level of the Court and in the framework of the execution of judgments, effective solutions for dealing with repetitive cases;
(9) Encourages in this regard States Parties to give priority to alternative procedures to litigation such as friendly settlements and unilateral declarations;
(10) Recalling Article 46 of the Convention, stresses that full, effective and prompt execution by the States Parties of final judgments of the Court is essential;
(11) Reiterates the importance of the Committee of Ministers respecting the States Parties’ freedom to choose the means of full and effective execution of the Court’s judgments;
(12) Calls for enhancing, at the level of both the Committee of Ministers and the States Parties, in accordance with the principle of subsidiarity, the effectiveness of the system of supervision of the execution of the Court’s judgments;
(13) Encourages the bodies of the Council of Europe to increase and improve their activities of co-operation and bilateral dialogue with States Parties with regard to the implementation of the Convention, including by facilitating access to information on good practices, and invites States Parties to make full use of the said activities;
(14) Calls on the States Parties to sign and ratify Protocol No. 15 amending the Convention as soon as possible and to consider signing and ratifying Protocol No. 16;
(15) Reaffirms the importance of the accession of the European Union to the Convention and encourages the finalisation of the process at the earliest opportunity;
(16) Takes note of the work currently being carried out by the Steering Committee for Human Rights (CDDH), as a follow-up to the Brighton Declaration, on the reform of the Convention system and its long-term future, the results of which are foreseen in December 2015;
(17) Adopts the present Declaration in order to give political impetus to the current reform process to ensure the long-term effectiveness of the Convention system.
A. Interpretation and application of the Convention by the Court
1. Bearing in mind the jurisdiction of the Court to interpret and apply the Convention, the Conference underlines the importance of clear and consistent case-law as well as the Court’s interactions with the national authorities and the Committee of Ministers, and in this regard:
2. Recalling the remaining challenges, including the repetitive cases, the Conference underlines the importance of an efficient control of the observance of the engagements undertaken by States Parties under the Convention and, in this regard, supports:
B. Implementation of the Convention at national level
The Conference recalls the primary responsibility of the States Parties to ensure the application and effective implementation of the Convention and, in this regard, reaffirms that the national authorities and, in particular, the courts are the first guardians of human rights ensuring the full, effective and direct application of the Convention – in the light of the Court’s case law – in their national legal system, in accordance with the principle of subsidiarity.
The Conference calls upon the States Parties to:
1. Prior to and independently of the processing of cases by the Court:
2. After the Court’s judgments:
C. Supervision of the execution of judgments
The Conference underlines the importance of the efficient supervision of the execution of judgments in order to ensure the long-term sustainability and credibility of the Convention system and, for this purpose:
1. Encourages the Committee of Ministers to:
2. Encourages the Secretary General and, through him, the Department for the Execution of Judgments to:
3. Also encourages:
Implementation of the Action plan:
In order to implement this Action Plan, the Conference:
(1) first and foremost calls on the States Parties, the Committee of Ministers, the Secretary General and the Court to give full effect to this plan;
(2) calls on the Committee of Ministers to decide, at the Ministerial Session on 19 May 2015, to take stock of the implementation of, and make an inventory of good practices relating to, Recommendation CM/Rec(2008)2 on efficient domestic capacity for rapid execution of judgments of the European Court of Human Rights and, if appropriate, provide for updating the Recommendation in the light of practices developed by the States Parties;
(3) calls on the States Parties to adopt, in the light of this Action Plan, possible new measures to improve their judgment execution process and to provide the Committee of Ministers with information on this subject before the end of June 2016;
(4) encourage all States Parties to examine, together with the Department for the Execution of Judgments, all their pending cases, identify those that can be closed and the remaining major problems and, on the basis of this analysis, work towards progressively absorbing the backlog of pending cases;
(5) calls, in particular, on the Committee of Ministers and the States Parties to involve, where appropriate, civil society and National Human Rights Institutions in the implementation of the Action Plan;
(6) invites the Committee of Ministers to evaluate, while respecting the calendar set out in the Interlaken Declaration, the extent to which implementation of this Action Plan has improved the effectiveness of the Convention system. On the basis of this evaluation, the Committee of Ministers should decide, before the end of 2019, on whether more far-reaching changes are necessary;
(7) asks the Belgian Chairmanship to transmit this Declaration and the Proceedings of the Brussels Conference to the Committee of Ministers;
(8) invites the future Chairmanships of the Committee of Ministers to monitor implementation of this Action Plan.
Cases and Materials on the Relation of the British and Convention Legal Systems (prepared by Adam Wagner, QC, and webmaster of http://rightsinfo.com)
Osborn v The Parole Board  UKSC 61, paras. 54 to 63 (Lord Reed)
Domestic law and Convention rights
54. The submissions on behalf of the appellants focused on article 5(4), and paid comparatively little attention to domestic administrative law. As I shall explain, that approach does not properly reflect the relationship between domestic law (considered apart from the Human Rights Act) and Convention rights.
55. The guarantees set out in the substantive articles of the Convention, like other guarantees of human rights in international law, are mostly expressed at a very high level of generality. They have to be fulfilled at national level through a substantial body of much more specific domestic law. That is true in the United Kingdom as in other contracting states. For example, the guarantee of a fair trial, under article 6, is fulfilled primarily through detailed rules and principles to be found in several areas of domestic law, including the law of evidence and procedure, administrative law, and the law relating to legal aid. The guarantee of a right to respect for private and family life, under article 8, is fulfilled primarily through rules and principles found in such areas of domestic law as the law of tort, family law and constitutional law. Many other examples could be given. Article 5, in particular, is implemented through several areas of the law, including criminal procedure, the law relating to sentencing, mental health law and administrative law: indeed, article 5(4) is said to have been inspired by the English law of habeas corpus (Sanchez-Reisse v Switzerland (1987) 9 EHRR 71, 88). As these examples indicate, the protection of human rights is not a distinct area of the law, based on the case law of the European Court of Human Rights, but permeates our legal system.
56. The values underlying both the Convention and our own constitution require that Convention rights should be protected primarily by a detailed body of domestic law. The Convention taken by itself is too inspecific to provide the guidance which is necessary in a state governed by the rule of law. As the European court has said, "a norm cannot be regarded as a 'law' unless it is formulated with sufficient precision to enable the citizen to regulate his conduct" (Sunday Times v United Kingdom (1979) 2 EHRR 245, 271). The Convention cannot therefore be treated as if it were Moses and the prophets. On the contrary, the European court has often referred to "the fundamentally subsidiary role of the Convention" (see eg Hatton v United Kingdom (2003) 37 EHRR 28, para 97). In relation to article 5(4) in particular, the court has made it clear that in order for there to be compliance with that guarantee, there must in the first place be compliance with the relevant substantive and procedural rules of domestic law (Koendjbiharie v The Netherlands (1991) 13 EHRR 820, para 27).
57. Domestic law may however fail to reflect fully the requirements of the Convention. In that situation, it has always been open to Parliament to legislate in order to fulfil the United Kingdom's international obligations; as it has done, for example, in response to judgments of the European court concerning the application of article 5(4). The courts have also been able to take account of those obligations in the development of the common law and in the interpretation of legislation. The Human Rights Act has however given domestic effect, for the purposes of the Act, to the guarantees described as Convention rights. It requires public authorities generally to act compatibly with those guarantees, and provides remedies to persons affected by their failure to do so. The Act also provides a number of additional tools enabling the courts and government to develop the law when necessary to fulfil those guarantees, and requires the courts to take account of the judgments of the European court. The importance of the Act is unquestionable. It does not however supersede the protection of human rights under the common law or statute, or create a discrete body of law based upon the judgments of the European court. Human rights continue to be protected by our domestic law, interpreted and developed in accordance with the Act when appropriate.
58. That approach is now well established. A few examples may be given. In R (Daly) v Secretary of State for the Home Department  UKHL 26;  2 AC 532 a policy that prisoners should be absent from their cells while they were being searched for contraband, as applied to a prisoner who had correspondence with his solicitor in his cell, was held to be unlawful on the ground that it infringed the prisoner's common law right that the confidentiality of privileged legal correspondence be maintained. Lord Bingham of Cornhill noted in the final paragraph of his speech that that result was compatible with article 8 of the Convention. In that regard he adopted the observations of Lord Cooke of Thorndon, who said (para 30):
"It is of great importance, in my opinion, that the common law by itself is being recognised as a sufficient source of the fundamental right to confidential communication with a legal adviser for the purpose of obtaining legal advice. Thus the decision may prove to be in point in common law jurisdictions not affected by the Convention. Rights similar to those in the Convention are of course to be found in constitutional documents and other formal affirmations of rights elsewhere. The truth is, I think, that some rights are inherent and fundamental to democratic civilised society. Conventions, constitutions, bills of rights and the like respond by recognising rather than creating them."
59. When the House of Lords considered in R (West) v Parole Board  UKHL 1;  1 WLR 350 the circumstances in which determinate sentence prisoners recalled to prison were entitled to an oral hearing before the board, it took the common law as its starting point, and considered judgments of the European court, together with judgments from a number of common law jurisdictions, in deciding what the common law required. It went on to hold that the board's review of the prisoner's case would satisfy the requirements of article 5(4) provided it was conducted in a manner that met the common law requirements of procedural fairness. That decision is of obvious relevance to the present appeals.
60. Similarly, when the House of Lords rejected the admission of evidence obtained by torture, it did so on the basis of the common law: A v Secretary of State for the Home Department (No 2)  UKHL 71;  2 AC 221. Lord Bingham observed at para 51 that English common law had regarded torture and its fruits with abhorrence for over 500 years, and concluded at para 52 that the principles of the common law, standing alone, compelled the exclusion of third party torture evidence. He noted that that was consistent with the Convention.
61. More recently, the importance of the continuing development of the common law, in areas falling within the scope of the Convention guarantees, was emphasised by the Court of Appeal in R (Guardian News and Media Ltd) v City of Westminster Magistrates' Court (Article 19 intervening)  EWCA Civ 420;  QB 618. The case concerned access by the Press to documents referred to in court, and was decided on the basis of the common law, including authorities from other jurisdictions, rather than on the basis of article 10 of the Convention. Toulson LJ, with whose reasoning the other members of the court agreed, stated at para 88:
"The development of the common law did not come to an end on the passing of the Human Rights Act 1998 . It is in vigorous health and flourishing in many parts of the world which share a common legal tradition. This case provides a good example of the benefit which can be gained from knowledge of the development of the common law elsewhere."
62. Finally, in this connection, in R (Faulkner) v Secretary of State for Justice  UKSC 23;  2 WLR 1157, para 29, the ordinary approach to the relationship between domestic law and the Convention was described as being that the courts endeavour to apply and if need be develop the common law, and interpret and apply statutory provisions, so as to arrive at a result which is in compliance with the UK's international obligations, the starting point being our own legal principles rather than the judgments of the international court.
63. Against the background of those authorities, the error in the approach adopted on behalf of the appellants in the present case is to suppose that because an issue falls within the ambit of a Convention guarantee, it follows that the legal analysis of the problem should begin and end with the Strasbourg case law. Properly understood, Convention rights do not form a discrete body of domestic law derived from the judgments of the European court. As Lord Justice-General Rodger once observed, "it would be wrong … to see the rights under the European Convention as somehow forming a wholly separate stream in our law; in truth they soak through and permeate the areas of our law in which they apply" (HM Advocate v Montgomery 2000 JC 111, 117).
Kennedy v The Charity Commission UKSC 20 (26 March 2014) - para. 46 (Lord Mance), para. 133 (Lord Toulson)
46. Since the passing of the Human Rights Act 1998, there has too often been a tendency to see the law in areas touched on by the Convention solely in terms of the Convention rights. But the Convention rights represent a threshold protection; and, especially in view of the contribution which common lawyers made to the Convention's inception, they may be expected, at least generally even if not always, to reflect and to find their homologue in the common or domestic statute law. Not surprisingly, therefore, Lord Goff of Chieveley in Attorney General v Guardian Newspapers Ltd (No 2)  1 AC 109, 282-284 and the House in Derbyshire County Council v The Times Newspapers Ltd  AC 534, 551E both expressed the view that in the field of freedom of speech there was no difference in principle between English law and article 10. In some areas, the common law may go further than the Convention, and in some contexts it may also be inspired by the Convention rights and jurisprudence (the protection of privacy being a notable example). And in time, of course, a synthesis may emerge. But the natural starting point in any dispute is to start with domestic law, and it is certainly not to focus exclusively on the Convention rights, without surveying the wider common law scene. As Toulson LJ also said in the Guardian News and Media case, para 88: "The development of the common law did not come to an end on the passing of the Human Rights Act 1998. It is in vigorous health and flourishing in many parts of the world which share a common legal tradition". Greater focus in domestic litigation on the domestic legal position might also have the incidental benefit that less time was taken in domestic courts seeking to interpret and reconcile different judgments (often only given by individual sections of the European Court of Human Rights) in a way which that Court itself, not being bound by any doctrine of precedent, would not itself undertake.
133. The analysis set out above is based on common law principles and not on article 10, which in my view adds nothing to the common law in the present context. This is not surprising. What we now term human rights law and public law has developed through our common law over a long period of time. The process has quickened since the end of World War II in response to the growth of bureaucratic powers on the part of the state and the creation of multitudinous administrative agencies affecting many aspects of the citizen's daily life. The growth of the state has presented the courts with new challenges to which they have responded by a process of gradual adaption and development of the common law to meet current needs. This has always been the way of the common law and it has not ceased on the enactment of the Human Rights Act 1998, although since then there has sometimes been a baleful and unnecessary tendency to overlook the common law. It needs to be emphasised that it was not the purpose of the Human Rights Act that the common law should become an ossuary.
A v BBC  UKSC 25, paras. 55 to 57 (Lord Reed)
The relationship between the Convention and domestic law
55. It was submitted on behalf of the BBC that the source of the court’s power to allow a party to legal proceedings not to disclose his identity publicly, in a situation where Convention rights are engaged, is to be found in the Convention rights themselves, rather than in the common law. Reference was made to In re S (A Child) (Identification: Restrictions on Publication)  UKHL 47;  1 AC 593, para 23 per Lord Steyn, and In re Guardian News and Media Ltd  UKSC 1;  2 AC 697, para 30 per Lord Rodger. These dicta were not however concerned with the conduct of court proceedings. They concerned a different issue, namely the jurisdiction of the English courts to make orders contra mundum restraining publicity relating to court proceedings, and in particular the publication of information identifying persons involved in those proceedings: a jurisdiction which might otherwise have been in doubt, as Lord Rodger noted.
56. It is apparent from recent authorities at the highest level, including Al Rawi and others v Security Service and others (JUSTICE and others intervening)  UKSC 34;  1 AC 531, Bank Mellat v Her Majesty’s Treasury  UKSC 38;  3 WLR 179 and Kennedy v The Charity Commission  UKSC 20, that the common law principle of open justice remains in vigour, even when Convention rights are also applicable. In another recent decision, R (Osborn) v Parole Board  UKSC 61;  3 WLR 1020, this court referred at para 61 to the importance of the continuing development of the common law in areas falling within the scope of the Convention guarantees, and cited as an illustration the case of R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 Intervening)  EWCA Civ 420;  QB 618, where an issue falling within the ambit of article 10 was decided by applying the common law principle of open justice. Similar observations were made in Kennedy v The Charity Commission at paras 46 and 133; and the majority judgments in that case provide a further illustration of the same approach.
57. That approach does not in any way diminish the importance of section 6 of the Human Rights Act, by virtue of which it is unlawful for the court to act in a way which is incompatible with a Convention right, unless subsection (2) applies. As was made clear in Kennedy, however, the starting point in this context is the domestic principle of open justice, with its qualifications under both common law and statute. Its application should normally meet the requirements of the Convention, given the extent to which the Convention and our domestic law in this area walk in step, and bearing in mind the capacity of the common law to develop as I have explained in para 40. As the case of V v United Kingdom demonstrates, it is however necessary to bear in mind that, although the Convention and our domestic law give expression to common values, the balance between those values, when they conflict, may not always be struck in the same place under the Convention as it might once have been under our domestic law. In that event, effect must be given to the Convention rights in accordance with the Human Rights Act.
Lady Brenda Hale, UK Constitutionalism on the March? (conclusion)
What these cases show – both those focused on constitutional rights and those on the relationship between EU law and our constitutional order – is a growing awareness of the extent to which the UK’s constitutional principles should be at the forefront of the court’s analysis. The judgments in HS2 raise the issue that it does not follow from Factortame that the 1972 Act necessarily requires our courts to give primacy to EU law over all domestic law, regardless of its constitutional importance. And litigants (or more importantly litigators) have been reminded that they should look first to the common law to protect their fundamental rights: radical suggestions have been made about the power of judicial review to protect them. Whether this trend is developing as a response to the rising tide of anti-European sentiment among parliamentarians, the press and the public, whether it is putting down a marker for what might happen if the 1998 Act were repealed, whether it is a reflection of distinctive judicial philosophies of the judges who are at the forefront of this development, or whether it is simple irritation that our proud traditions of UK constitutionalism seemed to have been forgotten, I leave it to you and to the academics to decide.
Richard Clayton, “The Empire Strikes Back: common law rights and the Human Rights Act,” Public Law, January 2015, pp. 3-12 (footnotes omitted)
In A v Secretary of State for the Home Department the House of Lords’ rejection of the admission of evidence obtained by torture was, again, based on the common law. The right of access by the press to documents discussed in open court was decided on a common law basis in R. (on the application of Guardian News and Media Ltd) v City of Westminster Magistrates’ Court. In Osborn v Parole Board the Supreme Court returned to the question of when fairness required an oral hearing. The reasoning in Guardian News was extended by the Supreme Court in Kennedy v Charity Commission, where it said obiter that the refusal of the Commission to disclose documents to a journalist concerning the Commission’s inquiries into George Galloway’s controversial Iraq charities could be challenged in ordinary judicial review proceedings: on the basis that the common law principle of open justice required disclosure by the Commission (unless there were strong countervailing considerations to the contrary).
The "common law’s emphatic reassertion in recent years of the importance of constitutional rights" has resulted in the new edition of De Smith cataloguing the following common law rights: access to a judicial remedy; the right to life; the liberty of the person; the doing of justice in public; the right to a fair hearing; the prohibition on the retrospective imposition of criminal penalty; freedom of expression; the rights of access to legal advice and to communicate confidentially with a legal adviser under the seal of legal professional privilege; limitations on searches of premises and seizure of documents; prohibition on the use of evidence obtained by torture; that a British citizen has a fundamental right to live in, or return to, that part of the Queen’s territory of which he is a citizen; the deprivation of property rights without compensation; the privilege against self-incrimination; a duty on the state to provide subsistence to asylum-seekers; and freedom of movement within the United Kingdom.
An expansive approach to common law rights has a number of benefits. It permits opportunities for cross fertilisation between Convention rights and common law rights, although this is unlikely to occur until the Supreme Court relaxes the principle that under the HRA the domestic courts should mirror the Strasbourg jurisprudence. It will enable the courts to develop autonomous principles from the HRA, which may be important if the right claimed cannot be grounded in Convention case law, if the claimant cannot prove he is a victim as defined by s.7 of the HRA or if the campaign to abolish the HRA gathers greater force.
But there are a number of practical difficulties which limit the impact of common law. First, the identification of common law rights is not straightforward, and may be ultimately, opened ended. Secondly and more importantly, the status of rights in English law is a powerful break on the reach of common law rights.
Identifying common law rights
Common law rights are often labelled as constitutional or fundamental rights. However, in R. v Lord Chancellor Ex p. Lightfoot Laws J emphasised that the law should be astute to confine the concept of constitutional right to that special class of rights which, in truth, everyone living in a democracy under the rule of law ought to enjoy. He equated these constitutional rights with those contained in the European Convention.
Nevertheless, it is difficult to define "constitutional rights", as Lord Rodger demonstrated in Watkins v Home Office, the case where the House of Lords reversed the Court of Appeal’s holding that damages for misfeasance in a public office could be awarded breaching constitutional rights. Lord Rodger said there was no magic to the term "constitutional right" and drew attention to the House of Lords decision in Nairn v University of St Andrews where female graduates of St Andrews and Edinburgh sought a declaration that they were entitled to vote as a "person" under the Representation of the People (Scotland) Act 1868. In Nairn the House of Lords decided that the legislation did not confer a right to vote on women graduates. According to Lord Loreburn LC "it would require a convincing demonstration to satisfy me that Parliament intended to effect a constitutional change so momentous and far-reaching by so furtive a process." Similarly, Lord Ashbourne said, "if it was intended to make a vast constitutional change in favour of women graduates, one would expect to find plain language and express statement." Lord Rodger accepted that the phrase constitutional rights "work well enough" for statutory interpretation, but he pointed out that in using the language of "constitutional rights", the judges were, more or less explicitly, looking for a means of incorporation avant la lettre, of having the common law supply the benefits of incorporation without incorporation; and that now that the HRA is in place, such heroic efforts are unnecessary. However, he rejected the concept for the purposes of developing tort law.
It is therefore open to question whether the words "constitutional" or "fundamental" add anything to the search for common law rights. Sometimes it will be possible to search the international human jurisprudence to arrive at a consensus on broad human rights issues, such as the House of Lords achieved in Derbyshire CC v Times Newspapers when deciding whether the right to freedom of expression precluded a public body from brining proceedings for defamation. But this approach ignores the possibility of home grown common law rights, like the constitutional right to a jury trial, as Lord Diplock found in Attorney General v Gourier. I would argue that in the final analysis, the list of common law rights is inherently contestable, which explains why the textbooks give different lists of common law rights.
The status of common law rights
However, the most serious limitation on common law rights is that their precarious status in English law. Rights enacted by the HRA create positive obligations (whether absolute or qualified) with which a public authority must comply under s.6 of the HRA. By contrast, where statute interferes with common law rights, there is a statutory presumption which Lord Hoffmann described in R. v Secretary of State for the Home Department Ex p. Simms :
"Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document."
The principle of legality does not preclude the possibility that the presumption can be rebutted, as Lord Bingham found in Gillan v Metropolitan Police Commissioner. He decided that the principle of legality did not apply to stop and search powers which the Court of Appeal had described as "extraordinary" and as "sweeping and far beyond anything ever permitted by common law powers"—even if the Terrorism Act infringed a fundamental human right, itself (he said) a debatable proposition, they do not do so by general words but by provisions of a detailed, specific and unambiguous character. That approach was, however, rejected when the case came before the ECtHR which held that the powers of authorisation and confirmation as well as those of stop and search under the Terrorism Act were neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse; and were therefore not "in accordance with law" under art.8. Proving the breach of a common law right can also be contentious. For example, in R. (on the application of Gujra) v Crown Prosecution Service the Supreme Court rejected a challenge to the lawfulness of the DPP’s policy when taking over a private prosecution; and disagreed whether the policy breached the principle of legality by interfering with the right of access to the Court.
Human rights are also of course protected under general administrative law principles. Thus, in R. v Ministry of Defence Ex p. Smith, the gays in the military case, the Court of Appeal said that the more substantial the interference with human rights, the more the court would require by way of justification before it was satisfied that the decision was Wednesbury reasonable. Nevertheless, the limits of Wednesbury were criticised by the ECtHR in Smith v United Kingdom; the ECtHR held that the threshold for finding the policy irrational was so high that it effectively excluded any consideration by the domestic courts of the question of whether the interference with the applicants’ rights was proportionate.
But there are other profound problems in asserting common law rights in administrative law cases. The application of administrative law principles is often fluid and uncertain, and different outcomes in a case may appear to be equally arguable. The paradigm case of R. v Cambridge Health Authority Ex p. B is illustrative. A 10 years old girl was diagnosed with non-Hodgkins lymphoma and underwent two courses of chemotherapy but relapsed. Her doctors believed that no further treatment could usefully be administered to her, estimating that she had six to eight weeks to live. Her father then obtained an opinion which estimated her chances of recovery at 10 to 20 per cent and sought funding for that treatment. Laws J held that the fundamental right to life was engaged, that it imposed a positive obligation on the health authority to provide treatment and that its reasons for refusing treatment were not justified, taking the view that the responsible authority must do more than toll the bell of tight resources and explain the priorities which lead them to refuse treatment.
Court of Appeal reversed Laws J’s holding. Sir Thomas Bingham MR acknowledged that the life of the young girl dominated consideration of all aspects of the case, but disagreed on the facts when analysing the justification put forward by the health authority. He said that judgments concerning the allocation of budgets were not a matter for the Courts, so it is not a fair criticism that the public body had failed to advance such evidence.
The upshot for the jobbing practitioner is that common law rights will ordinarily have less forensic impact than utilising positive Convention rights under the HRA. Ultimately, the doctrine of parliamentary sovereignty, the principle that rights are residual and the traditional status the common law accords to rights all combine to limit their impact.
The recent revival
It is therefore important to appreciate that some of the recent common law rights cases have unusual features which it is critical to identify.
The two cases on fairness and the obligation to give oral hearings in parole cases, West and Osborn, apply well established administrative law principles which are very different from invoking Convention rights. As Lord Reed emphasised, whether procedural fairness requires an oral hearing is a question the Court, itself, must determine. Fairness is a hard edged legal question and, in effect, public law fairness gives rise to a positive entitlement that the claimant must enjoy, as a specific obligation derived from longstanding and detailed domestic public law tenets.
There are elements of the Guardian News case which are, again, striking. Guardian News concerned the extradition of two British citizens on corruption cases to the United States. Journalists had attended hearings, where counsel referred to documents not read out in detail, including the skeleton arguments, affidavits and witness statements. The District Judge refused to order that the claimants be provided with copies or inspection which was upheld by the Divisional Court, but reversed by the Court of Appeal. The Court of Appeal decided that the requirements of the common law constitutional principle of open justice had to be determined by the Court in the exercise of its inherent jurisdiction, subject to any statutory provision to the contrary. These requirements applied to all tribunals exercising the judicial power of the state, irrespective of whether they were creatures of statute.
As in the fairness cases of West and Osborn, the Court of Appeal in Guardian News decided that application of the common law right in issue, open justice, was a hard edged issue of law—which was a matter for the Court to decide and apply. The Court was the master of its own procedure and therefore required to give effect to the constitutional right of open justice. As a result, the Court of Appeal avoided the need to resolve the question whether art.10 entails a right of access to information—an issue where Strasbourg courts in flux. The same concerns about the weakness of the Strasbourg jurisprudence led the Supreme Court in Kennedy to extend the common law principle of open justice to inquiries where a claim for disclosure was made concerning the Charity Commission’s investigations into George Galloway’s Iraq charities. In A the Supreme Court reiterated the principle that justice was to be administered by the courts in public so as to be open to public scrutiny was an aspect of the rule of law in a democracy, it was a constitutional principle to be found in the common law; and that the freedom of the media to report on court proceedings was inextricably linked to the principle of open justice
It is therefore submitted that West, Osborn, Guardian News, Kennedy and A are very unusual and unrepresentative common law rights cases; and do not reflect the more general principles which limit the effect of common law rights.
Modifying the principle of legality
However, the underlying position would alter if some fundamental underlying principles were modified. In the seven judge court which decided R. (on the application of Jackson) v Attorney General Lords Steyn, Hope and Hale suggested that, because the principle of parliamentary sovereignty is a common law construct, it would be open to the Supreme Court to decline to give effect to legislation abolishing judicial review. Whether the Courts would ever adopt such a radical proposition must be open to question.
An idea with more potential practical impact is the suggestion that the principle of legality could be modified, so that it is interpreted along the lines of s.3 of the HRA. In other words, could the courts adopt a rule of statutory construction that so far as possible, legislation must be interpreted to give effect to common law rights? Such a principle would result in common law rights prevailing- even if it meant that the Court gave a strained (but possible) meaning to the statutory provision in question, despite the fact that interpretation would depart from the unambiguous meaning of legislation, as conventionally construed.
There is no reason in theory, at any rate, which would prevent the courts developing such a principle. But there are formidable obstacles which need to be addressed. First, there may well be no obvious or compelling rationale for this development, beyond the fact that Parliament abolished the HRA. Secondly, the modified principle has no legal pedigree, unlike the long established principle of legality. Thirdly, it is difficult to reconcile the reasoning to justify the modified principle with Brind —where the House of Lords rejected the broad argument that legislation should be interpreted in conformity with the European Convention, but accepted that it might be used to resolve ambiguity or uncertainty in a statutory provision. There are other difficulties of principle to overcome; so that the modification of the principle of legality is not straightforward.
I would argue that weak status the common law accords to rights protection is a fundamental obstacle to their future development. Although some of the recent cases suggest that common law rights must not be overlooked, their general significance should not be overstated.
Helen Fenwick: An appeasement approach in the European Court of Human Rights? - UK Constitutional Law Association, 5 April 2012
This piece asks whether, in the light of UK proposals for the reform of the ECtHR, and in the wake of the outcry in the UK over the Qatada decision (Othman v UK), the Court is taking an approach that looks like one of appeasement of certain signatory states. Two very recent decisions will be looked at which, it will be argued, contain appeasement elements. Each can be compared with a previous counter-part decision against the same member state which adopts a more activist approach; and each is not immediately obviously reconciliable with the previous decision. Is the Court revisiting the ‘true’ scope of the ECHR in a more deferential spirit?
British proposals for reform of the Strasbourg Court
This is not the place to discuss the proposals for reform of the ECtHR in detail and most readers will be aware of their general drift in any event. The idea of ‘greater subsidiarity’ has been raised at various levels, and accorded various meanings in advance of the imminent High Level Conference at Brighton on the future of the Court. The reform process began in 2010 with the Interlaken and Izmir declarations. Members of the Bill of Rights Commission, which has a second brief regarding its advisory role on reform of the Strasbourg court, linked to British chairmanship of the Council of Europe, take the view that both declarations reflect a desire for greater subsidiarity. Anthony Speaight, Commission member, has indicated that it will look into the question of creating an enhanced margin of appreciation, allowing for greater subsidiarity, on the basis that that would be in accordance with the Interlaken and Izmir Declarations since “one finds in each of them a statement of wish and aspiration for greater subsidiarity”. When the Commission provided its interim advice to Ministers on Strasbourg reform in 2011, it accompanied it by a letter which raised the perception of some, either expressed to the Commission or of some Commission members, that the Court is at times “too interventionist in matters that are more appropriate for national legislatures or courts to decide”. Areas that the Commission has stated it is inquiring into are those of including a democratic override in the ECHR along the lines of s33 of the Canadian Charter and that of introducing ‘subsidiarity reviews’ by analogy with the EU treaty, on the basis of according a power to the Committee of Ministers to resolve that a judgment should not be enforced if it infringed the principle of subsidiarity. The Commission Chair said in the letter that that “would arguably reflect the Izmir Declaration”.
The government’s plans for reform of the Strasbourg Court have been extensively trailed in the run up to the Brighton Conference in April 2012. It was stated in 2011 (according to Parliamentary written answers and statements, 18th March 2011) that the government would use the Chairmanship to press for placing the primary responsibility for protecting the ECHR rights on states, rather than the Court. Intervening in Scoppola v Italy No. 3, Grieve made a further statement indicative of this plan for reform of the Court. He said that a number of states have restrictions or complete prohibitions on prisoners voting, and “this is, and should be, a political question – by which I mean a question for democratically elected representatives to resolve, against the background of [their state’s] circumstances and political culture”. He considered that acknowledging the doctrine of the margin of appreciation in that way would result in the EtCHR intervening only when “the decision of the national authorities is manifestly without reasonable foundation”.
David Cameron’s speech to the Parliamentary Assembly of the Council of Europe in 2012, during the UK’s six month chairmanship of the Council, reiterated the theme of seeking enhanced subsidiarity as a key reform. He referenced terrorism and prisoners’ voting rights as examples of issues on which the Court should be very slow to intervene, once democratic debate on the issue and full scrutiny in national courts, taking the Convention into account, had occurred. Referencing the 2012 Qatada case (above), as illustrating the need for reform, he said “we have gone through all reasonable national processes…including painstaking international agreements about how they should be treated …and scrutiny by our own courts…and yet we are still unable to deport [or detain] them”. The members of the assembly voted unanimously to agree that the court should be “subsidiary” to national authorities – governments, courts and parliaments – in guaranteeing human rights. Clearly, the effect of that decision will depend on the precise reforms agreed upon at Brighton. A draft declaration for that conference was ‘leaked’ on 23 Feb 2012, and published in various forums. It focuses on the grave problem of the back-log of cases facing the Court and makes proposals intended to create greater acceptance of the ECHR at national level, to allow the Court to focus on the more significant claims, and to avoid it being faced by persistent claims that should be dealt with at national level. But among laudable proposals for dealing with the back-log, it includes the following – at para 19(a): “The conference therefore welcomes the development of the Court within its case-law of principles such as subsidiarity and the margin of appreciation doctrine…and encourages the Court to give great prominence to these principles in its judgements; (b) Concludes that the transparency and accessibility of the principles of the margin of appreciation and subsidiarity should be enhanced by their express inclusion in the Convention, and invites the Committee of Ministers to adopt the necessary amending instrument within one year”. Para 23(b) on options for amending the admissibility criteria proposes that an application should be declared inadmissible if it is the same in substance as a matter that has already been determined by the national courts unless the Court considers that the national court “clearly erred in its application or interpretation of the Convention rights or the application clearly raises a serious question concerning the application and interpretation of the Convention”.
Austin v UK and Von Hannover v Germany (No 2)
It is in this context that the cases of Austin v UK and Von Hannover (No 2) are considered, in order to argue that certain of the proposals currently being put forward are echoed in dominant themes within the judgments.
The decision in the House of Lords in Austin v The Commissioner of the Police of the Metropolis, finding that ‘kettling’ peaceful protesters and bystanders for 7 hours did not create a deprivation of liberty, has been heavily criticised; it was expected that the ECtHR would take a different stance. In the House of Lords, the key question was whether such entrapment of persons via ‘kettling’ amounted to a deprivation of liberty under Article 5(1). Lord Hope considered that in making a determination as to the ambit of Article 5(1), the purpose of the interference with liberty could be viewed as relevant; if so, he found that it must be to enable a balance to be struck between what the restriction sought to achieve and the interests of the individual (at para. 27). Having found that purpose was relevant to the ambit given to Article 5(1), Lord Hope found that the purpose must take account of the rights of the individual as well as the interests of the community, and therefore any steps taken must be resorted to in good faith, and must be proportionate to the situation which made the measures necessary. If these requirements were met, however, he concluded that it would be proper to find that measures of crowd control that are undertaken in the interests of the community will not infringe the Article 5 rights of individual members of the crowd whose freedom of movement is restricted by them if the measures are proportionate to the aim pursued (at para. 34).
When this decision was challenged at Strasbourg (Austin v UK (2012)), the Grand Chamber took a stance towards the deprivation of liberty question which was very similar to that taken by the House of Lords, finding: “the context in which action is taken is an important factor to be taken into account, since situations commonly occur in modern society where the public may be called on to endure restrictions on freedom of movement or liberty in the interests of the common good….The Court does not consider that such commonly occurring restrictions on movement, so long as they are rendered unavoidable as a result of circumstances beyond the control of the authorities and are necessary to avert a real risk of serious injury or damage, and are kept to the minimum required for that purpose, can properly be described as “deprivations of liberty” within the meaning of Article 5(1)” (at para. 59).
Applying these findings, and affirming that “subsidiarity is at the very basis of the Convention, stemming as it does from a joint reading of Articles 1 and 19” (at para. 61), the Court went on to find that in accordance with the Engel (Engel v Netherlands (1976)) criteria (for determining when a deprivation of liberty occurs), the coercive nature of the containment within the cordon, its duration, and its effect on the applicants, in terms of physical discomfort and inability to leave Oxford Circus, pointed towards a deprivation of liberty. However, the Court found that, relying on the context of imposition of the ‘kettle’, the purpose of its imposition must be taken into account – to “isolate and contain a large crowd, in volatile and dangerous conditions”. The Court found no reason to depart from the findings of fact of the first instance judge as to the dangerousness of the situation. Although the Court did not refer expressly to proportionality, it clearly adverted to that concept in finding that the measure taken appeared to be the “least intrusive and most effective means to be applied” (at para. 66). On that basis no deprivation of liberty was found, meaning that it was not necessary to consider the exceptions to Article 5. Thus, in essentials, the Grand Chamber’s judgment did not differ from that of the House of Lords.
A strong joint dissenting opinion trenchantly criticised the findings of the majority on the basis that its position could be interpreted as “implying that if it is necessary to impose a coercive and restrictive measure for a legitimate public-interest purpose, the measure does not amount to a deprivation of liberty. This is a new proposition which is eminently questionable and objectionable…”. It was found to be objectionable since if in the public order context liberty-depriving measures were deemed to lie outside Article 5 if claimed to be necessary for any legitimate/public-interest purpose, “States would be able to “circumvent the guarantees laid down in Article 5 and detain people for a whole range of reasons going beyond the provisions of Article 5(1) (a) to (f), as long as they could show that the measure was necessary”. They pointed out that in A and Others v the United Kingdom (2009), the Court refused to accept the Government’s argument that Article 5(1) allows a balance to be struck between the individual’s right to liberty and the State’s interest in protecting its population from terrorist threat, finding: “If detention does not fit within the confines of the paragraphs [Art 5(1) (a)-(f)] as interpreted by the Court, it cannot be made to fit by an appeal to the need to balance the interests of the State against those of the detainee” (at para. 171).
The decision in Austin can indeed be critiqued, as in the joint dissenting opinion, on the basis that it in effect creates a new, very broad, exception to Article 5, while purporting to avoid doing so by relating the public interest argument to the issue of ambit. Given that the Court relied on “context” to determine the application of Article 5, and given the need to interpret the ECHR as a whole, the fact that the protesters were seeking to exercise Art 10 and 11 rights, could have been viewed as creating differentiation between the crowd control situations mentioned by the court and the context of protest: the Grand Chamber considered the public order context but not – as a determining factor – the public protest one. A new amendment to Article 5 may be needed to clarify this position, but in the meantime the creation in effect of an exception to Article 5 on broad public interest grounds, represents a worrying trend.
The Grand Chamber reiterated, on the basis of a principle of subsidiarity, that it should only interfere in a domestic decision as to facts on very cogent grounds. But it is suggested that impliedly it went further: it applied the principle of subsidiarity not to the findings of fact only, but to the interpretation of Art 5(1). The House of Lords had found that public interest considerations were relevant to ambit, subject to a test of proportionality. The Grand Chamber, as the joint dissenting opinion pointed out, accepted that analysis in effect – though without overtly referring to proportionality – despite the fact that it ran counter to the findings in A v UK on the interpretation of Art 5(1). The result was consistent with the proposition that the Grand Chamber came very close to accepting that it would require very compelling reasons to depart from the decision of a superior national court that had applied the Convention, taking a particular view of its interpretation, to a set of facts – even where that court could not point to ECHR jurisprudence bearing closely on the matter before it. That stance would be in accordance with both para 19(b) and 23(b) of the leaked Brighton declaration. Obviously 23(b) refers to admissibility, not substance, but para 23(b) in effect demands subsidiarity not merely in relation to fact-finding, but also in relation to interpretation of the Convention.
There is a wider message to be drawn from this narrow approach to the right to liberty which, it is argued, was lost in the pursuit of subsidiarity. In an age of Anti-Social Behaviour Orders, Serious Crime Prevention Orders, and of a range of state powers that interfere with liberty in the contexts of both counterterrorism and public protest, the question whether a “deprivation of liberty” refers to literal physical restraint as in prison, or to something much more amorphous, is of especial importance, and resonates far beyond the public protest context. The varied ways of interfering with liberty now available to the state, render the traditional idea of focusing on physical restraint outdated (this point is touched on in H Fenwick and G Phillipson McGill Law Journal 56(4): 864-918 at 889-890). Had the police arrested the 4 applicants in Austin and detained them for 7 hours, rather than kettling them, there would have been no question as to whether Article 5 applied – the only issue would have been as to the applicability of the exception under Art 5(1)(c). Thus the Court has impliedly accepted that if a non-paradigm case of interference with liberty arises, but there appears to be a pressing need to employ the measure in question on public interest grounds, the “deprivation of liberty” concept should receive a narrow interpretation, placing the measure outside it, even if the Engels criteria appear to apply.
If Austin v UK appeared to rely on an enhanced principle of subsidiarity, Von Hannover v. Germany (no. 2) (2012), also in the Grand Chamber relied, it appeared, on an enhanced application of the margin of appreciation principle (arguably reflecting para 19(a) of the draft Brighton declaration), this time in the context of a clash between protection for private life and for freedom of expression. Relying on the Court’s 2004 Von Hannover judgment, in the first applicant’s case, the applicants had subsequently brought several sets of proceedings in the civil courts in Germany seeking an injunction against any further publication of photos that had appeared in German magazines. They did not obtain relief, however, in relation to an article, partly about the Prince’s illness, accompanying photos of the applicants’ skiing holiday, nor in relation to the photos themselves.
The Grand Chamber noted that after the 2004 Von Hannover decision, the German courts had altered their approach and had sought to balance Articles 10 and 8 against each other in accordance with the Strasbourg stance. The Court accepted that the photos and article fell within the concept of private life under Article 8(1). Thus Articles 8 and 10 had to be balanced against each other. However, the Court found that where the balancing exercise has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (relying on MGN Limited v. the United Kingdom, no. 39401/04, at  and ). Although the photos were of the applicants on a skiing holiday, the national courts found that they could be linked to and supportive of the article, which did concern a matter of public interest – the Prince’s illness. The Grand Chamber accepted this finding, even though the pictures made little or no contribution to the matter of the illness.
This decision re-confirmed that Articles 8 and 10 are of equal value. But, under the margin of appreciation doctrine, it made it clear that the Court will require “strong reasons” to substitute its view for that of the domestic courts where a balancing exercise between Article 10 and 8 has been undertaken at the domestic level. The Court appears to be contemplating an expanded version of that doctrine, one under which the role of its own assessment of the extent to which paparazzi photos are deemed of value in Article 10 terms is marginalised. The acceptance that the photos in question added something to the article was clearly open to question. The photos were of the same nature as those at stake in the 2004 Von Hannover case which were found to contribute virtually nothing to any significant debate as to public affairs.
The danger may arise that a balancing exercise between Arts 8 and 10 may be apparently carried out domestically, but in a tokenistic manner, allowing flimsy public interest arguments to prevail. In other words, the arguments may be rehearsed by courts without any real attempt to probe the values at stake on either side. The argument accepted by the Court in Axel Springer v. Germany (2012) that since the actor applicant had been arrested and had also played a police officer, the public’s interest in knowing of his arrest was increased, could be applied in broad brush manner domestically, as could the argument that his expectation that his private life would be protected had been reduced since he had placed details of his private life in the public domain.
The suggestion of this piece is that the cases considered may be indicative of a very recent reversal of certain trends in the reasoning of the Court, and may be intended to deflect the criticism that the Court has been too interventionist. The Court in highlighting the role of the margin of appreciation and the principle of subsidiarity in these cases may be seeking to demonstrate that it is receptive to ‘reform’, and softening towards it, rather than being coerced into it. Under the banners of “margin of appreciation” and “subsidiarity” – without creating clear differentiation between those terms – both cases rely on deferring to the nationally created balance between public interest and individual liberty on the one hand, and between two competing rights on the other. The current debate on reform of the Convention system must consider how far pursuit of enhanced subsidiarity can and should represent a welcome attempt to constitutionalise the Convention more fully at national level without relinquishing its role as a means of delivering individual justice, with consequent changes at that level. That debate might also usefully consider the reality behind the desire for reform of senior Conservatives. How far does that desire relate to seeking to create greater respect for the Convention across all member states at national constitutional level, and greater convergence in terms of respecting Convention standards, to reduce the pressure on the Court? In reality, is the key concern to return autonomy in human rights matters to the Westminster Parliament by reducing the likelihood of Strasbourg intervention?
RMT v United Kingdom: Sympathy Strikes and the European Court of Human Rights, John Hendy QC and Michael Ford QC 10th April 2014, Oxford Human Rights Hub
In RMT v United Kingdom the European Court of Human Rights held that the ban on secondary action in the United Kingdom was a justified interference with the right to freedom of association in Article 11 of the ECHR. The RMT contended that its members employed by Hydrex were unable to take effective strike action to maintain their terms of employment owing to the prohibition on secondary action now found in s.224 of TULRCA 1992.
The Court, first, rejected the argument of the government that Article 11 did not apply at all to secondary action, referring to ILO Convention No.87, Article 6 of the European Social Charter and its earlier decision in Demir. Taking secondary action, the Court held, was part of trade union activity covered by Article 11. After deciding, second, that the ban pursued the legitimate aim of seeking to protect the rights and freedoms of others not involved in the dispute, the Court turned to consider the critical issue of whether the ban was justified because necessary in a democratic society.
The Court emphasised that the margin of appreciation was wide in the context of industrial and economic policies of the state. However, it noted factors counting in favour of the RMT. One was the practice across European States, illustrating that the UK was one of a small group of European countries which adopted an outright ban on secondary strikes, at the far end of the spectrum. Another was the repeated criticisms of the UK’s prohibition of sympathy action by the ILO Committee of Experts and by the decisions of the European Committee on Social Rights on the Social Charter. The Court also referred to how a ban on secondary action could in some contexts, such as an out-sourced workforce, severely hamper trade unions’ efforts to protect their members. But having decided that the interference with freedom of association in Hydrex was not especially far-reaching, and in light of the breadth of the margin of appreciation in this area, the Court decided that the cogent arguments adduced by the RMT on trade union solidarity and efficacy were not sufficient to persuade it that the ban was disproportionate.
The case is important for its clear recognition that restrictions on industrial action, including sympathy strikes, are protected by Article 11. It leaves open the possibility that in other circumstances restrictions (including the ban on secondary action) will not be justifiable under Article 11(2). But it also reflects a trend in recent judgments of the Court, exemplified by e.g. the judgment of the Grand Chamber in Sindicatul Pastorul cel Bun v Romania, of affording States a wide margin of appreciation in relation to what the Court views as sensitive matters of social policy.
It is likely that some commentators will conclude that the judgment represents nothing short of an appeasement by the ECtHR of the UK government’s threats to withdraw from European Convention and its repeated attacks on the ECtHR so evident in the UK stance at the 2013 Committee of Ministers’ meeting in Brighton which lead to the Brighton Declaration and the subsequent inclusion of the references to ‘margin of appreciation’ and ‘subsidiarity’ in the Preamble to the Convention. Certainly, parts of the judgment could be seen in that way and there is no doubt that the judges of the ECtHR have been eager to reassure the UK government, British judges and elements of the English media that little or no threat is posed to the autonomy of the British legal system by the ECtHR or the Convention. The official visit by the President and Vice-Presidents of the ECtHR to the British judges last month (with the President giving a lecture at UCL on ‘Wither the Margin of Appreciation?’) and the recent article by the former President (N Bratza, “Living Instrument or Dead Letter – the Future of the European Convention on Human rights”, (2014) EHRLR 116) might be thought to be illustrative of their concern to reassure. The cynical commentator might say that the judgment is a demonstration of that reassurance. Whether the trade union movement in the UK or in Europe will view the Court’s treatment of the right to strike as reassuring is doubtful.
Britain’s got it way its way on prisoners’ votes – so why withdraw from the ECHR? - Carl Gardner, Head of Legal Blog, 11.2.15
In yesterday’s judgment on 1,015 “legacy” applications, the European Court of Human Rights ruled once again that the legislative bar on prisoners’ voting breaches article 3 of the first protocol to the European Convention. That result was predictable given the Court’s case law on votes for prisoners.
But more importantly, the Court awarded none of these successful applicants a penny in damages; and not a penny in costs, either. The Court has drawn a line under its dispute with the UK, and will do nothing further to raise the stakes.
We’ve known for a long time that there were hundreds if not thousands of applications by prisoners, piggy-backing on John Hirst’s successful complaint over ten years ago now. These cases were stayed for a time, following the Greens & MT “pilot judgment” against the UK in 2010, in which the Court said explicitly that UK law must change. But they were later revived, Parliament still not having legislated.
The fact that so many claims have been outstanding led many in the media to speculate about the huge sums we might have to pay, £160 million being mentioned at one stage (and debunked by Adam Wagner at the UK Human Rights Blog). These sums were plucked out of the air, often combined with the factoid that the Court could fine the UK – which it can’t. What it can do is compensate applicants (a very different matter, since it allows for no punitive element) and award them legal costs. I think the figures bandied about may have originated from a fag-packet reckoning by John Hirst himself, though I don’t complain against him: he was campaigning, so it was fair enough to argue about how much this “could” cost.
But the total bill from these 1000+ cases amounts to £0.00. Fears of the fiscal impact of this dispute were exaggerated. George Osborne and the Office for Budget Responsibility need not revise their deficit forecasts.
Yes, some cases remain, including more that relate to European elections and some about the Scottish referendum. But it’s hard to see how prisoners can hope to be awarded damages or costs, even if they win. The same must go for any leftover claims about Westminster Parliament votes.
In truth, it’s hard to see how the European Court could ever have upped the ante with the UK. It’s doubtful that its powers are wide enough. So to call this a Strasbourg surrender would go too far. But choosing to award neither damages nor (and this is the telling point) any legal costs means the Court is washing its hands of this, and wants no more cases added to its backlog. The message to prisoners and their lawyers is clear: apply, and you’ll have a symbolic win. There’s no cash in it.
Abu Qatada is abroad; our courts can impose whole-life orders; and Britain’s continuing failure to give prisoners the vote is cost-free. It’s now simply a diplomatic issue for the Council of Europe’s committee of ministers, who must know this is not the worst case of non-implementation, and are unlikely to take drastic action.
The “dialogue” approach pursued by Dominic Grieve when he was Attorney General and supported by an increasing number of our own judges in recent years, has succeeded. British pushback and the 2012 Brighton reforms have changed the weather in Strasbourg, where the Court is showing a new restraint – arguably excessive restraint in some cases, leading to confused rulings like the one about the niqab ban in France. But it’s a restraint that will be welcome in Britain.
What should we make now, then, of Conservative plans to make Strasbourg judgments “merely advisory” or else pull out of the human rights convention entirely? Those plans are yesterday’s solution to yesterday’s problem, with nothing to support them save the odd grumble about deporting a foreign criminal – and the hot air generated by UKIP.
OPINION OF ADVOCATE GENERAL POIARES MADURO
delivered on 16 January 2008
P Yassin Abdullah Kadi v
Council of the European Union and
Commission of the European Communities
1. The appellant in the present proceedings has been designated by the Sanctions Committee of the United Nations Security Council as a person suspected of supporting terrorism, whose funds and other financial resources are to be frozen. Before the Court of First Instance, the appellant challenged the lawfulness of the regulation by which the Council has implemented the freezing order in the Community. He argued – unsuccessfully – that the Community lacked competence to adopt that regulation, and, moreover, that the regulation breached a number of his fundamental rights. On what are essentially the same grounds, he now asks the Court of Justice to set aside the judgment of the Court of First Instance. The Council and the Commission disagree with the appellant on both counts. Most importantly, however, they contend that the regulation is necessary for the implementation of binding Security Council resolutions, and, accordingly, that the Community Courts should not assess its conformity with fundamental rights. Essentially they argue that, when the Security Council has spoken, the Court must remain silent.
I – Background to the appeal
2. Mr Kadi (‘the appellant’) is resident in Saudi Arabia. On 19 October 2001, he was included in the list in Annex I to Regulation No 467/2001 as a person suspected of supporting terrorism. 2 As a consequence, all his funds and other financial resources in the Community were to be frozen. On 27 May 2002, that regulation was repealed and replaced by Council Regulation (EC) No 881/2002 (‘the contested regulation’). 3 However, the appellant continued to be listed – in Annex I to the contested regulation – as a person suspected of supporting terrorism whose funds were to be frozen.
3. The contested regulation was adopted on the basis of Articles 60 EC, 301
EC and 308 EC in order to give effect, within the Community, to Council Common Position 2002/402/CFSP. 4 That Common Position, in turn, reflected Resolutions 1267(1999), 5 1333(2000) 6 and 1390(2002) 7 of the United Nations Security Council. Considering that the suppression of international terrorism is essential for the maintenance of international peace and security, the Security Council adopted those resolutions under Chapter VII of the UN Charter.
4. The resolutions provide, inter alia, that all States are to take measures to freeze the funds and other financial assets of individuals and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, as designated by a committee of the Security Council composed of all its members (‘the Sanctions Committee’). On 8 March 2001, the Sanctions Committee published a first consolidated list of the persons and entities that were to be subjected to the freezing of funds. That list has since been amended and supplemented several times. The name of the appellant was added to the list by the Sanctions Committee on 19 October 2001.
5. On 20 December 2002, the Security Council adopted Resolution
1452(2002), intended to facilitate the implementation of counter-terrorism measures. That resolution provides for a number of exceptions to the freezing of funds imposed by Resolutions 1267(1999), 1333(2000) and 1390(2002) that may be granted by the States on humanitarian grounds, on condition that the Sanctions Committee has been notified and has not objected or, in some cases, has given its consent. In addition, on 17 January 2003, the Security Council adopted Resolution
1455(2003), intended to improve the implementation of the measures for the freezing of funds.
6. In the light of those resolutions, the Council adopted Common Position
2003/140/CFSP 8 in order to provide for the exceptions permitted by the Security Council. In addition, on 27 March 2003, the Council amended the contested regulation as regards exceptions to the freezing of funds and economic resources. 9
7. The contested regulation, as amended, provides in Article 2 that ‘all funds and other financial resources belonging to, or owned or held by, a natural or legal person, group or entity designated by the Sanctions Committee and listed in Annex I shall be frozen’. Article 2a provides for certain exceptions, for instance as regards food, medical expenses and reasonable legal fees, on condition that the Sanctions Committee has been notified and has not objected.
8. By application lodged on 18 December 2001, the appellant brought an action before the Court of First Instance against the Council and the Commission, claiming that that Court should annul Regulations Nos 2062/2001 and 467/2001, in so far as they related to him. The United Kingdom was given leave to intervene in support of the defendants. Following the repeal of Regulation No 467/2001, the Court of First Instance decided to treat the case as an action for annulment of the contested regulation directed against the Council alone, supported by the Commission and the United Kingdom.
9. Before the Court of First Instance, the appellant argued that the Council had lacked competence to adopt the contested regulation. Most importantly, the appellant asserted that that regulation breached a number of his fundamental rights, in particular the right to property and the right to a fair hearing. By judgment of 21 September 2005 in Case T-315/01 Kadi v Council and Commission (‘the judgment under appeal’), 10 the Court of First Instance upheld the contested regulation and rejected all of the appellant’s pleas. On 17 November
2005, the appellant brought the present appeal against the judgment of the Court of First Instance. Apart from the appellant, the parties to the present appeal proceedings are the Council, the Commission and the United Kingdom, as well as Spain, France and the Netherlands, as interveners in the appeal. For the sake of brevity I shall refer, on occasion, to the Council, the Commission and the United Kingdom as ‘the respondents’.
10. My analysis of the appeal will proceed as follows. First, I shall discuss the pleas concerning the legal basis of the contested regulation. Subsequently, I shall address the pleas concerning the jurisdiction of the Community Courts to review whether the contested regulation breaches fundamental rights. Finally, I shall discuss the question of the appropriate standard of review and I shall assess whether or not the contested regulation infringes the fundamental rights invoked by the appellant.
II – The legal basis of the contested regulation
11. The appellant’s first plea relates to the legal basis of the contested regulation. The judgment under appeal devotes considerable attention to this issue. Upon consideration of various alternatives, the Court of First Instance concluded that the combined effect of Articles 60 EC, 301 EC and 308 EC gave the Community power to adopt the contested regulation. 11 The appellant argues that this finding is mistaken in law and maintains that the Community lacked competence altogether to adopt the contested regulation. Though relying on slightly different justifications, both the Council and the United Kingdom agree with the Court of First Instance that the contested regulation finds its legal basis in Articles 60 EC, 301 EC and 308 EC. The Commission, however, takes a different view and concludes that Articles 60 EC and 301 EC alone would have provided a sufficient legal basis.
12. I agree with that argument. The Court of First Instance considered that the powers to impose economic and financial sanctions provided for by Articles 60 EC and 301 EC, namely, the interruption or reduction of economic relations with one or more third countries, do not cover the interruption or reduction of economic relations with individuals within those countries, but only with their governing regimes. That view is difficult to reconcile with the wording and the purpose of those provisions. Article 301 EC authorises the Council to ‘interrupt or to reduce … economic relations with one or more third countries’ through unspecified ‘urgent measures’ that are necessary to carry out the Union’s Common Foreign and Security Policy (‘CFSP’). As such, Article 301 EC is fundamentally concerned with the objectives of these measures, namely the objectives of the CFSP, to be achieved by affecting the Community’s economic relations with third countries. Article 60(1) EC authorises the Council to take such measures with respect to the ‘movement of capital and on payments as regards the third countries concerned’. It therefore indicates the means for carrying out the objectives stated earlier; those means involve restricting the flow of funds into and out of the Community. Beyond these two provisions, the EC Treaty does not regulate what shape the measures should take, or who should be the target or bear the burden of the measures. Rather, the only requirement is that the measures ‘interrupt or reduce’ economic relations with third countries, in the area of movement of capital or payments.
13. The financial sanctions in the contested regulation meet that requirement: they are targeted predominantly at individuals and groups within third countries. By affecting economic relations with entities within a given country, the sanctions necessarily affect the overall state of economic relations between the Community and that country. Economic relations with individuals and groups from within a third country are part of economic relations with that country; targeting the former necessarily affects the latter. To exclude economic relations with individuals or groups from the ambit of ‘economic relations with … third countries’ would be to ignore a basic reality of international economic life: that the governments of most countries do not function as gatekeepers for the economic relations and activities of each specific entity within their borders.
14. Moreover, the Court of First Instance’s restrictive reading of Article 301 EC deprives this provision of much of its practical use. Within the framework of the CFSP, the Union may decide, for reasons relating to the maintenance of international peace and security, to impose economic and financial sanctions against non-State actors who are situated in third countries. I fail to see why Article 301 EC should be interpreted more narrowly. As the Court of First Instance itself recognised, ‘the Union and its Community pillar are not to be prevented from adapting to [threats to international peace and security] by imposing economic and financial sanctions not only on third countries, but also on associated persons, groups, undertakings or entities engaged in international terrorist activity or in any other way constituting a threat to international peace and security’. 12
15. The Court of First Instance found that Article 308 EC had to be brought into play in order to impose financial sanctions on individuals who do not exercise government control. However, the reliance on the notion of government control as a distinguishing factor highlights an underlying tension in the reasoning of the Court of First Instance. The Court of First Instance construed Article 308 EC as a ‘bridge’ between the CFSP and the Community pillar. However, while Article 301 EC might be seen as a cross-pillar bridge, Article 308 EC surely cannot fulfil that function. Article 308 EC, like Article 60(1) EC, is strictly an enabling provision: it provides the means, but not the objective. Even though it refers to ‘objectives of the Community’, these objectives are exogenous to Article 308 EC; they cannot be introduced by Article 308 EC itself. Hence, if one excludes the interruption of economic relations with non-State actors from the realm of acceptable means to achieve the objectives permitted by Article 301 EC, one cannot use Article 308 EC to bring those means back in. Either a measure directed against non-State actors fits the objectives of the CFSP which the Community can pursue by virtue of Article 301 EC, or, if it does not, then Article 308 EC is of no help.
16. My conclusion, therefore, is that the judgment of the Court of First Instance is vitiated by an error in law. If the Court were to follow my analysis concerning the legal basis it would have enough ground to set aside the judgment under appeal. I none the less believe that, where pleas are raised concerning alleged breaches of fundamental rights, it is preferable for the Court to make use of the possibility of reviewing those pleas as well, both for reasons of legal certainty and in order to prevent a possible breach of fundamental rights from subsisting in the Community legal order, albeit by virtue of a measure that merely has a different form or legal basis. I shall accordingly proceed to assess the appellant’s remaining pleas in law.
III – The jurisdiction of the Community Courts to determine whether the contested regulation breaches fundamental rights
17. In the proceedings before the Court of First Instance, the appellant claimed that the contested regulation breached the right to a fair hearing, the right to respect for property and the principle of proportionality, and the right to effective judicial review. 13 However, before assessing the substance of these claims, the Court of First Instance examined the scope of its own jurisdiction to assess the conformity of the contested regulation with fundamental rights. 14 In order to ascertain the appropriate scope of judicial review, the Court of First Instance considered the relationship between the Community legal order and the legal order established under the UN Charter. The reasoning of the Court of First Instance is extensive and sophisticated, but may be summarised as follows.
18. First, the Court of First Instance identified what essentially amounts to a rule of primacy, flowing from the EC Treaty, according to which Security Council resolutions adopted under Chapter VII of the UN Charter prevail over rules of Community law. The Court of First Instance essentially found that Community law recognises and accepts that, in keeping with Article 103 of the UN Charter, Security Council resolutions take precedence over the Treaty. 15 Secondly, the Court of First Instance held that, in consequence, it had no authority to review, even indirectly, Security Council resolutions in order to assess their conformity with fundamental rights as protected by the Community legal order. It observed that the Security Council resolutions at issue left no margin of discretion and, therefore, that it could not assess the contested regulation without engaging in such indirect review. None the less, the Court of First Instance considered, thirdly, that it was empowered to review the Security Council resolutions at issue in order to assess their conformity with the protection of fundamental rights, in so far as those rights formed part of the principle of jus cogens.
19. The appellant challenges this part of the judgment under appeal with a combination of arguments derived from international law and Community law. In his statement of appeal, he argues, inter alia, that the reasoning of the Court of First Instance in respect of the binding effect and the interpretation of the relevant Security Council resolutions is flawed from the perspective of international law. The appellant claims that neither Article 103 of the UN Charter nor those resolutions could have the effect of precluding the courts from reviewing domestic implementing measures in order to assess their conformity with fundamental rights. In his rejoinder and at the hearing, the appellant refined his arguments and tailored them to fit more closely with Community law and the case-law of this Court. The appellant maintains that, so long as the United Nations do not provide a mechanism of independent judicial review that guarantees compliance with fundamental rights of decisions taken by the Security Council and the Sanctions Committee, the Community Courts should review measures adopted by the Community institutions with a view to implementing those decisions for their conformity with fundamental rights as recognised in the Community legal order. The appellant cites the ruling of this Court in Bosphorus 16 as a precedent.
20. The United Kingdom has raised a plea of inadmissibility as regards the line of argument based expressly on Community law on the ground that it would amount to a new plea in law. I do not take the same view. The reasoning of the Court of First Instance gives rise to legitimate confusion as to how the primacy of Security Council resolutions can be grounded in Community law by virtue of a requirement that is an import from international law. In that respect, the arguments derived from international law and those derived from Community law are, fundamentally, two sides of the same coin. Admittedly, the appellant would have been better advised to support his plea, from the outset, with both lines of argument. Yet, even though he initially directed most of his arrows from the angle of international law, there was never a misunderstanding among the parties about the thrust of his claim, namely, that the Court of First Instance wrongly portrayed the nature of the Community’s obligations under international law and the relationship of those obligations with the duties of the Community Courts under the Treaty. Indeed, in each of their written and oral submissions to this Court, the Council and the Commission, as well as the United Kingdom, have given ample consideration to the key issue raised by the appellant: the relationship between the international legal order and the Community legal order. I fail to see, therefore, why the Court should characterise part of the appellant’s arguments as an additional plea in law. Instead, I believe the Court should consider his plea to be admissible in its entirety.
21. This brings us to the question of how the relationship between the international legal order and the Community legal order must be described. The logical starting point of our discussion should, of course, be the landmark ruling in Van Gend en Loos, in which the Court affirmed the autonomy of the Community legal order. 17 The Court held that the Treaty is not merely an agreement between States, but an agreement between the peoples of Europe. It considered that the Treaty had established a ‘new legal order’, beholden to, but distinct from the existing legal order of public international law. In other words, the Treaty has created a municipal legal order of trans-national dimensions, of which it forms the ‘basic constitutional charter’. 18
22. This does not mean, however, that the Community’s municipal legal order and the international legal order pass by each other like ships in the night. On the contrary, the Community has traditionally played an active and constructive part on the international stage. The application and interpretation of Community law is accordingly guided by the presumption that the Community wants to honour its international commitments. 19 The Community Courts therefore carefully examine the obligations by which the Community is bound on the international stage and take judicial notice of those obligations. 20
23. Yet, in the final analysis, the Community Courts determine the effect of international obligations within the Community legal order by reference to conditions set by Community law. The case-law provides a number of examples. There are cases in which the Court has barred an international agreement from having effect within the Community legal order on the ground that the agreement was concluded on the wrong legal basis. The Court did so, recently, in Parliament v Council and Commission. 21 The Court’s approach is easy to understand once one realises that it would have ‘fundamental institutional implications for the Community and for the Member States’ 22 if an agreement that was adopted without a proper legal basis – or according to the wrong decision-making procedure – were to produce effects within the Community legal order. A similar concern underpins cases in which the Court has held that, when entering into commitments on the international stage, Member States and Community institutions are under a duty of loyal cooperation. 23 If an international agreement is concluded in breach of that duty, it can be denied effect in the Community legal order. Even more apposite, in the context of the present case, is the fact that the Court has verified, on occasion, whether acts adopted by the Community for the purpose of giving municipal effect to international commitments were in compliance with general principles of Community law. For instance, in Germany v Council the Court annulled the Council decision concerning the conclusion of the WTO Agreement to the extent that it approved the Framework Agreement on Bananas. 24 The Court considered that provisions of that Framework Agreement infringed a general principle of Community law: the principle of non-discrimination.
24. All these cases have in common that, although the Court takes great care to respect the obligations that are incumbent on the Community by virtue of international law, it seeks, first and foremost, to preserve the constitutional framework created by the Treaty. 25 Thus, it would be wrong to conclude that, once the Community is bound by a rule of international law, the Community Courts must bow to that rule with complete acquiescence and apply it unconditionally in the Community legal order. The relationship between international law and the Community legal order is governed by the Community legal order itself, and international law can permeate that legal order only under the conditions set by the constitutional principles of the Community.
25. It follows that the present appeal turns fundamentally on the following question: is there any basis in the Treaty for holding that the contested regulation is exempt from the constitutional constraints normally imposed by Community law, since it implements a sanctions regime imposed by Security Council resolutions? Or, to put it differently: does the Community legal order accord supra-constitutional status to measures that are necessary for the implementation of resolutions adopted by the Security Council?
26. The appellant argues that the answer to that question can be inferred from the ruling of this Court in Bosphorus. 26 In that ruling, the Court assessed whether a regulation that was adopted to implement a Security Council resolution which imposed a trade embargo on the Federal Republic of Yugoslavia infringed fundamental rights and the principle of proportionality. The Court held that the interest of ‘putting an end to the state of war in the region and to the massive violations of human rights and humanitarian law in the Republic of Bosnia-Herzegovina’ outweighed the interest of a wholly innocent party to be able to pursue its economic activities using assets it had leased from a company based in the Federal Republic of Yugoslavia. 27 The Court made no suggestion whatsoever that it might not have powers of review because the regulation was necessary in order to implement a sanctions regime that was drawn up by the Security Council. 28
27. Nevertheless, the Council, the Commission and the United Kingdom claim that the judgment in Bosphorus does not provide the authority the appellant seeks to ascribe to it. They argue that the judgment is silent on the matter of the scope of the Court’s jurisdiction, because, at any rate, the regulation did not infringe fundamental rights. I do not consider this argument very persuasive. True, while the Advocate General dismissed the idea in passing, the Court did not explicitly address whether the fact that the regulation implemented a Security Council resolution could preclude it from exercising judicial review. None the less, I would suppose that, instead of deliberately leaving the matter undecided, the Court accepted as self-evident what the Advocate General had felt useful to spell out, namely that ‘respect for fundamental rights is … a condition of the lawfulness of Community acts’. 29
28. In any event, even if one were to accept the suggestion that the Court sidestepped the problem of its jurisdiction in Bosphorus, the fact remains that the Council, the Commission and the United Kingdom fail to identify any basis in the Treaty from which it could logically follow that measures taken for the implementation of Security Council resolutions have supra-constitutional status and are hence accorded immunity from judicial review.
29. The United Kingdom suggests that such immunity from review can be derived from Article 307 EC. The first paragraph of that article provides: ‘The rights and obligations arising from agreements concluded before 1 January 1958 or, for acceding States, before the date of their accession, between one or more Member States on the one hand, and one or more third countries on the other, shall not be affected by the provisions of this Treaty.’ In the view of the United Kingdom, that provision, read in conjunction with Article 10 EC, would impose on the Community an obligation not to impair Member State compliance with Security Council resolutions. In consequence, the Court should abstain from judicial review of the contested regulation. I shall state at the outset that I am not convinced by that argument, but it is nevertheless worth looking into the matter in some detail, particularly since Article 307 EC figured prominently in the reasoning of the Court of First Instance. 30
30. At first sight, it may not be entirely clear how Member States would be prevented from fulfilling their obligations under the United Nations Charter if the Court were to annul the contested regulation. Indeed, in the absence of a Community measure, it would in principle be open to the Member States to take their own implementing measures, since they are allowed, under the Treaty, to adopt measures which, though affecting the functioning of the common market, may be necessary for the maintenance of international peace and security. 31 None the less, the powers retained by the Member States in the field of security policy must be exercised in a manner consistent with Community law. 32 In the light of the Court’s ruling in ERT, 33 it may be assumed that, to the extent that their actions come within the scope of Community law, Member States are subject to the same Community rules for the protection of fundamental rights as the Community institutions themselves. On that assumption, if the Court were to annul the contested regulation on the ground that it infringed Community rules for the protection of fundamental rights, then, by implication, Member States could not possibly adopt the same measures without – in so far as those measures came within the scope of Community law – acting in breach of fundamental rights as protected by the Court. Thus, the argument based on Article 307 EC is of indirect relevance only.
31. The crucial problem with the argument raised by the United Kingdom, however, is that it presents Article 307 EC as the source of a possible derogation from Article 6(1) EU, according to which ‘the Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law’. I see no basis for such an interpretation of Article 307 EC. Moreover, it would be irreconcilable with Article 49 EU, which renders accession to the Union conditional on respect for the principles set out in Article 6(1) EU. Furthermore, it would potentially enable national authorities to use the Community to circumvent fundamental rights which are guaranteed in their national legal orders even in respect of acts implementing international obligations. 34 This would plainly run counter to firmly established case-law of this Court, according to which the Community guarantees a complete system of judicial protection in which fundamental rights are safeguarded in consonance with the constitutional traditions of the Member States. As the Court stated in Les Verts, ‘the European Community is a community based on the rule of law inasmuch as neither its Member States nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional charter, the Treaty’. 35 More straightforwardly, in Schmidberger, the Court reaffirmed that ‘measures which are incompatible with the observance of human rights … are not acceptable in the Community’. 36 In short, the United Kingdom’s reading of Article 307 EC would break away from the very principles on which the Union is founded, while there is nothing in the Treaty to suggest that Article 307 EC has a special status – let alone a special status of that magnitude – in the constitutional framework of the Community.
32. Besides, the obligations under Article 307 EC and the related duty of loyal cooperation flow in both directions: they apply to the Community as well as to the Member States. 37 The second paragraph of Article 307 EC provides that ‘the Member State or States concerned shall take all appropriate steps to eliminate … incompatibilities’ between their prior treaty obligations and their obligations under Community law. To this end, Member States shall ‘assist each other … and shall, where appropriate adopt a common attitude’. That duty requires Member States to exercise their powers and responsibilities in an international organisation such as the United Nations in a manner that is compatible with the conditions set by the primary rules and the general principles of Community law. 38 As Members of the United Nations, the Member States, and particularly – in the context of the present case – those belonging to the Security Council, have to act in such a way as to prevent, as far as possible, the adoption of decisions by organs of the United Nations that are liable to enter into conflict with the core principles of the Community legal order. The Member States themselves, therefore, carry a responsibility to minimise the risk of conflicts between the Community legal order and international law.
33. If Article 307 EC cannot render the contested regulation exempt from judicial review, are there perhaps any other rules of Community law that can? The Council, the Commission and the United Kingdom argue that, as a matter of general principle, it is not for the Court to cast doubt on Community measures that implement resolutions which the Security Council has considered necessary for the maintenance of international peace and security. In this connection, the Commission evokes the notion of ‘political questions’. 39 In brief, one could say that the Commission, the Council and the United Kingdom contend that the specific subject-matter at issue in the present case does not lend itself to judicial review. They claim that the European Court of Human Rights takes a similar position.
34. The implication that the present case concerns a ‘political question’, in respect of which even the most humble degree of judicial interference would be inappropriate, is, in my view, untenable. The claim that a measure is necessary for the maintenance of international peace and security cannot operate so as to silence the general principles of Community law and deprive individuals of their fundamental rights. This does not detract from the importance of the interest in maintaining international peace and security; it simply means that it remains the duty of the courts to assess the lawfulness of measures that may conflict with other interests that are equally of great importance and with the protection of which the courts are entrusted. As Justice Murphy rightly stated in his dissenting opinion in the Korematsu case of the United States Supreme Court:
‘Like other claims conflicting with the asserted constitutional rights of the individual, [that] claim must subject itself to the judicial process of having its reasonableness determined and its conflicts with other interests reconciled. What are the allowable limits of [discretion], and whether or not they have been overstepped in a particular case, are judicial questions.’ 40
35. Certainly, extraordinary circumstances may justify restrictions on individual freedom that would be unacceptable under normal conditions. However, that should not induce us to say that ‘there are cases in which a veil should be drawn for a while over liberty, as it was customary to cover the statues of the gods’. 41 Nor does it mean, as the United Kingdom submits, that judicial review in those cases should be only ‘of the most marginal kind’. On the contrary, when the risks to public security are believed to be extraordinarily high, the pressure is particularly strong to take measures that disregard individual rights, especially in respect of individuals who have little or no access to the political process. Therefore, in those instances, the courts should fulfil their duty to uphold the rule of law with increased vigilance. Thus, the same circumstances that may justify exceptional restrictions on fundamental rights also require the courts to ascertain carefully whether those restrictions go beyond what is necessary. As I shall discuss below, the Court must verify whether the claim that extraordinarily high security risks exist is substantiated and it must ensure that the measures adopted strike a proper balance between the nature of the security risk and the extent to which these measures encroach upon the fundamental rights of individuals.
36. According to the Council, the Commission and the United Kingdom, the European Court of Human Rights relinquishes its powers of review when a contested measure is necessary in order to implement a Security Council resolution. Yet, I seriously doubt that the European Court of Human Rights limits its own jurisdiction in that way. 42 Moreover, even if it were to do so, I do not think that that would be of consequence in the present case.
37. It is certainly correct to say that, in ensuring the observance of fundamental rights within the Community, the Court of Justice draws inspiration from the case-law of the European Court of Human Rights. 43 None the less, there remain important differences between the two courts. The task of the European Court of Human Rights is to ensure the observance of the commitments entered into by the Contracting States under the Convention. Although the purpose of the Convention is the maintenance and further realisation of human rights and fundamental freedoms of the individual, it is designed to operate primarily as an interstate agreement which creates obligations between the Contracting Parties at the international level. 44 This is illustrated by the Convention’s intergovernmental enforcement mechanism. 45 The EC Treaty, by contrast, has founded an autonomous legal order, within which States as well as individuals have immediate rights and obligations. The duty of the Court of Justice is to act as the constitutional court of the municipal legal order that is the Community. The European Court of Human Rights and the Court of Justice are therefore unique as regards their jurisdiction ratione personae and as regards the relationship of their legal system with public international law. Thus, the Council, the Commission and the United Kingdom attempt to draw a parallel precisely where the analogy between the two Courts ends.
38. The Council asserted at the hearing that, by exercising its judicial task in respect of acts of Community institutions which have their source in Security Council resolutions, the Court would exceed its proper function and ‘speak on behalf of the international community’. However, that assertion clearly goes too far. Of course, if the Court were to find that the contested resolution cannot be applied in the Community legal order, this is likely to have certain repercussions on the international stage. It should be noted, however, that these repercussions need not necessarily be negative. They are the immediate consequence of the fact that, as the system governing the functioning of the United Nations now stands, the only option available to individuals who wish to have access to an independent tribunal in order to obtain adequate protection of their fundamental rights is to challenge domestic implementing measures before a domestic court. 46 Indeed, the possibility of a successful challenge cannot be entirely unexpected on the Security Council’s part, given that it was expressly contemplated by the Analytical Support and Sanctions Monitoring Team of the Sanctions Committee. 47
39. Moreover, the legal effects of a ruling by this Court remain confined to the municipal legal order of the Community. To the extent that such a ruling would prevent the Community and its Member States from implementing Security Council resolutions, the legal consequences within the international legal order remain to be determined by the rules of public international law. While it is true that the restrictions which the general principles of Community law impose on the actions of the institutions may inconvenience the Community and its Member States in their dealings on the international stage, the application of these principles by the Court of Justice is without prejudice to the application of international rules on State responsibility or to the rule enunciated in Article 103 of the UN Charter. The Council’s contention that, by reviewing the contested regulation, the Court would assume jurisdiction beyond the perimeters of the Community legal order is therefore misconceived.
40. I accordingly conclude that the Court of First Instance erred in law in holding that it had no jurisdiction to review the contested regulation in the light of fundamental rights that are part of the general principles of Community law. In consequence, the Court should consider the appellant’s second plea well founded and set aside the judgment under appeal.
IV – The alleged breaches of fundamental rights
41. Instead of referring the matter back to the Court of First Instance, I suggest that the Court make use of the possibility of giving final judgment in this case. 48
For reasons of expediency, I think it would be appropriate, in this regard, to concentrate on the principal aspect of the case, namely the issue whether the contested regulation infringes the appellant’s fundamental rights.
42. The appellant alleges several breaches of his fundamental rights and, on those grounds, seeks the annulment of the contested regulation in so far as it concerns him. The respondents – in particular the Commission and the United Kingdom – argue that, to the extent that the contested regulation may interfere with the appellant’s fundamental rights, this is justified for reasons relating to the suppression of international terrorism. In this connection, they also argue that the Court should not apply normal standards of review, but instead should – in the light of the international security interests at stake – apply less stringent criteria for the protection of fundamental rights.
43. I disagree with the respondents. They advocate a type of judicial review that at heart is very similar to the approach taken by the Court of First Instance under the heading of jus cogens. In a sense, their argument is yet another expression of the belief that the present case concerns a ‘political question’ and that the Court, unlike the political institutions, is not in a position to deal adequately with such questions. The reason would be that the matters at issue are of international significance and any intervention of the Court might upset globally-coordinated efforts to combat terrorism. The argument is also closely connected with the view that courts are ill equipped to determine which measures are appropriate to prevent international terrorism. The Security Council, in contrast, presumably has the expertise to make that determination. For these reasons, the respondents conclude that the Court should treat assessments made by the Security Council with the utmost deference and, if it does anything at all, should exercise a minimal review in respect of Community acts based on those assessments.
44. It is true that courts ought not to be institutionally blind. Thus, the Court should be mindful of the international context in which it operates and conscious of its limitations. It should be aware of the impact its rulings may have outside the confines of the Community. In an increasingly interdependent world, different legal orders will have to endeavour to accommodate each other’s jurisdictional claims. As a result, the Court cannot always assert a monopoly on determining how certain fundamental interests ought to be reconciled. It must, where possible, recognise the authority of institutions, such as the Security Council, that are established under a different legal order than its own and that are sometimes better placed to weigh those fundamental interests. However, the Court cannot, in deference to the views of those institutions, turn its back on the fundamental values that lie at the basis of the Community legal order and which it has the duty to protect. Respect for other institutions is meaningful only if it can be built on a shared understanding of these values and on a mutual commitment to protect them. Consequently, in situations where the Community’s fundamental values are in the balance, the Court may be required to reassess, and possibly annul, measures adopted by the Community institutions, even when those measures reflect the wishes of the Security Council.
45. The fact that the measures at issue are intended to suppress international terrorism should not inhibit the Court from fulfilling its duty to preserve the rule of law. In doing so, rather than trespassing into the domain of politics, the Court is reaffirming the limits that the law imposes on certain political decisions. This is never an easy task, and, indeed, it is a great challenge for a court to apply wisdom in matters relating to the threat of terrorism. Yet, the same holds true for the political institutions. Especially in matters of public security, the political process is liable to become overly responsive to immediate popular concerns, leading the authorities to allay the anxieties of the many at the expense of the rights of a few. This is precisely when courts ought to get involved, in order to ensure that the political necessities of today do not become the legal realities of tomorrow. Their responsibility is to guarantee that what may be politically expedient at a particular moment also complies with the rule of law without which, in the long run, no democratic society can truly prosper. In the words of Aharon Barak, the former President on the Supreme Court of Israel:
‘It is when the cannons roar that we especially need the laws … Every struggle of the state – against terrorism or any other enemy – is conducted according to rules and law. There is always law which the state must comply with. There are no “black holes”. … The reason at the foundation of this approach is not only the pragmatic consequence of the political and normative reality. Its roots lie much deeper. It is an expression of the difference between a democratic state fighting for its life and the fighting of terrorists rising up against it. The state fights in the name of the law and in the name of upholding the law. The terrorists fight against the law, while violating it. The war against terrorism is also law’s war against those who rise up against it.’ 49
46. There is no reason, therefore, for the Court to depart, in the present case, from its usual interpretation of the fundamental rights that have been invoked by the appellant. The only novel question is whether the concrete needs raised by the prevention of international terrorism justify restrictions on the fundamental rights of the appellant that would otherwise not be acceptable. This does not entail a different conception of those fundamental rights and the applicable standard of review. It simply means that the weight to be given to the different interests which are always to be balanced in the application of the fundamental rights at issue may be different as a consequence of the specific needs arising from the prevention of international terrorism. But this is to be assessed in a normal exercise of judicial review by this Court. The present circumstances may result in a different balance being struck among the values involved in the protection of fundamental rights but the standard of protection afforded by them ought not to change.
47. The problem facing the appellant is that all of his financial interests within the Community have been frozen for several years, without limit of time and in conditions where there appear to be no adequate means for him to challenge the assertion that he is guilty of wrongdoing. He has invoked the right to property, the right to be heard, and the right to effective judicial review. In the context of this case, these rights are closely connected. Clearly, the indefinite freezing of someone’s assets constitutes a far-reaching interference with the peaceful enjoyment of property. The consequences for the person concerned are potentially devastating, even where arrangements are made for basic needs and expenses. Of course, this explains why the measure has such a strong coercive effect and why
‘smart sanctions’ of this type might be considered a suitable or even necessary means to prevent terrorist acts. However, it also underscores the need for procedural safeguards which require the authorities to justify such measures and demonstrate their proportionality, not merely in the abstract, but in the concrete circumstances of the given case. The Commission rightly points out that the prevention of international terrorism may justify restrictions on the right to property. However, that does not ipso facto relieve the authorities of the requirement to demonstrate that those restrictions are justified in respect of the person concerned. Procedural safeguards are necessary precisely to ensure that that is indeed the case. In the absence of those safeguards, the freezing of someone’s assets for an indefinite period of time infringes the right to property.
48. The appellant contends that, regarding the sanctions taken against him, no such safeguards are in place. He maintains that he has not been given any opportunity of being heard on the facts and circumstances alleged and on the evidence adduced against him. He claims that he would have been in a better position if criminal charges had been brought against him, since then at least he would have enjoyed the protection afforded by a criminal trial. In this context, he seeks to rely on the right to be heard by the administrative authorities, as well as on the right to effective judicial review by an independent tribunal.
49. Both the right to be heard and the right to effective judicial review constitute fundamental rights that form part of the general principles of Community law. According to settled case-law, ‘observance of the right to be heard is, in all proceedings initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of Community law which must be guaranteed even in the absence of any rules governing the proceedings in question … That principle requires that the addressees of decisions which significantly affect their interests should be placed in a position in which they may effectively make known their views’. 50 As to the right to effective judicial review, the Court has held: ‘The European Community is … a community based on the rule of law in which its institutions are subject to judicial review of the compatibility of their acts with the Treaty and with the general principles of law which include fundamental rights. … Individuals are therefore entitled to effective judicial protection of the rights they derive from the Community legal order, and the right to such protection is one of the general principles of law stemming from the constitutional traditions common to the Member States’. 51
50. The respondents argue, however, that in so far as there have been restrictions on the right to be heard and the right to effective judicial review, these restrictions are justified. They maintain that any effort on the part of the Community or its Member States to provide administrative or judicial procedures for challenging the lawfulness of the sanctions imposed by the contested regulation would contravene the underlying Security Council resolutions and therefore jeopardise the fight against international terrorism. In consonance with that view, they have not made any submissions that would enable this Court to exercise review in respect of the specific situation of the appellant.
51. I shall not dwell too much upon the alleged breach of the right to be heard. Suffice it to say that, although certain restrictions on that right may be envisaged for public security reasons, in the present case the Community institutions have not afforded any opportunity to the appellant to make known his views on whether the sanctions against him are justified and whether they should be kept in force. The existence of a de-listing procedure at the level of the United Nations offers no consolation in that regard. That procedure allows petitioners to submit a request to the Sanctions Committee or to their government for removal from the list. 52 Yet, the processing of that request is purely a matter of intergovernmental consultation. There is no obligation on the Sanctions Committee actually to take the views of the petitioner into account. Moreover, the de-listing procedure does not provide even minimal access to the information on which the decision was based to include the petitioner in the list. In fact, access to such information is denied regardless of any substantiated claim as to the need to protect its confidentiality. One of the crucial reasons for which the right to be heard must be respected is to enable the parties concerned to defend their rights effectively, particularly in legal proceedings which might be brought after the administrative control procedure has come to a close. In that sense, respect for the right to be heard is directly relevant to ensuring the right to effective judicial review. Procedural safeguards at the administrative level can never remove the need for subsequent judicial review. Yet, the absence of such administrative safeguards has significant adverse affects on the appellant’s right to effective judicial protection.
52. The right to effective judicial protection holds a prominent place in the firmament of fundamental rights. While certain limitations on that right might be permitted if there are other compelling interests, it is unacceptable in a democratic society to impair the very essence of that right. As the European Court of Human Right held in Klass and Others, ‘the rule of law implies, inter alia, that an interference by the executive authorities with an individual’s rights should be subject to an effective control which should normally be assured by the judiciary, at least in the last resort, judicial control offering the best guarantees of independence, impartiality and a proper procedure’. 53
53. The appellant has been listed for several years in Annex I to the contested regulation and still the Community institutions refuse to grant him an opportunity to dispute the grounds for his continued inclusion on the list. They have, in effect,levelled extremely serious allegations against him and have, on that basis, subjected him to severe sanctions. Yet, they entirely reject the notion of an independent tribunal assessing the fairness of these allegations and the reasonableness of these sanctions. As a result of this denial, there is a real possibility that the sanctions taken against the appellant within the Community may be disproportionate or even misdirected, and might nevertheless remain in place indefinitely. The Court has no way of knowing whether that is the case in reality, but the mere existence of that possibility is anathema in a society that respects the rule of law.
54. Had there been a genuine and effective mechanism of judicial control by an independent tribunal at the level of the United Nations, then this might have released the Community from the obligation to provide for judicial control of implementing measures that apply within the Community legal order. However, no such mechanism currently exists. As the Commission and the Council themselves have stressed in their pleadings, the decision whether or not to remove a person from the United Nations sanctions list remains within the full discretion of the Sanctions Committee – a diplomatic organ. In those circumstances, it must be held that the right to judicial review by an independent tribunal has not been secured at the level of the United Nations. As a consequence, the Community institutions cannot dispense with proper judicial review proceedings when implementing the Security Council resolutions in question within the Community legal order.
55. It follows that the appellant’s claim that the contested regulation infringes the right to be heard, the right to judicial review, and the right to property is well founded. The Court should annul the contested regulation in so far as it concerns the appellant.
V – Conclusion
56. I propose that the Court should:
1) set aside the judgment of the Court of First Instance of 21 September 2005 in Case T-315/01 Kadi v Council and Commission;
2) annul, in so far as it concerns the appellant, Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, and repealing Council Regulation (EC) No 467/2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan.
2 – Council Regulation (EC) No 467/2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan, and repealing Regulation (EC) No 337/2000 (OJ 2001 L 67, p. 1). The appellant’s name was added by Commission Regulation (EC) No 2062/2001 of 19 October 2001, amending, for the third time, Regulation (EC) No 467/2001 (OJ 2001 L 277, p. 25).
3 – Imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, and repealing Council Regulation (EC) No 467/2001 (OJ 2002 L 139, p. 9).
4 – Concerning restrictive measures against Usama bin Laden, members of the Al-Qaida organisation and the Taliban and other individuals, groups, undertakings and entities associated with them and repealing Common Positions 96/746/CFSP, 1999/727/CFSP, 2001/154/CFSP and
2001/771/CFSP (OJ 2002 L 139, p. 4). See, in particular, Article 3 and the ninth recital in the
5 – S/RES/1267(1999) of 15 October 1999.
6 – S/RES/1333(2000) of 19 December 2000.
7 – S/RES/1390(2002) of 16 January 2002.
8 – Concerning exceptions to the restrictive measures imposed by Common Position 2002/402/CFSP (OJ 2003 L 53, p. 62).
9 – Council Regulation (EC) No 561/2003 amending, as regards exceptions to the freezing of funds and economic resources, Regulation (EC) No 881/2002 (OJ 2003 L 82, p. 1).
10 –  ECR II-3649.
11 – Paragraphs 87 to 135 of the judgment under appeal.
12 – Paragraph 133 of the judgment under appeal.
13 – Paragraph 59 of the judgment under appeal.
14 – In paragraphs 181 to 232 of the judgment under appeal.
15 – Article 103 of the UN Charter provides: ‘In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.’ It is generally recognised that this obligation extends to binding Security Council decisions. See the Order of 14 April 1992 of the International Court of Justice in Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Provisional Measures, Order of 14 April 1992, I.C.J. Reports 1992, p. 3, at paragraph 39.
16 – Case C-84/95  ECR I-3953.
17 – Case 26/62 Van Gend en Loos  ECR 1, at p. 12.
18 – Case 294/83 Les Verts  ECR 1339, paragraph 23.
19 – See, for instance, Case 41/74 Van Duyn  ECR 1337, paragraph 22, and Case C-286/90 Poulsen and Diva Navigation  ECR I-6019, paragraphs 9 to 11.
20 – See, for instance, Case C-431/05 Merck Genéricos-Produtos Farmacêuticos  ECR I-0000; Case C-300/98 Dior and Others  ECR I-11307, paragraph 33; Case C-162/96 Racke  I-3655; Joined Cases 21/72 to 24/72 International Fruit Company and Others  ECR 1219; and Poulsen and Diva Navigation, cited in footnote 19.
21 – Joined Cases C-317/04 and C-318/04  ECR I-4721. See also Case C-327/91 France v Commission  ECR-3641.
22 – Opinion 2/94  ECR I-1759, paragraph 35.
23 – See, for instance, Ruling 1/78 of 14 November 1978  ECR 2151, paragraph 33; Opinion 2/91  ECR I-1061, paragraphs 36 to 38; and Case C-25/94 Commission v Council  ECR I-1469, paragraphs 40 to 51.
24 – Case C-122/95  ECR I-973.
25 – See, for instance, Opinion 2/94, cited in footnote 22, paragraphs 30, 34 and 35.
26 – Cited in footnote 16.
27 – Bosphorus, cited in footnote 16, paragraph 26.
28 – The impounding of the aircraft of Bosphorus Airways took place in accordance with Security Council Resolution 820(1993). The UN Sanctions Committee had decided that a failure on the part of the authorities to impound the aircraft would amount to a breach of the resolution.
29 – Opinion of Advocate General Jacobs in Bosphorus, cited in footnote 16, paragraph 53. See also paragraph 34 of Opinion 2/94, cited in footnote 22.
30 – Paragraphs 185 to 191 and 196 of the judgment under appeal.
31 – Articles 297 EC and 60(2) EC. See also: Case C-70/94 Werner  ECR I-3189; Case C-83/94 Leifer and Others  ECR I-3231; and the Opinion of Advocate General Jacobs in Case C-120/94 Commission v Greece  ECR I-1513.
32 – Case C-124/95 Centro-Com  ECR I-81, paragraph 25.
33 – Case C-260/89  ECR I-2925. See also Case C-368/95 Familiapress  ECR I-3689 and Case C-60/00 Carpenter  ECR I-6279.
34 – In certain legal systems, it seems very unlikely that national measures for the implementation of Security Council resolutions would enjoy immunity from judicial review (which incidentally shows that a decision by this Court to exclude measures such as the contested regulation from judicial review might create difficulties for the reception of Community law in some national legal orders). See, for instance, the following sources. Germany: Bundesverfassungsgericht, Order of 14 October 2004 (Görgülü) 2 BvR 1481/04, reported in NJW 2004, p. 3407-3412. The Czech Republic: Ústavní soud, 15 April 2003 (I. ÚS 752/02); Ústavní soud, 21 February 2007 (I. ÚS 604/04). Italy: Corte Costituzionale, 19 March 2001, No 73. Hungary: 4/1997 (I. 22.) AB határozat. Poland: Orzecznictwo Trybunału Konstytucyjnego (zbiór urzędowy), 27 April 2005, P 1/05, pkt 5.5, Seria A, 2005 Nr 4, poz. 42; and Orzecznictwo Trybunału Konstytucyjnego (zbiór urzędowy), 2 July 2007, K 41/05, Seria A, 2007 Nr 7, poz. 72.
35 – Les Verts, cited in footnote 18, paragraph 23.
36 – Case C-112/00 Schmidberger  ECR I-5659, paragraph 73.
37 – For a recent example of a case concerning the obligations of Member States under Article 307 EC, see Case C-203/03 Commission v Austria  ECR I-935, paragraph 59.
38 – See, in a similar vein, on the requirement of unity in the international representation of the Community, Opinion 1/94  ECR I-5267, paragraphs 106 to 109, and Commission v Council, cited in footnote 23, paragraphs 40 to 51.
39 – The term ‘political question’ was coined by United States Supreme Court Chief Justice Taney in Luther v. Borden, 48 U.S. 1 (1849), 46-47. The precise meaning of this notion within the Community context is far from clear. The Commission did not dwell upon the argument, which it raised at the hearing, but the suggestion appears to be that the Court should abstain from exercising judicial review, since there are no judicial criteria by which the matters presently under consideration may be measured.
40 – United States Supreme Court, Korematsu v. United States, 323 U.S. 214, 233-234 (1944) (Murphy, J., dissenting) (internal quotation marks omitted).
41 – Montesquieu, De l’Esprit des Lois, Book XII (‘Il y a des cas où il faut mettre, pour un moment, un voile sur la liberté, comme l’on cache les statues des dieux’).
42 – The European Court of Human Rights has held that ‘the Contracting States may not, in the name of the struggle against … terrorism, adopt whatever measures they deem appropriate’ (Klass and Others, judgment of 6 September 1978, Series A no. 28, § 49). Moreover, in its judgment in Bosphorus Airways, the same Court discussed the issue of its jurisdiction at length, without even hinting at the possibility that it might not be able to exercise review because the impugned measures implemented a resolution of the Security Council (Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi (Bosphorus Airways) v. Ireland [GC], no. 45036/98). Therefore, the judgment in Bosphorus Airways seems to bolster the argument in favour of judicial review. Still, according to the Council, the Commission and the United Kingdom, it would follow from the admissibility decision in Behrami that measures that are necessary for the implementation of Security Council resolutions automatically fall outside the ambit of the Convention (Behrami and Behrami v. France and Saramati v. France, Germany and Norway (dec.) [GC], nos. 71412/01 and 78166/01 ECtHR, 2 May 2007); see also the admissibility decisions of 5 July 2007 in Kasumaj v. Greece (dec.), no. 6974/05, and of 28 August 2007 in Gajic v. Germany (dec.), no. 31446/02). However, that seems to be an overly expansive reading of the Court’s decision. The Behrami case concerned an alleged infringement of fundamental rights by a security force deployed in Kosovo which operated under the auspices of the United Nations. The respondent States had contributed troops to this security force. Yet, the European Court of Human Rights declined jurisdiction ratione personae mainly because the ultimate authority and control over the security mission remained with the Security Council and, therefore, the impugned actions and inactions were attributable to the United Nations and not to the respondent States (see §§ 121 and 133 to 135 of the decision). Indeed, in this respect the Court carefully distinguished the case from Bosphorus Airways (see, in particular, § 151 of th e decision). Thus, the position of the European Court of Human Rights seems to be that, where, pursuant to the rules of public international law, the impugned acts are attributable to the United Nations, the court has no jurisdiction ratione personae, since the United Nations are not a contracting party to the Convention. By contrast, when the authorities of a contracting State have taken procedural steps to implement a Security Council resolution in the domestic legal order, the measures thus taken are attributable to that State and therefore amenable to judicial review under the Convention (see also §§ 27 to 29 of the admissibility decision of 16 October 2007 in Beric and Others v. Bosnia and Herzegovina).
43 – See, for instance, Case C-36/02 Omega Spielhallen  ECR I-9609, paragraph 33.
44 – See the Preamble to the European Convention on Human Rights and Fundamental Freedoms, as well as Article 19 ECHR and Article 46(1) ECHR.
45 – See Article 46(2) ECHR.
46 – See paragraph 39 of the Report of 16 August 2006 of the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism (A/61/267): ‘Given that the effect of inclusion [on the list] is the freezing of assets, the right to contest inclusion is a necessity. At the international level, these procedures do not at present exist. They are present, in some instances, at the national level. The Special Rapporteur is of the view that if there is no proper or adequate international review available, national review procedures — even for international lists — are necessary. These should be available in the States that apply the sanctions’.
47 – See, in particular, the Second Report of the Analytical Support and Sanctions Monitoring Team (S/2005/83), in which it is noted, in paragraph 54, that ‘the way entities or individuals are added to the terrorist list maintained by the Council and the absence of review or appeal for those listed raise serious accountability issues and possibly violate fundamental rights, norms and conventions’ and, in paragraph 58, that ‘revisions to the process could help to reduce the possibility of one or more potentially negative court decisions’. In that connection, the Report specifically mentions the European Court of Justice. See also Annex I to the Sixth Report of the Analytical Support and Sanctions Monitoring Team (S/2007/132) for an overview of legal challenges to aspects of the sanctions programme.
48 – In accordance with Article 61 of the Statute of the Court.
49 – Supreme Court of Israel, HCJ 769/02  The Public Committee Against Torture in Israel et. al. v. The Government of Israel et. al., paragraphs 61 and 62 (internal quotation marks omitted).
50 – Case C-32/95 P Lisrestal and Others  ECR I-5373, paragraph 21. See also Article 41(2) of the Charter on Fundamental Rights of the European Union.
51 – Case C-50/00 P Unión de Pequeños Agricultores v Council  ECR I-6677, paragraphs 38 and 39. See also Article 47 of the Charter on Fundamental Rights and Articles 6 and 13 ECHR.
52 – The de-listing procedure has undergone several changes since the original adoption of the measures against the appellant. Under the initial regime, the person concerned could only submit requests for de-listing to their State of citizenship or of residence. Under the current procedure, petitioners seeking to submit a request for de-listing can do so either through a United Nations ‘focal point’ or through their State of residence or citizenship. However, the fundamentally intergovernmental nature of the de-listing process has not changed. See Security Council Resolution 1730(2006) of 19 December 2006 and the Sanction Committee’s Guidelines for the Conduct of its Work, available at http://www.un.org/sc/committees/1267/index.shtml.
53 – ECtHR, Klass and Others, cited in footnote 42, § 55
Martti Koskenniemi, “Human Rights Mainstreaming as a Strategy for Institutional Power,” Humanity 1 (2008) (footnotes omitted)
This essay is a comment on the proposal by human rights activists and lawyers, made in various international and domestic contexts, for “mainstreaming” human rights into an aspect of the regular business of (international) governance. …
The call for mainstreaming human rights in the regular business of government has come about as a reaction to a certain failure of the “rule of law.” …
Human rights, too, arose to counteract the transfer of political power to “regulators” and managers, scientific and economic experts, and professional negotiators. … The emergence of human rights law (as well as the recent “fight against impunity”) gives expression to the search for absolutes in a world whose complexity has created the danger of unfettered relativism and bureaucratic abuse. The language of “rights” contrasts with that of “management” and suggests that there must be some limit to the weighing of costs and benefits—that some requirements are so self-evidently “good” (or some forms of behavior so intrinsically “evil”) that they should leave no room to instrumental calculations.7 Through a language of rights one is able to say, for example, that “indigenous groups should not be forced to leave their homes only because it might be socially useful to set up an industrial area where they live. They have “a right to stay there,” or “the police may not torture crime suspects however efficient that might be in view of the objectives of criminal policy. Torture is just plain wrong.”8 Even if it is true that in normal situations, public officials may use discretion when they seek for the most “equitable” or “cost-effective” solution, this must be limited by rules that express particularly important values.9 This is what it means to claim that the “natural place [of rights] must be outside politics, yet constraining politics.”
As soon as rights are conceived in this way, they begin to seem extremely valuable. To dress a claim (for resources, for example, or for inviolability, immunity, concern, and so on) in the form of a “right” is to put it in the strongest available terms, even as an administrative veto. It would thus seem very important to know what rights there actually are. But how does one go about determining this? The old rhetoric of “natural rights” suggests that a list of such rights does exist somewhere but provides no access to it that would be independent from taking a stand on issues of political philosophy that have been disputed in the West for the better part of the past two thousand years. It is hard not to dismiss natural law as premodern myth. Moreover, natural rights have frankly undemocratic implications, suggesting as they do that human communities are bound by values that precede them…
In the practice of the secular West, however, the determination of what rights there are has been part and parcel of the regular political process in the course of which the beneficiaries of any policy (labor policy, welfare policy, criminal policy, environmental policy, and so on) have seemed capable of dressing the benefits they are seeking in terms of their “rights.” Hence the bewildering proliferation of rights that has made some rights advocates despair as it has threatened the special dignity and power of rights language. At the same time, absence of a litmus test to distinguish between “genuine” rights and those that reflected just the (egoistic) interests of the claimants has led to social conflict being increasingly represented as a conflict of rights. To resolve them, legislatures, administrative bodies, and courts have developed complex balancing practices and rights-exceptions schemes that defer to general considerations of administrative policy, public interest, economic efficiency, and so on—precisely the kind of criteria that rights were once introduced to limit. From providing limits to administrative and bureaucratic discretion, rights became dependent on it.
At this point, the push for mainstreaming has emerged as a modest strategy no longer seeking to trump power. “Okay,” it suggests, “it may be true that a human rights are only a consideration among others. But at least administrators should pay attention to them in their decision-making.” … This was of course a much more modest strategy than the original claim to endow rights with a “trumping” power. Indeed, perhaps human rights were simply a policy among others (though of course, a particularly important policy) and the real (or reasonable, or realistic) objective was to ensure that due concern was given to them when important decisions were being made.
The Emptiness of Mainstreaming
But what would it mean to “have due regard to human rights”? In order for even the modest policy to work, we should be reasonably able to identify “human rights concerns” in contrast to other kinds of concerns. But this may not at all be possible. Because there are no authoritative lists of prelegislative rights, political actors are always able to dress their claims in rights language. And as every significant rights claim involves the imposition of a burden on some other person, the latter may likewise invoke their preference to be free from such burden in rights terms. Should protesters against genetically manipulated foodstuffs enter the localities in which they are being sold? The protesters invoke their right of freedom of speech—the owners of the locality, their right of ownership. However much a communal policy might be penetrated by a rights ethos, the city officials would receive no significant guidance from it. “Rights,” after all, support both sides. They might decide in accordance with their preferences, of course. But was not that precisely what recourse to “rights” was intended to prevent? …
Perhaps more familiar is the conflict over freedom rights and security rights that is played out before the whole world under the banner of “fight against terrorism.” The problem here is the same as above. In the case concerning the ten-month detention of an Iraqi-British dual citizen, the British court faced with the claim that the detention had been made in violation of the person’s human rights responded in the following way:
The Security Council, charged as it is with primary responsibility for maintaining international peace and security, has itself determined that a multinational force is required. Its objective is to restore such security as will provide effective protection for human rights for those within Iraq. Those who choose to assist the Security Council in that purpose are authorised to take those steps, which include detention, necessary for its achievement.
Even here both sides argue on the basis of rights. Mainstreaming would not advance the assessment of such a situation one bit—that is, it would not do so without a specific political commitment on the decision-maker’s part to prefer one type of rights claim to another. At this point, however, “human rights” have completely lost their specificity. If incommunicado detention can be a human rights measure, anything can. Everything will depend on the decision-maker. Which verbal strategy seems useful to justify one’s decision? …
That rights are both unlimited and (thus inevitably) conflictual renders the call for administrative bodies to “take rights into account” empty. If every policy consideration an administrative organ needs to take into account may be framed as a human rights consideration, and if—as human rights organs repeatedly stress—this will require “striking a balance,” then mainstreaming calls upon administrative bodies to do what they would in any case be committed to doing. For “balancing” itself cannot be framed in terms of rights application because its very point is to determine the applicability (and thus the limit) of particular rights in particular circumstances. Or in other words, rights conflicts cannot be resolved by reference to “rights”—only by reference to some policy that enables the determination of the relative power of the conflicting rights. But in such case, mainstreaming has no special meaning whatsoever. It merely calls for reasonable and intelligent adjustment of the conflicting considerations— something that the administrative body was surely expected to do anyway.
Mainstreaming as a Project of Seizing Institutional Power
But if human rights mainstreaming cannot be conceived in terms of advancing some determinate preferences in the bureaucratic governance of modern societies, it does have cultural and institutional effects. It does empower some groups at the cost of other groups. … For if we are unable to identify “rights” by analysis of substantive claims, we may be able turn our attention to the cultural preferences of particular groups— groups such as “football fans,” “investment bankers,” or “left liberals”—and choose from those the one we think most likely to share our preferences. No doubt, the group identified as “human rights experts” might be a good candidate for this purpose.
From this perspective, mainstreaming would signify an effort to empower “human rights experts” in the relevant institution, for instance by directing administrators to be in regular contact with them. …
The Virtues of Utopia and Critique…
There is much to be said in favor of human rights—including human rights experts—staying outside regular administrative procedures, as critics and watchdogs, flagging the interests of those who are not regularly represented. This would protect those experts from the need to make the kinds of mundane choices that administrators have to make on a routine basis and that always seem to call for a downsizing of one’s preferences into pragmatic rules of thumb and ad hoc accommodations. Human rights arose from revolution, not from a call for mainstreaming. One cannot be a revolutionary and participate in the regular management of things without some cost to both of these projects. The more “revolutionary” one is, the more difficult it is to occupy those administrative positions in which the main lines of policy are being set. The more influential one is as an administrative or regulatory agent, the less “revolutionary” one’s policies can be. There is nothing in this dilemma that is specific to rights. It concerns political action and strategy, requiring—as all politics does—a continuously critical and self-critical sensibility that moves between commitment to the idioms in which one has been trained and an ability to not let that commitment block one’s view of the consequences of one’s action, “including consequences to [the actors’] inner being, to which they will fall helpless victims if they remain blind to them.”