Towards Convergence in International Human Rights Law : Approaches of Regional and International Systems [1 ed.] 9789004284258, 9789004284241

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Towards Convergence in International Human Rights Law

Nottingham Studies on Human Rights Published under the auspices of the Human Rights Law Centre of the University of Nottingham

Edited by Dominic McGoldrick David Harris

VOLUME 5

The titles published in this series are listed at brill.com/nshr

Towards Convergence in International Human Rights Law Approaches of Regional and International Systems Edited by

Carla M. Buckley Alice Donald Philip Leach

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Names: Buckley, Carla, editor. | Donald, Alice, editor. | Leach, Philip (Philip Royston), editor. Title: Towards convergence in international human rights law : approaches of regional and international systems / edited by Carla Buckley, Alice Donald, Philip Leach. Description: Leiden ; Boston : Brill Nijhoff, 2016. | Series: Nottingham studies on human rights ; volume 5 | “This book grew out of a workshop hosted by the Human Rights Law Centre in the School of Law at the University of Nottingham in June 2013.” | Includes bibliographical references and index. Identifiers: lccn 2016037081 (print) | lccn 2016037658 (ebook) | isbn 9789004284241 (hardback : alk. paper) | isbn 9789004284258 (eBook) Subjects: lcsh: International law and human rights--Congresses. Classification: lcc kz1266 .T69 2016 (print) | lcc kz1266 (ebook) |ddc 341.4/8--dc23 lc record available at https://lccn.loc.gov/2016037081

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. issn 2211-7342 isbn 978-90-04-28424-1 (hardback) isbn 978-90-04-28425-8 (e-book) Copyright 2017 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

Contents Preface ix Acknowledgments xxi List of Abbreviations xxii List of Instruments xxiv Notes on Contributors xxx Introduction 1 Alice Donald, Carla M. Buckley and Philip Leach

Rights

Part 1

1 The Duty to Investigate Right to Life Violations across Three Regional Systems: Harmonisation or Fragmentation of International Human Rights Law? 33 Philip Leach, Rachel Murray and Clara Sandoval 2 The Death Penalty as Addressed by Regional and International Human Rights Bodies: Exploring Jurisprudential Cross-Fertilisation and Harmonisation 68 Chloe Cheeseman 3 International Trends in the Recognition of Abortion Rights 103 Elizabeth Wicks 4 The European Court of Human Rights’ Recourse to External Legal Materials When Interpreting and Applying the Right to Private Life 131 Alastair Mowbray 5 Minority Sexual Orientation as a Challenge to the Harmonised Interpretation of International Human Rights Law 156 Frans Viljoen

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CONTENTS

6

Concepts of Substantive Gender Equality: Looking for Coherence among the Regional and International Perspectives 193 Magdalena Forowicz

7

Judges of the World, United? Collective Aspects of the Right to Work in Regional Human Rights Systems 213 Rory O’Connell

8

The Influence of International Human Rights Law on the Right to Health Jurisprudence of the European Region 246 Jacinta Miller

9

Is the International Convention on the Elimination of All Forms of Racial Discrimination the De Facto Minority Rights Treaty? 275 David Keane and Joshua Castellino

10

Children’s Rights under Regional Human Rights Law – A Tale of Harmonisation? 296 Aoife Nolan and Ursula Kilkelly

PART 2 Themes 11

Affording States a Margin of Appreciation: Comparing the European Court of Human Rights and the Inter-American Court of Human Rights 325 Dominic McGoldrick

12

Human Rights Bodies and International Humanitarian Law: Common but Differentiated Approaches 366 Larissa van den Herik and Helen Duffy

13

The Use Made by the Organs of the European Convention on Human Rights of Reference to the Views of Other Human Rights Bodies in Addressing the Scope of the Extraterritorial Applicability of the Convention 407 Françoise J. Hampson

C ONTENTS

14

State Obligations with Regard to the Extraterritorial Activities of Companies Domiciled on Their Territories 435 Nadia Bernaz

15

Inherent and Implied Powers of Regional Human Rights Tribunals 454 Dinah Shelton

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part 3 Systems 16

International Human Rights Law: Towards Pluralism or Harmony? The Opportunities and Challenges of Coexistence: The View from the un Treaty Bodies 493 Simon Walker

17

Co-existence and Confidentiality: The Experience of the Optional Protocol to the Convention against Torture Harmony and Human Rights: The Music of the Spheres 516 Sir Malcolm D. Evans

18

Human Rights through the Backdoor: The Contribution of Special Procedures to the Normative Coherence and Contradictions of International Human Rights Law 543 Elvira Domínguez-Redondo

19

A European Respect for the Opinions of Mankind? 567 Michael O’Boyle



Appendix: Harmonising the Jurisprudence of Regional and International Human Rights Bodies: A Literature Review 595 Chloe Cheeseman

Index 628

Preface

International Tribunals and the Pursuance of Jurisprudential Harmonisation in Their Common Mission of Realisation of Justice

i

It is with satisfaction that I write this preface to the present book, Towards Convergence in International Human Rights Law: Approaches of Regional and International Systems. The book assembles essays by distinguished authors on a theme of much importance in our days. It was about time that concern with harmonisation took the place of the misguiding notion of ‘fragmentation’, which should never have been taken up by the United Nations International Law Commission one and a half decades ago; harmonisation, rather than disrupting ‘fragmentation’, serves the goal of progressive development of international law. Yet, as common sense is the least common of all senses, for a long time attention was unduly diverted to ‘fragmentation’. Fortunately, with the initiative of the present book, common sense has prevailed. Harmonisation goes pari passu with the ongoing expansion of contemporary international law, as it ensues from the essays composing the present collective work. One of the most significant illustrations of that expansion lies in the corpus juris of the international law of human rights. In view of the expansion of its normative realm, its harmonisation is to be pursued at hermeneutic as well as operative levels. In a course I delivered at The Hague Academy of International Law almost three decades ago, I deemed it fit to ponder that, in the domain of human rights protection, coordination has distinct meanings with regard to each mechanism employed. Thus, in respect of the system of petitions or communications, coordination seeks to avoid the conflict of competences, the undue duplication of procedures and the diverging interpretation of corresponding provisions of coexisting international instruments, on the part of the supervisory organs. In relation to the reporting system, coordination means the consolidation of uniform guidelines (concerning the form and contents and the standardisation of reports). And with regards to the system of fact-finding or investigations (missions of observation in loco), coordination aims at the regular exchange of information and reciprocal consultations between the supervisory organs.1

1 Cançado Trindade, ‘Co-existence and Co-ordination of Mechanisms of International Protection of Human Rights (At Global and Regional Levels)’ (1987) 202 Recueil des Cours de l’Académie de Droit International de La Haye 21.

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In this domain, international law has been made use of in order to expand and strengthen the protection to be given to the alleged victims. The mechanisms of protection at global and regional levels are essentially complementary (rather than competing with each other). Clearly oriented towards the safeguarding of the victims, their gradual expansion, consolidation and strengthening have been to a large extent due to the adequate treatment of questions pertaining to their hermeneutics and operation. They have thus harmoniously enlarged the extent of protection to be accorded to the alleged victims. It is important that procedural techniques and presumptions keep on being applied systematically in favour of the alleged victims, bearing in mind ultimately the faithful realisation of the object and purpose of the treaties and instruments of protection of the human person. After all, the diversity of the means of protection is accompanied by their overriding identity of purpose and the conceptual unity of human rights.2

ii

It is generally acknowledged today that we live in the era of international tribunals. The work of contemporary international tribunals can be properly appreciated from the perspective of the justiciables themselves. The reassuring multiplicity of contemporary international tribunals—a sign of our times— discloses the considerable advances achieved in the search for the realisation of the ideal of international justice. Each international tribunal has its jurisdiction grounded on a distinct treaty or international instrument, and has its own applicable law. Instead of hierarchy, there is here complementarity in their work, asserting and confirming the aptitude of contemporary international law to resolve the most distinct types of international disputes, at both interstate and intra-state levels. Each tribunal is to give its effective contribution to the continuing evolution of international law in its quest for the realisation of international justice. To this effect, the coordination and the dialogue among them are of great importance,3 as in many aspects the activities of those tribunals are complementary. It should not pass unnoticed that the cases that reach international tribunals are but a minor part of the injustices and abuses committed against 2 Ibid. at 401–412. 3 See recently Cançado Trindade, Os Tribunais Internacionais e a Realização da Justiça (Renovar, 2015); and Cançado Trindade, Los Tribunales Internacionales Contemporáneos y la Humanización del Derecho Internacional (Ad-Hoc, 2013).

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human beings all the time and everywhere. Thus, for those seeking justice, all international tribunals are endowed with importance, varying from case to case. The International Court of Justice (icj) retains its relevance for the inter-state contentieux, but for victims of violations of human rights the most important international tribunals are those of human rights, just as for relatives of those victimised by acts of genocide, crimes against humanity and war crimes, international criminal tribunals are the most important ones, parallel to the icj. For members of the crew of detained ships, the most important international tribunal is that of the law of the sea, in Hamburg. Each one has its importance, in the respective domains of their operation. What ultimately matters is, in fact, the realisation of international justice. Within this larger framework, jurisprudential cross-fertilisation on human rights protection comes prominently to the fore.4 The institutional and ­jurisprudential harmony among contemporary international tribunals can be achieved and preserved by means of the continuity of the dialogue in an atmosphere of mutual respect inter se. The un Charter itself foresees the creation of new international tribunals, thus enlarging the possibilities of judicial settlement.5 The multiplicity and coordination of international tribunals are reassuring, as it is always better to settle disputes on the basis of the rule of law, by means of judicial settlement. The realisation of justice at the international level is the common denominator that brings together international tribunals and orients their labour. If one approaches the work of contemporary international tribunals from the correct perspective of the justiciables themselves,6 one is brought closer to their common mission of the realisation of international justice, as already pointed out, at both inter-state and intra-state levels. From the standpoint of the needs of protection of the justiciables, each international tribunal retains its importance in a wider framework encompassing the most distinct situations to be adjudicated, in each respective domain of operation. Jurisprudential cross-fertilisation exerts, accordingly, a constructive function in the safeguard of the rights of the justiciables. The fact that contemporary international tribunals have kept on devoting attention to each other’s decisions is indeed reassuring, as this fosters cohesion and the unity of the law. It is thus to be 4 See below. 5 Article 95 Charter of the United Nations. 6 Cançado Trindade, Évolution du Droit international au droit des gens-L’accès des particuliers à la justice internationale: Le regard d’un juge (Pédone, 2008); and Cançado Trindade, El Acceso Directo del Individuo a los Tribunales Internacionales de Derechos Humanos (Universidad de Deusto, 2001).

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expected that contemporary international tribunals remain aware of the case law of each other, in their common mission of imparting justice in distinct domains of international law.

iii

In effect, institutions are, ultimately, the persons who integrate or compose them, and international tribunals are no exception to that. There are judges who regard their function as being one of strict application of the law, of the legal text; and there are those who rightly believe that, in the interpretation itself, or even in the search, of the applicable law, there is space for creativity; each international tribunal is free to find the applicable law, independently of the arguments of the parties. The innovation and the progressive development of the international law are inescapable if we are prepared to act at the height of the challenges of our times. Contemporary international tribunals, working in a coordinated way, are gradually constructing a growing jurisprudential cross-fertilisation, particularly in so far as the protection of the human person is concerned, thus going in fact beyond dispute settlement on a case-by-case basis and displaying their awareness that, in their common mission, they are to say what the law is (juris dictio). International tribunals have been disclosing their preparedness to resolve controversies in distinct domains of international law, concerning all subjects of international law (states, international organisations and individuals), at both inter-state and intra-state levels (for example, as to the former, the icj, and as to the latter, the international human rights tribunals and the international criminal tribunals), thus seeking to give their invaluable contribution to the progressive development of contemporary jus gentium. This brings to the fore the realisation of international justice at both inter-state and intra-state levels.

iv

May I just refer to a couple of illustrations to this effect, as several others can be found in the course of the present book. In so far as the basis of jurisdiction (in contentious matters) of international human rights tribunals is concerned, eloquent illustrations of the firm stand, by the European Court of Human Rights (ECtHR) and the Inter-American Court of Human Rights (IACtHR), in support of the integrity of the mechanisms of protection of the two respective­

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conventions on human rights, are afforded, for example, by the judgments of the ECtHR in the Belilos v Switzerland,7 in Loizidou v Turkey8 and in Ilaşcu and Others v Moldova and Russia,9 as well as by the landmark decisions of the IACtHR in Constitutional Court v Peru,10 Ivcher Bronstein v Peru11 and Constantine et al. v Trinidad and Tobago.12 The ECtHR and IACtHR have thus helped to secure compliance with the conventional obligations of protection of the states vis-à-vis all human beings under their respective jurisdictions. Human rights treaties such as the European Convention on Human Rights and the American Convention on Human Rights have, in this way, by means of such interpretative interaction, reinforced each other mutually, to the ultimate benefit of the protected human beings. Interpretative interaction has in a way contributed to the universality of the conventional law on the protection of human rights. This has paved the way for a uniform interpretation of the basis of jurisdiction (in contentious matters) of international human rights tribunals (the ECtHR and the IACtHR), to which nowadays the recently established African Court on Human and Peoples’ Rights is expected to give also its contribution.13 Contemporary international tribunals, learning from each other’s experience, have thus contributed jointly to the development of contemporary international law in distinct domains, thus discarding the false notion of socalled ‘fragmentation’ and upholding the unity of the law, in the exercise of their common mission of imparting justice. May I also refer to the case of Varnava and Others v Turkey,14 lodged with the ECtHR by 18 Cypriot nationals, which concerned the disappearance of persons after their detention by Turkish military forces in 1974 during the military operations carried out by the Turkish Army in Northern Cyprus in 1974. The Court rejected the respondent state’s objections as to lack of temporal jurisdiction; it sustained that the fact that the persons (victims) were missing for over 34 years 7 8 9 10 11 12 13

14

Application No 10328/83, Merits and Just Satisfaction, 29 April 1988. Application No 15318/89, Preliminary Objection, 23 March 1995. Application No 48787/99, Admissibility, 4 July 2001. IACtHR Series C 55 (1999). IACtHR Series C 54 (1999). IACtHR Series C 82 (2001). See Cançado Trindade, ‘Vers un droit international universel: La première réunion des trois Cours régionales des droits de l’homme’, in xxxvi Curso de Derecho Internacional Organizado por el Comité Jurídico Interamericano – 2009 (General Secretariat of the oas, 2010) 103; and Weckel, ‘La justice internationale et le soixantième anniversaire de la Déclaration Universelle des Droits de l’Homme’ (2009) 113(1) Revue générale de droit international public 5. Applications Nos 16064/90 et al., Merits and Just Satisfaction, 18 September 2009.

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did not change the obligation of an effective investigation towards them. There was a continuing obligation of determination or disclosure of the whereabouts and the fate of the missing persons in the case. A noticeable feature of the ECtHR’s judgment in Varnava and Others is its elaborate cross-referencing to the relevant or pertinent case law of the IACtHR, in particular the leading case Blake v Guatemala15 and the case of the Serrano Cruz Sisters v El Salvador.16 In connection with such jurisprudential cross-fertilisation, the ECtHR issued in August 2012 a useful research tool, the first of the kind, namely its report on references to the Inter-American Court of Human Rights in the case law of the European Court of Human Rights. This is a most commendable initiative, showing its open-mindedness to the labour of its sister institution in the American continent, in the framework of the universality of human rights. This Report contains, in its first edition of August 2012, a table with a total of 25 cases where cross-references are made in any part of the Court’s judgments (as to the facts or as to the law).17 The 25 judgments of the ECtHR listed therein refer not only to judgments of the IACtHR, but also to its advisory opinions, such as those on the Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law18 (evoked in the judgment of the Grand Chamber of the ECtHR in the case of Öcalan v Turkey)19 and on the Juridical Condition and Human Rights of the Child20 (quoted in the ECtHR’s judgment in the case of Konstantin Markin v Russia).21 Three other recent examples are provided by the 15 16

IACtHR Series C 27 (1996); and IACtHR Series C 36 (1998). IACtHR Series C 118 (2004); and IACtHR Series C 120 (2005). For further cross-references to relevant or pertinent case law of the IACtHR, see also the ECtHR’s judgments in X and Others v Austria Application No 19010/07, Merits and Just Satisfaction, 19 February 2013; Savriddin Dzhurayev v Russia Application No 71386/10, Merits and Just Satisfaction, 25 April 2013; and Aslakhanova and Others v Russia Applications Nos 2944/06 et al., Merits and Just Satisfaction, 18 December 2012. 17 ECtHR, Research Report: References to the Inter-American Court of Human Rights in the Case-Law of the European Court of Human Rights, 2012, at 1–20. 18 OC-16/99, IACtHR Series A 16 (1999). 19 Application No 46221/99, Merits and Just Satisfaction, 12 May 2005. 20 OC-17/02, IACtHR Series A 17 (2002). 21 Application No 30078/06, Merits and Just Satisfaction, 22 March 2012. The IACtHR’s judgment of 21 June 2002 in the Case of Hilaire, Constantine and Benjamin et al. v Trinidad and Tobago IACtHR Series C 94 (2002), concerning the death penalty, was referred to by the Grand Chamber of the ECtHR in two judgments: Mamatkulov and Askarov v Turkey Applications Nos 46827/99 and 46951/99, Merits and Just Satisfaction, 4 February 2005; and Öcalan v Turkey, supra n 19.

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judgments of the ECtHR in Portmann v Switzerland22 (with a cross-reference to the IACtHR’s judgment in the case of Maritza Urrutia v Guatemala23), Zontul v Greece24 (with a cross-reference to the IACtHR’s judgment in the case of the Miguel Castro Castro Prison v Peru25) and Babar Ahmad and Others v United Kingdom26 (with a cross-reference to the IACtHR’s judgment in the case of Montero Aranguren et al. (Detention Center of Catia) v Venezuela27). After the publication of that Report, the ECtHR has delivered its judgment of 27 May 2014 in the case of Marguš v Croatia,28 where it observed that international tribunals have, in their judgments, ‘held that amnesties are inadmissible when they are intended to prevent the investigation and punishment of those responsible for grave human rights violations or acts constituting crimes under international law’.29 Such amnesties, the ECtHR added, undermining the state’s duty to investigate and punish the perpetrators of ‘grave breaches of fundamental human rights … contravene irrevocable rights recognised by international human rights law’.30 Before reaching this significant conclusion, the ECtHR quoted four paragraphs of the leading case—a decision to the same effect—of the jurisprudence of the IACtHR on the matter, namely its judgment of 14 March 2001 in the case of Barrios Altos v Peru.31 Furthermore, the ECtHR quoted one paragraph of my own concurring opinion appended to the judgment of the IACtHR in the Barrios Altos case.32 The two international tribunals thus share the understanding that those amnesties are incompatible with the provisions of the American and European Conventions on Human Rights.

v

This is, in my perception, a harmonious jurisprudential development at its best. In effect, a remarkable feature of the advances of public international law in the present domain is the granting of access to justice to individuals at 22 23 24 25 26 27 28 29 30 31 32

Application No 38455/06, Merits and Just Satisfaction, 11 October 2011. IACtHR Series C 103 (2003). Application No 12294/07, Merits and Just Satisfaction, 17 January 2012. IACtHR Series C 160 (2006). Applications Nos 24027/07 et al., Merits and Just Satisfaction, 10 April 2012. IACtHR Series C 150 (2006). Application No 4455/10, Merits and Just Satisfaction, 27 May 2014. Ibid. at para 135. Ibid. at para 138. Ibid. at para 60 (IACtHR Series C 75 (2001)). Marguš v Croatia, ibid. at para 60.

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the international level, in the framework of the contemporary phenomenon of the expansion of international personality (and capacity) and jurisdiction. This has propitiated a better understanding of the wide dimension of the right of access to justice, lato sensu.33 Human beings appear as subjects (not only ‘actors’), both active (before international human rights tribunals) and passive (before international criminal tribunals), of international law. The present day expansion of international jurisdiction increases the number of the justiciables at international level (in face of the multiplicity of contemporary international tribunals), with the concomitant expansion of both international personality and international responsibility. The handling, for example, by the International Criminal Court (icc) of the case of Prosecutor v Thomas Lubanga Dyilo (situation in the Democratic Republic of Congo) was marked from the start by the attention dispensed by the icc to the relevant case law of international human rights tribunals. This was so from the decision of its Pre-Trial Chamber i,34 which contained crossreferences to pertinent decisions of the IACtHR (Ivcher Bronstein v Peru)35 and the ECtHR (Soering v United Kingdom36 and Mamatkulov and Askarov v Turkey)37. As to the identification of victims for purposes of reparations, the icc (Pre-Trial Chamber i) further referred, in the same judgment in the Lubanga case, to the judgments of the IACtHR in the case of Aloeboetoe et al., v Suriname38 and in the case of the Plan de Sánchez Massacre v Guatemala.39 Again on evidentiary matters, the icc, still in the same judgment, referred to the case law of the icj (case of the Armed Activities on the Territory of the Congo40), as well as of the ad hoc International Criminal Tribunal for the Former Yugoslavia (icty) (case, inter alia, of Delalić et al.41). Subsequently, 33

34 35 36 37 38 39 40 41

See Cançado Trindade, Le Droit international pour la personne humaine (Pédone, 2012); Cançado Trindade, The Access of Individuals to International Justice (oup, 2011); and Cançado Trindade, El Derecho de Acceso a la Justicia en Su Amplia Dimensión, 2nd edn (Librotecnia, 2012). Prosecutor v Thomas Lubanga Dyilo Confirmation of Charges, ICC-01/04-01/06-803 (2007). IACtHR Series C 74 (2001). Application No 14038/88, Merits and Just Satisfaction, 7 July 1989. Supra n 21. IACtHR Series C 15 (1993). IACtHR Series C 116 (2004). Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) Merits, Judgment, icj Reports 2005, 168. Prosecutor v Delalić et al. Decision on Admissibility of Evidence, IT-96-21 (1998); Prosecutor v Delalić et al. Trial Judgment, IT-96-21 (1998); and Prosecutor v Delalić et al. Appeal Judgement, IT-96-21-A (2001).

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the icc, in its decision (Trial Chamber i) of 7 August 2012 establishing the principles and procedures to be applied to reparations in the same case of Thomas Lubanga Dyilo, again referred to the pertinent case law of international human rights tribunals.42 When it came to its treatment of specific issues concerning reparations, the Trial Chamber i of the icc has, to a far greater extent, made express cross-references to the relevant case law of the IACtHR in particular. Thus, as to the beneficiaries of reparations, the icc has referred, for example, to the judgment of the IACtHR in the case of Aloeboetoe et al. v Suriname.43 As to the scope of reparations, the icc has observed that ‘[i]ndividual and collective reparations are not mutually exclusive, and they may be awarded concurrently’, and referred, in this respect, to the judgment of the IACtHR in the case of the Moiwana Community v Suriname.44 As to the award of compensation, the icc has referred to a series of decisions of both the IACtHR and the ECtHR.45 As to the rehabilitation of the victims, the icc has referred to the decisions of the IACtHR in the cycle of cases of massacres, such as, for example, the ­IACtHR judgments of 15 September 2005 in the case of the ‘Mapiripán Massacre’ v Colombia, and of 19 November 2004 in the case of the Plan de Sánchez Massacre v Guatemala.46 As to other modalities of reparations, the icc has evoked the IACtHR decisions, for example, in the same case of the Plan de Sánchez Massacre, as well as in the cases of Juan Humberto Sánchez v Honduras and Tibi v Ecuador.47 Reference can be made to other examples of jurisprudential cross-fertilisation pertaining to the protection of human rights in cases concerning collective victims. In the case of the Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, for 42 43 44 45 46

47

Prosecutor v Thomas Lubanga Dyilo Decision establishing the principles and procedures to be applied to reparations, ICC-01/04-01/06 (2012) at paras 21, 86–87 and 98. Ibid. at para 195, n 386 (Aloeboetoe et al. v Suriname, supra n 38). Ibid. at para 220, n 406 (Case of the Moiwana Community v Suriname IACtHR Series C 124 (2005)). Ibid. at paras 229–230. Ibid. at para 233, n 422 (Case of the ‘Mapiripán Massacre’ v Colombia IACtHR Series C 134 (2005); and Case of the Plan de Sánchez Massacre v Guatemala, supra n 39). For a recent study of the international adjudication by the IACtHR of this cycle of cases of massacres, see Cançado Trindade, State Responsibility in Cases of Massacres: Contemporary Advances in International Justice (Netherlands Institute of Human Rights, 2011). Ibid. at para 237, n 426 (Case of Juan Humberto Sánchez v Honduras IACtHR Series C 99 (2003); and Case of Tibi v Ecuador IACtHR Series C 114 (2004)).

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example, the African Commission on Human and Peoples’ Rights ruled that the eviction of the Endorois indigenous people from their traditional land (for tourism development) was in breach of the African Charter on Human and Peoples’ Rights.48 To reach its decision, the African Commission drew parallels with the judgment of the IACtHR in the leading case of the Mayagna (Sumo) Awas Tingni Community v Nicaragua;49 it further made cross-references to the judgments of the IACtHR in the cases of the Moiwana Community v Suriname,50 Yakye Axa Indigenous Community v Paraguay,51 Sawhoyamaxa Indigenous Community v Paraguay52 and Saramaka People v Suriname.53 The African Commission was of the view that it was incumbent upon the respondent state to bear the responsibility for ‘creating conditions favourable to a people’s development’, which, in that case, it ‘did not adequately provide for the Endorois’.54

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As for the icj, in the case of Ahmadou Sadio Diallo (Guinea v Democratic Republic of the Congo),55 in the course of the proceedings as to the merits (written and oral phases), it became clear from the arguments of the contending parties themselves that the case pertained in fact to the protection of human rights. For the first time in its history, the icj established violations of two human rights treaties—namely the un Covenant on Civil and Political Rights and the African Charter on Human and Peoples’ Rights—as a consequence of the detentions of A.S. Diallo in the Democratic Republic of Congo and of his expulsion from the country. Also for the first time in its history, the icj expressly recognised the relevant case law of the ECtHR and the IACtHR.56

48 49 50 51 52 53 54 55 56

276/03, 25 November 2009. IACtHR Series C 79 (2001). Supra n 44. IACtHR Series C 125 (2005). IACtHR Series C 146 (2006). IACtHR Series C 172 (2007). Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, supra n 48 at para 298. Merits, Judgment, icj Reports 2010, 639. The case was originally submitted by Guinea in the exercise of discretionary (inter-state) diplomatic protection. Ibid. at para 68.

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In pursuance of this unprecedented trend, inaugurated in its judgment of 2010 on the merits in the case of Ahmadou Sadio Diallo, the icj, in its subsequent judgment of 19 June 2012 on reparations in the same case of Ahmadou Sadio Diallo,57 has again referred to the pertinent case law of other international tribunals, such as, for example, the ECtHR and the IACtHR, the International Tribunal for the Law of the Sea (itlos) and the Iran—United States Claims Tribunal. Thus, in respect of compensation for non-material damage, the icj has referred to the judgment of the IACtHR in the case of Cantoral Benavides v Peru,58 as well as to the judgment of the ECtHR (Grand Chamber) in the case of Al-Jedda v United Kingdom.59 Likewise, in respect of compensation for material damage, the icj has further referred to recent decisions of the ECtHR and the IACtHR. There are many other aspects of jurisprudential cross-fertilisation which require particular attention for the progressive development of international law. For example, in the icj, in my separate opinion appended to the judgment in the case relating to the Obligation to Prosecute or Extradite (Belgium v Senegal),60 I have referred to the IACtHR as well as the ad hoc International Criminal Tribunal for the Former Yugoslavia (icty) as ‘the two contemporary international tribunals which have most contributed so far to the jurisprudential construction of the absolute prohibition of torture, in the realm of jus cogens’.61 In the course of 2013, the icj joined other institutions based at The Hague in their commemorations of the centenary of the Peace Palace at The Hague, and convened a colloquy on 23 September 2013 on ‘A Century of International Justice and Prospects for the Future’. The opening panel, in the form of a dialogue between judges, consisted of two addresses,62 which focused, inter alia, 57 58 59 60 61

62

Ahmadou Sadio Diallo (Guinea v Democratic Republic of the Congo) Compensation, Judgment, icj Reports 2012, 324. IACtHR Series C 88 (2001). Application No 27021/08, Merits and Just Satisfaction, 7 July 2011. icj Reports 2012, 487. Ibid. at para 88. See Cançado Trindade, ‘Jus Cogens: The Determination and the Gradual Expansion of Its Material Content in Contemporary International Case-Law’, in xxxv Curso de Derecho Internacional Organizado por el Comité Jurídico Interamericano – 2008 (General Secretariat of the oas, 2009) 3. Respectively by Judge Cançado Trindade (International Court of Justice; Former President of the Inter-American Court of Human Rights) and Judge Dean Spielmann (President of the European Court of Human Rights): see Cançado Trindade, ‘A Century of International Justice and Prospects for the Future’, in Cançado Trindade and Spielmann, A Century of International Justice and Prospects for the Future/Retrospective d’un siècle de

xx

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on recent trends in jurisprudential cross-fertilisation, singling out their merits. They stressed the importance of jurisprudential cross-fertilisation not only for their respective international tribunals, but for the harmonious evolution of contemporary international case law in general. It clearly ensues there from that the fact that international tribunals have distinct jurisdictions in no way hinders jurisprudential cross-fertilisation: on the contrary, it calls for it. International tribunals can learn from each other’s experience and each give their own contribution to the evolution of contemporary international law in distinct domains, discarding the false notion of ‘fragmentation’; they thus secure the unity of the law, in the exercise of their common mission of imparting justice. The present book of essays on harmonisation of international human rights law in the practice of international courts and tribunals gives a timely contribution to the understanding and promotion of jurisprudential harmonisation, thus enriching legal bibliography on a theme that is of much topicality and relevance, to the benefit of jurists of succeeding generations. The Hague, 25 July 2015 Antônio Augusto CANÇADO TRINDADE

Judge of the International Court of Justice; Former President of the InterAmerican Court of Human Rights; Emeritus Professor of International Law at the University of Brasilia, Brazil; Doctor Honoris Causa at distinct universities in Latin America and Europe; Member of the Curatorium of The Hague Academy of International Law and of the Institut de Droit International.

justice internationale et perspectives d’avenir (Wolf Legal Publishers, 2013) at 20–22 and 26; and Spielmann, ‘Rétrospective d’un siècle de justice internationale et perspectives d’avenir’, at 36 and 40–44.

Acknowledgments This book grew out of a workshop hosted by the Human Rights Law Centre (hrlc) in the School of Law at the University of Nottingham in June 2013. The editors are grateful to Agnes Flues, Co-ordinator of the hrlc, for her excellent organisation of that event, and to Chloe Cheeseman for her background paper that helped to frame the discussion. Special thanks are due to Professor David Harris for his role in helping to devise the workshop and for his astute advice thereafter. We would also like thank Petr Madre for his outstanding sub-editing of this volume. Warm thanks are also due to Lindy Melman at Brill for her patient support during the production process. Lastly, we are grateful to all our contributors, not only for their stimulating contributions but also for their good humour throughout. Carla M. Buckley, Alice Donald and Philip Leach

List of Abbreviations acerwc African Committee of Experts on the Rights and Welfare of the Child achr American Convention on Human Rights au African Union cat Committee against Torture cedaw Convention on the Elimination of All Forms of Discrimination against Women Committee on the Elimination of Discrimination against cedaw Committee  Women cerd Committee on the Elimination of Racial Discrimination cescr Committee on Economic, Social and Cultural Rights cjeu Court of Justice of the European Union CoE Council of Europe ComRC Committee on the Rights of the Child cpt European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment crc Convention on the Rights of the Child crpd Convention on the Rights of Persons with Disabilities crpd Committee Committee on the Rights of Persons with Disabilities echr Convention for the Protection of Human Rights and Fundamental Freedoms ecosoc United Nations Economic and Social Council ecpt European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ecri European Commission against Racism and Intolerance ecsr European Committee of Social Rights ECtHR European Court of Human Rights esc European Social Charter eu European Union eu Charter Charter of Fundamental Rights of the European Union fcnm  Framework Convention for the Protection of National Minorities ga United Nations General Assembly hr Council Human Rights Council hrc Human Rights Committee iachr Inter-American Commission on Human Rights IACtHR Inter-American Court of Human Rights icc International Criminal Court

List of abbreviations

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International Covenant on Civil and Political Rights iccpr icerd International Convention on the Elimination of All Forms of Racial Discrimination icescr International Covenant on Economic, Social and Cultural Rights icj International Court of Justice icpd International Conference on Population and Development icrc International Committee of the Red Cross icty International Criminal Tribunal for the Former Yugoslavia igo intergovernmental organisation ihl international humanitarian law ihrl international human rights law ilc International Law Commission ilo International Labour Organization itlos International Tribunal for the Law of the Sea lgbti Lesbian, gay, bisexual, transgender and intersex MoA margin of appreciation npm National Preventive Mechanism oas Organization of American States oau Organization of African Unity oecd Organisation for Economic Co-operation and Development ohchr Office of the United Nations High Commissioner for Human Rights opcat Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment osce Organization for Security and Co-operation in Europe pace Parliamentary Assembly of the Council of Europe pcij Permanent Court of International Justice Revised esc Revised European Social Charter sc United Nations Security Council spt Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment udhr Universal Declaration of Human Rights un United Nations uncat Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment un Charter Charter of the United Nations unchr United Nations Commission on Human Rights upr Universal Periodic Review vclt Vienna Convention on the Law of Treaties who World Health Organization



List of Instruments

• Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights, ‘Protocol of San Salvador’ 1988 (A-52), oas Treaty Series No 69 • Additional Protocol to the European Social Charter Providing for a System of Collective Complaints 1995, ets 158 • African Charter on Human and Peoples’ Rights 1981, 1520 unts 217 • African Charter on the Rights and Welfare of the Child 1990, oau Doc. CAB/ LEG/24.9/49 (1990) • African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention) 2009, unts Reg No I-52375 • African Youth Charter 2006, adopted by the Seventh Ordinary Session of the Assembly, held in Banjul, The Gambia, 2 July 2006 • American Convention on Human Rights, ‘Pact of San José, Costa Rica’ 1969, 1144 unts 123, oas Treaty Series No 36 • American Declaration of the Rights and Duties of Man, oas Res xxx, adopted by the Ninth International Conference of American States, 2 May 1948 • Charter of Fundamental Rights of the European Union [2012] oj C 326/391 • Charter of the Organization of African Unity 1963, 479 unts 39 • Charter of the Organization of American States 1948, 119 unts 3 • Charter of the United Nations 1945, 1 unts xvi • Constitution of the World Health Organization 1946, 14 unts 185 • Convention (No 87) concerning Freedom of Association and Protection of the Right to Organise 1948, 68 unts 17 • Convention (No 98) concerning the Application of the Principles of the Right to Organise and to Bargain Collectively 1949, 96 unts 257 • Convention (No 107) concerning the protection and integration of indigenous and other tribal and semi-tribal populations in independent countries 1957, 328 unts 247 • Convention (No 154) concerning the Promotion of Collective Bargaining 1981, 1331 unts 267 • Convention (No 169) concerning indigenous and tribal peoples in independent countries 1989, 1650 unts 383 • Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984, 1465 unts 85

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• Convention for the Protection of Human Rights and Fundamental Freedoms 1950, ets 5 (‘European Convention on Human Rights’) • Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data 1981, ets 108 • Convention for the Settlement of the Frontier between Greece and Turkey 1881, available in Hurst, Key Treaties of the Great Powers, 1814–1914 (David & Charles Press, 1972) at 592 • Convention on Contact concerning Children 2003, ets 192 • Convention on the Elimination of All Forms of Discrimination against Women 1979, 1249 unts 13 • Convention on the Prevention and Punishment of the Crime of Genocide 1948, 78 unts 277 • Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction 1997, 2056 unts 211 • Convention on the Rights of Persons with Disabilities 2006, 2515 unts 3 • Convention on the Rights of the Child 1989, 1577 unts 3 • Convention relating to the Status of Refugees 1951, 189 unts 137 • Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse 2007, cets 201 • Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1975, ga Res 3452(xxx), 9 December 1975, A/RES/3452(xxx) • Declaration on the Protection of All Persons from Enforced Disappearance, ga Res 47/133, 18 December 1992, A/RES/47/133 • Declaration on the Rights of Persons Belonging to National or Ethnic, ­Religious or Linguistic Minorities, ga Res 47/135 (annex), 18 December 1992, A/RES/47/135 • European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment 1987, ets 126 • European Convention on the Adoption of Children 1967, ets 58 • European Convention on the Exercise of Children’s Rights 1996, ets 160 • European Convention on the Legal Status of Children Born out of Wedlock 1975, ets 85 • European Social Charter 1961, ets 35 • European Social Charter (revised) 1996, ets 163 • Framework Convention for the Protection of National Minorities 1995, ets 157 • Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field 1949, 75 unts 31

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• Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea 1949, 75 unts 85 • Geneva Convention relative to the Protection of Civilian Persons in Time of War 1949, 75 unts 287 • Geneva Convention relative to the Treatment of Prisoners of War 1949, 75 unts 135 • Hague Convention (ii) with Respect to the Laws and Customs of War on Land and its annex: Regulation concerning the Laws and Customs of War on Land 1899, 32 Stat. 1803, 1 Bevans 247, 26 Martens Nouveau Recueil (ser. 2) 949, 187 Consol. T.S. 429 • Hague Convention (iv) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land 1907, 187 cts 227; 1 Bevans 631 • High Level Conference on the Future of the European Court of Human Rights, Brighton Declaration, 20 April 2012 • High Level Conference on the Future of the European Court of Human Rights, Izmir Declaration, 27 April 2011 • Inter-American Charter of Social Guarantees 1948, Ninth International Conference of American States, Final Act (Resolution xxix) at 29–38 • Inter-American Convention against All Forms of Discrimination and Intolerance 2013 (A-69), AG/RES/2804 (XLIII-O/13) • Inter-American Convention against Racism, Racial Discrimination, and Related Forms of Intolerance 2013 (A-68), AG/RES/2805 (XLIII-O/13) • Inter-American Convention on Forced Disappearance of Persons 1994 (A60), oas Treaty Series No 68, 33 ilm 1429 (1994) • Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women, ‘Convention of Belém do Pará’ 1994 (A-61), 33 ilm 1534 (1994) • Inter-American Convention to Prevent and Punish Torture 1985 (A-51), oas Treaty Series No 67 • International Convention for the Protection of All Persons from Enforced Disappearance 2006, 2716 unts 3 • International Convention on the Elimination of All Forms of Racial Discrimination 1966, 660 unts 195 • International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families 1990, 2220 unts 3 • International Convention on the Suppression and Punishment of the Crime of Apartheid 1973, 1015 unts 243 • International Covenant on Civil and Political Rights 1966, 999 unts 171 • International Covenant on Economic, Social and Cultural Rights 1966, 993 unts 3

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• North Atlantic Treaty 1949 (‘the Treaty of Washington’), 34 unts 243 • Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 2002, 2375 unts 237 • Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women 1999, 2131 unts 83 • Optional Protocol to the Convention on the Rights of Persons with Disabilities 2006, 2518 unts 283 • Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure 2011, unts Reg No A-27531 • Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict 2000, 2173 unts 222 • Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography 2000, 2171 unts 227 • Optional Protocol to the International Covenant on Civil and Political Rights 1966, 999 unts 302 • Optional Protocol to the International Covenant on Economic, Social and Cultural Rights 2008, unts Reg No A-14531 • Preparation of a draft declaration and a draft convention on the elimination of all forms of racial discrimination, ga Res 1780 (xvii), 7 December 1962, A/5217 at 32 • Preparation of a draft declaration and a draft convention on the elimination of all forms of religious intolerance, ga Res 1781 (xvii), 7 December 1962, A/5217 at 33 • Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol i) 1977, 1125 unts 3 • Protocol amending the European Social Charter 1991, ets 142 • Protocol No 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms (‘Protocol No 1’) 1952, ets 9 • Protocol No 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, securing certain rights and freedoms other than those already included in the Convention and in the first Protocol thereto 1963, ets 46 • Protocol No 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms 2000, ets 177 • Protocol No 13 to the Convention for the Protection of Human Rights and Fundamental Freedoms, concerning the abolition of the death penalty in all circumstances 2002, ets 187 • Protocol No 15 amending the Convention for the Protection of Human Rights and Fundamental Freedoms 2013, cets 213

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list of instruments

• Protocol on the Statute of the African Court of Justice and Human Rights 2008, adopted by the Eleventh Ordinary Session of the Assembly of the African Union, held in Sharm El-Sheikh, Egypt, 1 July 2008 • Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, adopted by the 2nd Ordinary Session of the Assembly of the Union, Maputo, CAB/LEG/66.6 (Sept. 13, 2000); reprinted in 1 Afr. Hum. Rts L.J. 40 • Protocol to the African Charter on the Establishment of an African Court on Human and Peoples’ Rights 1998, OAU/LEG/EXP/AFCHPR/PROT(III) • Protocol to the American Convention on Human Rights to Abolish the Death Penalty 1990 (A-53), oas Treaty Series No 73 • Rome Statute of the International Criminal Court 1998, 2187 unts 3 • Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty 1989, 1642 unts 414 • Statute of the Council of Europe 1949, ets 1 • Statute of the International Court of Justice 1945, 3 Bevans 1179; 59 Stat. 1031; T.S. 993; 39 ajil Supp. 215 (1945) • Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991, un Doc S/25704 at 36, annex (1993) and S/25704/Add.1 (1993), adopted by Security Council Res 827(1993), 25 May 1993, S/RES/827 • Treaty establishing the European Economic Community 1957, 294 unts 17 • Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community [2007] oj C 306/1 • Treaty on European Union (Consolidated version) [2012] oj C 326/13 • Treaty on the Functioning of the European Union (consolidated version) [2012] oj C 326/47 • Understanding on Rules and Procedures Governing the Settlement of Disputes, Marrakesh Agreement Establishing the World Trade Organization 1994, 1869 unts 401 • United Nations Convention on the Law of the Sea 1982, 1833 unts 396 • United Nations Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, ga Res 36/55, 25 November 1981, A/RES/36/55 • United Nations Declaration on the Elimination of All Forms of Racial Discrimination 1963, ga Res 1904 (xviii), 20 November 1963, A/RES/18/1904 • United Nations Declaration on the Rights of Indigenous Peoples, ga Res 61/295 (annex), 13 September 2007, A/RES/61/295

list of instruments

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• Universal Declaration of Human Rights 1948, ga Res 217A(iii), 10 December 1948, A/810 at 71 • Vienna Convention on Diplomatic Relations 1961, 500 unts 95 • Vienna Convention on the Law of Treaties 1969, 1155 unts 331 • who Framework Convention on Tobacco Control 2003, 2302 unts 166

Notes on Contributors Nadia Bernaz Dr Nadia Bernaz is Senior Lecturer in the School of Law at Middlesex University, London, and a specialist in international criminal law and international human rights law. Her current research focuses specifically on business and human rights questions, including state obligations to regulate businesses and corporate liability for human rights violations. Carla M. Buckley Carla M. Buckley is a Research Fellow at the Human Rights Law Centre at the University of Nottingham, a Barrister-at-Law (Aust.) and the Associate Editor of the Human Rights Law Review. She is a co-author with David Harris, Michael O’Boyle and Ed Bates of the seminal textbook Harris, O’Boyle and Warbrick: Law of the European Convention on Human Rights (oup, 3rd edn, 2014) and has published on international human rights law more generally. She has taught international human rights to university students, government officials and human rights advocates as well advising and acting as counsel in cases involving human rights before various tribunals and courts. Joshua Castellino Joshua Castellino is Professor of Law and Dean of the School of Law at Middlesex University, London, and Adjunct Professor of Law at the Irish Centre for Human Rights, Galway, Ireland. He has held visiting positions in Ireland, Spain, Hungary and Italy. He has authored and edited eight books on international law and human rights law, including self-determination, title to territory and indigenous peoples rights, besides several articles on a range of these and other legal sub-topics. He has completed the third in a five-book series published by Oxford University Press on issues concerning Global Minority Rights Law, the latest entitled Minority Rights in the Middle East: A Comparative Legal Analysis (with Kathleen Cavanaugh) (oup, 2013). Joshua was part of the EU-China Experts and Diplomatic Dialogue, and Lawyers for the New Millennium: Support for the Arab Law Union. He is on the Leadership Council of the United Nations Sustainable Development Solutions Network where he cochairs the Thematic Group on Social Inclusion, Gender and Human Rights. He was appointed Chair by the United Nations Office of the High Commissioner for Human Rights of the 8th Forum on Minority Issues, an inter-governmental dialogue with civil society under the auspices of the United Nations Human Rights Council.

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Chloe Cheeseman Chloe Cheeseman holds an msc in Human Rights from the London School of Economics and Political Science. She formerly worked for the University of Nottingham’s Human Rights Law Centre as a Project Assistant, conducting research to support the Centre’s human rights capacity-building and knowledgesharing projects. Chloe is currently Campaigns Coordinator for Equation, a Nottingham-based charity working to end domestic abuse. Elvira Domínguez-Redondo Dr Elvira Domínguez-Redondo (llb, Dip. Business Management, MPhil, PhD) is Associate Professor of International Law at Middlesex University, London, and Adjunct Lecturer of the Irish Centre for Human Rights, Galway, Ireland. She is a member of the Geneva-based think-tank, the Universal Rights Group, and Programme Leader for the llm at Middlesex University. Her current research focuses on strategies for the promotion and protection of human rights within International Organisations. She has served in the past as consultant to the Special Rapporteur on Torture. Alice Donald Dr Alice Donald is a Senior Lecturer in the School of Law at Middlesex University, London. She is the co-author with Professor Philip Leach of Parliaments and the European Court of Human Rights (oup, 2016) and is widely published on the impact and implementation of human rights law, including several reports on the Human Rights Act 1998 in the uk. She is currently participating in a three-year research project (2016–2018) funded by the Economic and Social Research Council on the implementation of international human rights law in Europe, Africa and the Americas. She has acted as an expert to the Parliamentary Assembly of the Council of Europe. She is a Trustee of Just Fair, which promotes the realisation of economic and social rights in the uk. Alice previously worked as a journalist, editor and commissioner at the bbc World Service (1991–2005). She can be followed on Twitter (@alicedonald). Helen Duffy Helen Duffy runs ‘Human Rights in Practice’, an international legal practice that pursues justice for serious human rights violations in the Inter-American, African and European human rights systems and before international bodies. Experience prior to establishing the practice in 2011 included serving as Legal Director of interights, Legal Officer at the International Criminal Tribunal for the former Yugoslavia, Counsel to Human Rights Watch, Legal Director of Centre for Human Rights Legal Action Guatemala, Legal Adviser to the uk

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‘Arms for Iraq’ Inquiry and Legal Officer in the uk government legal service. She has many publications on international law and practice including The War on Terror and the Framework of International Law (cup, 2nd edn, 2014). Helen is a graduate of the universities of Glasgow (llb), University College London (llm), Edinburgh (Dip.LP) and Leiden (PhD). She is Honorary Professor of International Law at the University of Glasgow and serves on the boards of several ngos. Malcolm D. Evans Sir Malcolm Evans obe is Professor of Public International Law at Bristol University. He is Chair of the un Subcommittee for the Prevention of Torture and Chair of the Meeting of Chairs of un Human Rights Treaty Bodies. From 2002 to 2013 he was a member of the osce odihr Advisory Council on the Freedom of Religion or Belief. He is General Editor of the International and Comparative Law Quarterly and Co-Editor of the Oxford Journal of Law and Religion. Published works include: Religious Liberty and International Law in Europe (cup, 1997), Preventing Torture (oup, 1998), Combating Torture in Europe (Council of Europe, 2002), Manual on the Wearing of Religious Symbols in Public Areas (Council of Europe/Brill, 2009), The Optional Protocol to the un Convention against Torture (oup, 2011). He is Editor of International Law (oup, 4th edn, 2014) and Blackstone’s International Law Documents (oup, 11th edn, 2013). Magdalena Forowicz Magdalena Forowicz is a Senior Researcher at the Centre for Research on Direct Democracy (Centre for Democracy Studies Aarau), University of Zurich. She holds a Doctoral Degree in European and International Human Rights Law (University of Zurich, 2010), an llm in Anglo-American Law (City University London, 2002) and an llb in Civil Law (University of Montreal, 2001). In 2010– 2011, she was a Max Weber Fellow at the European University Institute (Florence) and in 2011–2012 a Visiting Fellow at Oxford University (Institute of European and Comparative Law and Saint-Catherine’s College). She has recently completed her habilitation thesis at the University of Zurich dealing with the creation of specific standards under European Union law. She has previously worked for universities and international organisations in Switzerland, Italy, the United Kingdom and the Gambia. She has published articles and books on European and international human rights law. Françoise Hampson Professor Françoise Hampson taught at the University of Dundee from 1975 to 1983, since when she has been based at the University of Essex. She was an

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independent expert member of the un Sub-Commission on the Promotion and Protection of Human Rights from 1998 to 2007. She has acted as a consultant on humanitarian law to the International Committee of the Red Cross and taught at Staff Colleges or equivalents in the uk, usa, Canada and Ghana. She represented Oxfam and Save the Children (uk) at the Preparatory Committee and first Review Conference for the Convention on Certain Conventional Weapons in the mid-1990s. Professor Hampson has successfully litigated many cases before the European Court of Human Rights in Strasbourg and, in recognition of her contribution to the development of law in this area, was awarded Human Rights Lawyer of the Year by Liberty in 1998, jointly with her colleague Professor Kevin Boyle. She has taught, researched and published widely in the fields of armed conflict, international humanitarian law and on the European Convention on Human Rights. She is currently working on autonomous weapons, investigations into alleged violations in situations of armed conflict, and the use of an individual petition system to address widespread or systematic human rights violations. Larissa van den Herik Larissa van den Herik is Professor of Public International Law at the Grotius Centre for International Legal Studies at Leiden University in the Netherlands. She serves as general editor of the Leiden Journal of International Law (former Editor-in-Chief 2005–2013). She also holds the position of vice-chair of the Advisory Committee on Public International Law Issues to the Netherlands government and has advised the government in that capacity, inter alia, on humanitarian assistance, drones and cyber warfare. Her areas of research and expertise include international peace and security law with a focus on un sanctions (see e.g. contribution to legal parts of the ‘Watson reports’ produced by the Watson Institute for International Studies, Brown University, on sanctions and due process of 2006, 2009, and 2012). Professor van Herik’s work has also focused on terrorism, international criminal law and particularly the law on genocide and crimes against humanity, the role of domestic courts and questions of corporate responsibility and natural resources, and fact-finding in international law, specifically in conflict situations, and the role of commissions of inquiry. David Keane Dr David Keane is Associate Professor in International Human Rights Law at Middlesex University, London. He holds a Bachelor’s Degree from University College Cork, and an llm and PhD from the Irish Centre for Human Rights, National University of Ireland Galway, where he was awarded a Government of

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Ireland scholarship for his doctoral studies (2002–2005). His research focuses on international human rights and minority rights law, in particular caste and descent. His book Caste-Based Discrimination in International Human Rights Law (Ashgate, 2007) won the Hart Book Prize for early career scholars in 2008, and has been cited by the uk Supreme Court. Dr Keane has authored or coauthored more than twenty journal articles and book chapters on a range of human rights and minority rights topics and is also involved in training, advocacy and advice on human rights issues. Ursula Kilkelly Ursula Kilkelly is a Professor of Law at the School of Law, University College Cork, Ireland. She has published on children’s rights under the Convention on the Rights of the Child, the European Convention on Human Rights and in national law and policy for nearly 20 years. Her books include The Child and the European Convention on Human Rights (Ashgate, 1999) and Children’s Rights in Ireland: Law, Policy and Practice (Tottel Publishing, 2008). She has undertaken commissioned research into the implementation of children’s rights and children’s rights advocacy funded by the Council of Europe, the Ombudsman for Children, the Irish Department of Children and Youth Affairs and the Atlantic Philanthropies. Her work has been published in Human Rights Quarterly, Child and Family Law Quarterly and Northern Ireland Law Quarterly. She can be followed on ResearchGate, LinkedIn and Twitter (@ukilkelly). Philip Leach Philip Leach is Professor of Human Rights Law at Middlesex University, London, a solicitor, and Director of the European Human Rights Advocacy Centre (ehrac), also based at Middlesex University. He has extensive experience of representing applicants before the European Court of Human Rights, in particular against Russia and other former Soviet states, as well as the uk and Turkey. He researches and publishes widely in the field of international human rights law (commissioned, or supported, by the Nuffield Foundation, the Leverhulme Trust, the Economic and Social Research Council, the Equality and Human Rights Commission, the osce and the Council of Europe). He is the author of Taking a Case to the European Court of Human Rights (oup, 3rd edn, 2011). He was a member of the Independent Advisory Panel on Deaths in Custody (which provides advice to the Ministerial Board on Deaths in Custody; 2009–2015) and a member of the Harris Review (Independent Review into Self-inflicted Deaths in Prison Custody of 18–24 Year Olds in England & Wales; 2014–2015). He is a member of the Advisory Board of the Open Society Justice Initiative. He can be followed on Twitter (@PhilipLeach5).

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Dominic McGoldrick Dominic McGoldrick is Professor of International Human Rights Law at the Human Rights Law Centre, University of Nottingham. He is a specialist in public international law. He teaches and researches on uk human rights, European human rights and international human rights. He has been a Fulbright Distinguished Scholar and a Human Rights Fellow at the Harvard Law School. He has served a secondment with the legal advisers at the uk Foreign and Foreign and Commonwealth Office. He has also served as a legal adviser to the Holy See at the Committee of Legal Advisers on Public International Law, a committee of the Council of Europe. He is the Director of the Advanced Laws of War Course held annually at the University of Nottingham. His has published four books: The Human Rights Committee (oup, 1994), International Relations Law of the European Union (Longman, 1997), From ‘9–11’ to the ‘Iraq War 2003’: International Law in an Age of Complexity (Hart, 2004), and Human Rights and Religion: The Islamic Headscarf Debate in Europe (Hart, 2006) He was a contributor to and co-editor of The Permanent International Criminal Court: Legal and Policy Issues (Hart, 2004). Jacinta Miller Dr Jacinta Miller is a Senior Lecturer in Law at Northumbria University Law School, having previously worked as a Lecturer in Law at the School of Law/ Transitional Justice Institute, Ulster University (2004–2015). Her teaching areas have included European Union law, human rights law, public law and criminal law and procedure, while her research interests include human rights and health law. Prior to working as a law lecturer, Jacinta worked as Registered General Nurse within the uk and overseas (1987–2000). Alastair Mowbray Alastair Mowbray, llb, PhD, is Professor of Public Law at the University of Nottingham, where he has taught and researched the European Convention on Human Rights for more than 25 years. He has published a number of books and many articles on the echr. He is the Rapporteur on the echr for the journal European Public Law. Rachel Murray Rachel Murray is Professor of International Human Rights Law at the University of Bristol and Director of its Human Rights Implementation Centre. Her specialist areas are human rights in Africa, particularly the African Charter, the Commission and Court on Human and Peoples’ Rights and the African Union. She has written widely in this area, including Implementation of the Findings

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of the African Commission on Human and Peoples’ Rights (with Debbie Long) (cup, 2015); Human Rights in Africa, from Organization of African Unity to African Union (cup, 2004); The African Charter on Human and Peoples’ Rights. The System at Work (with Malcolm Evans) (cup, 2008); The African Commission on Human and Peoples’ Rights and International Law (Hart, 2000), and articles in leading legal human rights journals. She also advises organisations and individuals on how to use the African human rights system, including drafting cases and participating in its meetings. She has a particular interest in the implementation of human rights law, now holding a major esrc grant to look at this issue across a number of countries. She is a member of the Board of the Human Dignity Trust and the Institute for Human Rights and Development in Africa, as well as a Fellow of the Human Rights Centre at the University of Essex. She is also a member of Doughty Street Chambers and twl ­Consultancy. She is also a magistrate. Aoife Nolan Aoife Nolan is Professor of International Human Rights Law at Nottingham University School of Law. She has published extensively in the areas of human rights, particularly in relation to economic and social rights and children’s rights as well as on constitutional law. She is the founding coordinator of the Economic and Social Rights Academic Network, uk and Ireland (esran-uki). She has worked with and acted as an expert advisor to a wide range of international and national organisations and bodies working on human rights issues, including the Council of Europe, a range of un Special Procedures, un treatymonitoring bodies, ESCR-Net, the Northern Ireland Bill of Rights Forum and the International ngo Coalition for an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. Her books include Children’s Socio-Economic Rights, Democracy and the Courts (Hart, 2011), Human Rights and Public Finance: Budgets and the Promotion of Economic and Social Rights (Hart, 2013) (co-edited with Rory O’Connell and Colin Harvey), Applying an International Human Rights Framework to State Budget Allocations: Rights and Resources (Routledge, 2014) (with Rory O’Connell, Colin Harvey, Mira Dutschke and Eoin. Rooney), and Economic and Social Rights after the Global Financial Crisis (cup, 2014). Michael O’Boyle Michael O’Boyle (LLB (Hons) (Queen’s University Belfast)), llm (Harvard), Barrister-at-Law (Northern Ireland (1973)) was Deputy Registrar of the European Court of Human Rights from 2006–2015 and previously Registrar of the First and Fourth Sections of the Court. He was a member of the Legal Secretariat

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of the European Commission of Human Rights (1977–90); Head of Section (1990–95), and subsequently Head of Division in the Registry of the Former European Court of Human Rights (1995–98). He has been the Corresponding Editor of the International Legal Materials (American Society of International Law) since 1975 and a member of Board of Editors for the European Human Rights Law Review. He is the author of numerous articles in the field of public law and human rights and co-author of the seminal textbook Harris, O’Boyle & Warbrick: Law of the European Convention on Human Rights since its first publication by oup in 1995. He is co-editor of A Free Trade of Ideas: The Separate Opinions of Judge Vanni Bonnello (Wolf Legal Publishers, 2007), The Conscience of Europe: 50 years of the European Court of Human Rights (Council of Europe, 2010) and Freedom of Expression: Essays in Honour of Nicolas Bratza (Council of Europe, 2012). He was made an Honorary Bencher of the Inns of Court of Northern Ireland in 2015 and awarded an honorary doctorate (lld) by Queens University Belfast in recognition of his record of public service. In June 2015 he was appointed a Special Adviser to the Government of Georgia on human rights issues on behalf of the Secretary General of the Council of Europe. Rory O’Connell Rory O’Connell, Professor of Human Rights and Constitutional Law, is Director of the Transitional Justice Institute, University of Ulster. He joined the University of Ulster in 2013. His research and teaching interests are in the areas of human rights and equality, constitutional law and legal theory. His publications include Applying an International Human Rights Framework to State Budget Allocations: Rights and Resources (Routledge, 2014) (with Aoife Nolan, Colin Harvey, Mira Dutschke and Eoin Rooney); Human Rights and Public Finance: Budgets and the Promotion of Economic and Social Rights (Hart, 2013) (coedited with Aoife Nolan and Colin Harvey), Legal Theory in the Crucible of Constitutional Justice (Ashgate, 2000) and articles in Ratio Juris, the International Journal of Constitutional Law, European Law Journal and other journals. His first lecturing post was in Comparative Law at Lancaster University Law School from 1997 to 2001. From 2001 to 2013 he was a member of the Human Rights Centre, School of Law, Queen’s University of Belfast. He tweets @rjjoconnell. Clara Sandoval Clara Sandoval is a qualified lawyer and a Senior Lecturer in the School of Law at Essex University, member of the Human Rights Centre, founding member of the Essex Transitional Justice Network and member of the Advisory Board of the Human Rights Clinic. She teaches and researches on areas related to the Inter-American system of human rights, legal theory, transitional justice and

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business and human rights. She has been involved in strategic litigation before the Inter-American system with organisations such as REDRESS and the Human Dignity Trust and legal firms including Freshfields. Most of her litigation experience involved cases dealing with the right to reparation and gross human rights violations. She has also acted as a consultant for the International Criminal Court, the Office of the High Commissioner for Human Rights and un Women. Dinah Shelton Professor Dinah Shelton is the Manatt/Ahn Professor emeritus at the George Washington University Law School. She served as a member of the InterAmerican Commission on Human Rights (2010–2014) during which she served as President of the Commission. Professor Shelton is the author of three prize-winning books, Protecting Human Rights in the Americas (with Thomas Buergenthal) (International Institute of Human Rights, first published 1982), Remedies in International Human Rights Law (oup, 3rd edn, 2015), and the three-volume Encyclopedia of Genocide and Crimes against Humanity (Macmillan Reference, 2005). She has also authored other articles and books on international law, human rights law, and international environmental law. Professor Shelton is a member of the board of editors of the American Journal of International Law. She has served as a legal consultant to international organizations and is on the board of numerous human rights and environmental organizations. In 2006, Professor Shelton was awarded the Elisabeth Haub Prize for Environmental Law and 2013 she received the Goler Butcher Prize in Human Rights; she was conferred the degree of doctor honoris causa at the University of Stockholm in 2012. Frans Viljoen Professor Frans Viljoen holds the degrees ma, llb and lld from the University of Pretoria, and an llm from Cambridge University. He is a Professor in and Director of the Centre for Human Rights in the Faculty of Law at the University of Pretoria. His research area is international human rights law, with a focus on the African regional human rights system. He has been involved in advocacy and training on the African regional human rights system, and published widely on international human rights law, including International Human Rights Law in Africa (oup, 2nd edn, 2012). He is Editor-in-Chief of the African Human Rights Law Journal and co-editor of the English and French versions of the African Human Rights Law Reports. He is also the academic co-ordinator of the Master’s programme in Human Rights and Democratisation in Africa, presented by the Centre, in collaboration with partner law faculties across Africa.

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Simon Walker Simon Walker works of the Office of the High Commissioner for Human Rights as Chief of the Civil, Political, Economic, Social and Cultural Rights Section which is home to the Human Rights Committee and Committee Against Torture amongst other treaty bodies. He has previously worked for the un as Advisor on human rights and disability and as a human rights advisor to the un in Albania. He has a PhD in law from Utrecht University where he focused on a study of human rights impact assessments. He also has a law and arts degree from the University of New South Wales. Elizabeth Wicks Elizabeth Wicks is Professor of Human Rights Law at the University of Leicester, with a particular interest in human rights in healthcare. She is the author of three monographs: The Evolution of a Constitution: Eight Key Moments in British Constitutional History (Hart, 2006); Human Rights and Healthcare (Hart, 2007); and The Right to Life and Conflicting Interests (oup 2010). She is a co-author (with Bernadette Rainey and Clare Ovey) of a leading textbook: the sixth edition of Jacobs, White and Ovey, The European Convention on Human Rights (oup, 2014). She also co-edited (with Katja Ziegler and Loveday Hodson) a collection entitled The uk and European Human Rights: A Strained Relationship? (Hart, 2015). Professor Wicks is a member of the Editorial Board of the Human Rights Law Review and the Midlands Medical Law Consortium. Her interest in medical law has led to her sitting on a number of ethics committees. She is currently writing her fourth monograph about the public interest in issues of bodily autonomy entitled The State and the Body which will be published by Hart Publishing in 2016.

Introduction Alice Donald, Carla M. Buckley and Philip Leach 1

Context of This Book

We live in an era of proliferating international legal domains, instruments, institutions and procedures, not least in the field of human rights. The seven decades since the Universal Declaration of Human Rights in 1948 have seen the development of a human rights architecture of immense complexity, comprising universal, regional and sub-regional treaties and soft law instruments, including both general regimes and regimes that specialise in particular human rights or the rights of particular groups, each of which is interpreted, applied and monitored by its associated judicial, quasi-judicial or political machinery. To this edifice of international human rights law and institutions may be added the numerous bodies, both governmental and non-governmental, that support the implementation of human rights (and wider rule of law and democratic) standards or engage with human rights protection in the course of their work on other matters such as humanitarian relief or economic development. ­Human rights actors are also to be found—perhaps most importantly—at the domestic level, where the promise of the post-war flourishing of human rights is, ultimately, either realised or thwarted. As Malcolm Evans observes, even the quickest and most superficial mapping of human rights work… immediately points to an enormous range of entities and actors exercising competences and undertaking functions related to human rights protection at local, national, subregional, regional and international levels.1 Accordingly, we cannot talk of one international human rights ‘system’, but rather of multiple ‘systems’, each with its own (functional or geographic) specialism, institutions, principles and practices, and each comprising a web of interaction and interdependence between actors at various levels. The implications of this heterogeneity for the coherence of international human rights law has been a subsidiary strand of the broader debate about ‘fragmentation’2 arising from the uncoordinated diversification and expansion 1 See Chapter 17 at 517. 2 Report of the Study Group of the International Law Commission, ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law’, finalised by Martti Koskenniemi, 13 April 2006, A/CN4/L682. For a recent contribution to the

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004284258_002

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of international law. That debate has been concerned with ‘the splitting up of the law into highly specialized “boxes” that claim relative autonomy from each other and from the general law’.3 So far as it has concerned international human rights law, debate about fragmentation has thus tended to focus on the interplay between human rights and other functionally specific branches of international law, such as international trade and investment law, international criminal law, the law of armed conflict and international environmental law.4 This book takes a different approach by examining the causes and consequences of diversification and expansion within international human rights law. In doing so, it explores the meaning, and normative desirability or otherwise, of concepts such as ‘harmonisation’, ‘alignment’, ‘coherence’ and the term chosen for our title—‘convergence’. It may be observed at the outset that none of these terms necessarily imply the need for regional and universal human rights bodies to take an identical approach to matters of interpretation or institutional procedures. Some divergence is to be expected due to the existence of distinctive provisions (and interpretation of provisions) in different human rights systems, and more specific or expansive obligations in specialist treaties compared to general ones. Moreover, there exists a plurality of institutional procedures and practices among human rights bodies. Several questions arise from these observations. Is normative and institutional divergence within human rights an inevitable and even desirable feature of a complex international legal order? Conversely, is it a threat to the integrity of international human rights law and consequently to the promotion of state compliance with human rights norms? For that matter, how far do international human rights instruments, and their application and interpretation by judicial, quasi-judicial and political bodies, converge or diverge, and how does this happen in practice? It was an appetite to explore these questions that brought together most of the contributors to this book in a two-day workshop held at the University of Nottingham in June 2013. The event convened eminent jurists who are, or have been, directly involved in adjudication within the un human rights system and the Inter-American, European and African systems; senior figures who provide legal or technical support to these adjudicatory bodies; and experts from both non-government organisations and academic institutions, several of whom

debate, see Adenas and Bjorge (eds), A Farewell to Fragmentation: Reassertion and Convergence in International Law (cup, 2015). 3 Report of the Study Group of the International Law Commission (n 2) para 8. 4 See, however, Payandeh, ‘Fragmentation within International Human Rights Law’, in ­Andenas and Bjorge (eds), supra n 3 at 297, and the literature cited in Appendix 1 of this volume.

Introduction

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engage in international human rights litigation. The workshop—and this volume—thus sought to integrate normative debate about the opportunities and challenges presented by the co-existence of multiple human rights ­systems with the insights informed by practice of those who have direct experience of working within those systems. Discussion at the event was enriched by a background paper prepared by Chloe Cheeseman, which synthesised evidence and arguments in the existing literature on the ‘harmonisation’ of the jurisprudence of international and regional human rights bodies, an updated version of which is contained in Appendix 1. Several broad insights may be gleaned from this literature review with respect to the jurisprudential aspect of our theme, and these are summarised below as a prelude to discussion of the contributions to the book. First, it is not a straightforward task to determine the true extent of communication and influence between interpretive bodies: citation of an external source does not, in and of itself, reveal the purpose behind the citation or the weight accorded to it, while influence may be exerted (for example, through informal channels or the movement of jurists between systems) without being openly acknowledged. Secondly, notwithstanding these methodological pitfalls, it is possible to discern marked asymmetries in the apparent extent to which different international and regional systems ‘borrow’ from and influence each other. The Inter-American Court of Human Rights (IACtHR) has since its inception been frequent, explicit and wide-ranging in its citation of international and regional instruments and jurisprudence and international soft law. The African Commission on Human and Peoples’ Rights has generally followed the same universalist path, although only in more recent years, and not invariably, despite the fact that, uniquely among regional instruments, the African Charter on Human and Peoples’ Rights provides for the Commission to ‘draw inspiration from’ a wide range of international human rights sources (under Articles 60 and 61). The limited case law of the African Court of Human and Peoples’ Rights precludes such generalisations. The European Court of Human Rights (ECtHR) has taken a less universalistic stance in respect of the number of external citations in its judgments, yet there is evidence of decisive weight being accorded to external sources in some cases.5 Recent studies, including some of the chapters in this book (see, for example, O’Boyle), suggest a ­modest— and perhaps increasing—level of engagement by the ECtHR with external sources. For its part, the Human Rights Committee (hrc) has evidently been 5 For a more recent analysis, see Forowicz, ‘Factors Influencing the Reception of International Law in the ECtHR’s Case Law: An Overview’ in Andenas and Bjorge (eds), supra n 3 at 191.

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influenced on occasions by regional jurisprudence in its interpretation and application of the International Covenant on Civil and Political Rights (iccpr), yet without open acknowledgement of that influence. Thirdly, the extent to which international and regional bodies should align their jurisprudence is contested from both a normative and pragmatic perspective. Cross-fertilisation between systems is said by some authors to improve the quality of judicial outputs, leading to more well-reasoned and well-researched judgments or decisions on difficult matters related to the interpretation and application of human rights that confront all adjudicatory bodies.6 This form of reflexivity, it is argued, serves the normative goal of harmonisation as a means of achieving a vision of universal rights that are valid across borders and cultures. Moreover, it has the effect of strengthening human rights protection since it is progressive interpretations that have tended to permeate between systems (one example being the Inter-American system’s export of concepts and procedures connected to precautionary (or ‘interim’) measures used to provide urgent protection against human rights violations7). Interpretive interaction also meets the pragmatic imperative of persuasion, some authors contend, since it permits human rights bodies to ‘leverage’ the reputational concern of states (and especially democratising states) to be perceived as compliant with internationally accepted norms. Other authors take a more cautious approach to transjudicial borrowing, without disavowing its normative or strategic value altogether.8 One concern is that extensive reliance on external standards or interpretations may undermine the legitimacy of a human rights body by circumventing the consensual aspect of human rights treaties, especially where the materials cited emanate from a regime to which the respondent state is not a party. Concerns about the (il)legitimacy of external referencing have a strategic as well as principled dimension in the sense that reliance on an external opinion may provoke a backlash among states about the (perceived) imposition of ‘foreign’ norms and hence jeopardise the likelihood of compliance. Notwithstanding these differences, Cheeseman’s review indicates that there is a broad consensus in the existing literature that directly conflicting interpretations of the same (or similar) international norms and standards is inherently undesirable—a view reflected in the Foreword to this volume by the distinguished jurist Antônio Augusto Cançado Trindade, drawing on his 6 See the literature quoted in Section of 2.A of Appendix 1. 7 Pasqualucci, ‘Interim Measures in International Human Rights: Evolution and Harmonization’ (2005) 38(1) Vanderbilt Journal of Transnational Law 1. 8 See the literature quoted in Section of 2.B of Appendix 1.

Introduction

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experience as both a Judge of the International Court of Justice and former President of the IACtHR. Interpretive dissonance is seen as posing not only a normative threat to human rights as a coherent branch of international law, but also a strategic risk since non-rights-respecting states may exploit any divergence between adjudicatory bodies in order to evade accountability and weaken protection. This perspective does not, however, denote a propensity to achieve complete harmonisation of human rights jurisprudence at any cost; rather, it indicates, as Helfer and Slaughter put it, a preference for ‘thoughtful convergence’ whilst allowing room for ‘informed divergence’9 where such divergence can be justified by reference to variations in textual provisions, interpretive principles or institutional practices. 2

Structure of This Book

Navigating the tension between, in Cheeseman’s words, ‘protecting and ­acknowledging diversity and realising universal rights’ is a thread running throughout this book. Taken as a whole, the book breaks new ground by exploring convergence and divergence in relation not only to substantive case law but also matters such as approaches to remedies and enforcement (Leach, Murray and Sandoval), jurisdiction (Hampson), doctrinal approaches (­McGoldrick), the inherent and implied powers of human rights tribunals (Shelton) and their practices and procedures (Evans). The book is loosely grouped into three parts. Part i considers substantive rights and types of violation, including the rights of specific groups. Part ii takes a thematic approach in respect of the doctrines, powers, and principles of interpretation of different international and regional systems. The chapters in Part iii adopt a broad, system-focused view of (as Walker’s chapter terms it) the opportunities and challenges of co-existence. Across the volume, both regional and international systems are compared. Authors variously take as their focus the extent of convergence or divergence between different regional systems (Leach et al, McGoldrick, Nolan and Kilkelly, O’Connell, Shelton), between different actors within the United Nations system (Domínguez-Redondo), or between the regional and international levels (Bernaz, Cheeseman, Evans, Forowicz, van den Herik and Duffy, Keane and Castellino, Miller, Mowbray, O’Boyle, Viljeon, Walker, Wicks). Consideration is also given to the relationship between international human rights 9 Helfer and Slaughter, ‘Toward A Theory of Effective Supranational Adjudication’ (1997) 107(2) Yale Law Journal 273 at 374.

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law and other branches of international law, such as international humanitarian law (van den Herik and Duffy), or international law generally (Hampson). The next section of this chapter synthesises the main arguments and conclusions of each chapter within, respectively, Part 1 (Rights), Part ii (Themes) and Part iii (Systems), while Section 4 identifies cross-cutting insights and debates emerging from the chapters. 3

Guide to This Book

A Part i – Rights In Chapter 1, Philip Leach, Rachel Murray and Clara Sandoval compare the nature and extent of the duty to investigate violations of the right to life in the Inter-American, European and African systems. They suggest that a general concept of due diligence in carrying out investigations has been developed by all three, which has common requirements: that it is instigated on the initiative of the authorities; that it is effective; that it is started promptly and reasonably expedited; that it is independent and impartial; and that it involves the next-of-kin and the victims. The authors suggest that the IACtHR has imposed a higher standard of due diligence in respect of gross and systematic human rights violations, which is not the case for Europe or Africa. They consider to what extent the investigatory obligation is different where the case relates to an enforced disappearance, arguing that the very nature of a disappearance necessarily impacts upon the way the obligation to investigate is met by the state. They discuss the impact of discriminatory attitudes, with stricter obligations to investigate racist violence having arisen in the European context and the same being true for discrimination involving violence against women in the Inter-American system. Issues of impunity have prevented states in all three regions from carrying out their duty to investigate effectively. This problem has been particularly pervasive in the Americas and Africa because of the impact of armed conflicts or dictatorships, the absence of the rule of law, corruption, an overriding need to achieve reconciliation and vested interests obstructing the investigation of large-scale human rights violations. The authors consider the application of the admissibility criteria in the respective systems, noting the greater flexibility of the Inter-American Commission on Human Rights (iachr) as regards delays in lodging cases of enforced disappearances. Whereas the IACtHR and ECtHR have shifted the burden of proof to states in particular circumstances where only the authorities possess relevant information, the evidential basis of the African Commission’s decisions has tended to be less clear.

Introduction

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The three regional systems each recognise the right to know the truth, but their application of it differs due to the varying socio-political contexts which shape the way they understand the right. The right to know the truth has been a key element of the transitional justice processes in the Americas and Africa, but it is the Inter-American system in particular which considers the right to truth in its broadest dimension. As regards reparations, the IACtHR and the African Commission have demonstrated a considerably more expansive approach than the ECtHR. Both bodies may order states to carry out investigations, with the IACtHR in particular stipulating in detail what that will require. The authors detect striking similarities as to the systems’ broad approaches to the duty to investigate. However, some distinctions arise simply because of a lack of clarity in the case law. Other more significant differences have developed because of the varying socio-political contexts (leading to a preponderance of cases on a particular issue), as well as differences in the treaties and in the structures of the systems themselves. Continuing the focus on the right to life, Chloe Cheeseman analyses in Chapter 2 the jurisprudence of the hrc, the Inter-American Court and Commission, the African Commission and the ECtHR with respect to the death penalty. Textual provisions vary: the iccpr and the American Convention on Human Rights (achr) permit but restrict the death penalty; the African Charter is silent on the matter; and Protocol No. 13 to the echr, signed or ratified by all but two states, abolishes the death penalty in all circumstances. In all systems studied, Cheeseman finds evidence of cross-fertilisation of ideas. The Inter-American bodies reference external case law ‘in an active and substantial manner … to give credence to and demonstrate an element of international support’ for their reasons. Similarly, in nearly half of ECtHR cases (all relating to deportation and extradition to states that use the death penalty), external decisions are used to lend legitimacy or add weight to the Court’s reasoning, even in decisions involving new developments. The African Commission is inconsistent in its approach: explicit engagement with external case law is scant, yet with notable exceptions. For its part, the hrc tends not to cite the case law of other human rights bodies, a reticence that Cheeseman attributes to the perceived need to avoid the impression that it has been unduly influenced by national or regional bodies. Even so, the similarity in the line of reasoning adopted by the hrc and other human rights bodies in cases which involve a departure from its previous line of reasoning suggests that the Committee is far from impervious to external influence. To examine divergence in standards in death penalty cases, Cheeseman considers three areas: the nature of provisional measures in death penalty cases, restrictions on the use of the death penalty, and prolonged detention on

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death row. Of these Cheeseman concludes that the greatest degree of convergence concerns provisional measures as all bodies have held that such orders are binding. While restrictions on the use of the death penalty vary widely, Cheeseman argues that there is a ‘regulation norm’ operating in relation to the imposition of the death penalty by which regional and international systems are pursuing its abolition through implied restrictions on its use, whether this is explicitly expressed as a strategy, as in the Inter-American system, or not, as in the African Commission and the hrc. Moreover, it is in the enumeration of restrictions on the use of the death penalty that the various bodies have shown the clearest influence upon one another, whether by external citation or a ‘mirroring’ of one another’s reasoning. Cheeseman posits that the ‘­cumulative weight of shared reasoning and argumentation can help incremental challenges against the death penalty to gain momentum’. Strategic litigation by ngos has also helped to develop a harmonised approach towards the use of discretional sentencing in the Inter-American and African systems and the hrc. However, Cheeseman demonstrates that human rights bodies do not adopt a conformist or majoritarian approach when it comes to deciding which idea or norm will be implemented. The ‘compelling circumstances’ approach of the hrc to the question of whether prolonged detention on death row constitutes proscribed ill-treatment is an example of how human rights tribunals develop jurisprudence in their own way and in their own time, albeit influenced by views from outside. Cheeseman welcomes this process of exchange and dialogue amongst independent regional and international human rights bodies ‘as a route to better reasoned decisions and informed interpretations of universal human rights standards’. Chapters 3, 4 and 5 are all concerned with aspects of human rights that pertain to personal privacy, autonomy and integrity. In Chapter 3, Elizabeth Wicks examines the interplay between regional and international human rights bodies on abortion rights, which lies at the heart of broader debates about subsidiarity, margins of appreciation and the appropriate role of international law in resolving vexed questions as to the balancing of rights at the national level. Textual provisions on abortion are non-existent, vague or contradictory,10 betraying the lack of consensus among drafters of regional and international treaties. 10

For example, as Wicks observes, the echr contains no indication as to whether a foetus has the protection of the right to life under Article 2, while the apparently more prescriptive approach of the American Convention on Human Rights which declares in Article 4(1) that life begins at conception is undermined by the use of the caveat ‘in general’.

Introduction

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Two trends are identified in the way in which judicial, quasi-judicial and political bodies have interpreted the relevant provisions. The first is a movement towards recognition of procedural rights in the context of abortion, based upon the need for rights to be ‘practical and effective’ rather than merely theoretical. This trend is evident in the case law of the ECtHR, the iachr and the Committee that monitors implementation of the Convention on the Elimination of all Forms of Discrimination against Women (‘the cedaw Committee’), each of which has adjudicated in strikingly similar ways cases brought by women and girls who have been denied access to lawful abortion. Wicks identifies a second—albeit less certain—trend towards recognition of a substantive right to therapeutic abortion. Uniquely among human rights instruments, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (‘African Women’s Protocol’) expressly requires states to authorise therapeutic abortion, situating this right in the context of reproductive health, rather than reproductive autonomy. In a ground breaking move, the Parliamentary Assembly of the Council of Europe called for the decriminalisation of abortion within reasonable gestational limits as a matter of women’s right to physical and mental integrity protected within autonomy-related rights. Wicks ventures that, while the ECtHR has thus far stopped short of imposing any substantive requirements on states about the circumstances in which abortion should be lawful, such a development is foreseeable. Within the United Nations system, the hrc has appeared more willing than other treaty bodies to enforce substantive abortion requirements. For example, its General Comment No 28 requires states parties to report on whether they provide safe access to abortion for women who become pregnant as a result of rape, so as to enable the Committee to assess their compliance with the prohibition of cruel, inhuman or degrading treatment under Article 7 of the iccpr. Wicks notes that, while regional and international bodies have in some instances cited comparative materials to strengthen the evidential basis of their judgments, such explicit reliance has more often been minimal, inconsistent or absent. She regards this is as a ‘missed opportunity’ to refer to evolving regional and international trends on such a contentious matter. However, the convergence of case law in respect of abortion—especially with respect to its procedural dimension—suggests that cross-fertilisation is occurring. Looking ahead, Wicks foresees that, as the trends identified in her chapter develop, explicit reliance on parallel approaches in other jurisdictions will increase. However, it remains to be seen whether this interpretive interaction will be in the context of reproductive health or in the direction of a broader—and as yet little recognised—right to abortion situated within women’s right to autonomy.

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In Chapter 4, Alastair Mowbray analyses selected leading judgments of the ECtHR in order to ascertain the extent to which, putting the European consensus doctrine aside, the Court has had recourse to norms, principles and standards of non-European domestic courts, international criminal courts, and the un Human Rights Committee on the one hand, and the European Social Charter (esc) and Council of Europe Data Convention on the other, in the interpretation and application of the right to respect for private life under the echr. (Case law of the Inter-American and African Court systems has not featured in the Court’s interpretation of private life.) The ECtHR has used external materials for diverse purposes. They have ­included defining the scope and limitations of the right to private life; elaborating positive obligations upon states; and informing its application of the margin of appreciation. Perhaps unsurprisingly, the Council of Europe treaties on social rights and data protection were the most influential external sources encountered. Generally, however, the ECtHR has not used external materials as the definitive element in its interpretation and application of private life. Mowbray highlights the (potential) role of third party interventions, including ngos and the Council of Europe Commissioner for Human Rights, in drawing judges’ attention to external legal materials and thereby achieving ‘cross-pollination’ between the Court’s jurisprudence and legal developments beyond the Convention. In Chapter 5, Frans Viljeon examines minority sexual orientation as a challenge to convergence in the interpretation of international human rights law. He analyses the interpretation of this issue by both adjudicatory and political bodies within the European, Inter-American and African systems and under the iccpr. Viljeon identifies an incipient, yet uneven, trend towards interpretive cross-pollination. While the ECtHR has been disinclined to rely on external sources, save for a single reference to case law of the IACtHR, judgments of the IACtHR have relied explicitly on external (especially European and un) sources. For its part, the hrc’s findings reveal the influence of the European system, in particular, yet are not framed as relying on that source. Viljeon views this pattern as being consistent with the general approaches of these bodies towards interpretive interaction. The African system, ­how­ever, presents an exception. While there is, as yet, no African jurisprudence in this area, the African Commission, in its 2014 Resolution dealing with sexual orientation,11 refers—unusually—to the African Charter alone as its 11

Resolution 275 on Protection against Violence and other Human Rights Violations against Persons on the basis of their real or imputed Sexual Orientation or Gender Identity, 55th Ordinary Session, 12 May 2014.

Introduction

11

s­ ubstantive basis. The omission of any reference to other instruments departs from the Commission’s generally universalistic stance, Viljeon observes, and demonstrates the importance of political context as a determinant not only of a body’s approach to minority sexual orientation, but also of its readiness to rely on external interpretations. The African Commission, being aware of homophobic attitudes in parts of Africa, has limited its embrace of external jurisprudence in this area. The hrc, argues Viljeon, is likewise constrained by the diversity of political views within its global membership from placing explicit reliance on external sources. By contrast, the ECtHR’s case law is aligned with the progressive stance of the Council of Europe on minority sexual orientation, while the IACtHR has been able to pursue its habitual universalism due to the incremental recognition by the Organization of American States of human rights in respect of minority sexual orientation. Viljeon ventures that, given its lack of case law and minimal normative engagement with sexual minority rights, the African human rights system has most to gain from interpretive cross-fertilisation on issues such as the decriminalisation of consensual same-sex adult relations and conditions of detention of homosexual prisoners. While a harmonised approach between the regional and international systems may presently be unattainable in respect of issues such as same-sex marriage and adoption by same-sex couples, ‘closer synergy … would contribute to solidifying at least the most egregious violations based on minority sexual orientation as unequivocally part of jus cogens’. Continuing the focus on non-discrimination, Magdalena Forowicz analyses in Chapter 6 the approaches taken to gender equality in one international and two regional systems, focusing on case law relating to affirmative action measures to redress discrimination. Her focus is on standards of protection provided by cedaw, the echr, the African Charter and the African Women’s Protocol, and their interpretation and application by, respectively, the cedaw Committee, the ECtHR and the African Commission and Court. Forowicz finds scant evidence of dialogue or cross-fertilisation between the three systems. Nevertheless, she concludes that the treaties, as interpreted by the respective bodies, ‘coalesce around an approximate concept of substantive gender equality’; that is, a concept that extends beyond mere formal equality (procedural fairness based upon equal treatment under the law) to include equality of opportunity and, in its more far-reaching incarnations, equality of outcomes. Of the instruments under review, only cedaw provides for both formal and substantive equality, including affirmative action measures, which are construed not as exceptions to the principle of non-discrimination but as an integral requirement of gender equality. However, there is little relevant case

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law and the cedaw Committee rarely refers to other international or regional sources on the matter. The African Charter and Women’s Protocol also embrace a notion of substantive equality, which includes affirmative action and equality of opportunity. The African Commission’s case law in this area is limited, and the African Court’s non-existent. The Commission has shown itself willing to embrace substantive equality, including affirmative action, in the few cases it has ­considered and in its comments and concluding observations on national implementation reports. In its case law it has sometimes borrowed from other systems in support of this approach. The echr affords less far-reaching protection than either cedaw or the African Charter and the Women’s Protocol, given the parasitic character of Article 14 of the Convention and the relatively low number of ratifications of Protocol 12, which provides a freestanding right to non-discrimination. Citing judgments concerning discrimination on grounds of disability and ethnicity, Forowicz observes that the ECtHR has interpreted the echr as affording protection to both formal and substantive equality, including affirmative action; however, the exact meaning of these concepts has not yet been crystallised, and nor has the ECtHR referred to other regional or international sources in this regard. Forowicz concludes that once gender equality enters a more mature phase within the regional systems, the basis may be laid for a more productive dialogue between the international and regional levels. The following two chapters are concerned with economic and social rights. Rory O’Connell examines in Chapter 7 how different regional courts and monitoring bodies have interpreted the collective aspect of the right to work; that is, situations where workers act collectively to assert their interests by forming trade unions, participating in employment governance and engaging in collective industrial action. O’Connell observes that the collective dimension of the right to work is protected in broadly similar terms across a range of ­human rights instruments; the prohibition of slavery and forced labour and the right to form associations including trade unions enjoy protection across both ­universal and regional human rights treaties, including those principally concerned with civil and political rights. Instruments that enshrine economic and social rights contain more detailed provisions on collective aspects of the right to work such as the right to strike and the rights of workers to consultation and information. The author goes on to examine the approach of certain regional systems to the interpretation and application of these provisions, and the extent to which each has made use of outputs of the International Labour Organization (ilo). He examines case law of the IACtHR and its interpretation and application of

Introduction

13

the achr and the additional Protocol of San Salvador which protects economic, social and cultural rights. This case law is analysed comparatively alongside that of two Council of Europe bodies—the ECtHR and the European Committee of Social Rights (ecsr) and their respective interpretations of the echr and Revised esc—and the Court of Justice of the European Union (cjeu). O’Connell identifies some instances of interchange leading to a commonality of approach between the regional systems; for example, the strong consensus around the principle that the right to associate contains a right not to associate (although the ilo has taken a more ambivalent approach to this matter). In respect of other issues, the jurisprudence of the regional human rights bodies varies, in part because of the nature of the alleged violations they have been called upon to consider. The IACtHR has tended to consider egregious cases of anti-union activity such as the extrajudicial killing of union leaders and mass dismissals of workers. The IACtHR’s case law is distinctive in this as in other areas of human rights for the expansiveness and specificity of the remedies it stipulates, including symbolic reparations. At the same time, it has shown itself willing to rely on material from the ilo and the ECtHR to support its own interpretation of the achr. O’Connell observes that the more extensive case law of the three European systems under review displays a number of tensions. In particular, there is a cleavage between the eu and the Council of Europe mechanisms, in that the former ‘may offer greater scope for limiting or undermining trade union freedom’ due to textual provisions protecting the interests of employers. Discontinuity is also evident in the case law of the two Council of Europe bodies under review: the ECtHR has in recent cases cautiously departed from its earlier practice of aligning its approach to freedom of association cases with that of the ecsr.12 Further divergence may result, O’Connell ventures, from the tendency for national authorities to accord greater respect to the legally-binding decisions of the cjeu and the ECtHR as compared to findings of either the ecsr or the ilo system. In Chapter 8, Jacinta Miller analyses the extent to which the language and concepts of Article 12 of the International Covenant on Economic, Social and Cultural Rights (icescr) on the right to the highest attainable standard 12

In a case concerning secondary strikes, for example, the ECtHR, while reaffirming the legitimacy of using esc Committee and ilo Committee opinions as ‘a point of reference and guidance’, concluded that its competence covered only the echr, meaning that the different bodies might legitimately reach different conclusions on the same question; see National Union of Rail, Maritime and Transport Workers v United Kingdom Application No 31045/10, Merits and Just Satisfaction, 8 April 2014 at paras 97–98.

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of health are reflected in case law in the European region. The bodies under ­review are the ecsr; the ECtHR; the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (cpt); and the cjeu. Miller identifies a growing recognition in the jurisprudence of the ecsr, the ECtHR and the cpt of the core standard as being the right to ‘the highest attainable standard of physical and mental health’. She further detects an emerging consensus around three areas: the content of the right as comprising freedoms and entitlements; the obligations under the right as including both positive and negative obligations, also expressed in the terminology of ‘respect, protect and fulfil’; and policy questions about what should be made available and to whom. Non-discrimination and the requirement to consider the additional barriers facing vulnerable or marginalised groups in accessing their right to health are also common themes within most of the jurisprudence under review. The cjeu, however, stands apart from this consensus; there is limited recognition in its jurisprudence of either Article 12 of the icescr or other regional norms on the right to health. Moreover, the individual right to access health care is assessed by the cjeu in the context of the free movement of services and people within the internal market, rather than in the context of the ‘right to health’ as such. Miller calls for the cjeu to move towards recognition of the right to health, thereby aligning itself more closely with the case law of other European bodies. In Chapter 9, David Keane and Joshua Castellino consider the (potentially) harmonising effect of another un treaty—the International Convention on the Elimination of All Forms of Racial Discrimination (icerd)—in respect of minority rights. The authors address contemporary expressions that lament the absence of a universal minority rights treaty. According to this view, the sources protecting minority rights are Article 27 of the iccpr,13 which is ­legally binding but not part of a specialised minority rights treaty; the un Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities 1992, which is universal but not legally binding; and the Council of Europe Framework Convention on National Minorities, which is o­ stensibly the only binding minority rights treaty but is limited in its g­eographical scope. ­Keane and Castellino confront the view that there exists no u ­ niversal 13

Article 27 reads: In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.

Introduction

15

and binding legal standard on minority rights, arguing that the icerd has, through its dynamic interpretation by the Committee on the Elimination of Racial Discrimination (cerd), evolved into such a treaty, although it neither originated nor is widely recognised as such. Keane and Castellino acknowledge a potential objection to their thesis posed by the apparent exclusion from the icerd remit of linguistic and religious minorities. They argue that the recent practice of the cerd indicates that it regards both linguistic and religious minorities as lying within its remit where there is a link with ethnicity, and suggest that general recommendations, informed by thematic discussions with states, ngos and experts, would further clarify the Committee’s developing approach to the protection of ­ethno-linguistic and ethno-religious minorities. Wider acknowledgment of the icerd as the ‘de facto’ universal minority rights treaty has several potential advantages. The Convention enjoys a high level of ratification, including among states traditionally hostile to minority rights, precisely because of the widespread (yet, in the authors’ view, erroneous) view that its remit is limited to the less contentious sphere of racial discrimination. Thus, the icerd has the potential to foster increased regional protection of minority rights, especially in regions such as South Asia, the Middle East and Africa which remain devoid of initiatives to protect minorities. Further, recognition of the cerd’s expansive interpretive approach would permit integration of the rights of indigenous peoples and other types of minority rights, which have become bifurcated within the international human rights discourse. Chapter 10 similarly takes as its focus the potential of a un treaty, the Convention on the Rights of the Child (crc), to foster interpretive convergence. Aoife Nolan and Ursula Kilkelly consider the extent to which the African, Inter-American and European human rights bodies have aligned with the standards contained in the crc and the rulings of its monitoring body, the Committee on the Rights of the Child. Nolan and Kilkelly argue that the international system governing children’s rights is a unifying force both through its provisions, some of which have offered a template for regional instruments, and by its usefulness as an interpretive tool. The authors observe that it is in the regional texts of the African system that the most extensive protection of children’s rights, itself broadly consistent with the international provisions, is found; however, implementation of those standards is yet to be actively pursued by states and African jurisprudence on children’s rights is sparse. By contrast, the Inter-American system has relied on the establishment of an Office of the Special Rapporteur on the Rights of the Child and the interpretation of general treaty provisions by the Inter-American Commission and Court that

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has ­incorporated and implemented many of the standards of the international child rights system over a range of areas spanning both civil and political rights and economic, social and cultural rights. This has led to the development of an Inter-American framework for the protection of children that generally accords with international standards. In Council of Europe states there is a strong degree of consistency between the jurisprudence generated under their two most important general human rights treaties—the echr and the esc, including its revised version—and standards under the crc. Nolan and Kilkelly provide a sample of cases from the vast jurisprudence of the ECtHR on the subject of children’s rights which demonstrates a high degree of awareness in that Court of international standards, even though articulation of the degree and nature of that influence is unclear. It is under the esc, facilitated by its often close textual similarity to the crc, and through the work of the collective complaints and state reporting mechanisms, that the international treaty is most expressly utilised. B Part ii – Themes In Chapter 11, Dominic McGoldrick considers the use made of a jurisprudential doctrine—the margin of appreciation (MoA)—by two regional human rights bodies, the ECtHR and the IACtHR. In the ECtHR, the MoA is an established device for the judicial determination of complaints of human rights violations, while the IACtHR ‘essentially ignores’ the doctrine in its deliberations. McGoldrick, however, argues that the doctrine has validity in both systems. First, he examines the meaning and operation of the MoA in the European system and concludes that the doctrine ‘plays a crucial role in building a complex multilevel community amongst Council of Europe states’. He then considers to what extent there are similarities and differences between the two courts, from historical, textual, institutional, constitutional and interpretative perspectives, that could justify the non-use of the MoA by the IACtHR and thus the achievement of a situation, as in the echr system, in which ‘rights form an integral part of the wider democratic order and wider community, rather than merely an external limitation’. He concludes that the similarities from all vantage points outweigh the differences and that the nature of the early complaints in the Inter-American system have had an enduring, but now inappropriate, influence over the IACtHR in its approach to the doctrine given that most states in the achr system are ‘now broadly democratic’. In the light of this analysis, McGoldrick considers other possible reasons for the IACtHR’s persistent non-use of the MoA: protection of the universality of human rights, anti-Eurocentrism, misunderstanding by the Court as to how the doctrine operates and the prospect that the IACtHR does, in fact,

Introduction

17

e­ mbrace the doctrine so that opposition to its use is merely rhetorical. None of these explanations for the IACtHR’s non-use of the MoA in its determinations persuade and McGoldrick concludes that, whatever the reason, the IACtHR ‘­deprives itself of a credible and defensible intellectual instrument for making human rights determinations’ an observation that, he notes, could also be made of the African human rights institutions. Larissa van den Herik and Helen Duffy analyse in Chapter 12 the interplay between international humanitarian law and human rights law in armed conflict situations (as interpreted by the un treaty bodies and regional human rights courts), suggesting that the ongoing uncertainty in this area represents a considerable challenge for human rights bodies. Nevertheless, they discern a common understanding that human rights law is applicable during times of armed conflict, and greater recognition of the relevance of ihl. They advocate deeper engagement with ihl as being consistent with a cohesive approach to the international legal order. The authors discuss the basis for treaty bodies’ application of ihl, given that only some of the more recent un human rights treaties (the crc and the Convention on the Rights of Persons with Disabilities (crpd)) include explicit provisions on ihl. Tracing relevant developments from the icj’s advisory opinions affirming the co-applicability of the two bodies of law, and its use of the lex specialis principle, to the hrc’s general comment as to their complementarity, the authors argue that although the treaty bodies have emphasised the applicability and importance of ihl in their general comments, there has only been a very limited depth of engagement with ihl standards. Through their concluding observations in response to state reporting processes, the committees have affirmed their competence to monitor human rights situations during armed conflict; however, the authors suggest that they have not made extensive reference to concrete ihl rules. The committees have made more detailed reference to ihl standards in their recommendations calling on states to, for example, investigate serious violations of ihl, cooperate with international criminal tribunals, and ensure redress and reparations. Even then, their ‘generic and broad-brush’ approach leaves significant uncertainties – an approach which the authors characterise as being pragmatic. There has also been very little reliance on ihl in the individual complaints processes, and the authors advocate that the un treaty bodies should follow the regional courts in developing their practice in this respect. As regards the regional human rights mechanisms, the authors identify the Inter-American system as being both the pioneer and the boldest exponent of the interpretation of ihl rules. However, they conclude that although ihl has regularly been invoked by the Inter-American bodies, it has only rarely been

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decisive in the determination of a case. In contrast, in spite of its implicit consideration of ihl principles, the ECtHR has generally proved reluctant to engage explicitly with ihl norms, although in the recent case of Hassan v United Kingdom it did so in a way which was decisive to the outcome of the case.14 The authors express their surprise that the African Commission has not invoked ihl standards more frequently, given the prevalence of conflict on the African continent, although it has affirmed that the obligations in the African Charter continue to apply even during civil war. The reasons for the differences in approaches by the various bodies are multiple: differences in the scope of treaties, the emergence of newer human rights treaty provisions that refer to ihl explicitly and evolution of interpretative principles, as well as the particular political and legal culture of the institutions and the expertise of individual judges. Chapter 13 also looks outwards from international human rights law to other areas of international law, with a focus on the question of extraterritorial jurisdiction. Françoise Hampson analyses the extent to which there has been interpretive interaction between the European Court and (former) Commission of Human Rights, the Inter-American Court and Commission, the Human Rights Committee and the International Court of Justice (icj) on extraterritoriality. Hampson’s analysis coheres around a chronological account of the European jurisprudence, in order to determine the evolution in the approach of the echr organs and the extent to which their developing interpretation was informed by contemporaneous external materials. Hampson notes the lack of cross-fertilisation between the organs of the echr and the hrc. The icj refers to the views of the hrc (but only in the context of Israel and the Occupied Territories) and makes no reference to European judgments and decisions. Neither the hrc nor the icj, Hampson adds, gives a reasoned explanation, citing external sources, for their views on extraterritorial applicability. The practice of the ECtHR is harder to divine from its judgments, since external sources may be referred to in the section on relevant law yet omitted from the Court’s reasoning on the scope of extraterritorial applicability. Certain trends are clear, however. Before the Court’s decision in Banković in 2001,15 neither the European Commission nor the Court referred to any external sources on the question of jurisdiction. In that case, the ECtHR referred to non-human rights sources but expressly excluded the views of other human rights bodies.

14 15

See Chapter 12 at n 10. See Chapter 13 at n 19.

Introduction

19

The Court’s subsequent judgment in Issa in 200416 did refer to such materials, yet without explaining the change of position. Since then, Hampson ventures, the Court’s jurisprudence on extraterritoriality has been ‘erratic’. In some cases, the issue appeared to be relevant on the facts yet was not considered by the Court—or, in cases found inadmissible on other grounds, was considered peremptorily. The Court has also been inconsistent in its reference to external sources and the decisive weight accorded to them. The position of the Court on extraterritoriality is hence unpredictable, save for cases relating to occupied territory and extraterritorial detention where the case law is more settled. Hampson argues that the question of the scope of extraterritorial applicability cries out for a harmonised approach, in the interests of both applicants and states, since it relates to the relationship between human rights law and international law generally (and, as Hampson terms it, a ‘human rights approach to general international law’). She suggests that, while the icj, the hrc and iachr appear to be ‘relatively harmonised’, the ECtHR may be ‘out on a limb’, specifically because of its decision in Banković, which took an ‘essentially territorial’ approach to jurisdiction—an approach which is inconsistent with that of the other interpretive bodies and the ECtHR’s own subsequent case law (which, problematically in Hampson’s view, has not acknowledged the errors of reasoning in Banković). The pending inter-state case of Georgia v Russia (ii)17 concerning the August 2008 conflict in South Ossetia, affords the ECtHR an opportunity to forge a coherent approach to extraterritorial jurisdiction—one that takes into account of the interpretations of other regional and international human rights bodies. In Chapter 14, Nadia Bernaz considers a different aspect of extraterritoriality. Her starting point is the well-established principle that states have a positive obligation to take protective or preventive action in respect of human rights violations committed by private actors within their territories. Bernaz proceeds to explore whether this obligation is interpreted by various un and regional human bodies as extending to the activities of private companies in countries outside the state in which they are registered. Such an interpretation, Bernaz argues, would help to plug the ‘corporate impunity gap’ by imposing an obligation, particularly on European and North American states, to prevent their corporate nationals from engaging in human rights violations in other—commonly less developed—states. Of all the un treaty monitoring bodies, Bernaz ventures, the crc Committee has most explicitly acknowledged states’ responsibility for the e­ xtraterritorial 16 17

See Chapter 13 at n 25. See Chapter 13 at n 92.

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activities of their corporate nationals in its General Comment No 16 on state obligations regarding the impact of the business sector on children’s rights. In successive general comments, the Committee on Economic, Social and Cultural Rights has also refined its position in this area in respect of the rights to, inter alia, the highest attainable standard of health, water and social security. In the context of the state reporting system, the cerd has urged states to legislate to prevent extraterritorial human rights violations by their corporate nationals, while the hrc has echoed the more cautious language of the un Guiding Principles on Business and Human Rights, which call on states to set clear expectations for companies but do not identify a state obligation to regulate their activities, or to prosecute and punish violations. These treaty bodies have not expressly borrowed from each other, while other treaty bodies have to date made no reference to the existence or scope of state obligations in this area. Moreover, the issue has not been tested either in the context of individual complaints mechanisms or the Universal Periodic Review process. For their part, regional human rights institutions have scarcely considered the issue. Bernaz concludes that the question of state responsibility for corporate ­nationals remains an ‘unsettled and rapidly evolving’ area of international law. Future changes, she suggests, may be driven by developments outside international human rights systems, such as the Global Compact between the United Nations and private companies, and moves by the Organisation for Economic Co-operation and Development to encourage states to take ‘social impact’ into consideration when assessing applications for officially supported export credits. In the final contribution to Part ii, Dinah Shelton’s thesis in Chapter 15 is that any court or tribunal needs inherent powers in order to enable it to fulfil its judicial functions, regardless of the limitations on its jurisdiction or the type of proceedings it conducts. This is true for human rights bodies which also have particular functions conferred on them, which have led to the development of implied powers, and established an interpretive methodology which is specific to human rights treaties. The use of implied powers can be controversial for states which have varied reasons for creating international courts and tribunals. Shelton, a former President of the iachr, identifies various inherent ­powers flowing from the judicial function, including the power to decide on the limits of a court’s jurisdiction and the free assessment of evidence ­(including the use of inferences and presumptions, the receipt of amicus curiae and the adoption of standards of proof). Other inherent powers include the court’s capability to examine questions of law of its own accord and award reparations.

Introduction

21

One inherent judicial function discussed is the power to address a case based on a law or legal argument not presented by the parties (jura novit curia). This is a principle which has only rarely been invoked by the ECtHR, but rather more frequently by the Inter-American Commission and Court. Various reasons are proposed for this difference in approach within the Inter-American system: the inexperience of the petitioners or their advisers; that it reflects the breadth of the Commission’s functions in monitoring and promoting compliance with the full range of human rights standards; the addition of due process and access to justice arguments reflect perceived inadequacies in the judicial systems of many states; and a desire to ensure consistency in decision-making. The Inter-American bodies may invoke the provisions of other relevant InterAmerican treaties which have not been relied on by the parties. Once a case has been submitted to the Commission, the IACtHR allows the introduction of new arguments (but not new facts), a practice which the author questions as being inconsistent and inefficient. Shelton advocates the application of various guidelines for the use of jura novit curia: there should be a reasoned decision; the decision should be taken as early as possible in the proceedings; any additional victims should be informed of the right to bring their own petition; and tribunals should consider issues of legitimacy, to avoid any perceived bias. Shelton also analyses the implied power of international tribunals to take urgent action aimed at preventing harm to concerned individuals. Such ‘precautionary’ or ‘interim’ measures (which are now considered legally binding) may be controversial, because the power to request them is not expressly mentioned in the relevant treaties. The number of requests for such measures within the Inter-American system has increased in recent years and states have been concerned, for example, where such measures are applied to a collective group that is not identified or easily identifiable. As a result, recent rule changes require reasoned decisions and a clearer procedure. In Europe too, there has been pressure from states for the number of interim measures granted to be reduced. As regards principles of interpretation, Shelton detects differences between the regional tribunals for reasons of history or culture, or because of variations in the texts of the relevant treaties. However, through widespread cross-­referral of their decisions, the commonalities are far greater than the differences. C Part iii – Systems In Chapter 16, Simon Walker explores from a broad perspective the interaction evident in the case law of United Nations and regional human rights bodies. He acknowledges the difficulty of the task in view of the fact that un bodies

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generally avoid referring explicitly to other sources, even from within the un system, which may mask the true extent of ‘borrowing’ within and between systems. Nevertheless, by means of selected illustrative examples, Walker identifies some key opportunities and challenges of the coexistence of universal and regional systems. Walker argues that interaction flows in both directions: judges of regional courts may adopt or adapt un jurisprudence at the regional level, and their judgments may in turn inform and influence universal standards in the light of their particular regional contexts. ‘Universal to regional’ influence is exemplified by, for instance, references by the ECtHR to decisions of: the Committee Against Torture (cat) (on, among other issues, refugee protection and the binding nature of interim measures); the hrc (on whether conscientious objection to military service attracts the protection of the right to freedom of thought, conscience and religion); and the cedaw Committee (in respect of the Court’s finding that domestic violence constitutes not only a violation of substantive rights but is also a manifestation of gender discrimination). ‘Regional to universal’ influence appears to have been exerted by the IACtHR on the hrc, when the latter followed the former’s case law on non-derogability. Walker, an official of the United Nations Human Rights Commissioner for Human Rights, is alive to the risk of different bodies reaching contradictory conclusions in relation to similar human rights problems, or divergent interpretations of similar norms—an outcome that might be viewed as especially undesirable when clashing decisions emanate from regional and un bodies with overlapping membership. A stark example of such disharmony was the Correia de Matos case, in which the ECtHR and the hrc ruled differently on an identical application concerning an individual’s right to defend himself in ­person (the Court finding the application manifestly ill-founded, while the Committee found a violation of Article 14(3)(d) of the iccpr). This outcome was regrettable, Walker ventures, because the hrc, a quasi-judicial body, effectively became an instance of appeal from a regional judicial body, disturbing ‘the horizontal relationship between the un and regional bodies that was never intended to be hierarchical in nature’. Yet this instance is also distinguished by its rarity since, unusually, it evaded the checks built into complaints mechanisms to prevent the same matter from being considered by two different international procedures.18 More commonly, divergences take the form of distinct, yet not necessarily contradictory, approaches to a human rights problem which might simply 18

See, for example, Article 35(2)(b) echr; Article 5(2)(a) Optional Protocol to iccpr; Article 22(5)(a) cat.

Introduction

23

reflect the differing contexts of the un and a regional system. An example is the positions of the ECtHR and the hrc on the ‘death row phenomenon’, the Committee setting a higher threshold than the Court in respect of whether a lengthy wait on death row constitutes cruel, inhuman or degrading treatment in circumstances where delays are attributable to the convicted person availing themselves of appellate remedies (as noted also by Cheeseman in Chapter 2). Looking ahead, Walker identifies increasing potential for diverging and even contradictory jurisprudence between the un and regional bodies, due to the proliferating avenues for complaint in the un system, covering not only civil and political rights, but also economic, social and cultural rights and rights of groups such as children and persons with disabilities. Yet ‘slavish imitation’, argues Walker, is not necessarily more desirable than a degree of disharmony, particularly where a previous decision is poorly reasoned or where an international body might take a more cautious approach than a regional body in view of its more diverse membership. A ‘healthy pluralism’ might be fostered by more regular citations of jurisprudence from other bodies, and intensified dialogue between judges of regional courts and members of treaty bodies, including on relevant procedural safeguards to ensure harmonious coexistence—imperatives that might be met in part by sophisticated use of information and communications technology. In Chapter 17, Malcolm Evans examines how far there is—or should be—alignment in the work of human rights mechanisms, through a case study of two mechanisms: the cpt, which began work in 1990, and the Subcommittee for the Prevention of Torture (spt), established under the Optional Protocol to the Convention against Torture (opcat), which has been operational since 2007. Evans, who presently chairs the spt, chooses the term ‘alignment’ in preference to ‘harmonisation’, since the former, he suggests, denotes a ‘bottom up’ approach, which respects the distinctive origins, imperatives and underlying dynamics of each mechanism, while the latter implies a wish to impose uniformity for its own sake. Evans considers alignment in respect of the processes and procedures of human rights bodies, since ‘common processes have a way of fostering a commonality of approach substantively—normatively—too’, just as ‘procedural dissonance’ can lead to ‘substantive dissonance’. Both the cpt and the spt undertake visits to places of detention, produce confidential reports and engage in confidential dialogue with states. The question posed by Evans is whether the two bodies should undertake their broadly similar work in ‘essentially the same way’ (emphasis in original), or whether such an aspiration might, in fact, prove to be counterproductive to realising the ultimate aim of effective implementation by states.

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Evans elucidates some of the practical obstacles that might frustrate attempts to achieve operational alignment. Both the spt and the cpt carry out their own separate annual programmes of state visits, raising immediate questions about coordination, especially since around half of the spt’s 80 states parties are also liable to visited by the cpt. The risk of duplication is ever present, and the best that be expected, argues Evans, is to avoid visits of the two bodies taking place simultaneously, or in close proximity, in any particular state, lest such parallel dialogues cause that state to reduce its cooperation with either or both mechanisms. Indeed, adds Evans, such challenges are also present within the un system, since the spt also needs to coordinate its work programme with the un special procedures (such as the Special Rapporteur on Torture and the Working Group on Arbitrary Detention) whose work intersects with its own. A further significant barrier to cooperation is the confidential nature of the reports and recommendations of the spt and cpt and their exchanges with states parties. The cat, the treaty body attached to the un Convention against Torture (uncat), likewise has a confidential inquiry mechanism (under Article 20 of uncat), and it has been known to undertake an Article 20 visit to a state that the spt has recently visited or is contemplating visiting. Procedural incoherence (or the risk of it) provokes what for many is a greater concern about substantive incoherence. How, Evans asks, can the respective mechanisms ensure that they reach similar interpretations of ‘essentially similar substantive norms and applicable concepts’, especially when the norm or concept is relatively undefined? Such fears of diverging standards were live when the spt began its work in 2007, almost two decades after the cpt. In practice, Evans suggests, such concerns have not been realised, largely because the spt frames its recommendations not only around determinations of formal compliance with the plethora of relevant international standards, but also ‘what using such standards in a preventive fashion might mean in practice’ in the particular context of each state. This context-driven approach, he suggests, has helped to prevent the spt becoming ‘ensnared’ in discussion of applicable standards and instead allowed it to focus on the crafting of recommendations which are both pressing and realisable in the particular context. Evans introduces a further dimension to the debate about alignment (or harmonisation): that of national implementation of international human rights norms. National Preventive Mechanisms, which states parties to opcat must establish with the assistance of the spt, give rise to the same issues of coherence and coordination as exist within and between the international and regional mechanisms, since each must be responsive to its own national context. As a result, concludes Evans,

Introduction

25

[W]hen speaking of harmonising approaches, we ought not to be thinking so much of the jurisprudence of the international mechanisms, or of their working practices and procedures, but of how the multilayered systems of dialogue and delivery of human rights compliance work across national, regional and international divides, embracing as this does a multitude of potential players. In this context, he suggests, ‘textured harmony’ rather than ‘monotone uniformity’ should be the goal. In Chapter 18, Elvira Domínguez-Redondo examines the contribution of un special procedures to the creation and consolidation of international human rights standards. Special procedures—human rights monitoring mechanisms comprised of independent experts and established by the United Nations Human Rights Council—are heterogeneous, having been created by political negotiation between states at different times, with different mandates (either thematic or geographic), and with varying competences, functions and working methods. Focusing on the special procedures’ role in codifying emerging international human rights norms, Domínguez-Redondo identifies both synergies and contradictions. This is unsurprising given the open-ended nature of their mandates and their Code of Conduct, which allows—and, indeed, requires—them to use a wide range of binding and non-binding national, regional and international instruments to interpret their mandates and evaluate the information brought before them. A striking example of contradiction is the divergent positions adopted by the (then) Special Rapporteurs on racism and freedom of religion following the furore caused by the publication of cartoons depicting the Prophet Muhammad by the Danish newspaper Jyllands-Posten in 2005. While the former deplored the cartoons as racist and part of a trend towards defamation of religions in the context of the ‘war on terror’, the latter took a more cautious approach to limiting freedom of expression. Later, a joint statement departed from the focus on defamation of religion, paving the way for greater convergence between the relevant special procedures and other un human rights bodies towards the interpretation of international provisions on the right to freedom of expression and the prohibition of ‘hate speech’. Domínguez-Redondo further notes elements of both convergence and divergence in the special procedures’ approach to emergent issues such as the applicability of international human rights law in armed conflicts and the importance of non-state actors as potential human rights violators. Her chapter emphasises the contribution of the mandate holders of special procedures in developing normative and conceptual frameworks that serve

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as benchmarks in a variety of areas. Among the instruments that have been developed by special procedures—and later adopted or endorsed by the Human Rights Council (or former Commission on Human Rights) and/or the un General Assembly—are the Declaration on the Protection of All Persons from Enforced Disappearance (initiated by the Working Group on Enforced or Involuntary Disappearances), and Guiding Principles on, among other issues, internal displacement, business and human rights, and extreme poverty and human rights. General comments and deliberations issued by special procedures following the model pioneered by treaty bodies have also contributed to the coherence of international human rights standards. In Chapter 19, Michael O’Boyle, the former Deputy Registrar of the ECtHR, offers an insightful reflection on the extent to which the Court has, without controversy and with or without express reference, taken into account principles of public international law and the case law of international courts, the IACtHR and non-European national courts, including us courts, in the course of its adjudication over 25 years. In doing so, O’Boyle examines the diffuse influence on the Court’s citation practice of its concerns relating to its institutional legitimacy, the growing practice of third party interventions and the advent of the Internet. O’Boyle points out that the ECtHR has increasingly adjudicated cases that involve complex issues of public international law but has remained mindful of the special role that the Convention plays as ‘an instrument for the protection of human rights’ when applying those international law principles. In relation to quite a different stream of law, he observes that the relevance of the IACtHR’s case law is increasingly realised by the ECtHR, as evidenced by its express reliance on IACtHR case law in deliberations on Articles 2 to 5 of the echr. He ventures that this arises not so much from necessity (as it does in relation to public international law) as from an abiding mutual interest in each other’s work, commencing with the involvement of the Council of Europe in the genesis of the Inter-American human rights system and continuing with the active exchange of working methods in later years. According to O’Boyle, the practice of examining the case law of national courts outside Europe for evidence of consensus on human rights issues— such as the admissibility of evidence obtained through torture, prisoners’ right to vote, bans on the public wearing of full face veils and access to civil marriage by same sex couples—is also well entrenched at the Court. The exception is the us case law, so frequently cited by ngos, which has to date been confined in its influence to the opinions of dissenting judges. O’Boyle argues that there are three factors underlying the ECtHR’s r­ ecently emerging practice of citing external case law across a wide spectrum of areas: the practice of NGOs in referring the Court to foreign case law in their pleadings,

Introduction

27

the establishment of a legal research department within the Court for the purpose of keeping it abreast of national and international legal developments, and the Court’s current imperative to deepen dialogue in what O’Boyle terms ‘trans-judicial communication’ with other human rights bodies and courts in order to ensure for its part, and for the sake of the legitimacy of its judgments, an appropriate degree of consistency in the application of standards for ­human rights protection worldwide. 4

Cross-Cutting Themes

Various terms are used by the authors to describe the concepts under review. Some terms—such as ‘cross-fertilisation’ (Wicks); ‘cross-pollination’ (Viljeon); ‘dialogue’ (Forowicz); ‘interaction’ (Walker); and the ‘exchange’ or ‘transfer’ of norms and concepts (Cheeseman)—describe processes; others—such as ‘convergence’ (Wicks); ‘coherence’ and ‘consistency’ (Hampson); ‘alignment’ (Evans); and ‘harmonisation’—suggest a result. Several authors qualify the terms used; hence, Evans’ preference for ‘textured harmony’ rather than ‘monotone uniformity’, and Walker’s desire to foster ‘healthy pluralism’ over ‘slavish imitation’. Several chapters (Evans, Shelton, Walker) highlight the importance of considering the practices and procedures of human rights bodies as well as their substantive case law, and the potential for procedural alignment to produce substantive alignment in a way which respects the origins and dynamics of each system (Evans). Across the volume, there is broad consensus as to the desirability of avoiding conflicting conclusions in relation to similar human rights issues, or ­contradictory interpretations of similar norms, whilst accepting and, indeed, celebrating a degree of pluralism as a facet of a heterogeneous ‘system’ (or set of systems) and eschewing any attempt to impose uniformity for its own sake. The avoidance of conflict is viewed as important given the fact that, as Hampson observes, states are almost invariably bound by a range of international and regional human rights treaties, of both a specific and general character. For Hampson, the irreducible core of this requirement is coherence as to the obligations of states; that is, as she puts it, that one human rights body does not require a state to do something that another human rights body prohibits it from doing. The contributions to this volume suggest conflicting interpretations on the scale of the Correia de Matos case are exceptional, in part because of structural guarantees against the same case being considered by more than one ­regional

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or international mechanism. Moreover, initial divergence, such as that between different un special procedures on the issue of the Danish cartoons, may prompt coordination leading to consensus on the underlying issue. For Walker, the ‘litmus test’ to determine whether interpretive divergence is justified should be whether differences are thoroughly reasoned, taking into account other positions on similar issues, with a view to achieving justice in the particular case and avoiding open contradiction and any likelihood of confusion among states and rights-holders. The accounts in this book of the extent of, and motivations for, interaction between human rights bodies reveal a number of broad insights of both a methodological and substantive nature. In terms of methodology, authors are alert to the need to supplement quantitative assessment of external citations with qualitative and contextual inquiry in order to reveal influence that may be unacknowledged, and to determine the purpose behind the citations and the weight assigned to them. Hampson’s chronological approach to determining the extent of interpretive interaction on matters of extraterritoriality is especially fruitful, since it recognises that an increasing tendency to cite external sources (in this instance, on the part of organs of the echr) may indicate either an evolution in the approach of the body that is ‘borrowing’ or development of contemporaneous case law from which it may borrow, or both. Substantively, it is clear that influence flows in both directions between regional and international systems and not in a hierarchical manner. While some authors emphasise the (potentially) harmonising effect of universal standards and their interpretation by un bodies (Miller, Keane and Castellino, Nolan and Kilkelly, Domínguez-Redondo), others note the influence of regional bodies both on each other and on universal systems. The patterns of interpretive interaction observed in Cheeseman’s literature review are largely borne out in this volume: the generally universalistic approach of the Inter-American and African systems, a more cautious approach by the organs of the echr, and a tendency among un committees to ‘borrow’ selectively from other bodies without open acknowledgment. At the same time, variations and exceptions provide an interesting counterpoint to these tendencies—and an indication of future directions. O’Boyle suggests that the traditional caution of the ECtHR is giving way to a greater propensity towards transjudicial dialogue, especially with the IACtHR. The IACtHR, so ready to absorb external influences, has also exerted outward influence in respect of, among other issues, the specificity and expansiveness

Introduction

29

of the remedies it prescribes (Leach et al., O’Connell). There are marked cleavages between the approaches of the cjeu on the one hand, and Council of Europe and other human rights bodies on the other hand (Forowicz, O’Connell, ­Miller). The African system, although it is required to adopt a universalistic stance under the terms of the Charter, does so selectively when it comes to sensitive matters such as lgbt rights (Viljeon) and the death penalty (Cheeseman). Authors variously highlight emergent issues where textual provisions vary between human rights instruments, there is little relevant case law, and/or there is (as yet) little explicit borrowing between systems. These include abortion rights (Wicks), lgbt rights (Viljeon), affirmative action measures to redress gender discrimination (Forowicz), obligations on states in respect of their corporate nationals (Bernaz), the applicability of international human rights law in armed conflicts (van den Herik and Duffy, Domínguez-Redondo), and non-state actors as potential human rights violators (Domínguez-Redondo). Looking ahead, the contributions to this book indicate factors that might be termed centrifugal (tending towards divergence) and centripetal (tending towards convergence) in respect of international human rights law. As to the former, interpretive dissonance may be expected from the development of case law under specific treaties (such as the crpd) alongside general treaties. ­Divergence may also be expected to occur as a result of differing historical and socio-political contexts between regions (see, for example, Leach et al., Viljeon). As noted above, however, the extent to which such divergence is viewed as problematic is a more complex question. Authors also identify a range of practical obstacles to convergence such as confidentiality (Evans) and weak secretariat and research support or the absence of judicial training (Viljeon), which may mean that interpretive bodies are unaware of comparative materials and/or unable to access them in their working language in a timely fashion. Conversely, centripetal tendencies are in evidence where secretariat and research support is strong and is adequately supported by information and communications technology—and where third party interventions (or amicus curiae) refer interpretive and adjudicatory bodies to comparative case law (Cheeseman, Mowbray, Walker, O’Boyle). Such interventions may be made by states, international organisations, national human rights institutions, ngos and experts. Mowbray highlights the (potential) role of the Council of Europe Commissioner for Human Rights; the present Commissioner, Nils Muižnieks, has intervened more frequently than his predecessors19 and his interventions 19 See www.coe.int/en/web/commissioner/third-party-interventions.

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have drawn on the case law of, inter alia, the IACtHR.20 By the same token, those litigating before regional courts or authoring complaints before un treaty bodies have every incentive to build argumentation around the full range of relevant national, regional and international standards. A final observation is in order: the need to maintain focus on the aim of human rights systems—realisation of human rights at the domestic level. From this perspective, convergence between regional and un human rights bodies is secondary to that imperative—and a degree of divergence may be desirable if it maximises compliance with human rights standards overall. National implementation, as Evans notes, is ‘where the future of human rights protection lies’. It may also be where the study of international human rights law lies in an increasingly complex, dynamic and multi-layered environment. 20

Third party intervention by the Council of Europe Commissioner for Human Rights under Article 36, paragraph 3, of the European Convention on Human Rights, Application No 47848/08 – The Centre for Legal Resources on behalf of Valentin Câmpeanu v Romania, CommDH(2011)37, 14 October 2011.

Part 1 Rights

∵

chapter 1

The Duty to Investigate Right to Life Violations across Three Regional Systems: Harmonisation or Fragmentation of International Human Rights Law? Philip Leach, Rachel Murray and Clara Sandoval 1 Introduction All three of the main regional human rights treaties, the European Convention on Human Rights (echr), the American Convention on Human Rights (achr) and the African Charter on Human and Peoples’ Rights, have been interpreted to include a specific, positive duty to investigate violations of the right to life. This chapter provides a comparative analysis of the relevant jurisprudence of the European Court of Human Rights, the Inter-American Commission and Court of Human Rights and the African Commission and Court on Human and Peoples’ Rights. It will consider whether there is harmonisation or fragmentation of international human rights law in this area; what the consequences are for human rights protection and whether harmonisation is desirable in those areas related to the duty to investigate, such as reparations, where strong divergence is found across the regional systems. The chapter seeks first to analyse the nature of the investigative duty and its various elements (according to the three regional systems), as well as how it arises. It considers to what extent there are differences in investigatory standards as between individual and systemic cases, and as between enforced disappearances and other right to life cases. The approach of the regional bodies towards domestic amnesty laws and statutes of limitation is assessed, as is the application by them of admissibility criteria and the burden of proof in right to life cases. Finally, it considers the interrelationship of the right to life and the right to know the truth, before turning to the question of reparations. 2

The Duty to Investigate

The duty to investigate fatal incidents derives in each of the regional treaties not only from the specific substantive provisions on the right to life, but also

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004284258_003

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from the more general obligations to ensure that the rights in the treaties are upheld, namely Article 1(1) of the American Convention on Human Rights,1 and Article 1 of both the African Charter on Human and Peoples’ Rights2 and the European Convention on Human Rights.3 None of these regional treaties refers expressly to an obligation on the state to conduct an investigation,4 but for more than two decades the case law of the three regional systems has cemented such a duty into the corpus of international human rights law, and has elaborated and refined more clearly what the obligation entails. Concept of Due Diligence and General Principles of the Duty to Investigate A general concept of due diligence in carrying out investigations has been relied on and developed by all three of the regional systems, with varying degrees of specificity and detail. The wording utilised to characterise the overall standard differs: the African Commission has expressly adopted the standard of due diligence from the Inter-American Court’s judgment in Velásquez Rodríguez,5 whereas the European Court has tended principally to focus on the need for an ‘effective, official investigation’.6 Nevertheless, there are a number of core constituent elements of the duty to investigate which can be seen from each of A

1 Case of Velásquez Rodríguez v Honduras IACtHR Series C 4 (1988) at para 166. Article 4 achr provides for the right to life. 2 74/92, Commission Nationale des Droits de l’Homme et des Libertés v Chad, 11 October 1995; and 245/02, Zimbabwe Human Rights ngo Forum v Zimbabwe, 15 May 2006, at para 153. Article 4 African Charter provides for the right to life. 3 McCann and Others v United Kingdom Application No 18984/91, Merits and Just Satisfaction, 27 September 1995, at para 161. Article 2 echr provides for the right to life. 4 However, other more recently adopted regional treaties contain an express obligation to investigate deaths and/or torture and/or forms of violence: see, for example, Article 8 Inter-American Convention to Prevent and Punish Torture 1985; Article 7(b) Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women, ‘Convention of Belém do Pará’ 1994; and Articles i and iii Inter-American Convention on Forced Disappearance of Persons 1994. At the international level, see, for example, Article 3 International Convention for the Protection of All Persons from Enforced Disappearance 2006. 5 See Zimbabwe Human Rights ngo Forum v Zimbabwe, supra n 2 at paras 146–148. 6 See Hugh Jordan v United Kingdom Application No 24746/94, Merits and Just Satisfaction, 4 May 2001, at para 105. The European Court has referred to the need for the authorities to act with ‘exemplary diligence’: see, for example, Öneryıldız v Turkey Application No 48939/99, Merits and Just Satisfaction, 30 November 2004, at para 94. It has referred to the concept of ‘due diligence’ most often in relation to the duty to protect life under Article 2: see, for example, Opuz v Turkey Application No 33401/02, Merits and Just Satisfaction, 9 June 2009,

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35

the regional systems, but which have perhaps been articulated most explicitly and consistently by the European institutions.7 These are as follows: (i) Instigate Investigation on Own Initiative All three systems require that the state instigate the investigation on its own initiative: it cannot be left to the victims, complainants or next of kin to lodge a complaint and the state cannot avoid its obligations by arguing that it did not investigate because the victim failed to lodge a complaint.8 (ii) The Investigation Should be Effective For all three systems a simple requirement to investigate is not enough;9 the investigation must be effective.10 In order to satisfy this requirement, it cannot be determined in the abstract:11 ‘each case must be treated on its own merits depending on the specific circumstances of the case and the rights violated’.12 The European Court, therefore, has held that the authorities must take reasonable steps to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence and, where appropriate, an autopsy providing a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death.13 The European Court has also stipulated that any deficiency in the investigation which undermines its ability to identify the perpetrator or perpetrators will risk falling foul of this standard.14 The obligation to investigate effectively may of course have 7 8

9 10

11 12 13 14

at paras 131 and 137–149. See also Banel v Lithuania Application No 14326/11, Merits and Just Satisfaction, 18 June 2013, at paras 71–72. See, by way of example, Hugh Jordan v United Kingdom, ibid. at paras 105–109. Case of Velásquez Rodríguez v Honduras, supra n 1 at para 177; Case of Manuel Cepeda Vargas v Colombia IACtHR Series C 213 (2010) at para 117; 275/03, Article 19 v Eritrea, 30 May 2007, at para 72; and İlhan v Turkey Application No 22277/93, Merits and Just Satisfaction, 27 June 2000, at para 63. 279/03 and 296/05, Sudan Human Rights Organisation and Centre on Housing Rights and Evictions (cohre) v Sudan, 27 May 2009, at para 149. See, for example, Article 19 of the Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa, ‘Robben Island Guidelines’, adopted by African Commission on Human and Peoples’ Rights Res 61(xxxii)02, 23 October 2002. Case of Velásquez Rodríguez v Honduras, supra n 1. Zimbabwe Human Rights ngo Forum v Zimbabwe, supra n 2 at para 155. Anguelova v Bulgaria Application No 38361/97, Merits and Just Satisfaction, 13 June 2002, at para 139. Ramsahai and Others v The Netherlands Application No 52391/99, Merits and Just Satisfaction, 15 May 2007, at para 324.

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implications for the provision of the necessary resources, which has been expressly noted by the African Commission.15 The Inter-American Court has underlined that the effectiveness of an investigation into a killing has to be visible from the first proceedings with all diligence. … State authorities that carry out an investigation must, inter alia, (a) identify the victim; (b) recover and preserve the evidentiary material related to the case; (c) identify possible witnesses and obtain their statements with regard to the death that is being investigated; (d) determine the cause, form, place, and moment of death, as well as any proceeding or practice that could have caused it; and (e) distinguish between a natural death, an accidental death, a suicide, or a homicide. Besides, it is necessary to thoroughly investigate the crime scene, autopsies and competent professionals employing the most appropriate procedures must carefully practice analysis of the human remains.16 A further requirement identified by the Inter-American Court in Velásquez Rodríguez, and cited expressly by the African Commission,17 is that the investigation should be ‘serious’. However, this does not appear to have a different meaning to the need to conduct a diligent investigation. According to the Inter-American Court, the state has a legal duty ‘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’.18 Equally, the Court has maintained that ‘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’.19 To this the African Commission has added that the seriousness of the investigation must be evaluated ‘through the actions of both State agencies and private actors on a case-by-case basis’.20 The Commission has therefore cited with approval the Inter-American Court’s stipulation in Velásquez Rodríguez that a state should ‘use the means at its disposal to carry out a serious investigation of violations 15

16 17 18 19 20

48/90 et al., Amnesty International, Comité Loosli Bachelard and Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan, 15 November 1999. Case of the Miguel Castro Castro Prison v Peru IACtHR Series C 160 (2006) at para 383. Zimbabwe Human Rights ngo Forum v Zimbabwe, supra n 2 at para 144. Case of Velásquez Rodríguez v Honduras, supra n 1 at para 179. Ibid. at para 177. Zimbabwe Human Rights ngo Forum v Zimbabwe, supra n 2 at para 158.

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committed within its jurisdiction, to identify those responsible, to impose the appropriate punishment and to ensure the victim adequate compensation’.21 Furthermore, where new evidence subsequently comes to light, the European Court has held that an effective investigation requires that state authorities are ‘sensitive to any information or material which has the potential either to undermine the conclusions of an earlier investigation or to allow an earlier inconclusive investigation to be pursued further’.22 In making such assessments, the authorities are entitled to take account of the passage of time and the prospects of success: [T]he fresh obligation to investigate will vary according to the nature of the purported new evidence or information. It may be restricted to verifying the reliability of the new evidence and the authorities can legitimately take into account the prospects of launching a new prosecution at such a late stage. Due to the lapse of time, the level of urgency may have diminished; the immediacy of required investigative steps in the aftermath of an incident is likely to be absent.23 Whilst recognising the challenges of access to witnesses in such circumstances, which may impair the availability of sufficient evidence for a prosecution, the European Court has held that the authorities ‘must take reasonable steps to find the available evidence and pursue the practicable leads open to them at this time to discover the perpetrators of any unlawful violence’, and that ‘the families should be kept informed of any key factual conclusions and procedural developments and any reasoned decisions in this regard’.24 How Far Does the Effectiveness Obligation Extend? For the European Court, whilst the requirements of Article 2 do not, as such, guarantee a right to have criminal proceedings instituted against third parties,25 they do extend beyond the stage of the official investigation, where this has led to the institution of proceedings in the national courts. In that situation, the proceedings as a whole, including the trial stage, must satisfy the requirements of the positive obligation to protect lives through the law. Thus, instigating criminal proceedings, which are then pursued effectively, 21 22 23 24 25

Ibid. para 144. Brecknell v United Kingdom Application No 32457/04, Merits and Just Satisfaction, 27 November 2007, at para 70. Charalambous and Others v Turkey Applications Nos 46744/07 et al., Admissibility, 3 April 2012, at para 56. Ibid. at para 65. Perez v France Application No 47287/99, Merits, 12 February 2004, at para 70.

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will usually be sufficient to meet the Article 2 requirement to investigate a fatality.26 The European Court has emphasised that ‘[i]n the normal course of events, a criminal trial, with an adversarial procedure before an independent and impartial judge, must be regarded as furnishing the strongest safeguards of an effective procedure for the finding of facts and the attribution of criminal responsibility’.27 However, criminal proceedings which fail to address a ‘crucial issue’ (even where some suspects are tried, convicted and sentenced),28 or which fail to include a particular individual/company,29 or which are not sufficiently prompt,30 may violate Article 2. Furthermore, inadequate reasoning of domestic courts in acquitting state officials may breach Article 2,31 as may the imposition of only relatively light sentences32 or the failure to ensure that those convicted serve their sentences.33 Although the African Commission has not elaborated as to precisely how far it considers the protection of the right to life by official investigations extends, the Inter-American Court, like the European Court, requires that the prosecution and punishment of perpetrators should be effective. Incidents of torture, killings and enforced disappearances ‘entail the activation of national and international measures, instruments and mechanisms to ensure their effective prosecution and the sanction of the authors, so as to prevent them and avoid them remaining unpunished’.34 Indeed, in the case of ‘Mapiripán Massacre’ v Colombia, while an investigation was opened, the criminal proceedings were considered to be ineffective as ‘the vast majority of those responsible ha[d] not been formally joined to the investigations, or they ha[d] not been identified or prosecuted … [and due to] the trial and conviction in absentia of the paramilitary who … ha[d] benefited from the way the judicial system has acted, convicting them but without executing the punishment’.35

26 27 28 29 30 31 32 33 34 35

Brecknell v United Kingdom, supra n 22 at para 66. McKerr v United Kingdom Application No 28883/95, Merits and Just Satisfaction, 4 May 2001, at para 134. Avşar v Turkey Application No 25657/94, Merits and Just Satisfaction, 10 July 2001. Kalender v Turkey Application No 4314/02, Merits and Just Satisfaction, 15 December 2009. Opuz v Turkey, supra n 6. Gül v Turkey Application No 22676/93, Merits and Just Satisfaction, 14 December 2000. Şimşek and Others v Turkey Applications Nos 35072/97 and 37194/97, Merits and Just Satisfaction, 26 July 2005. Agache and Others v Romania Application No 2712/02, Merits and Just Satisfaction, 20 October 2009. Case of Goiburú et al. v Paraguay IACtHR Series C 153 (2006) at para 128. IACtHR Series C 134 (2005) at para 240.

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Is It an Obligation of Means or Result? Both the Inter-American and European bodies have held that the duty to investigate represents an obligation of means, not of result. Thus the European Court, for example, accepts that not every investigation will necessarily be successful.36 At the same time, the Inter-American Court has underlined that the obligation cannot be fulfilled as ‘a simple formality predestined to be unsuccessful’37 but that it must be directed at a specific goal: ‘the determination of the truth, and the investigation, pursuit, capture, prosecution and, if applicable, punishment of those responsible for the facts’.38 The European Court has insisted that the investigation must be ‘capable of leading to a determination of whether the force used was or was not justified in the circumstances and to the identification and punishment of those responsible’.39 The African Commission appears to take a different position, although this has not been expressed in the particular context of the duty to investigate, but rather in relation to the general obligation to give effect to the Charter rights (under Article 1). The Commission has held that Article 1 imposes on the States Parties the obligation of using the necessary diligence to implement the provisions prescribed by the Charter since the said diligence has to evolve in relation to the time, space and circumstances, and has to be followed by practical action on the ground in order to produce concrete results. … In fact, in the Commission’s view, it is an obligation of result that Article 1 of the African Charter imposes on the States Parties. In effect, each State has the obligation of guaranteeing the protection of the human rights written in the Charter by adopting not only the means that the Charter itself prescribes, in particular all the necessary legislative measures for this purpose but in addition measures of their choice that the Charter called for by Article 1 and it therefore defined as one of result.40 36

Aslakhanova and Others v Russia Applications Nos 2944/06 et al., Merits and Just Satisfaction, 18 December 2012, at para 144 (as regards investigations into allegations of ill-treatment). 37 Case of Velásquez Rodríguez v Honduras, supra n 1 at para 177. 38 Case of Cantoral Huamaní and García Santa Cruz v Peru IACtHR Series C 167 (2007) at para 131. See also Case of the Pueblo Bello Massacre v Colombia IACtHR Series C 140 (2006) at para 143. 39 Al-Skeini and Others v United Kingdom Application No 55721/07, Merits and Just Satisfaction, 7 July 2011, at para 166 (emphasis added). 40 272/03, Association of Victims of Post Electoral Violence and INTERIGHTS v Cameroon, 25 November 2009, at paras 110–111.

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It clarifies this by drawing upon Articles 20 and 21 of the International Law Commission’s Draft Articles on State Responsibility, Colozza v Italy41 and De Cubber v Belgium42 before the European Court, and Avena43 before the International Court of Justice, noting that ‘the distinction between the obligation of diligence and that of result should not make one lose sight of the fact that all obligations contained in a Treaty, Convention or a Charter seek to attain an objective, a purpose or a result’.44 Furthermore, in the same case the Commission found that [t]he obligations prescribed by the African Charter in its Article 1 impose on the States Parties (the State of Cameroon included) the need to put in place all measures liable to produce the result of preventing all violations of the African Charter over their entire territory.45 (iii) Promptness and Reasonable Expedition For all three systems, the investigation must be prompt and carried out ‘without delay’.46 For the European Court, while there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response is essential in maintaining public confidence in the authorities’ adherence to the rule of law and in preventing any appearance of collusion in, or tolerance of, unlawful acts.47 The requirement for promptness may be stricter in certain cases, such as for the European Court in cases concerning investigations into deaths in state custody.48

41 42 43

44 45 46

47 48

Application No 9024/80, Merits and Just Satisfaction, 12 February 1985. Application No 9186/80, Merits, 26 October 1984. Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v United States of America) Judgment, icj Reports 2009, 3. Association of Victims of Post Electoral Violence and INTERIGHTS v Cameroon, supra n 40 at para 107. Ibid. at paras 119–121. Case of Contreras et al. v El Salvador IACtHR Series C 232 (2011) at para 128; Sudan Human Rights Organisation and Centre on Housing Rights and Evictions (cohre) v Sudan, supra n 9 at para 150; and Orhan v Turkey Application No 25656/94, Merits and Just Satisfaction, 18 June 2002, at para 336. See also Robben Island Guidelines, supra n 10. Yaşa v Turkey Application No 22495/93, Merits and Just Satisfaction, 2 September 1998, at paras 102–104. Trubnikov v Russia Application No 49790/99, Merits and Just Satisfaction, 5 July 2005, at para 88.

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In the Inter-American system, the obligation to investigate is also linked to important obligations deriving from Articles 8 and 25 of the American Convention, which regulate due process guarantees and the right to judicial and other remedies. Under Article 8 in conjunction with Article 1(1), states have an obligation to carry out an investigation within a reasonable period of time. This means both that the investigation into a fatality needs to be opened as soon as the state has notice of it and that it should be carried out within a reasonable period of time. Indeed, the Inter-American Court considers that [t]he right to a fair trial requires that the determination of the facts under investigation and, if it were the case, of the corresponding criminal responsibilities be made effective in a reasonable period of time, reason for which, in attention to the need to guarantee the rights of the affected parties, a prolonged delay can constitute, in itself, a violation of the right to a fair trial.49 (iv) Independence and Impartiality All three systems underscore the importance of those undertaking the investigations to be impartial and independent from those implicated in the events.50 The European Court and African Commission have clarified this further by noting elements of hierarchical, institutional and practical independence.51 Judicial impartiality, for example, will be undermined ‘when … a judicial official secretly participated in the investigation of a case’.52 (v) Involvement of Next of Kin and Victims In all three regional systems it has been held that the victims or their next of kin have a right to be involved in the procedure if they so wish and to the extent necessary to safeguard their legitimate interests.53 For the Inter-American system this principle also derives from the importance attributed to the right 49 50

51

52 53

Case of Radilla Pacheco v Mexico IACtHR Series C 209 (2009) at para 191. Amnesty International, Comité Loosli Bachelard and Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan, supra n 15; and Case of Cantoral Huamaní and García Santa Cruz v Peru, supra n 38 at para 130. Og̃ ur v Turkey Application No 21954/93, Merits and Just Satisfaction, 20 May 1999, at paras 91–92. The African Commission uses the same wording in Sudan Human Rights Organisation and Centre on Housing Rights and Evictions (cohre) v Sudan, supra n 9 at para 150. African Commission, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, doc/os(xxx) 247 (2003) at para 5(d). Anguelova v Bulgaria, supra n 13 at para 140.

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to know the truth.54 In addition, according to the Inter-American Court ‘the State must ensure that the next of kin of the victims have full access and capacity to act at all stages and in all instances of … [the] proceedings in accordance with the American Convention. … The purpose of this participation must be access to justice, knowledge of the truth about what happened, and obtaining fair reparation’.55 Similarly, albeit not in the context of a finding on an individual communication, the African Commission has also noted that investigations need to be ‘readily accessible’, namely that there are ‘fully independent mechanisms to which all persons can bring their allegations of torture and ill-treatment’.56 The European Court has found that victims’ families have not been able to participate sufficiently in investigations, where, for example, there was no legal aid and there were restrictions on the extent of the disclosure of case documents in an inquest,57 or where the authorities failed to advise a family about the date of an inquest.58 B The Triggering Moment At what point will the obligation to investigate come into existence? For the European Court, the principle is that the duty to investigate will arise ‘where lives have been lost in circumstances potentially engaging the responsibility of the State’.59 There are particular situations which will clearly trigger the obligation. For example, this will be the case when individuals have been killed as a result of the use of force,60 in cases of ‘disappearances’ in circumstances which may be regarded as life-threatening,61 and for deaths in custody.62 The duty arises, of course, whether or not state agents are implicated. Therefore, ‘the mere fact that the authorities were informed’ of a murder will give rise to an obligation to investigate the circumstances surrounding the death.63 In the 54 55 56 57 58 59 60 61 62 63

See Section 5 below. Case of Valle Jaramillo et al. v Colombia IACtHR Series C 192 (2008) at para 233. Article 17 Robben Island Guidelines, supra n 10. Hugh Jordan v United Kingdom, supra n 6 at paras 132–140. Rantsev v Cyprus and Russia Application No 25965/04, Merits and Just Satisfaction, 7 January 2010, at para 239. Trubnikov v Russia, supra n 48 at para 85. Nachova and Others v Bulgaria Applications Nos 43577/98 and 43579/98, Merits and Just Satisfaction, 6 July 2005, at para 110. Er and Others v Turkey Application No 23016/04, Merits and Just Satisfaction, 31 July 2012, at para 82. Paul and Audrey Edwards v United Kingdom Application No 46477/99, Merits and Just Satisfaction, 14 March 2002, at para 74. Tanrikulu v Turkey Application No 23763/94, Merits and Just Satisfaction, 8 July 1999, at para 103.

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case of homicide, this is justified on the basis ‘not only because any allegations of such an offence normally give rise to criminal liability, but also because often, in practice, the true circumstances of the death are, or may be, largely confined within the knowledge of State officials or authorities’.64 The Inter-American Court has not expressly indicated the triggering moment as regards the obligation to investigate violations of the right to life, although it has done so for torture cases.65 This is because it has been a common feature of right to life cases that an investigation is formally opened, but there is then undue delay or the authorities fail to meet the due diligence requirements. In Cotton Field v Mexico, for example, concerning the disappearance and killing of a woman and two girls, after the next of kin of the victims informed the authorities that their relatives were missing, an investigation was opened, but it proved to be only a formality: ‘during the first 72 hours, the authorities merely registered the disappearances and the statements of those who reported them…’. Therefore, ‘apart from the formal, routine procedures, the State did not submit any arguments or evidence about measures taken in [the] said period to mobilize its investigative mechanisms in a real and effective search for the victims’.66 The African system has not provided express comment on this point; nevertheless, from the case law of the three regional systems it is possible to conclude that once state authorities know of a possible violation of the right to life they have a duty to open an investigation. Differences in Investigatory Standards Relating to Systemic and Isolated Violations In cases where gross and systematic human rights violations are at stake, the Inter-American Court has indicated that the standard of due diligence is higher than that applied in isolated cases. Thus, the Inter-American Court requires the state to ‘determine by means of legal proceedings the patterns of joint actions’ including all those involved and their levels of responsibility,67 and to ensure that the authorities ‘assess the systematic patterns that allowed grave human rights violations’ to happen.68 Such investigations should take ‘into account the complexity of this type of facts and of the structure in which those probably involved were incorporated, based on the context in which the facts took place, thus avoiding omissions in the collection of evidence and in following­ C

64 Trubnikov v Russia, supra n 48 at para 87. 65 Case of García Lucero et al. v Chile IACtHR Series C 267 (2013) at paras 124–127. 66 Case of González et al. (‘Cotton Field’) v Mexico IACtHR Series C 205 (2009) at para 180. 67 Case of the Río Negro Massacres v Guatemala IACtHR Series C 250 (2012) at para 194. 68 Ibid.

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up on logical lines of investigation’.69 The European Court does not, as such, impose a higher standard of investigations in systemic cases, but the failure of the investigating authorities to make links between factually similar cases, and to coordinate their efforts, will be a relevant factor in deciding whether the obligation to carry out an effective investigation has been breached.70 The African Commission has not clarified if the standard is different in such instances although, as will be seen below, it does not require the complainant to exhaust domestic remedies if there is prima facie evidence of ‘serious or massive violations’. Differences in Investigatory Standards Relating to Disappearances and Other Right to Life Cases The Inter-American Court has maintained that the nature of an enforced disappearance must shape the way the duty of due diligence is fulfilled by state authorities. So it is not that the standard is applied differently as such, rather the very nature of an enforced disappearance necessarily impacts upon the way the obligation to investigate is met by state authorities. The Court has stipulated that the state apparatus should take prompt and immediate action to ascertain the whereabouts of the victim as soon as it has been notified that a person has disappeared.71 Disappearance cases are frequently characterised by the considerable passage of time since the person was last seen. This may make it difficult to locate eyewitness evidence or to identify and mount a case against the alleged perpetrators. However, the European Court has emphasised that, even in such a situation, the ambit of the procedural obligation is unambiguous.72 The European Court also recognises that there is a consensus in international law that it should be possible to prosecute the perpetrators of crimes such as disappearances even many years after the events.73 The Inter-American Court has laid down that acting in a timely manner includes having unrestricted access to places of detention and their

D

69 Ibid. 70 Ülkü Ekinci v Turkey Application No 27602/95, Merits and Just Satisfaction, 16 July 2002, at para 145; Magomadov and Magomadov v Russia Application No 68004/01, Merits and Just Satisfaction, 12 July 2007, at para 108; and Makhauri v Russia Application No 58701/00, Merits and Just Satisfaction, 4 October 2007, at para 109 (the failure ‘to establish a comprehensive picture of events’). 71 Case of Contreras et al. v El Salvador, supra n 46 at para 145. 72 Varnava and Others v Turkey Applications Nos 16064/90 et al., Merits and Just Satisfaction, 18 September 2009, at para 191. 73 Er and Others v Turkey, supra n 61 at para 57; and Aslakhanova and Others v Russia, supra n 36 at para 214.

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documentation,­the ability to cross-examine witnesses, as well as the judiciary and/or the prosecutor’s office taking all the necessary measures to establish the whereabouts of the person.74 The Inter-American Court has also held that, for the authorities to be able to carry out their work adequately, they must be provided with ‘the logistical and scientific resources necessary for the gathering and processing of the evidence and, specifically, of the powers to access the appropriate documents and information for the investigation of the facts denounced and obtain indicia or evidence of the location of the victims’.75 Although the African Commission has drawn upon Inter-American Court jurisprudence in the context of disappearances, it has been less explicit in identifying whether the obligation to investigate is different in such contexts.76 For the European Court, the procedural obligation to investigate will arise where there is an arguable claim that an individual, who was last seen in the custody of agents of the state, subsequently disappeared in a context which may be considered life-threatening.77 Unlike an investigation into a killing, an investigation into a disappearance does not serve the sole purpose of establishing the circumstances and finding and punishing the perpetrator. The crucial difference in investigations into disappearances is that, by conducting an investigation, the authorities also aim to find the missing person or find out what happened to him or her.78 Therefore, the obligation to investigate in the case of a disappearance will persist as long as the fate of the person is unaccounted for. The ongoing failure to provide the requisite investigation will be regarded as a continuing violation for all three of the regional systems.79 Differences in Investigatory Standards Where There is Evidence of Discrimination Where other potentially important factors are evident, such as discriminatory attitudes, the standards applicable to the obligation to carry out an effective investigation may also differ. For example, stricter obligations will arise in E

74

Case of Anzualdo Castro v Peru IACtHR Series C 202 (2009) at para 135; and Case of Radilla Pacheco v Mexico, supra n 49 at para 215. 75 Case of Radilla Pacheco v Mexico, ibid. at para 222. 76 361/08, J.E. Zitha and P.J.L. Zitha v Mozambique, 3 March 2011, at para 80, drawing upon Case of the Moiwana Community v Suriname IACtHR Series C 124 (2005); Case 11.516, Ovelário Tames v Brazil Report No 19/98 (1998); and Case of Blake v Guatemala IACtHR Series C 27 (1996). 77 Cyprus v Turkey Application No 25781/94, Merits, 10 May 2001, at para 132. 78 Er and Others v Turkey, supra n 61 at para 56. 79 Varnava and Others v Turkey, supra n 72 at para 148; Aslakhanova and Others v Russia, supra n 36 at para 214; J.E Zitha and P.J.L. Zitha v Mozambique, supra n 76 at para 80; and Case of Anzualdo Castro v Peru, supra n 74 at para 59.

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investigating­racist violence under the European Convention80 or discrimination that involves violence against women under the American Convention and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women.81 The African Commission has not yet been called upon to consider these issues. 3

Barriers to Carrying Out Effective Investigations

Impunity, de jure or de facto, has been a barrier to ensure that states in Europe,82 Africa and the Americas carry out their duty to investigate human rights violations. Impunity has been particularly pervasive in the latter two regions due to the presence of armed conflicts or dictatorships, the absence of the rule of law, corruption, the overriding need to achieve peace and reconciliation and configurations of power that make it extremely difficult to investigate large-scale human rights violations. In the three regions, states have invoked amnesty laws, statutes of limitation, the principle of ne bis in idem and other similar legalities, the effects of which have been to prevent or hinder investigations. Therefore, all three regional systems have consistently maintained that amnesty laws and statutes of limitation are incompatible with the respective treaties. For example, this is illustrated most clearly by the Barrios Altos v Peru judgment of the Inter-American Court in 2001: [A]ll amnesty provisions, provisions on prescription and the establishment of measures designed to eliminate responsibility are inadmissible, because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture, 80

81 82

Nachova and Others v Bulgaria Applications Nos 43577/98 and 43579/98, Merits and Just Satisfaction, 26 February 2004, at para 157 (endorsed by the Grand Chamber in its judgment of 6 July 2005: supra n 60 at para 160). See also Menson and Others v United Kingdom Application No 47916/99, Admissibility, 6 May 2003; Angelova and Iliev v Bulgaria Application No 55523/00, Merits and Just Satisfaction, 26 July 2007; and Antayev and Others v Russia Application No 37966/07, Merits and Just Satisfaction, 3 July 2014, at para 110. As to the application of these principles vis-à-vis Article 3 echr, see Bekos and Koutropoulos v Greece Application No 15250/02, Merits and Just Satisfaction, 13 December 2005. Case of González et al. (‘Cotton Field’) v Mexico, supra n 66 at para 293. Abdülsamet Yaman v Turkey Application No 32446/96, Merits and Just Satisfaction, 2 November 2004, at para 55; and Okkalı v Turkey Application No 52067/99, Merits and Just Satisfaction, 17 October 2006, at para 76.

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extrajudicial, summary or arbitrary execution and forced disappearance, all of them prohibited because they violate non-derogable rights recognized by international human rights law.83 The African Commission (and the European Court holding similarly84) has taken note of ‘consistent international jurisprudence suggesting that the prohibition of amnesties leading to impunity for serious human rights has become a rule of customary international law’,85 referring to the Principles on Impunity,86 the jurisprudence and general comments of the Human Rights Committee, its own jurisprudence and that of the International Criminal Tribunal for the former Yugoslavia. 4

Admissibility and Burden of Proof

A Jurisdiction Ratione Temporis Many gross human rights violations that have been perpetrated in the Americas region took place before the state in question had ratified the American Convention (Argentina87 or Chile,88 for example) or at a time when the state had ratified the Convention but had not accepted the jurisdiction of the InterAmerican Court (as in the case of Guatemala89). The Court has acknowledged that it cannot exercise jurisdiction over matters that took place before the state in question ratified the Convention and accepted the jurisdiction of the Court; however, it does exercise jurisdiction over incidents which originally took place before the date of ratification but whose effects continued after that date as, for example, in the case of enforced disappearances.90 The African 83 84 85 86 87 88 89 90

Case of Barrios Altos v Peru IACtHR Series C 75 (2001) at para 41. Marguš v Croatia Application No 4455/10, Merits and Just Satisfaction, 27 May 2014, at paras 129–141. Zimbabwe Human Rights ngo Forum v Zimbabwe, supra n 2 at para 201. Set of Principles for the Protection and Promotion of Human Rights Through Action to Combat Impunity, E/CN.4/Sub.2/1997/20, annex ii. Argentina ratified the American Convention and recognised the jurisdiction of the InterAmerican Court on 14 August 1984. Chile ratified the Convention and recognised the jurisdiction of the Inter-American Court on 10 August 1990. Guatemala ratified the American Convention on 27 April 1978 and recognised the jurisdiction of the Inter-American Court on 9 March 1987. See, for example, Case of Blake v Guatemala, supra n 76 at para 39; Case of the Serrano Cruz Sisters v El Salvador IACtHR Series C 118 (2004) at paras 65–66; Case of Heliodoro Portugal

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Commission has held similarly, distinguishing between continuing violations and an ‘instantaneous act’, holding disappearances to be the former as a ‘violation that occurs and continues over time, until it ceases, that is, until the missing person is no longer disappeared’.91 In the case of the Beneficiaries of the Late Norbert Zongo and Others v Burkina Faso,92 the African Court drew a distinction between the fact of an assassination, in 1998, of a journalist and several of his companions (an instantaneous act), and the subsequent failure to investigate the case. The duty to investigate continued after the date when Burkina Faso accepted the jurisdiction of the Court (January 2004) and accordingly the Court had jurisdiction ratione temporis to consider it. The InterAmerican Court too has maintained that it can exercise jurisdiction over separate and independent violations related to the failure of the state to conduct an impartial and effective investigation.93 The European Court has also found that the procedural obligation to investigate fatalities is a separate and autonomous duty – and, therefore, one that is, in the words of the European Court, ‘detachable’ and capable of binding the state even when the death took place before the critical date. In reaching

91 92 93

v Panama IACtHR Series C 186 (2008) at para 25; and Case of the Río Negro Massacres v Guatemala, supra n 67 at para 37. In Serrano Cruz Sisters, the Inter-American Court made reference (at para 64) to Article 28 of the Vienna Convention on the Law of Treaties 1969 (‘Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with regard to that party’.). The European Court has also drawn a clear distinction between killings and disappearances with respect to the ratione temporis principle, the latter giving rise to a continuing procedural obligation to investigate that will persist as long as the victim’s fate remains unaccounted for: see Varnava and Others v Turkey, supra n 72 at para 148. Also in the context of enforced disappearances, see J.E. Zitha and P.J.L. Zitha v Mozambique, supra n 76 at para 93. 13/2011, Judgment, 28 March 2014. Case of Almonacid Arellano et al. v Chile IACtHR Series C 154 (2006) at paras 47–49. The Court listed (at para 48) a series of examples of such violations which had arisen in previous cases (‘[T]he decision of a judge not to allow the counsel for the defense to participate in the proceeding; the prohibition imposed on the counsels for the defense to interview their clients in private, to duly examine the record of the case, to forward evidence for the defense, to challenge incriminating evidence, and to prepare the arguments in due time; the intervention of “faceless” judges and prosecutors; the torture or ill-treatment inflicted on the defendant to exact a confession from him; the failure to inform foreign detainees of their right to have consular assistance; and the violation of the principle of coherence or correlation between the charges and the judgment…’).

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this finding in Šilih v Slovenia94 in 2009, the Grand Chamber reviewed the application of the ratione temporis principle in international law, including the relevant case law of the United Nations Human Rights Committee95 and particularly that of the Inter-American Court of Human Rights. However, the European Court has been required to delve further into this issue, and has concluded that, in view of the principle of legal certainty, its temporal jurisdiction as regards the duty to investigate cannot be considered to be open-ended: there must therefore be a ‘genuine connection’ between the death and the entry into force of the Convention in respect of the respon94 95

Application No 71463/01, Merits and Just Satisfaction, 9 April 2009. See also Varnava and Others v Turkey, supra n 72 at para 147. The Human Rights Committee’s assessment of the effectiveness of an investigation into a fatality is not limited to the right to life (Article 6 International Covenant on Civil and Political Rights (iccpr)), but also encompasses the right to an effective remedy (Article 2 iccpr) and the prohibition of inhuman treatment (Article 7 iccpr). However, under the iccpr the right to an effective remedy can only be breached in conjunction with another substantive right, so if a death occurs outside the Human Rights Committee’s temporal jurisdiction, there cannot be a breach of the right to an effective remedy (Article 2) in conjunction with the right to life (Article 6): see S.E. v Argentina (275/1988) Admissibility, CCPR/C/38/D/275/1988 (1990). In that case, the applicant’s three children had been abducted by Argentine security forces in 1976, but the Covenant and Optional Protocol only entered into force in respect of Argentina in 1986. See also Maria Otilia Vargas v Chile (represented by Fundación de Ayuda Social de las Inglesias Cristianas) (718/1996) Admissibility, CCPR/C/66/D/718/1996/Rev. 1 (1999); and Norma Yurich v Chile (1078/2002) Admissibility, CCPR/C/85/D/1078/2002 (2005). In the case of Mariam Sankara et al. v Burkina Faso (1159/2003) Admissibility, CCPR/C/86/D/1159/2003 (2006), the Human Rights Committee found it had jurisdiction ratione temporis in relation to the investigation into the disappearance of Thomas Sankara, who had been abducted and murdered in 1987 prior to Burkina Faso becoming a party to the Optional Protocol in 1999. The Human Rights Committee declared admissible the complaints brought by Mr Sankara’s widow and children arising from the failure to conduct an inquiry and prosecute the guilty parties, ultimately finding a violation of Article 7 (the prohibition of inhuman treatment), recognising the suffering experienced by his relatives (as well as a violation of Article 14 (the right to equality)). The European Court has found that the anguish and distress caused by the disappearance of a close relative may give rise to a violation of the prohibition of inhuman and degrading treatment (Article 3 echr), reflecting the reactions and attitudes of the authorities once a particular situation has been brought to their attention: see, for example, Varnava and Others v Turkey, supra n 72 at para 200. See also Human Rights Committee, General Comment No 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, 29 March 2004, CCPR/C/21/Rev.1/Add.13, at para 15 (‘A failure by a State Party to investigate allegations of violations could in and of itself give rise to a separate breach of the Covenant’.).

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dent state for the procedural obligations imposed by the right to life (Article 2) to come into effect. This means that a ‘significant proportion’ of the procedural steps should usually have taken place after the entry into force of the Convention, although the Court accepted that ‘in certain circumstances the connection­could also be based on the need to ensure that the guarantees and the underlying values of the Convention are protected in a real and effective manner’ (‘the Convention values test’).96 In the subsequent case of Janowiec and Others v Russia, concerning the execution in 1940 of more than 21,000 Polish prisoners of war by the Soviet Union (‘the Katyn massacre’), the majority of the Grand Chamber further defined these conditions: [T]he required connection may be found to exist if the triggering event was of a larger dimension than an ordinary criminal offence and amounted to the negation of the very foundations of the Convention. This would be the case with serious crimes under international law, such as war crimes, genocide or crimes against humanity, in accordance with the definitions given to them in the relevant international instruments.97 Applying the Šilih criteria, the majority of the Grand Chamber in Janowiec found that it could not examine the complaints about the failure to carry out an effective investigation, because of the ratione temporis principle, noting that Russia had ratified the Convention 58 years after the Katyn massacre, which took place more than ten years before the Convention itself came into existence. However, four dissenting judges98 argued that, as the killings of the Polish prisoners were war crimes, the Court should have distinguished 96

97

98

Šilih v Slovenia, supra n 94 at para 163. Note, however, the extent of dissent to these tests as expressed in the various concurring and dissenting opinions to the Šilih judgment. For a ‘genuine connection’ to be established, both criteria must be satisfied: the period of time between the death as the triggering event and the entry into force of the Convention must have been reasonably short and a major part of the investigation must have been carried out, or ought to have been carried out, after the entry into force: see Janowiec and Others v Russia Applications Nos 55508/07 and 29520/09, Merits and Just Satisfaction, 21 October 2013, at para 148. Janowiec and Others v Russia, ibid. at para 150. However, the Convention values clause cannot be applied to events which occurred prior to the adoption of the Convention on 4 November 1950 (at para 151). As in Šilih, the various concurring and dissenting opinions in the Janowiec judgment reflect considerable disagreement with the majority’s application of the ratione temporis principle. Joint Partly Dissenting Opinion of Judges Ziemele, de Gaetano, Laffranque and Keller in Janowiec and Others v Russia, ibid.

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the case and found a violation of the right to life. The dissenters objected to the majority’s narrow interpretation as to which ‘procedural acts’ are covered by the investigative obligation – those limited to the particular interests of the injured party and excluding other broader types of inquiry, such as those seeking to establish a historical truth. What was more significant for the dissenters was the clear trend in international law towards the recognition of a right to truth in gross violation cases (relying, inter alia, on the case law of the Human Rights Committee).99 Furthermore, in the dissenters’ view, the majority erred in finding that the Convention values test could not be applied to events predating the adoption of the Convention, a principle which they argued to be inconsistent with international law.100 Accordingly, the dissenting judges concluded that in view of the gravity and magnitude of the war crimes in question, considered together with the actions of the Russian authorities after the entry into force of the Convention, the Court should have acknowledged its jurisdiction in the case. Exhaustion of Domestic Remedies and Related Temporal Rules on Submission of Applications There have been close parallels in the development of the exhaustion of domestic remedies criterion within the three regional mechanisms, all of which require an assessment of the availability, sufficiency and effectiveness of any domestic remedies on which a respondent government seeks to rely.101 Only the American Convention includes (in Article 46(2)) detailed explicit exceptions to the exhaustion rule where: (a) the domestic legislation does not provide due process of law for the protection of the right that has allegedly been violated; (b) the applicant 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.102 In all three systems, the requirement to exhaust domestic remedies may not be applicable when human rights violations have been committed as part of a

B

99 Ibid. at para 9: Mariam Sankara et al. v Burkina Faso (1159/2003) Views, CCPR/ C/86/D/1159/2003 (2006) at para 12.2; and Schedko and Bondarenko v Belarus (886/1999) Views, CCPR/C/77/D/886/1999 (2003) at para 10.2. 100 Ibid. at paras 30–35. The dissenting judges in Janowiec also referred to the Convention values test as the ‘humanitarian clause’. 101 See, for example, Case of Garibaldi v Brazil IACtHR Series C 203 (2009) at para 46; Article 19 v Eritrea, supra n 8 at para 74; and Demopoulos and Others v Turkey Applications Nos 46113/99 et al., Admissibility, 1 March 2010, at para 70. 102 Article 50 African Charter also excludes from the exhaustion requirement remedies that are ‘unduly prolonged’.

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systemic or generalised practice, or where, as in the case of the African Commission, there is evidence of serious or massive violations. In Velásquez Rodríguez v Honduras the Inter-American Court found that the obligation to exhaust domestic remedies is discharged ‘if there is proof of the existence of a practice or policy ordered or tolerated by the government’, the effect of which is to prevent normal recourse to such remedies.103 The Court concluded in the same case that as regards cases of disappearances in Honduras in the early 1980s, any remedies which theoretically may have been available were in fact ineffective as the imprisonments were clandestine, formal requirements made them inapplicable in practice, complaints were simply ignored by the authorities, or the authorities threatened and intimidated the lawyers and judges involved. Such evidence was provided by the Commission, which was able to show that habeas corpus and criminal complaints were ineffective.104 In a similar vein, the European Court has found that applicants may be absolved from exhausting domestic remedies if there are ‘special circumstances’, for example where ‘the national authorities [remain] totally passive in the face of serious allegations of misconduct or infliction of harm by State agents, for example where they have failed to undertake investigations or offer assistance’.105 A link between the failure to investigate and the question of the assessment of the effectiveness of domestic remedies has also been made by the African Commission. In Article 19 v Eritrea, which concerned the incommunicado detention of journalists in the early 2000s, the Commission found: Holding the victims incommunicado for over three years demonstrates a prima facie violation of due process of the law and in particular, Article 7 of the African Charter. By not taking any action to remedy the situation more than twelve months after the African Commission had been seized of the communication goes to demonstrate that the State has equally failed to demonstrate that domestic remedies are available and effective.106 The African Commission has also held that, in the case of ‘massive violations’,107 their pervasiveness means that the requirement to exhaust domestic remedies will not be applied, ‘especially where the state took no steps to prevent or stop 103 104 105 106 107

Supra n 1 at para 68. Ibid. at paras 80–81. Cyprus v Turkey, supra n 77 at para 116. Supra n 8 at para 76. See Article 58 African Charter.

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them’.108 In the case of Anuak Justice Council v Ethiopia, which concerned an alleged massacre of more than 400 members of the Anuak people (an indigenous minority group living in the south-western region of Ethiopia), the African Commission found that the state’s response had been acceptable in that it had established a commission of inquiry and alleged perpetrators had been indicted.109 Within the European system, there has been a more restrictive application in recent years of the rules relating to the timing for the submission of applications to the European Court in the particular context of disappearance cases.110 For some years, the European Court expected applicants in cases concerning deaths or disappearances to keep track of the progress of domestic investigations and to lodge their applications ‘with due expedition’ once they become aware (or should become aware) of the lack of an effective investigation.111 Although it had been the European Court’s practice not to apply the six-month rule to cases of disappearance, on the basis that the time limit could not run in respect of continuing violations, in 2009 the Grand Chamber in Varnava and Others v Turkey found that there was an obligation on the relatives of the disappeared to act with the necessary expedition in order to avoid, for example, loss of evidence or witnesses being untraceable. Applicants must therefore ‘make proof of a certain amount of diligence and initiative and introduce their complaints without undue delay’.112 The European Court in Varnava took pains to acknowledge the uncertainty and confusion which frequently follows a disappearance case, and noted the consensus in international law that it should be possible to prosecute such

108 299/05, Anuak Justice Council v Ethiopia, 25 May 2006, at para 60. 109 Ibid. at para 61. 110 Both the European and Inter-American systems require applications to be lodged within six months of the exhaustion of domestic remedies, whereas the African Charter stipulates that petitions should be submitted within a ‘reasonable time’ after exhausting local remedies (Article 56(6) African Charter; cf. Article 35(1) echr; and Article 46(1) (b) achr). Nevertheless, with reference to the other two regional systems, the African Commission has applied a six-month time limit in some cases: see, for example, 308/05, Michael Majuru v Zimbabwe, 24 November 2008, at para 109. This practice of the African Commission has been criticised by Viljoen as representing a ‘strikingly inappropriate reliance on international law, which is a-contextual and loses sight of the purpose of the open-ended formulation in the Charter’: see Viljoen, International Human Rights Law in Africa, 2nd edn (oup, 2012) at 320. 111 Varnava and Others v Turkey, supra n 72 at para 158. 112 Ibid. at para 161.

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serious cases many years later,113 but it nevertheless concluded that applications in disappearance cases could be rejected as being out of time where there has been an excessive or unexplained delay by the applicants after they became aware (or should have become aware) of the ineffectiveness of the domestic investigation, and where there is no immediate, realistic prospect of an effective investigation being provided in the future. The Court went on to stipulate that applications in complex disappearance cases should therefore be brought within ‘several years’ of the incident; a delay of ten years would require particular justification.114 The approach of the Inter-American Commission has been different to that followed by the European Court in Varnava. A petition must be filed with the Commission within a reasonable period of time if the rule of exhaustion of domestic remedies does not apply. The Rules of Procedure of the Commission indicate that this must be determined by the Commission taking into account the date of the alleged violation and the circumstances of each case.115 The Commission, in application of this rule, has been flexible in its treatment of disappearance cases. For example, in the case of Octavio Rubén González Acosta v Paraguay, who disappeared in December 1975, the petition was brought before the Inter-American Commission in June 1999.116 Despite the lapse of 24 years, the Commission considered that it had been presented within a reasonable period of time ‘taking into account the date of the alleged violations, the possible existence of a situation of continuing violation of human rights, and the status of the various domestic remedies in Paraguay’.117 C Burden of Proof Since its very first judgment on the merits, in Velásquez Rodríguez v Honduras in 1988, the Inter-American Court has imposed an obligation on state authorities to produce information and evidence in circumstances where the applicants are simply unable to do so, noting that disappearances are ‘characterized 113 The Court cited the International Convention for the Protection of All Persons from Enforced Disappearance and the Rome Statute of the International Criminal Court: ibid. at para 163. 114 Ibid. at para 166. On the ten-year ‘limit’, see Dissenting Opinion of Judge Sajó in Er and Others v Turkey, supra n 61. 115 Article 32(2) Rules of Procedure of the Inter-American Commission on Human Rights, approved by the Commission at its 137th regular period of sessions, held from 28 October to 13 November 2009, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, 30 June 2010, OAS/Ser.L/V/I.4 rev.13. 116 Case 12.358, Report No 83/03 (2003). 117 Ibid. at para 30.

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by an attempt to suppress all information about the kidnapping or the whereabouts and fate of the victim’.118 Thus the Court has emphasised that ‘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’.119 Similarly, according to the jurisprudence of the European Court, the general position is that while the applicant bears the burden of proving the case beyond reasonable doubt, the burden will be shifted back to the government where the events in question fall largely within the ‘exclusive knowledge’ of the authorities, as is the case, for example, where a detainee dies whilst in state custody or in respect of any person who is found dead or injured, or who has disappeared, in an area which is under the state’s exclusive control.120 In such cases the authorities will bear the burden of providing a ‘satisfactory and convincing explanation’.121 The Court is also entitled to draw strong inferences from the non-disclosure of crucial documents.122 Although in many of the African Commission’s decisions the evidential basis for its findings is arguably unclear,123 one can glean some general approaches. The applicant will need to submit a prima facie case to pass the admissibility requirements in Article 56 of the Charter. Although the applicant will have the burden of proving the allegations as part of the merits of the case, the response of the government and willingness to engage with the Commission will determine the extent of this burden. A ‘blanket denial of responsibility’ from the state will result in the Commission deciding the case on the basis of the facts presented by the applicant.124 Although the African Commission 118 Case of Velásquez Rodríguez v Honduras, supra n 1 at para 131. 119 Ibid. at para 135. While this has been the position of the Court, it should be contrasted with what the Court held in the case of Castillo Gonzalez et al. v Venezuela, a case concerning the killing of Mr. Castillo in 2003, where the Court appears to shift the burden of proof to the victims in the case establishing a dangerous precedent for future cases. IACtHR Series C 256 (2012) at paras 133–172. 120 Varnava and Others v Turkey, supra n 72 at para 184. 121 Salman v Turkey Application No 21896/93, Merits and Just Satisfaction, 27 June 2000, at para 100. 122 Magomed Musayev and Others v Russia Application No 8979/02, Merits and Just Satisfaction, 23 October 2008, at para 85. 123 Viljoen, supra n 110 at 322. 124 Commission Nationale des Droits de l’Homme et des Libertés v Chad, supra n 2 at paras 19 and 24. This ruling was affirmed in 27/89 et al., Organisation Mondiale Contre la Torture, Association Internationale des Juristes Démocrates, Commission Internationale des Juristes, Union Interafricaine des Droits de l’Homme v Rwanda, 31 October 1996, at para 20. See also 143/95 and 150/96, Constitutional Rights Project and Civil Liberties Organisation v Nigeria, 5 November 1999, at para 28.

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has not always been consistent on this question, it has held that once the state contradicts the applicant, the burden of proof will shift to it.125 5

Relationship between the Duty to Investigate and the Right to Know the Truth

While the three regional systems recognise that there is a right to know the truth under international law, its treatment differs in part because of the varying socio-political contexts which shape the way they understand the right. The right to know the truth has been a pivotal element in the various transitional justice processes that have taken place in the Americas and Africa, as illustrated in the cases of Argentina, Chile, Guatemala, South Africa and Kenya, although in many cases such mechanisms have arguably been used to avoid dealing with criminal investigations (that is, ‘truth instead of justice’). By contrast, in European states, with the exception of the various measures taken following World War ii, the right to know the truth has not been given the same degree of attention, even though victims continue to claim it. An illustration of this is the case of Spain where years after Franco’s dictatorship, state authorities continue to deny the fulfilment of this right. Indeed, Pablo de Greiff, the Special Rapporteur on truth, justice, reparation and guarantees of non-recurrence, concluded after a recent visit to Spain that in that country ‘[t]he most serious shortcomings are to be found in the spheres of truth and justice. No State policy was ever established with respect to truth; there is no official information and no mechanisms for elucidating the truth’.126 A similar situation can be said to be currently taking place in Russia, as illustrated by the Janowiec case,127 which is discussed below. The Inter-American and European Courts both recognise that victims, their next of kin and society as a whole have the right to know the truth about what happened. However, the two systems differ in their understanding of the relationship of the duty to investigate and the right to know the truth. For the Inter-American Court, the right to know the truth ‘is subsumed in the right of the victim or his next of kin to obtain clarification of the facts relating to the violations and the corresponding responsibilities from the competent State 125 71/92, Rencontre Africaine pour la Défense des Droits de l’Homme (raddho) v Zambia, 31 October 1997, at para 27. 126 Report of the Special Rapporteur on truth, justice, reparation and guarantees of nonrecurrence: Mission to Spain, A/HRC/27/56/Add.1, at 1. 127 Supra n 96.

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organs, through the investigation and prosecution established in Articles 8 and 25 of the Convention’.128 While more recently the Inter-American Court has been ready to concede that the right to know the truth can also involve other rights under the Convention, such as the right of access to information under Article 13, there is an intimate relationship between the right to know the truth and the duty to investigate. Consequently, the Court has held that the establishment of a truth commission, as valuable as it may be, is not sufficient to fulfil the obligation to investigate or the victim’s right to know the truth. The state will still have an obligation to ‘open and expedite criminal investigations to determine the corresponding responsibilities’.129 In contrast, the European Court has maintained that the duty to investigate and the right to know the truth are different. In the Janowiec case, relating to the Katyn massacre,130 the Court said that it considers that the reference to ‘procedural acts’ must be understood in the sense inherent in the procedural obligation under Article 2 or, as the case may be, Article 3 of the Convention, namely acts undertaken in the framework of criminal, civil, administrative or disciplinary proceedings which are capable of leading to the identification and punishment of those responsible or to an award of compensation to the injured party … This definition operates to the exclusion of other types of inquiries that may be carried out for other purposes, such as establishing a historical truth.131 The consequences of this approach are not without importance. For example, if the European Court decides that it has jurisdiction ratione temporis132 over the obligation to investigate, this would not necessarily include the right to know the truth, at least not in relation to establishing the truth outside legal proceedings. The Inter-American Court, however, would look at the wider dimensions of the right to know the truth when considering the obligation to investigate. There are signs, however, that the European Court may be willing to broaden its outlook. In El-Masri v The Former Yugoslav Republic of Macedonia, 128 Case of Bámaca Velásquez v Guatemala IACtHR Series C 70 (2000) at para 201. 129 Case of the Massacres of El Mozote and nearby places v El Salvador IACtHR Series C 252 (2012) at para 298. See also Inter-American Commission on Human Rights, Report on the Right to Truth in the Americas, 13 August 2014, OEA/Ser.L/V/II.152 Doc. 2, at 36–57. 130 See Section 4A above. 131 Janowiec and Others v Russia, supra n 96 at para 143. 132 See Section 4A above.

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concerning­the phenomenon of ‘extraordinary rendition’, the Court explicitly recognised the negative impact that an inadequate investigation can have on the right to know the truth (not only of other victims of rendition, but also of the general public) and stated that an adequate investigation should lead both to the identification of the perpetrators and to establishing the truth of what happened.133 Despite the establishment of truth and reconciliation bodies in a number of African states (South Africa, Liberia and Kenya, for example), and although the African Commission has recognised the right to know the truth, it has not defined its scope or reach in its decisions on communications. What it has done, however, is to require that there must be a sufficient element of public scrutiny not only of the investigation but also of its results134 to secure accountability in practice as well as in theory.135 The degree of public scrutiny required may well vary from case to case. 6 Reparations The Inter-American Court and the African Commission share an expansive approach to the question of reparations. As regards cases of disappearances and extrajudicial executions, the Inter-American Court has frequently ordered the state to carry out investigations, it has upheld the right of relatives (and of wider society) to be informed about what happened,136 and has ordered states to locate the remains of victims and provide them to the next of kin.137 It has justified its position by explicitly finding that the nature and gravity of cases of gross violations of human rights may require more than a declaratory response.138 It is important to note that the Inter-American Court does not distinguish between violations when awarding reparation. In other words, it will not indicate that the reparations awarded correspond to the violation of specific rights. 133 Application No 39630/09, Merits and Just Satisfaction, 13 December 2012, at paras 191 and 193. See also Al Nashiri v Poland Application No 28761/11, Merits and Just Satisfaction, 24 July 2014; and Husayn (Abu Zubaydah) v Poland Application No 7511/13, Merits and Just Satisfaction, 24 July 2014. 134 Amnesty International, Comité Loosli Bachelard and Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan, supra n 15. 135 Sudan Human Rights Organisation and Centre on Housing Rights and Evictions (cohre) v Sudan, supra n 9 at para 150. 136 Case of Myrna Mack Chang v Guatemala IACtHR Series C 101 (2003) at para 274. 137 Case of Bámaca Velásquez v Guatemala IACtHR Series C 91 (2002) at para 79. 138 Case of El Amparo v Venezuela IACtHR Series C 28 (1996) at para 35.

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However, a careful analysis of the grounds and evidence on which the Court makes such awards can establish a link between a particular reparations order and the duty to investigate. For example, a frequently awarded form of reparation by the Inter-American Court in right to life cases is the requirement for the publication of the judgment.139 This can be considered to provide redress for a lack of due diligence in investigations, given that it enables others to know what the particular failings were in investigations. The Court has also ordered that prosecutors, judges and members of the military or security forces, or other state institutions, be provided with training in particular areas of international human rights law and humanitarian law.140 The Inter-American Court has also recognised that the grounds for claiming moral damages include the denial of justice and the persistence of impunity and has accordingly awarded compensation on equitable grounds on that basis.141 Similarly, the practice of the African Commission is to call on states to carry out investigations in cases of killings or disappearances.142 For example, Malawi African Association and Others v Mauritania143 concerned the treatment of Black Mauritanians in the period between 1986 and 1992, including the detention of hundreds of people, the fate of many of whom remains unknown. The Commission found a series of grave or massive violations of the rights in the Charter and accordingly required the respondent state to establish an independent inquiry ‘in order to clarify the fate of persons considered as disappeared’ and to ‘identify and bring to book the authors of the violations perpetrated at the time of the facts arraigned’.144 139 See, for example, ibid. at paras 273–275. 140 Case of Myrna Mack Chang v Guatemala, supra n 136 at para 282; and Case of the ‘Las Dos Erres’ Massacre v Guatemala IACtHR Series C 211 (2009) at operative para 12. 141 Case of Myrna Mack Chang v Guatemala, ibid. at para 264; and Case of García Lucero et al. v Chile, supra n 65 at para 246. The European Court has acknowledged that the gravity of a case will affect the level of a non-pecuniary damages award, as will the period of time during which an issue has remained unresolved. However, claims for punitive damages have been consistently rejected by the European Court: see Varnava and Others v Turkey, supra n 72 at paras 223–225. 142 As to the legal status of the African Commission’s decisions, see Viljoen, supra n 110 at 339 (‘State parties have not only accepted the Charter as binding, they have also accepted the competence of the African Commission to interpret the Charter and to decide individual communications’). 143 54/91 et al., Malawi African Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and raddho, Collectif des veuves et ayants-Droit, Association mauritanienne des droits de l’Homme v Mauritania, 11 May 2000. 144 Ibid. at operative para 1.

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The case of Zimbabwe Human Rights ngo Forum v Zimbabwe concerned the political violence which erupted following the constitutional referendum in February 2000, prior to parliamentary elections held later that year. The African Commission found that the majority of human rights violations were committed by non-state actors; however, the victims’ rights to judicial protection and to have their cause heard (Article 7 of the Charter) had been violated because of the passing of a clemency order which had the effect of prohibiting prosecutions and setting free the perpetrators of ‘politically-motivated crimes’. As a result, the Commission called on the Republic of Zimbabwe to establish a commission of inquiry ‘to investigate the causes of the violence … and bring those responsible for the violence to justice, and identify victims of the violence in order to provide them with just and adequate compensation’.145 Furthermore, where the national court proceedings were unduly lengthy, resulting in ‘pain, physical, emotional suffering and trauma’ by the relatives of murdered victims, the African Court ordered compensation to be paid for ‘moral prejudice’.146 The African Court agreed to the amount, which was set out by the relatives and had not been contested by the government, ‘on the grounds of equity and considering that the sufferings of the victims concerned occurred over many years’.147 In the same case the Court was also willing to order the reopening of investigations into the deaths of the individuals ‘with a view to prosecute and bring to trial the perpetrators of the murder of Norbert Zongo and his three companions, and thus shed light on this matter and do justice to the families of the victims’, in the context of a guarantee of nonrepetition of the violation.148 It did leave it within the discretion of the state as to how exactly it should comply with this order. In making an order for reparations in terms of an investigation, the InterAmerican Court goes further than simply enunciating the bare obligation; it fleshes out what it will entail in the specific case, in considerable detail, in order for the investigation to be effective. For example, in the case of Manuel 145 Zimbabwe Human Rights ngo Forum v Zimbabwe, supra n 2 at holding. See also 292/04, Institute for Human Rights and Development in Africa v Angola, 22 May 2008, at para 87, in which the African Commission recommended, inter alia, that the Republic of Angola should ‘establish a commission of inquiry to investigate the circumstances under which the victims were expelled and ensure the payment of adequate compensation of all those whose rights were violated in the process’. A further example is 204/97, Mouvement burkinabé des droits de l’Homme et des peuples v Burkina Faso, 7 May 2001. 146 Beneficiaries of the late Norbert Zongo and Others v Burkina Faso, Judgment on Reparations, 5 June 2015, at paras 32–33. 147 Ibid. at para 62. 148 Ibid. at para 109.

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Cepeda Vargas v Colombia, which concerned the extrajudicial execution in 1994 of a senator, who was killed as part of a plan to exterminate his political party, the Patriotic Union, the Court found that various violations of the duty to investigate with due diligence had taken place. On the basis of this finding, the Court required the state to ‘investigate effectively all the facts and background of this case, including … all the necessary measures to detect and reveal patterns of systematic violence against the collectivity to which Mr Cepeda belonged’; to identify all those involved; to ‘establish coordination mechanisms between the different State organs and institutions with powers to investigate, and other existing or future entities in order to conduct the most coherent and effective investigation’; to remove all obstacles to justice; to investigate all links between state authorities and members of paramilitary groups; to ensure that members of paramilitary groups who had been extradited to the us would be accessible to secure justice in Colombia; to ensure that those involved in the investigations as well as victims and witnesses had at their disposal the necessary protection mechanisms; and to ensure that the results be publicised.149 In disappearance cases or those involving massacres where victims are yet to be found and identified, the Inter-American Court has also ordered that the effective search for the whereabouts of the victims should continue, stipulating detailed conditions.150 In the Cotton Field case, concerning gender-based violence in Ciudad Juárez in Mexico, the Inter-American Court not only required the respondent state to ensure the effective prosecution of such cases (in respect of both the perpetrators and masterminds) but also stipulated that the investigation must include a gender perspective and include specific lines of inquiry concerning sexual violence.151 The Court may also stipulate that investigators should take account of systematic patterns of human rights violations.152 The position of the European Court of Human Rights in relation to redress for failing to carry out effective investigations into cases of fatalities remains considerably undeveloped in comparison to the stance of both the Inter-American Court and African Commission.153 The European Court has developed­its 149 150 151 152 153

Supra n 8 at paras 214–218. Ibid. at para 268. Supra n 66 at operative para 12. Case of Ibsen Cárdenas and Ibsen Peña v Bolivia IACtHR Series C 217 (2010) at para 237. See further Leach, ‘No longer offering fine mantras to a parched child? The European Court’s developing approach to remedies’, in Føllesdal et al. (eds), Constituting Europe: The European Court of Human Rights in a National, European and Global Context (cup, 2013) at 171–177.

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right to life jurisprudence notably in response to a series of cases from Northern Ireland and Turkey since the 1990s and Chechnya since the 2000s. There have been multiple instances in both Turkey and Russia of cases of disappearances and extrajudicial killings on which the European Court has been called upon to adjudicate. It may be that the European Court’s relatively limited and conservative approach to redress in such cases can be explained in part by the different contexts on which the Inter-American and African Commissions have had to rule. The European Court’s practice has been to reject applicants’ requests that states be ordered to carry out investigations, with the Court preferring to leave the respondent state to choose how to comply with its judgments, subject to supervision by the Committee of Ministers.154 However, in recent years a number of European judges have questioned whether the Court should not go further, especially in cases of enforced disappearance. For example, in Medova v Russia in 2009, which concerned the disappearance of Adam Medov in Ingushetia in 2004, Judge Spielmann, in his partly dissenting opinion, argued that in view of the multiple shortcomings in the investigation which the Court had identified, it should also have ordered the state to carry out an effective investigation.155 Similar sentiments were expressed by Judges Spielmann, Ziemele and Kalaydjieva in their concurring opinion in Varnava and Others v Turkey, relating to the disappearance of the applicants’ relatives following their detention by Turkish armed forces in Northern Cyprus in 1974.156 There are clear signs too that the nature and scale of the human rights violations committed in Chechnya (and other republics in the North Caucasus region of Russia) have led to further developments in the European Court’s thinking on redress. The case of Abuyeva and Others v Russia157 concerned deaths of civilians caused by the shelling of a village in Chechnya in 2000 by the Russian armed forces. The Abuyeva judgment was published in 2010, five years after the judgment in the case of Isayeva v Russia158 relating to the very same incident, but despite the passage of time, an effective investigation had still not been carried out into the attack. The European Court came to the view that an effective investigation into the case 154 See, for example, Varnava and Others v Turkey, supra n 72 at para 222. 155 Medova v Russia Application No 25385/04, Merits and Just Satisfaction, 15 January 2009 (‘[M]any of these shortcomings … might still be redressed in the particular circumstances of this case if an investigation were conducted even after so many years’.). See also Judge Spielmann’s similar Dissenting Opinion in Umayeva v Russia Application No 1200/03, Merits and Just Satisfaction, 4 December 2008. 156 Varnava and Others v Turkey, supra n 72. 157 Application No 27065/05, Merits and Just Satisfaction, 2 December 2010. 158 Application No 57950/00, Merits and Just Satisfaction, 24 February 2005.

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was still possible. Therefore, whilst acknowledging that Russia’s compliance with the judgment would be assessed by the Committee of Ministers, the Court considered it ‘inevitable that a new, independent, investigation should take place’.159 The Abuyeva decision was followed in 2012 by its judgment in Aslakhanova and Others v Russia, in which the European Court found, for the first time, that ineffective criminal investigations into the circumstances of disappearances in the North Caucasus, notably between 1999 and 2006, were widespread and systemic.160 The Court again found that it could not order the performance of particular measures of redress, but it considered itself to be ‘compelled’ to provide ‘guidance’ on steps that were required by the respondent state: Such steps should be taken with the aim of putting an end to the continued suffering of the relatives of the disappeared persons, conducting effective investigations into the cases of abduction, unlawful detention and disappearance allegedly committed by servicemen, and ensuring that the families of the victims are awarded adequate redress.161 The Court stipulated the following measures: the creation of a single, sufficiently high-level body in charge of solving disappearances in the region; the compilation and maintenance of a unified database of all disappearances; the allocation of specific and adequate resources required to carry out large-scale forensic and scientific work on the ground, including the location and exhumation of presumed burial sites; the collection, storage and identification of remains and, where necessary, systematic matching through up-to-date genetic databanks; the payment of financial compensation to the victims’ families; the possibility of unilateral remedial offers to the relatives, including an undertaking to conduct, under supervision of the Committee of Ministers, an echrcompliant investigation; and the continuation of the obligation to investigate the situations of known or presumed deaths of individuals.162 As regards the ongoing obligation to carry out effective investigations, the Court also underlined the need for the investigating authorities to identify the leading agencies 159 Abuyeva and Others v Russia, supra n 157 at para 243. See also Abakarova v Russia Application No 16664/07, Merits and Just Satisfaction, 15 October 2015. 160 Aslakhanova and Others v Russia, supra n 36. 161 Ibid. at para 221. The measures set out by the Court were not included in the operative provisions of the judgment and, accordingly, were not strictly legally binding on the respondent state. 162 Ibid. at paras 222–238.

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and commanding officers who were involved in the special operations in question and to clarify who was responsible for any detainees, and for the investigators to have unhindered access to data held by the security forces.163 A further development on point was taken by the European Court in its judgment relating to the crackdown on anti-government demonstrations in Bucharest in December 1989, around the time that Nicolae Ceauşescu was overthrown.164 Having found that there had been widespread use of lethal force against the demonstrators and that the subsequent investigation had been ineffective because of the statutory limitation of criminal liability, the Court stipulated that the victims should therefore be provided with an effective investigation ‘in view also of the importance to Romanian society of knowing the truth about the events’.165 In cases where domestic investigations have been opened but which have been significantly delayed (over a period of years), the European Court has been prepared to stipulate in the operative provisions of its judgments that such investigations should be concluded expeditiously.166 7 Conclusions Overall there is a striking similarity in the broad approach of the three regional systems in their interpretation and application of the duty to investigate in right to life cases. Although the systems have employed differing wording to describe the essential nature of the duty to investigate (requiring either ‘due diligence’ or an ‘effective official investigation’), each identifies six core elements. The investigation must be undertaken on the state’s initiative; be effective; be conducted with promptness and reasonable expedition; be independent and impartial; be open to public scrutiny; and ensure the involvement of next of kin. There are some differences in wording which do not, however, actually indicate a divergent approach (such as the Inter-American and African requirement for a ‘serious’ investigation). Where some distinctions are apparent, these may in fact be more the result of lack of clarity on certain points (such as the burden of proof, the triggering­ 163 Ibid. at paras 233–234. 164 Association ‘21 December 1989’ and Others v Romania Application No 33810/07, Merits and Just Satisfaction, 24 May 2011. 165 Ibid. at para 130. 166 Nihayet Arıcı and Others v Turkey Application Nos 24604/04 and 16855/05, Merits and Just Satisfaction, 23 October 2012; McCaughey and Others v United Kingdom, Application No 43098/09, Merits and Just Satisfaction, 16 July 2013.

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moment and the question whether the duty amounts to an obligation of result or one of means) rather than an actual difference in approach. Indeed, we would suggest that this chapter highlights a number of areas where there is a need for greater clarity from one or more of the regional systems. For example, whereas the European and Inter-American Courts have stipulated that the duty extends to the prosecution and punishment of the perpetrators, this requirement has yet to be clarified by the African institutions. Other areas of divergence arguably stem from a comparatively larger number of cases in one of the regional systems which raise a particular serious issue (for example disappearances), which coupled with rampant impunity and the repetitive failure of the state in question to implement the orders of the InterAmerican Court, create serious reasons for concern, and which have therefore required the system in question to place greater focus on the point and to find ways to pressure the respective state to address the situation it faces. We have in mind here the way in which the Inter-American bodies have imposed stricter investigatory obligations in cases involving systemic violations, than either the African or European systems have yet had cause to do. Following on from this, the varied socio-political contexts of the three regional systems undoubtedly account for certain differences in the case law. While all three mechanisms recognise the right to know the truth, the states in the Americas turned this right into a pivotal element of their transitional justice processes because repressive dictatorships in the region were ready to allow some truth in lieu of instituting criminal accountability processes. The way criminal investigations were a trade-off in the region forced the InterAmerican system to take a stand on the issue and to establish that, while the right to know the truth is a clear entitlement under the American Convention, it is intrinsically related to the obligation to investigate (as well as to other rights) so truth without justice is not allowed under the American Convention. This stands in contrast with the European jurisprudence that appears to allow truth without justice if certain conditions are met. Where there are significant differences in approach, such as for the award of reparations, this may be attributed to a variety of factors, including the drafting histories of the respective treaties. For example, some commentators on the Inter-American system have alluded to the intention of those who were involved in drafting the American Convention to ensure that the Inter-American Court had broad powers to order reparations,167 whereas that was not the case as regards the European Court.168 The greater gravity and scale of cases before 167 Pasqualucci, The Practice and Procedure of the Inter-American Court of Human Rights, 2nd edn (cup, 2013) at 190. 168 Shelton, Remedies in International Human Rights Law, 2nd edn (oup, 2005) at 189–192.

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the Inter-American and African systems may be another reason why those systems have been prepared to take the issue of reparations a good deal further than the European Court. It can also be explained if the human rights regional courts see their role as one of exercising corrective justice, whereby they not only address the violations and the harm caused by human rights abuses, but they also try to trigger structural changes for vulnerable communities that have been affected by them. As we have discussed, the European Court’s approach to redress has been developed in recent years, albeit more often through its use of recommendations. The Inter-American Court’s redress provisions are included within its operative provisions, and are therefore unquestionably legally binding, but that was not the case as regards the European Court’s recent stipulations in Abuyeva, Aslakhanova or Association ‘21 December 1989’, which therefore can only be (strictly) considered as ‘recommendations’. Divergent attitudes towards redress are also a consequence of differences in the roles that the respective treaty bodies are expected to play with respect to reparations and in their follow-up on decisions. Whereas the Inter-American bodies, and to a certain extent the African Commission, are more willing to specify the actions the state must take in order to comply with its decision, in the European system it is the Committee of Ministers, not the European Court, which has the task of supervising the execution of judgments.169 This does not mean that the Court, as amplified by Judges Spielmann, Ziemele and Kalaydjieva in their concurring opinion in Varnava, ‘should not play any part in the matter and should not take measures designed to facilitate the Committee of Ministers’ task in discharging these functions’,170 but it does explain the lack of detail in its judgments when compared with the Inter-American and African bodies. Indeed, we would argue that if the European Court is now empowered to include in its operative provisions, for example, a requirement that an applicant who was unlawfully dismissed be reinstated,171 then it would also seem to be possible for it to order a respondent state, in a case concerning an unresolved killing or disappearance, to carry out an effective investigation. We have detected a considerable degree of borrowing of concepts and jurisprudence from and between each of the regional bodies, particularly around general concepts. This is not always consistently applied and it is not always 169 Pursuant to Article 46(2) echr. 170 Concurring Opinion of Judge Spielmann joined by Judges Ziemele and Kalaydjieva in Varnava and Others v Turkey, supra n 72 at para 5. 171 Oleksandr Volkov v Ukraine Application No 21722/11, Merits, 9 January 2013.

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clear why the jurisprudence and practice of the other bodies are not acknowledged. For example, there have been significant developments in the European Court’s approach to redress in gross violation cases in recent years, which have been made without express reliance on the case law of the Inter-American Court, which is a surprising and regrettable omission.172 Sandoval has previously highlighted the Inter-American Court’s creative use of Article 29 of the American Convention in order to enhance human rights protection:173 Article 29 obliges the Court to take account, inter alia, of other international treaties when interpreting the Convention. For example, the Inter-American Court has applied Article 29 in conjunction with Article 8(1) (the right to a fair trial) in finding that the next of kin of the disappeared have the right to have an effective investigation, taking due account of the un Declaration on the Protection of All Persons from Enforced Disappearance.174 Similarly, Articles 60 and 61 of the African Charter provide the African Commission with the mandate to refer to other treaties and jurisprudence of the European and Inter-American bodies, among others. Indeed, as has been shown above, it is evident from the practice of the African Commission that it is strongly influenced by the jurisprudence from the other regional bodies, often citing extensively from their case law and on some occasions adopting it as its own. The movement of borrowing and sharing concepts, however, appears to be greater in some directions (from the Inter-American and European to the African) than others (from the African to the Inter-American and European).

172 It is noticeable that a research report published by the Court in 2012, ‘References to the Inter-American Court of Human Rights in the case-law of the European Court of Human Rights’, available at: www.echr.coe.int/Documents/Research_report_inter_american _court_ENG.pdf, includes cases in which reliance has been placed on the Inter-American­ Court’s jurisprudence as to both the substantive law and various procedural issues (such as questions of admissibility and interim measures), but not as regards questions of redress. 173 Sandoval, ‘The Inter-American System of Human Rights and Approach’, in Sheeran and Rodley (eds), Routledge Handbook of International Human Rights Law (Routledge, 2013) 427 at 437. A comparable provision in the European Convention on Human Rights— Article 53—has not been invoked by the European Court in considering reparations or redress. 174 Case of Blake v Guatemala IACtHR Series C 36 (1998) at paras 96–97 (ga Res 47/133, 18 December 1992).

chapter 2

The Death Penalty as Addressed by Regional and International Human Rights Bodies: Exploring Jurisprudential Cross-Fertilisation and Harmonisation Chloe Cheeseman 1 Introduction Capital punishment cases are perfect candidates for an exploration of the crossfertilisation and harmonisation of international human rights jurisprudence. Every international and regional human rights body has addressed the death penalty in the last 20 years. As a result, there are swathes of international human rights rulings on the death penalty, particularly from the Inter-­American and United Nations human rights systems. Although the right to life is considered to be of supreme importance within every human rights system, the most widely ratified human rights instruments also permit the death penalty and a substantial minority of states have retained it as a form of punishment. Human rights adjudicators in particular human rights systems have therefore encountered a range of challenges relating to the death penalty that are often comparable to those faced by their regional and international counterparts. This situation has encouraged and facilitated the use of external inspiration and support in judicial decision-making on the death penalty. It has also generated a significant body of jurisprudence that can be compared for interpretive consistency and divergence. Capital punishment has been the subject of a wide range of human rights claims. For example, cases have addressed which crimes are serious enough to warrant a capital penalty; the question of mandatory death sentencing; issues of due process; detention conditions on death row; methods of execution; and extradition from abolitionist countries to those where the applicant may face a capital sentence. A thorough international comparative analysis of all the facets of death penalty jurisprudence is beyond the scope of this chapter. Instead, it will explore an illustrative range of cases from national constitutional courts, the Inter-American, European and African human rights bodies, and the United Nations human rights bodies. This chapter will demonstrate that jurisprudential cross-referencing is substantial in this area of human rights

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004284258_004

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law, but also inconsistent between cases and between human rights bodies. It will also reveal a significant transfer of ideas between human rights decisionmakers in their jurisprudence on capital punishment. This has encouraged a harmonised approach on human rights standards relating to the death penalty in several areas, including on the issue of the mandatory death penalty and the importance of due process guarantees in capital trials. Nevertheless, this cross-fertilisation of norms has not produced uniformity, so that, for example, there remains clear divergence on the issue of prolonged death row detention. 2

State Practice and Relevant Human Rights Instruments

Before analysing the extent and nature of extra-jurisdictional engagement on death penalty matters by human rights adjudicators, it will be helpful to briefly survey the current state of death penalty practice and human rights legislation in each major human rights region. Worldwide, more than two-thirds of countries have now abolished the death penalty in law or in practice. According to Amnesty International there are 140 abolitionist and 58 retentionist states in law or practice. Seventeen of these retentionist states are in Africa, 14 in the Inter-American region and 27 in the rest of world, including two in Europe.1 Human rights instruments with worldwide scope permit but restrict the death penalty. Article 6 of the International Covenant on Civil and Political Rights (iccpr) tolerates the application of the death penalty under narrowly limited circumstances: the state cannot deprive someone of their life ‘arbitrarily’;2 death sentences must be imposed by a ‘competent court’ and only for ‘the most serious crimes’.3 Death sentences may not be imposed for crimes committed by persons below 18 years and may not be carried out on pregnant women.4 Anyone subject to this sentence also has the right to seek ‘pardon or commutation’.5 Article 6(6) reveals the intent of progressive abolition: ‘nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant’. The Second Optional Protocol to the iccpr provides for total abolition (apart from in times of war if 1 Amnesty International, Death Sentences and Executions 2012 (Amnesty International Publications, 2013). The two states in Europe that retain the death penalty are Belarus and Kazhakstan. The latter retains it only for military offences and certain other exceptional offences. 2 Article 6(1) iccpr. 3 Article 6(2) iccpr. 4 Article 6(5) iccpr. 5 Article 6(4) iccpr.

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states parties make a reservation to this effect). However, as of September 2016, only 81 of the 167 states parties to the iccpr have ratified the Protocol. No execution has taken place on the territory of the European states since 1997, with the exception of Belarus.6 And yet, in contrast to this consistent abolitionist practice, the provisions in the European Convention on Human Rights (echr) concerning capital punishment have been recognised as ‘the most conservative and anachronistic’ of all the international human rights instruments.7 The short provision in Article 2(1) on the right to life allows for a death sentence if this has been imposed by a court and the penalty is provided for by law. Protocol No 6 to the echr abolished the death penalty during peacetime. Only one of the 47 Council of Europe member states – Russia – has not ratified it. Europe is unique among the human rights regimes in introducing a further Protocol No 13 that abolishes the death penalty in all circumstances, including in time of war or imminent threat of war. As at September 2016, only three member states (Russia, Armenia and Azerbaijan) are not parties. The situation in the Americas regarding death penalty practice reveals a dichotomy between Latin American and other states. Of the 36 states of the InterAmerican region, 14 retain the death penalty for ordinary crimes,8 and of these, 12 are English-speaking states (Cuba and Guatemala are the exceptions).9 Neither of the key Inter-American human rights instruments abolishes the death penalty in its entirety. The American Declaration of the Rights and Duties of Man (‘the American Declaration’) provides a general protection for the right to life and does not mention the death penalty. The American Convention on Human Rights (achr), however, is more progressive than both the iccpr and echr in its right to life provisions. It includes parallel restrictions to those set forth in the iccpr: a ban on ‘arbitrary’ deprivation of life; a restriction of the death penalty to the ‘most serious crimes’; a ban on imposing the death penalty on persons under the age of 18 years or over 70 years when the offence is committed, and on executing pregnant women; and the right to seek pardon or commutation. In addition, Article 4 of the achr provides further restrictions relevant to both abolitionist and retentionist countries. In 6 Inter-American Commission on Human Rights, ‘The Death Penalty in the Inter-American Human Rights System: From Restrictions to Abolition’, 31 December 2011, OEA/Ser.L/V/II. Doc. 68, at 7. 7 Schabas, The Abolition of the Death Penalty in International Law, 3rd edn (cup, 2002) at 260. 8 They are Antigua and Barbuda, Bahamas, Barbados, Belize, Cuba, Dominica, Guatemala, Guyana, Jamaica, Saint Kitts and Nevis, Trinidad and Tobago, United States of America, Saint Lucia, Saint Vincent and the Grenadines. 9 Amnesty International, supra n 1 at 51.

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states that have not abolished the death penalty, capital punishment may not be ­extended to new or additional crimes,10 and those states that have abolished the penalty may not reintroduce it.11 Thirteen states parties have ratified the Protocol to the achr to Abolish the Death Penalty, which provides for the total abolition of the death penalty but allows states parties to retain the death penalty in wartime if they make a reservation to that effect. Africa is perceived as a ‘death penalty region’ because most African states still retain the death penalty de jure.12 Yet the current general picture in Africa does not entirely bear out this reputation. Of 54 countries, only 16 have abolished the death penalty in law.13 However, amongst the 38 ‘retentionist’ countries, Amnesty considers 21 to be ‘abolitionist in practice’14 so only 17 are considered de facto retentionist. Nowak has also pointed out that ‘actual judicial executions have grown extremely rare south of the Sahara Desert’.15 The main African human rights instrument is entirely silent on the death penalty: the African Charter on Human and Peoples’ Rights (‘the African Charter’) contains a general provision on the right to life (Article 4) and, echoing the language of the iccpr and achr, provides that no one can be ‘arbitrarily’ deprived of this right. Africa remains the only regional human rights system without a protocol or other regional legal instrument on the abolition of the death penalty.16 Nevertheless, there are some explicit restrictions. The African Charter on the Rights and Welfare of the Child explicitly abolishes the death penalty for crimes committed by children17 and the Protocol to the African Charter on the Rights of Women in Africa prohibits the application of the death penalty to pregnant or nursing women.18 10 Article 4(2) achr. 11 Article 4(3) achr. 12 Chenwi, Towards the Abolition of the Death Penalty in Africa: A Human Rights Perspective (Pretoria University Law Press, 2003) at 3. 13 Working Group on the Death Penalty in Africa, African Commission on Human and Peoples’ Rights, Study on the Question of the Death Penalty in Africa (Baobab Printers, 2011) at 27. 14 Amnesty International, supra n 1 at 51. Amnesty considers these as ‘countries which retain the death penalty for ordinary crimes such as murder but can be considered abolitionist in practice in that they have not executed anyone during the past 10 years and are believed to have a policy or established practice of not carrying out executions’. 15 Nowak, ‘Constitutional Reform and the Abolition of the Mandatory Death Penalty in Kenya’ (2012) 45(2) Suffolk University Law Review 285 at 285. 16 Working Group on the Death Penalty in Africa, supra n 13 at 51. 17 Article 5(3). 18 Article 4(2)(j).

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The Cross-Fertilisation of Death Penalty Jurisprudence

Death penalty cases have been used by scholars of international human rights jurisprudence as paradigmatic examples of a broader pattern of practice. Carozza has described the death penalty as an ‘especially clear example’ of the phenomenon of ‘transnational judicial communication’ identified by Anne-Marie Slaughter, in which different legal systems borrow or interact with concepts and reasoning from outside their jurisdiction.19 Critics who are sceptical about the empirical foundation for this asserted broader trend have also noted that death penalty cases are often the examples cherry-picked to support claims of wider international cross-fertilisation.20 Whether they are representative of a wider pattern or not, there are undoubtedly death penalty cases from every international human rights body that—explicitly or implicitly—reveal international influence. An international judicial dialogue on capital punishment has evidently existed for over three decades, albeit a sometimes partial and inconsistent one. Although this chapter’s focus is on regional and international human rights jurisprudence, it is relevant to note that transnational cross-fertilisation in death penalty reasoning has also occurred at the national level.21 Grove has described the death penalty as a major area of criminal law influenced by ‘international judicial dialogue of constitutional courts’.22 The 1980 Indian Supreme Court case Bachan Sing v State of Punjab is a clear example.23 In assessing the validity of capital punishment in general, and sentencing discretion in capital trials in particular, the judgment makes extensive reference to the United States Supreme Court and other American court cases.24 The 1995 South African Constitutional Court case State v Makwanyane and Another engages with the judgment in Bachan Sing over several paragraphs within an expansive

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Slaughter, ‘A Typology of Transjudicial Communication’ (1994) 29(1) University of Richmond Law Review 99; and Carozza, ‘“My Friend Is a Stranger”: The Death Penalty and the Global Ius Commune of Human Rights’ (2003) 81(4) Texas Law Review 1031 at 1035. See, for example, Black and Epstein, ‘(Re-)Setting the Scholarly Agenda on Transjudicial Communication’ (2007) 32(3) Law and Social Inquiry 789 at 792 and 797. Helfer and Slaughter, ‘Toward A Theory of Effective Supranational Adjudication’ (1997) 107(2) Yale Law Journal 273; Grove, ‘The International Judicial Dialogue: When Domestic Constitutional Courts Join the Conversation’ (2001) 114(7) Harvard Law Review 2049; and Carozza, supra n 19. Grove, ibid. at 2050. air 1980 sc 898. Ibid. at paras 69, 85, 86, 102, 124 and 142.

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section entitled ‘International and Foreign Comparative Law’.25 This section starts with discussion of American practice, including the 1976 Supreme Court judgment Woodson v North Carolina,26 one of the first court rulings against the mandatory death penalty globally.27 It then goes on to systematically discuss decisions relating to capital punishment from international bodies such as the European Court of Human Rights, the European Commission of Human Rights, the United Nations Human Rights Committee, the Inter-­American Court of Human Rights and the Inter-American Commission on Human Rights. Next, Bachan Sing itself is reviewed along with other superior court decisions from the United States, Hungary, Canada, Germany and Tanzania. Finally, the opinion discusses two state court decisions from the United States. The Court is explicit that ‘[t]he international and foreign authorities are of value because they analyse arguments for and against the death sentence and show how courts of other jurisdictions have dealt with this vexed issue’.28 This outward-looking reasoning at the national court level in the 1980s and 1990s largely predated the engagement of international human rights bodies with international and transnational jurisprudence on the topic of the death penalty, which occurred widely from the start of the next millennium. International Death Penalty Jurisprudence in the Inter-American System With some of the world’s most enthusiastic retentionist states in its jurisdiction, there is an abundance of death penalty case law to examine within the Inter-American system, both from the Inter-American Commission and InterAmerican Court.29 Scholars of the Inter-American human rights system have identified it as being enthusiastically outward-looking in its decision-making and some of the region’s death penalty jurisprudence reveals external influences very prominently.30 Carozza has noted that a series of Inter-American A

25 sa 1995 (3) 391 at paras 71–78. 26 428 us 280 (1976); discussed in State v Makwanyane, ibid. at para 42, n 66. 27 Nowak, supra n 15 at 288. 28 State v Makwanyane, supra n 25 at para 34. 29 See a selection of seminal judgments in Inter-American Commission on Human Rights, ‘The Death Penalty in the Inter-American Human Rights System: From Restrictions to Abolition’, supra n 6 at 189–195. 30 Neuman, ‘Import, Export, and Regional Consent in the Inter-American Court of Human Rights’ (2008) 19(1) European Journal of International Law 101; Killander, ‘Interpreting Regional Human Rights Treaties’ (2010) 7 sur – International Journal on Human Rights 145; and Pasqualucci, Practice and Procedure of the Inter-American Court of Human Rights, 2nd edn (cup, 2013).

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Commission decisions in 2000 and 2001 relating to capital punishment marks the Inter-American human rights system’s ‘first serious recognition of global legal developments’.31 The Commission was responding to petitions from the Caribbean island nations relating to their laws on sentencing for murder, which demanded the mandatory imposition of the death penalty upon anyone convicted. Baptiste v Grenada, McKenzie et al. v Jamaica, Edwards v The Bahamas and Lamey v Jamaica are reasoned very similarly and each incorporates external case law at some length in the main body of the decision.32 The jurisprudence of national constitutional courts on the mandatory death penalty is especially prominent in this global survey. The reasoning of the us Supreme Court in Woodson v North Carolina and similar pronouncements from India in Bachan Sing v State of Punjab and South Africa in Makwanyane are used to support the Commission’s reasoning against mandatory death sentencing.33 There is also reference to the reasoning of the Human Rights Committee, including quotations from the Committee’s views in Lubuto v Zambia and Kindler v Canada.34 The Inter-American Court paralleled the Inter-American Commission’s newly outward-looking approach on the death penalty around the same time. In its 1999 advisory opinion on The Right to Information on Consular Assistance, the Court discusses two Human Rights Committee cases.35 The InterAmerican Court’s judgment in Hilaire v Trinidad and Tobago,36 also ruling on mandatory capital sentencing, largely mirrors the Commission’s reasoning 31 Carozza, supra n 19 at 1070. 32 Case 11.743, Rudolph Baptiste v Grenada Report No 38/00 (2000) at paras 75 and 98–106; Case 12.023, McKenzie et al. v Jamaica Report No 41/00 (2000) at paras 187 and 212–219; Case 12.067, Edwards v The Bahamas Report No 48/01 (2001) at paras 139 and 155–160; and Case 11.826, Lamey et al. v Jamaica Report No 49/01 (2000) at paras 129 and 144–151. 33 Rudolph Baptiste v Grenada, ibid. at paras 101–103; McKenzie et al. v Jamaica, ibid. at paras 215–217, Edwards v The Bahamas, ibid. at paras 158–160; and Lamey et al. v Jamaica, ibid. at paras 147–149. 34 Lubuto v Zambia (390/1990) Views, CCPR/C/55/D/390/1990/Rev1 (1995); cited in Rudolph Baptiste v Grenada, ibid. at para 99; McKenzie et al. v Jamaica, ibid. at para 213; Lamey et al. v Jamaica, ibid. at para 145; and Edwards v The Bahamas, ibid. at para 156. Kindler v Canada (470/1991) Views, CCPR/C/48/D/470/1991 (1993); cited in Rudolph Baptiste v Grenada, ibid. at para 84; McKenzie et al. v Jamaica, ibid. at para 197; Lamey et al. v Jamaica, ibid. at para 127; and Edwards v The Bahamas, ibid. at para 139. 35 OC-16/99, The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law IACtHR Series A 16 (1999) at paras 130–132. 36 Case of Hilaire, Constantine and Benjamin et al. v Trinidad and Tobago IACtHR Series C 94 (2002).

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in Baptiste, McKenzie, Edwards and Lamey, and relies on the same external jurisprudence.37 In these decisions, the Inter-American Court and Inter-American Commission do not merely make passing reference to international and transnational case law but engage with external reasoning in an active and substantial manner. Their references are used overwhelmingly in a positive way, to give credence to and demonstrate an element of international support for the arguments made. In The Right to Information on Consular Assistance, for example, the Court includes the views of the Human Rights Committee on the absolute necessity of strict due process safeguards in capital trials to support its opinion that an ‘internationally recognized principle’ exists on this matter.38 In Edwards, McKenzie, Baptiste and Lamey, the Commission cites and discusses international jurisprudence extensively at each step of the decision.39 After referring to all the external citations, the Commission concludes that ‘[t]he experience in other international and domestic jurisdictions therefore suggests that a Court must have the discretion [to sentence in capital cases]’.40

37 Ibid. at para 103, n 110; and para 105, n 111. 38 OC-16/99, The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, supra n 35 at para 135. 39 For example, the Commission adds weight to its decision by demonstrating that ‘other international human rights supervisory bodies have similarly afforded a strict interpretation of the death penalty provisions in human rights treaties’, with reference to the ­Human Rights Committee and the un Special Rapporteur on Extra-Judicial, Summary or Arbitrary Executions: see Rudolph Baptiste v Grenada, supra n 32 at para 75; McKenzie et al. v Jamaica, supra n 32 at para 187; Edwards v The Bahamas, supra n 32 at para 131; and Lamey et al. v Jamaica, supra n 32 at para 119. The Commission also holds that it is ‘generally recognized’ that the death penalty is uniquely grave as a form of punishment, using as a supporting example a us Supreme Court ruling: see Rudolph Baptiste v Grenada, supra n 32 at para 76; McKenzie et al. v Jamaica, supra n 32 at para 188; Edwards v The Bahamas, supra n 32 at para 132; and Lamey et al. v Jamaica, supra n 32 at para 120. To explain the Commission’s understanding of the term ‘arbitrary’, it refers to the Human Rights Committee case Kindler v Canada, using it to support its assessment that ‘an arbitrary decision includes one that is taken in the absence of a reasoned consideration of the circumstances of the case’: see Rudolph Baptiste v Grenada, supra n 32 at para 84; McKenzie et al. v Jamaica, supra n 32 at para 198; Edwards v The Bahamas, supra n 32 at para 141; and Lamey et al. v Jamaica, supra n 32 at para 130. 40 Rudolph Baptiste v Grenada, supra n 32 at para 105; McKenzie et al. v Jamaica, supra n 32 at para 219; Edwards v The Bahamas, supra n 32 at para 162; and Lamey et al. v Jamaica, supra n 32 at para 151.

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The Inter-American Court follows this same approach to external referencing in Hilaire.41 Carozza argues that this series of cases ‘[highlights] the vital role of international and foreign law to the development of local norms’.42 The InterAmerican Commission has acknowledged that in these rulings on the mandatory death penalty the Inter-American human rights bodies were drawing on standards ‘developed by certain national courts in interpreting international standards’.43 At the same time, however, the structure of these decisions places external jurisprudence as a bolster and reinforcement, but never as a replacement of independent reasoning by the Inter-American Commission and InterAmerican Court. In Edwards, the Commission first discusses its interpretation of the American Declaration specifically in the Inter-American context, finding mandatory sentencing to be in contravention of the Declaration and the Inter-American standards set by the Commission by appealing to its own jurisprudence. It then goes on to support this in a section entitled ‘Individualized Sentencing in Other International and Domestic Jurisdictions’, explaining as follows: The experience of other international human rights authorities, as well as the high courts of various common law jurisdictions that have, at least until recently, retained the death penalty, substantiates and reinforces an interpretation of Articles i, xviii, xxiv, xxv, and xxvi, of the Declaration that prohibits the mandatory imposition of the death sentence. In this connection, it is the Commission’s view, based upon a study of these various international and domestic jurisdictions, that a common precept has developed whereby the exercise of guided discretion by sentencing authorities to consider potentially mitigating circumstances of individual offenders and offenses is considered to be a condition sine qua non to the rational, humane and fair imposition of capital punishment.44 41 See Case of Hilaire, Constantine and Benjamin et al. v Trinidad and Tobago, supra n 36 at paras 103, 105, 149 and 167. For example, the Court’s conclusions on the mandatory death penalty are supported by reference to the Human Rights Committee (at paras 103 and 149), jurisprudence from the Supreme Court of India and the Constitutional Court of South Africa (at para 103), the us Supreme Court (at para 105), and the European Court of Human Rights (at paras 149 and 167). 42 Carozza, supra n 19 at 1073. 43 Inter-American Commission on Human Rights, ‘The Death Penalty in the Inter-American Human Rights System: From Restrictions to Abolition’, supra n 6 at 9. 44 Edwards v The Bahamas, supra n 32 at para 155 (emphasis added).

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This structure is mirrored in Baptiste, McKenzie, Lamey and Hilaire. International sources help to explain and legitimise the approach taken but are secondary in structural importance to regionally specific case law and standards. Beyond this collection of striking examples, other Inter-American Commission decisions on the mandatory death penalty also engage with external case law, albeit less extensively. For example, Benedict Jacob v Grenada predominantly refers back to Inter-American jurisprudence, but includes several footnoted references to Human Rights Committee views.45 In the main body of its report in Paul Lallion v Grenada, the Commission discusses a range of Human Rights Committee and European Court jurisprudence on the due process issues at stake in the case46 as well as supporting several of its points with footnoted references to Human Rights Committee cases.47 Chad Roger Goodman v The Bahamas contains only one brief reference to a European Court case.48 International influence is not necessarily diminished, however, but just a bit less obvious: these decisions refer back to Edwards, McKenzie and Baptiste to support the Commission’s reasoning on the mandatory death penalty, all of which were argued using the support of reasoning from overseas human rights authorities.49 Within Inter-American Commission decisions regarding other human rights challenges to the death penalty, external referencing is again present but more restricted. This author surveyed the 38 death penalty cases selected by the Inter-American Commission to explain its approach to the death penalty from 1996 to 2011 in a 200-page report.50 This survey suggested that, beyond the notable mandatory death penalty cases, the Commission has overwhelmingly relied upon explicit references to its own jurisprudence to support its decisions, just using references to international cases to provide some additional weight to its arguments. Jeffrey Timothy Landrigan v United States is a fairly typical example.51 External reasoning is not discussed in the main body of the report. However, a number of references are made in footnotes to international jurisprudence (Human Rights Committee, United States Supreme Court, uk Privy Council and International Court of Justice), supporting the 45 46 47 48 49 50 51

Case 12.158, Report No 56/02 (2002) at para 69, n 52; para 103, n 69; and para 106, n 72. Case 11.765, Report No 55/02 (2002) at paras 104–106. Ibid. at para 63, n 47; para 95, n 66; and para 98, n 69. Case 12.265, Report No 78/07 (2007) at para 72. Chad Roger Goodman v The Bahamas, ibid. at para 51; Paul Lallion v Grenada, supra n 46 at paras 70–73; and Benedict Jacob v Grenada, supra n 45 at paras 69 and 71. Inter-American Commission on Human Rights, ‘The Death Penalty in the Inter-American Human Rights System: From Restrictions to Abolition’, supra n 6. Case 12.776, Report No 81/11 (2011).

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Commission’s reasoning.52 For example, the Commission cites Human Rights Committee jurisprudence in addition to Inter-American Court cases in arguing that its position of strict scrutiny of death penalty cases is ‘consistent with the restrictive approach adopted by other international human rights bodies in cases involving the imposition of the death penalty’.53 Similar statements about internationally recognised human rights principles on the death penalty, citing international jurisprudence, are found in a number of other cases.54 As above, Inter-American jurisprudence is always cited first, suggesting that the Commission prioritises demonstrating regional support for its decisions before demonstrating that they are also in line with international human rights case law. International Death Penalty Jurisprudence in the European Court of Human Rights Because the practice of state execution has virtually disappeared within Europe in the past three decades, the European Court has ruled on substantially fewer death penalty cases than its Inter-American counterparts. Nevertheless, there are still a number of judgments in the Court’s voluminous output that address human rights challenges posed by the death penalty. A search on the Court’s hudoc database for the term ‘death penalty’ returned over 450 results.55 However, this author identified only eleven such rulings on cases considered to be of ‘high importance’, and which directly address the death penalty in more than passing reference.56 All these cases concern extradition or deportation to parts of the world where capital punishment is still existent, and address conditions and/or length of detention under the threat of the death penalty in such countries (the so-called ‘death row phenomenon’).57 B

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Ibid. at para 29, n 12; para 39, n 16; para 43, n 21; and para 66, n 28. Ibid. at para 29. See Case 12.504, Daniel and Kornel Vaux v Guyana Report No 81/07 (2007) at para 39; Case 12.421, Javier Suarez Medina v United States Report No 91/05 (2005) at para 90; and Case 12.412, Napoleon Beazley v United States Report No 101/03 (2003) at para 52. Search completed on 2 December 2013. ‘High importance’ is defined by the European Court of Human Rights in its hudoc User Manual at 11 as follows: cases of the highest importance is Case Reports followed by levels 1, 2 and 3; cases categorised as Level 1 (‘high importance’), all those not included in Case Reports which ‘make a significant contribution to the development, clarification or modification of European Court case law, either generally or in relation to a particular state’. Al-Saadoon and Mufdhi v United Kingdom Application No 61498/08, Merits and Just ­Satisfaction, 2 March 2010; Bader and Others v Sweden Application No 13284/04, Merits, 8 November 2005; Poltoratskiy v Ukraine Application No 38812/97, Merits and Just

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De Wolf and Wallace have argued that the European Court looks both inside and outside the Council of Europe for common rules when ruling on ‘touchy topics’ such as the death penalty.58 Of the eleven judgments analysed for this chapter, five discuss external jurisprudence within the main body of the judgment.59 None of these cases make surveys of international jurisprudence that are as broad as those of the Inter-American bodies in the mandatory death sentencing cases above. Nevertheless, this is still a relatively high proportion of outward-facing cases when one considers that several studies of the European Court’s case law have found it to be generally reticent in canvassing such external sources.60 For example, Voeten’s study of all the Court’s 7,319 judgments and decisions up until 2006 found only 29 that included a reference to prominent international case law in the majority opinion.61 Death penalty jurisprudence certainly seems to stand out as an area in which the Court has openly included discussion of extra-European case law in significant judgments. Every one of the five rulings identified above uses external jurisprudence in a supportive sense, using citations to confer legitimacy or give additional weight to the Court’s reasoning. In all but one of these judgments external reasoning also makes an important contribution to the Court’s argument. In the most recent of the five cases, Al-Saadoon and Mufdhi v United Kingdom, there is limited use of external jurisprudence. The Court briefly references

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S­ atisfaction, 29 April 2003; Einhorn v France Application No 71555/01, Admissibility, 16 October 2010; G.B. v Bulgaria Application No 42346/98, Merits and Just Satisfaction, 11 March 2004; Ilaşcu and Others v Moldova and Russia Application No 48787/99, Merits and Just Satisfaction, 8 July 2004; Iorgov v Bulgaria Application No 40653/98, Merits and Just Satisfaction, 11 March 2004; Nivette v France Application No 44190/98, Admissibility, 3 July 2010; Öcalan v Turkey Application No 46221/99, Merits and Just Satisfaction, 12 May 2005; Shamayev and Others v Georgia and Russia Application No 36378/02, Merits and Just Satisfaction, 12 October 2005; and Soering v United Kingdom Application No 14038/88, Merits and Just Satisfaction, 7 July 1989. De Wolf and Wallace, ‘The Overseas Exchange of Human Rights Jurisprudence: The u.s. Supreme Court in the ECtHR of Human Rights’ (2009) 19(3) International Criminal Justice Review 287 at 290. Al-Saadoon and Mufdhi v United Kingdom, supra n 57 at paras 97–99; G.B. v Bulgaria, supra n 57 at paras 51–62; Iorgov v Bulgaria, supra n 57 at paras 51–62; Öcalan v Turkey, supra n 57 at para 60; and Soering v United Kingdom, supra n 57 at para 102. Miller, ‘An International Jurisprudence? The Operation of “Precedent” Across International Tribunals’ (2002) 15(3) Leiden Journal of International Law 483; Killander, supra n 30; and Voeten, ‘Borrowing and non-Borrowing among International Courts’ (2010) 39(2) Journal of Legal Studies 547. Voeten, ibid. at 558. More recently, European Court judgments have referred to external sources more frequently: see also Chapter 19 in this volume.

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two Human Rights Committee views and one case from the Human Rights Chamber of Bosnia–Herzegovina as examples of instances in extradition cases where sending states were required to give representations against the use of the death penalty in the receiving state.62 The other judgments, however, engage with international case law more substantially. The oldest of these five cases is the 1989 landmark judgment Soering v United Kingdom, in which the European Court discusses relevant United States law at length, including us Supreme Court and Virginia State Court jurisprudence, when considering prolonged detention and conditions on death row.63 Considering the same topic, the two judgments G.B. v Bulgaria and Iorgov v Bulgaria contain a fairly substantial section on ‘Relevant International and Comparative Law and Practice’. This surveys a range of jurisprudence related to prolonged detention on death row, demonstrating that other human rights bodies do not consider death row detention per se to constitute a violation of the prohibition on inhuman and degrading treatment. After citing three Human Rights Committee decisions, the judgment summarises contrasting perspectives on how long and for what reason detention can be prolonged before it violates human rights. It considers Inter-American Commission and uk Privy Council jurisprudence, quoting one Privy Council decision at some length.64 Finally, the judgment considers the different approaches taken by the Supreme Court of India, the Supreme Court of the United States and the Supreme Court of Canada.65 The Court concludes that the applicants’ situation in Bulgaria was not comparable to that of persons on death row in the countries where executions continue to be carried out, citing this external jurisprudence in support.66 In another important judgment, Öcalan v Turkey, the European Court makes substantial and significant references to international sources of jurisprudence. The Grand Chamber includes a paragraph in its judgment on ­international developments concerning the death penalty, quoting from decisions made by the Human Rights Committee and also from the Inter-American Court.67 The European Court uses this external jurisprudence as key evidence in support of its point that the imposition of a death penalty after an unfair trial would constitute an ‘arbitrary’ deprivation of life and therefore violate

62 63 64 65 66 67

Al-Saadoon and Mufdhi v United Kingdom, supra n 57 at paras 97–99. Soering v United Kingdom, supra n 57 at paras 39–60. G.B. v Bulgaria, supra n 57 at paras 52–59; and Iorgov v Bulgaria, supra n 57 at paras 52–59. Ibid. at paras 60–62. Ibid. at para 72. Öcalan v Turkey, supra n 57 at para 60.

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­Article 2 of the echr.68 As Clapham’s commentary on Öcalan notes, this element of the Court’s reasoning explicitly relied upon new approaches to the death penalty and matters of procedural fairness that were developed in the Inter-American and United Nations human rights systems.69 Laying down the strict necessity of procedural fairness for a lawful imposition of the death penalty represented a new development in the Court’s interpretation of the echr in this area, and external reasoning is explicitly used to justify this more rights-protective approach. Beyond these cases directly considering the death penalty, it is also relevant to consider the judgment in Mamatkulov and Askarov v Turkey. In Mamatkulov, the European Court found a violation for the first time because of the state’s failure to comply with an interim measures request.70 Although the judgment does not explicitly address the death penalty, it is highly relevant to cases concerning extradition to countries where the death penalty may be imposed, because interim measures are ordered by the Court to address ‘imminent risk of irreparable harm’.71 In Mamatkulov, external sources are cited and quoted at length in support of the Court’s ruling. In a section of the majority judgment surveying ‘Relevant International Law and Practice’, the Court discusses a variety of jurisprudential sources that all agree on the importance to rights protection of interim measures. It quotes from the Human Rights Committee, cites cases from the United Nations Committee against Torture and includes a lengthy citation from the International Court of Justice. The section goes on to list several cases from the Inter-American Court in which that body ruled that ‘compliance with provisional measures is necessary to ensure the effectiveness of its decisions on the merits’.72 In its conclusion, the European Court refers back to the different human rights bodies and notes that all of them ‘have confirmed in their reasoning in recent decisions that the preservation of the asserted rights of the parties in the face of the risk of irreparable damage represents an essential objective of interim measures in international law’.73 Interestingly, there is no reference to African jurisprudence, even though the African Commission on Human and Peoples’ Rights pronounced clearly on the binding nature of 68 69

70 71 72 73

Ibid. at para 166. Clapham, ‘Symbiosis in International Human Rights Law: The Öcalan Case and the Evolving Law on the Death Sentence’ (2003) 1(2) Journal of International Criminal Justice 475 at 486. Mamatkulov and Askarov v Turkey Applications Nos 46827/99 and 46951/99, Merits and Just Satisfaction, 4 February 2005. European Court of Human Rights, ‘Fact Sheet: Interim Measures’, January 2013, at 1. Mamatkulov and Askarov v Turkey, supra n 70 at paras 39–53. Ibid. at para 124.

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provisional measures in the International Pen case in 1998.74 Nevertheless, the European Court clearly appeals to wider sources of international human rights reasoning to confer legitimacy on the adoption of its new position. International Death Penalty Jurisprudence in the African Commission on Human and Peoples’ Rights The African Commission has addressed the death penalty as a key concern in a handful of cases since the 1990s. Its explicit engagement with external precedents in this area appears to be generally quite limited, albeit with a few notable exceptions. Of the eight cases reviewed for this chapter,75 five reveal no mention of international jurisprudence on the death penalty.76 However, the later case Civil Liberties Organisation, Legal Defence Centre, Legal Defence and Assistance Project v Nigeria makes several references to a broad range of international sources as evidence for accepted principles of due process that the Commission considers applicable to death penalty cases.77 The Commission cites two Human Rights Committee cases on the importance of access to legal counsel.78 It also refers to the un Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, to the Inter-American Commission’s jurisprudence on the importance of the right to appeal, and to a European Commission case regarding the presumption of innocence.79 In all these instances the African Commission discusses its own assessment of the merits and then includes these citations to support its own reasoning, using them in combination with references to its own jurisprudence. In one instance it goes a step further, citing what it calls ‘developments in international human rights law and practice’ to

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74 137/94 et al., International Pen, Constitutional Rights Project, Civil Liberties Organisation and Interights (on behalf of Ken Saro-Wiwa Jnr.) v Nigeria, 31 October 1998, at paras 103–104. 75 Cases identified based on keyword searches amongst African Commission jurisprudence for ‘death penalty’ and ‘capital punishment’ in the African Human Rights Case Law Analyser, available at: caselaw.ihrda.org. Cases were selected that addressed the death penalty as a central human rights issue. 76 87/93, Constitutional Rights Project (in respect of Zamani Lekwot and six others) v Nigeria, 22 March 1995; 60/91, Constitutional Rights Project (in respect of Wahab Akamu, G. Adega and Others) v Nigeria, 22 March 1995; International Pen, Constitutional Rights Project, Civil Liberties Organisation and Interights (on behalf of Ken Saro-Wiwa Jnr.) v Nigeria, supra n 74; 48/90 et al., Amnesty International, Comité Loosli Bachelard, Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan, 15 November 1999; and 223/98, Forum of Conscience v Sierra Leone, 6 November 2000. 77 218/98, 7 May 2001. 78 Ibid. at para 29. 79 Ibid. at paras 33, 34 and 41.

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read into the African Charter the right to public hearings, using cases from the Human Rights Committee and European Commission as evidence.80 Two more recent death penalty cases reveal only a limited acknowledgement of relevant international jurisprudence, although the influence of pre­ cedents developed in other jurisdictions is clear. In Interights et al. v Botswana, the African Commission briefly refers to European Court case law on the due process rights applicable to death penalty cases.81 The decision also refers to an Inter-American case before ruling that ‘it is accepted’ that state courts should take into account the circumstances of the offence and the offender when considering imposing the death penalty.82 The African Commission also acknowledges a broader international ‘trend towards abolition’ but without giving specific examples.83 In Egyptian Initiative for Personal Rights and Interights v Egypt, the Commission similarly holds that the mandatory death penalty is at odds with the right to life ‘as reflected in international legal practice’, but does not cite any specific case law to evidence this.84 In this instance, the precedents developed by the Inter-American Court and Inter-American Commission and Human Rights Committee in their decisions on the mandatory death penalty are an obvious yet unacknowledged influence on the ruling.85 The rest of the African Commission’s discussion about the death penalty does not reference any relevant external sources, although it does cite the European Court elsewhere in its decision regarding other aspects of the case.86 International Death Penalty Jurisprudence in the Human Rights Committee The Human Rights Committee tends to refrain from making explicit reference to the case law of other human rights bodies.87 Since 1986 the Committee has

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80 Ibid. at paras 35 and 37. 81 240/01, Interights et al. (on behalf of Mariette Sonjaleen Bosch) v Botswana 20 November 2003, at para 27. 82 Ibid. at para 31. 83 Ibid. at para 52. 84 334/06, 3 March 2011, at para 230. 85 For example, Case of Hilaire, Constantine and Benjamin et al. v Trinidad and Tobago, supra n 36; Rudolph Baptiste v Grenada, supra n 32; and Eversley Thompson v St. Vincent and the Grenadines (806/1998) Views, CCPR/C/70/D/806/1998 (2000). 86 See, for example, Egyptian Initiative for Personal Rights and Interights v Egypt, supra n 84 at para 168 in relation to injury while in detention. 87 Davidson, ‘Introduction’, in Conte et al., Defining Civil and Political Rights: The Jurisprudence of the United Nations Human Rights Committee (Ashgate, 2004) 1; Helfer and Slaughter, supra n 21; and Neuman, supra n 30.

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faced an ‘avalanche’ of death penalty cases and a comprehensive analysis of the Committee’s considerable output on the death penalty is beyond the scope of this chapter.88 However, a survey of 24 of the Committee’s death penalty decisions from 1983 to 2003 shows that its views on the death penalty appear to parallel this general reticence to cite external sources of jurisprudence.89 Out of the 24 views studied, only one majority decision cites the findings of another human rights body. In Kindler v Canada, the Human Rights Committee discusses the European Court’s Soering judgment in relation to the death row phenomenon. It does so not to demonstrate support for its decision but to provide a ‘contrast to the present case’, distinguishing the facts and findings in Soering from those before it.90 In another case, Judge v Canada, the Committee refers explicitly to ‘notable factual and legal developments and changes in international opinion in respect of the issue raised’91 to support a revision of its earlier jurisprudence regarding extradition to countries where the applicant

88 89

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See Ghandhi, ‘The Human Rights Committee and the Death Row Phenomenon’ (2003) 43(1) Indian Journal of International Law 1 at 5. 24 cases which appear as citations in the regional human rights jurisprudence discussed elsewhere in this chapter were selected for review: Mr Glenn Ashby v Trinidad and Tobago (580/1994) Views, CCPR/C/74/D/580/1994 (2002); Baboeram-Adhin et al. v Suriname (146/1983 and 148–154/1983) Views, CCPR/C/24/D/146/1983 (1985); Burrel v Jamaica (546/1993) Views, CCPR/C/53/D/546/1993 (1996); Chitat Ng v Canada (469/1991) Views, CCPR/C/49/D/469/1991 (1994); Clifton Wright v Jamaica (349/1989) Views, CCPR/C/45/D/349/1989 (1992); William Collins v Jamaica (240/1987) Views, CCPR/ C/43/D/240/1987 (1991); Currie v Jamaica (377/1989) Views, CCPR/C/50/D/377/1989 (1994); Hylton v Jamaica (600/1994) Views, CCPR/C/57/D/600/1994 (1996); Gridin v Russian Federation (770/1997) Views, CCPR/C/69/D/770/1997 (2000); Paul Kelly v Jamaica (253/1987) Views, CCPR/C/41/D/253/1987 (1991); Kindler v Canada, supra n 34; Lubuto v Zambia, supra n 34; Errol Johnson v Jamaica (588/1994) Views, CCPR/C/56/D/588/1994 (1996); Roger Judge v Canada (829/1998) Views, CCPR/C/78/D/829/1998 (2003); Kennedy v Trinidad and Tobago (845/1998) Views, CCPR/C/74/D/845/1998 (2002); Mansaraj and Others v Sierra Leone (839/1998) Views, CCPR/C/72/D/839/1998 (2002); Mbenge v Zaire (16/1977) Views, CCPR/C/18/D/16/1977 (1983); Anthony McLeod v Jamaica (734/1997) Views, CCPR/C/62/734/1997 (1998); Pratt and Morgan v Jamaica (210/1986) Views, CCPR/C/35/D/210/1986 (1989); Reid v Jamaica (250/1987) Views, CCPR/C/39/D/250/1978 (1990); Patrick Taylor v Jamaica (707/1996) Views, CCPR/C/60/D/707/1996 (1996); Dante Piandiong et al. v Philippines (869/1999) Views, CCPR/C/70/D/869 (2000); Eversley Thompson v St. Vincent and the Grenadines, supra n 85; and Michael Wanza v Trinidad and Tobago (683/1996) Views, CCPR/C/74/D/683/1996 (2002). Kindler v Canada, supra n 34 at para 15.3. Roger Judge v Canada, supra n 89 at para 10.3.

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faces the death penalty. However, it does not cite any international human rights jurisprudence specifically to support this position. It is perhaps not surprising that a truly international body such as the Human Rights Committee generally refrains from making explicit reference to regional or national jurisprudence in its views. However, as Ghandhi has noted, the Human Rights Committee ‘does not operate in a legal vacuum’.92 It takes note of jurisprudence from national and regional bodies, even if it only makes implicit or unacknowledged references to their case law in its published views. It is possible to recognise international human rights jurisprudence in at least one other of the 24 decisions studied for this chapter, although its influence is not formally acknowledged. In Thompson v St. Vincent and the Grenadines, the Committee argues that the mandatory death penalty renders ‘arbitrary’ the deprivation of human life by the state and thereby violates the right to life because it fails to consider the circumstances of each individual case.93 This argument clearly mirrors the line of reasoning followed by the Inter-American human rights bodies in the McKenzie, Baptiste, Lamey, Edwards and Hilaire rulings, made not long prior to this Human Rights Committee decision. Indeed, counsel refers to the Hilaire ruling in its petition.94 Yet there is no reference to these seminal mandatory death penalty cases from the Inter-American region in the Committee’s ruling. As two dissenting opinions point out, the Committee had considered the mandatory death sentence for murder on numerous prior occasions, but had formerly made no such conclusion about the right to life.95 The Committee’s majority in Thompson was making a significant departure from its earlier stance on the mandatory death penalty, obviously influenced by Inter-American jurisprudence, and yet makes no mention of this motivation for its change in position. 4

Exploring the Harmonisation of Death Penalty Jurisprudence

Commentators on the cross-jurisdictional dialogue between constitutional, regional and international human rights courts on the death penalty have linked this trans- and international exchange with an ‘emerging global jurisprudence’ 92 93 94 95

See Ghandhi, supra n 88 at 60. Supra n 85 at para 8.2. Ibid. at para 6.1. Ibid. at Dissenting Opinion by Lord Colville; and Dissenting Opinion by Mr David Kretzmer, co-signed by Mr Abdelfattah Amor, Mr Maxwell Yalden and Mr Abdallah Zakhia, para 2.

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of shared legal norms on the death penalty.96 All the human rights bodies explored here have certainly incorporated the precedents set in other jurisdictions into significant areas of their decision-making on capital punishment, even when this is not formally recognised in the decisions themselves. This section will explore some of the key areas of harmonisation in death penalty jurisprudence, which is clearly evident in the use of provisional measures and the development of certain restrictions on the use of the punishment. It will also illustrate one area of clear divergence: the approach to prolonged death row detention. The case law comparison in this chapter is based on selected examples of relevant human rights standards that have been analysed and interpreted in relation to capital punishment each by the Human Rights Committee, the African Commission, the Inter-American Commission and/or Court, and the European Court. This is not an exhaustive survey. In terms of further research, the potential for cross-comparison is still limited in some areas because the Inter-American Commission and Court and Human Rights Committee have issued substantially more decisions on death penalty cases than their European and African counterparts. However, beyond the confines of this chapter, a more in-depth comparison of the procedural guarantees in death penalty trials would be valuable, as would a comparative analysis of approaches to extradition to face the death penalty, the reintroduction or extension of capital punishment, the execution of minors or those with mental health challenges, the death penalty and the principle of non-discrimination, and the link between principles applicable to the death penalty and those relevant to ‘living death’ punishments such as life imprisonment without parole.97 A Harmonisation Concerning Provisional Measures One of the clearest areas of harmonisation in approach between international and regional human rights decision-making bodies in relation to the death penalty has been in their use of provisional measures (‘interim’ or ‘precautionary’ measures). The power to issue provisional measures is stipulated in almost identical wording in their rules of procedure: these measures can be requested to avoid ‘irreparable’ damage being caused to the victim of the 96

97

De Wolf and Wallace, supra n 58 at 287. See also Grove, supra n 21; Carozza, supra n 19; and de Torres, ‘The right to life and the death penalty’, in Burgorgue-Larsen and de Torres, The Inter-American Court of Human Rights: Case Law and Commentary (oup, 2011) 271. Dayan, ‘Did Anyone Die Here? Legal Personalities, the Supermax, and the Politics of Abolition’, in Sarat and Martschukat (eds), Is the Death Penalty Dying? European and American Perspectives (cup, 2011) 47 at 47.

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alleged ­violation.98 The European Court, the Human Rights Committee, the Inter-American Commission and Court and the African Commission have all ordered states, as provisional measures, to delay executions until proceedings before the international body have been completed and it has been determined whether the prisoners’ rights have been violated.99 The legal status of these requests is not made clear in any of the human rights bodies’ rules of procedure. However, over time each body has decided that these requests are binding on states parties. Both the Inter-American Commission and Inter-American Court have found an aggravated violation of the right to life in a number of cases when an ordered stay on execution has not been respected.100 In the International Pen case, the African Commission issued a provisional measures request to delay the execution of human rights defender Ken Saro-Wiwa, but this was ignored. In its decision the Commission held that Nigeria had violated Article 1 of the African Charter101 by disregarding the provisional measures request.102 The Human Rights Committee has also found a violation of the First Optional Protocol to the iccpr when an applicant has been executed while his communication was being considered by it.103 The European Court of Human Rights was the last of the human rights bodies to align itself with this approach on provisional measures in 2005. In Mamatkulov and Askarov v Turkey, citing the Inter-American approach to provisional measures as well as Human Rights Committee jurisprudence in support of its new position, it ruled for the first 98

99

100

101 102 103

Rule 111 African Commission Rules of Procedure; Rule 25(1) Inter-American Commission Rules of Procedure; Rule 39 European Court of Human Rights Rules of Procedure; and Rule 86 Human Rights Committee Rules of Procedure. See, for example, Öcalan v Turkey, supra n 57 at para 5; Case 12.243, Juan Raul Garza v United States Report No 52/01 (2000) at para 117; Case of James et al. v Trinidad and Tobago Provisional Measures Order, IACtHR Series E (2000); Piandiong et al. v The Philippines (869/1999) Views, CCPR/C/70/D/869/1999 (2000) at para 1.2; and Egyptian Initiative for Personal Rights and Interights v Egypt, supra n 84 at 38. Case of Hilaire, Constantine and Benjamin et al. v Trinidad and Tobago, supra n 36 at paras 196–200; and Inter-American Commission on Human Rights, ‘The Death Penalty in the Inter-American Human Rights System: From Restrictions to Abolition’, supra n 6 at 25. See also Herrera, Provisional Measures in the Case Law of the Inter-American Court of Human Rights (Intersentia, 2010) at 213 et seq. By Article 1, contracting parties ‘undertake to adopt legislative or other measures to give effect to’ the rights, duties and freedoms in the Charter. International Pen, Constitutional Rights Project, Civil Liberties Organisation and Interights (on behalf of Ken Saro-Wiwa Jnr) v Nigeria, supra n 74 at paras 103–104. Vladislav Kovalev et al. v Belarus (2120/2011) Views, CCPR/C/106/D/2120/2011 (2012) at para 9.4.

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time that a state’s failure to comply with an interim measures request put it in violation of Article 34 of the echr.104 B Approaches to Abolition Over the past three decades, a steadily increasing number of states have abolished the death penalty de jure or adopted a de facto moratorium.105 Despite the trend towards abolition, international and regional human rights bodies have not converged towards an explicitly abolitionist approach in their rulings. Reflecting the permissive stance towards the death penalty of the most widely ratified human rights instruments in each region and the persistence of capital punishment in a significant minority of states, none of the human rights bodies has ruled categorically against the death penalty as impermissible. The European Court is currently the only human rights body to have outlawed the death penalty, having ruled that Article 2 of the echr, which expressly permits the death penalty in certain circumstances, has been amended by state practice. In its leading case on the death penalty, Al-Saadoon and Mufdhi v United Kingdom, the Court concluded that the ratification or signature of Protocol No 13 to the European Convention on Human Rights, which contains a total prohibition on capital punishment, by all but two Council of Europe member states and the observation of a moratorium by all states were ‘strongly indicative that Article 2 had been amended so as to prohibit the death penalty in all circumstances’.106 This abolitionist stance has not been adopted by any of the other human rights tribunals. However, it is possible to identify a ‘regulation norm’ in human rights decision-making on capital punishment outside Europe.107 This accepts the death penalty as legal but demands that its imposition is subject to strict regulation and scrutiny. In fact, it is through the gradual imposition of additional limitations on capital punishment that human rights judges seem to be pursuing abolition, albeit in an incremental fashion. De Torres has noted that after an initially permissive attitude, in 1988 the Inter-American Commission introduced ‘stricter criteria’ in its Clifton Wright decision,108 with the Inter-American Court 104 Supra n 70 at paras 39–53, 113 and 124. By Article 34 echr, contracting parties ‘undertake not to hinder in any way the effective exercise of’ the right of individual application. 105 Amnesty International, ‘Executing Countries Left Isolated After a Decade of Progress’, 28 March 2011 l; and Shetty, ‘The Global Movement to Kill the Death Penalty’, 28 March 2011,. 106 Supra n 57 at para 120. 107 Malkani, ‘The Judicial Use of International and Foreign Law in Death Penalty Cases: A Poisoned Chalice?’, in Sarat (ed.), Is the Death Penalty Dying? Studies in Law, Politics and Society, Vol 42 (Elsevier, 2008) 161 at 162. 108 Case 9260, Clifton Wright v Jamaica Report No 29/88 (1988).

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continuing this increasingly progressive interpretation.109 In 2000, the InterAmerican Commission in Garza v United States remarked upon a ‘demonstrable international trend towards more restrictive application of the death penalty’.110 The Inter-American Court has stated that the restrictions set out in Article 4 of the achr are designed to delimit the application and scope of capital punishment in order to ‘bring about its gradual disappearance’.111 The Inter-American Commission has also described the Inter-American system’s approach as to ‘impose strict limitations on the penalty aimed at its gradual restriction and eventual elimination’.112 Despite the silence of the American Declaration on the death penalty, the Inter-American Commission has read in implied restrictions to its use. It has argued that Article 1 of the Declaration ‘prohibits [the death penalty’s] application when doing so would result in an arbitrary deprivation of life or would otherwise be rendered cruel, infamous or unusual punishment’.113 The African Commission and Human Rights Committee have not used their case law to express a strategy of abolition through progressive restriction of capital punishment in such unequivocal terms as their Inter-American counterparts. However, they have taken a comparable approach in enunciating limitations to the use of the death penalty. In spite of the African Charter’s silence on the matter, the African Commission has set down a number of procedural safeguards that it views as necessary for the lawful use of the death penalty and has judged there to be a violation of the right to life when these have not been observed in several cases.114 The Human Rights Committee has similarly expressed the view that the ‘supreme right’ to life requires that ‘the law must strictly control and limit the circumstances in which a person may be deprived of his life by the ­authorities of 109 De Torres, supra n 96 at 279. 110 Juan Raul Garza v United States, supra n 99 at para 94. 111 OC-3/83, Restrictions to the Death Penalty (Arts. 4(2) and 4(4) of the American Convention on Human Rights) IACtHR Series A 3 (1983) at para 57. 112 Inter-American Commission on Human Rights, ‘The Death Penalty in the Inter-American Human Rights System: From Restrictions to Abolition’, supra n 6 at 4. 113 Case 11.139, William Andrews v United States Report No 57/96 (1996). 114 Civil Liberties Organisation, Legal Defence Centre, Legal Defence and Assistance Project v Nigeria, supra n 77; Interights et al. (on behalf of Mariette Sonjaleen Bosch) v Botswana, supra n 81; International Pen, Constitutional Rights Project, Civil Liberties Organisation and Interights (on behalf of Ken Saro-Wiwa Jnr.) v Nigeria, supra n 74; Amnesty International, Comité Loosli Bachelard, Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan, supra n 76; and Forum of Conscience v Sierra Leone, supra n 76.

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a State’.115 The Committee has stated clearly that ‘while … States parties are not obliged to abolish the death penalty totally, they are obliged to limit its use’.116 The Committee’s reasoning in Judge v Canada is illustrative of a movement towards abolition through evolving restrictions on the death penalty.117 In Judge the Committee ruled that a state party which has abolished the death penalty, irrespective of whether it has ratified the Second Optional Protocol to the iccpr aiming at the abolition of the death penalty, violates the author’s right to life under Article 6(1) of the iccpr by returning him to another state where he is under sentence of death, without ensuring that the death penalty would not be carried out.118 In doing so, the Committee reversed an earlier, more permissive, stance taken in Kindler v Canada on the lawfulness of extradition by abolitionist countries of persons to countries where they may face capital punishment. As part of its explanation for its newly restrictive approach, the Committee argued that in the 10 years since Kindler there had been a ‘broadening international consensus in favour of abolition of the death penalty’.119 It was therefore incumbent on the Committee to interpret Article 6 ‘in the light of present-day conditions’.120 C Approaches to Restricting Capital Punishment As Carozza and Grove have both identified, the enumeration of restrictions on the death penalty within each human rights regime has been clearly influenced by the cross-fertilisation of jurisprudence between jurisdictions.121 There has been harmonisation in the development of several key limitations on the death penalty, which if not observed will result in human rights decision-making bodies ruling that an execution is in violation of the right to life. The first of these limitations is that the application of the death penalty must be restricted to the ‘most serious crimes’. This is explicitly stipulated in Article 6(2) of the iccpr and Article 4(2) of the achr, with an additional prohibition in Article 4(4) of the achr of capital punishment for ‘political offenses’ or ‘related common crimes’. The Inter-American Commission has read the same 115 Baboeram-Adhin et al. v Suriname, supra n 89 at para 14.3. 116 Human Rights Committee, General Comment No 6: Article 6 (right to life), HRI/GEN/1/ Rev.9 (Vol i) at 176. 117 International Bar Association, The Death Penalty under International Law: A Background Paper to the ibahri Resolution on the Abolition of the Death Penalty (International Bar Association, 2008) at 10. 118 Roger Judge v Canada, supra n 89 at para 10.6. 119 Ibid. at para 10.3. 120 Ibid. 121 Carozza, supra n 19; and Grove, supra n 21.

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restrictions into Article 1 of the American Declaration.122 The African Commission has adopted identical language to these other bodies and urged retentionist states to ‘limit the imposition of the death penalty only to the most serious crimes’.123 The Human Rights Committee has consistently interpreted the ‘most serious’ standard to mean that crimes that do not result in loss of life may not be punishable by death,124 and has found a violation of Article 6(2) when the death penalty was imposed for a crime that did not involve a victim fatality.125 In Kennedy v Trinidad and Tobago, Messrs Kretzmer and Yalden suggested in a concurring opinion that unintentional or inadvertent killing was not serious enough to attract the death penalty under Article 6(2).126 Lehrfreund and Jabbar have noted that the Committee has rejected ‘nearly every imaginable category of offence’, other than murder, as falling outside the category of most serious crimes.127 However, in concluding observations regarding Kenya, the Human Rights Committee noted ‘with concern that … the death penalty applies to crimes not having fatal or similarly grave consequences’.128 In their analysis of the Human Rights Committee’s case law, Joseph and Castan conclude that ‘it appears that only intentional killings or attempted killings, and perhaps the intentional infliction of grievous bodily harm, may attract the death penalty under Article 6(2)’.129 The Inter-American Court acknowledges the Human Rights Committee’s position on crimes involving fatalities in Raxcacó Reyes v Guatemala.130 It has adopted a similar but not identical argument. 122 Case 11.193, Graham v United States Report No 97/03 (2003); Case 12.285, Domingues v United States Report No 62/02 (2001); and Case 12.240, Thomas v United States Report No 100/03 (2003). 123 African Commission on Human and Peoples’ Rights, Thirteenth Annual Activity Report (1999–2000), AHG/222 (xxxvi) Annex iv at 45. 124 Human Rights Committee, Concluding observations regarding Iran, 29 July 1993, CCPR/C/79/Add.25, at para 8. 125 See, for example, Lubuto v Zambia, supra n 34; and Chisanga v Zambia (1132/2002) Views, CCPR/C/85/D/1132/2002, at para 5.4. 126 Supra n 89 at individual opinion by Committee members, Mr David Kretzmer and Mr Maxwell Yalden (concurring). 127 Lehrfreund and Jabbar, ‘Litigating against the Death Penalty for Drug Offences: An interview with Saul Lehrfreund and Parvais Jabbar’ (2010) 1 International Journal on Human Rights and Drug Policy 53 at 56. 128 Human Rights Committee, Concluding observations regarding Kenya, 24 March 2005, CCPR/CO/83/KEN. 129 Joseph and Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary, 3rd edn (oup, 2013) at 191. 130 IACtHR Series C 133 (2005) at para 69.

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The Court declares that the most serious crimes are ‘those that affect most severely the most important individual and social rights’,131 a position echoed by the Inter-American Commission.132 In Raxcacó Reyes, the Court implies that a victim fatality could make a crime fall into the ‘most serious’ category, as it argues that ‘simple kidnapping’ could not be considered a most serious crime, unlike a kidnapping resulting in death of the victim.133 However, its position is less clear than that of the Human Rights Committee. The African Commission has not yet clarified its interpretation of what constitutes a most serious offence. The second limitation standard that has been interpreted in harmony across human rights regimes outside Europe is the requirement for discretionary sentencing in capital cases, which invalidates any system that imposes mandatory death sentences for certain categories of crime. This principle found one of its earliest expressions in the 1976 decision by the United States Supreme Court in Woodson v North Carolina that only individualised sentencing regarding the death penalty would be constitutional.134 Mandatory sentencing, the Supreme Court ruled, failed to take into account any mitigating factors like the circumstances and gravity of the offence and the character of the offender. This decision has since ‘gone global’ and the same precedent was established in constitutional courts across the world in the 1980s and 1990s, as well as later by the Inter-American and African human rights tribunals and the Human Rights Committee.135 All of these decision-making bodies have ruled that a lack of individualised sentencing in capital trials violates the right to a fair trial and, consequently, the right to life, through making the imposition of the death penalty arbitrary. In a series of decisions relating to the Caribbean, the Inter-American Commission and then the Inter-American Court ruled that mandatory sentencing violated Article 1 of the American Declaration and Article 4 of the achr because it precludes any consideration of mitigating circumstances.136 These 131 Ibid. at para 70. 132 Inter-American Commission on Human Rights, ‘The Death Penalty in the Inter-American Human Rights System: From Restrictions to Abolition’, supra n 6 at 55. 133 Case of Raxcacó Reyes v Guatemala, supra n 130 at para 71. 134 Supra n 26. 135 See Bachan Singh v State of Punjab, supra n 23; State v Makwanyane, supra n 25; and Nowak, supra n 15 at 29. 136 See Rudolph Baptiste v Grenada, supra n 32 at paras 82–87; McKenzie et al. v Jamaica, supra n 32 at paras 195–198; Lamey et al. v Jamaica, supra n 32 at paras 124–128; Edwards v The Bahamas, supra n 32 at paras 135–138; and Case of Hilaire, Constantine and Benjamin et al. v Trinidad and Tobago, supra n 36.

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decisions explicitly acknowledged the precedent established in Woodson and other relevant external human rights jurisprudence.137 Around the same time, the Human Rights Committee established an identical requirement under the iccpr for discretionary sentencing in capital cases, justified by very similar reasoning. The Committee had formerly received communications from individuals facing the death penalty under mandatory sentencing regimes, but had taken a permissive attitude.138 However, in Thompson v St. Vincent and the Grenadines, the Committee found the mandatory death penalty resulted in an ‘arbitrary’ deprivation of human life and therefore violated Article 6(1). The Committee reasoned that ‘mandatory capital punishment would deprive the author of the most fundamental of rights, the right to life, without considering whether this exceptional form of punishment is appropriate in the circumstances of his or her case’.139 Soon after, in Interights (Bosch) v Botswana, the African Commission made a similar statement that courts were required to consider both the circumstances of the offence and the characteristics of the offender before imposing a death sentence.140 The Commission has since ruled that a mandatory death sentence regime in Egypt put the state in violation of the right to life under Article 4 of the African Charter.141 It is important to note that this close harmonisation of position on discretional sentencing was the result of a deliberate strategy driven by the Death Penalty Project uk. According to Nowak’s interview with one of the heads of the Project, Saul Lehrfreund, a small network of death penalty advocates brought a ‘coordinated series of challenges’ to the Inter-American, United Nations and African human rights tribunals.142 The advocates intended to develop a persuasive body of transnational jurisprudence against the mandatory 137 Rudolph Baptiste v Grenada, ibid. at para 105; McKenzie et al. v Jamaica, ibid. at para 219; Lamey et al. v Jamaica, ibid. at para 151; Edwards v The Bahamas, ibid. at para 162; and Case of Hilaire, Constantine and Benjamin et al. v Trinidad and Tobago, ibid. at para 103, n 110; and para 105, n 111. 138 Conroy Levy v Jamaica (719/1996) Views, CCPR/C/64/D/719/1996 (1998); Silbert Daley v Jamaica (750/1996) Views, CCPR/C/63/D/750/1997 (1998); Christopher Brown v Jamaica (775/1997) Views, CCPR/C/65/D/775/1997 (1999); and Thompson v St. Vincent and the Grenadines, supra n 85 at individual opinion by Mr David Kretzmer, co-signed by Mr Abdelfattah Amor, Mr Maxwell Yalden and Mr Abdallah Zakhia (dissenting), para 2. 139 Thompson v St. Vincent and the Grenadines, ibid. at para 8.2. 140 Interights et al. (on behalf of Mariette Sonjaleen Bosch) v Botswana, supra n 81. 141 Egyptian Initiative for Personal Rights and Interights v Egypt, supra n 84. 142 Nowak, ‘The Abolition of the Mandatory Death Penalty in Africa: A Comparative Constitutional Analysis’ (2012) 22(2) Indiana International and Comparative Law Review 267 at 267.

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death penalty, which could be drawn upon in challenges to mandatory regimes in binding domestic courts in the Commonwealth Caribbean and former British colonies in Africa.143 This tactic has achieved great success in ending the mandatory death penalty in these countries: Trinidad and Tobago remains the only Caribbean country to retain it and Malawi, Uganda and Kenya have all since ruled in favour of discretionary sentencing.144 Nowak notes that the common constitutional frameworks of these countries facilitated this swift advance.145 However, successful challenges to mandatory regimes have also occurred more widely. Since 2000, at least 18 states in total have discarded the mandatory death penalty.146 This success story suggests that a strategically harmonised approach between interdependent human rights regimes can work to further progressive rulings. The cumulative weight of shared reasoning and argumentation can help incremental challenges against the death penalty to gather momentum. The third key standard developed in harmonisation across the different human rights regimes is the requirement for strict compliance with due process guarantees in death penalty trials. The Human Rights Committee has been insistent on the imperative nature of procedural safeguards, stating that ‘in capital punishment cases, the duty of States parties to observe rigorously all the guarantees for a fair trial set out in Article 14 of the Covenant is even more imperative’.147 These rights include the right to a fair hearing by an independent tribunal, the presumption of innocence, the minimum guarantees for the defence and the right to review by a higher tribunal.148 Since the early 1980s the Committee has linked observance of these due process rights in capital trials with the right to life. In Mbenge v Zaire, the Committee argued that for the death penalty to be justified under Article 6(2) of the iccpr it must be

143 See Human Rights Committee’s Thompson v St. Vincent and the Grenadines, supra n 85, in which the decision notes that the author is represented by Saul Lehrfreund of Simons, Muirhead & Burton, London; similarly in Kennedy v Trinidad and Tobago, supra n 89; in the Inter-American Commission Rudolph Baptiste v Grenada, supra n 32; and in the African Commission Interights et al. (on behalf of Mariette Sonjaleen Bosch) v Botswana, supra n 81. 144 Death Penalty Worldwide, ‘Mandatory Death Penalty’, 25 January 2012, available at: www .deathpenaltyworldwide.org/mandatory-death-penalty.cfm [last accessed 2 November 2015]. 145 Nowak, supra n 142 at 269. 146 Death Penalty Worldwide, supra n 144. 147 Reid v Jamaica, supra n 89 at para 12.2. 148 Ibid. at para 11.5.

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imposed ‘in accordance with the provisions of the Covenant’,149 which include the right to a fair trial. It has since ruled consistently that the violation of fair trial rights in a capital case by a state party thereby means any death sentences imposed as a result would be in breach of the provisions of the iccpr and constitute a breach of the right to life under Article 6(2). There have been many petitions submitted to the Committee concerning this issue.150 The Inter-American human rights bodies have echoed the approach of the Human Rights Committee on this matter. In the case of Clifton Wright in 1988, the Commission criticised a state for the first time for imposing the death penalty after a grossly unfair trial.151 In Andrews v United States, the Inter-American Commission adopted the same reasoning as the Human Rights Committee, arguing that in capital punishment cases ‘the States Parties have an obligation to observe rigorously all the guarantees for an impartial trial’.152 The Commission concluded that the imposition of the death penalty had followed an unfair trial in breach of Article 24(2) of the American Declaration and ruled that there had been a violation of the right to life.153 In 1999, the Inter-American Court mirrored the Commission’s reasoning, using several Human Rights Committee cases (including Mbenge, Wright and Reid) to support its conclusion that the imposition of the death penalty after violating due process guarantees made it a ‘violation of the right not to be “arbitrarily” deprived of one’s life’.154 The Commission has explained that ‘due in part to its irrevocable and irreversible nature’ the death penalty ‘warrants a particularly stringent need for reliability in determining whether a person is responsible for a crime that carries a penalty of death’.155 The African Commission’s approach has mirrored that of the Human Rights Committee and the Inter-American bodies. As Chenwi has noted, the African Commission has found a violation of the right to life and personal integrity

149 Mbenge v Zaire, supra n 89 at para 17. 150 See, for example, Reid v Jamaica, supra n 89; Clifton Wright v Jamaica, supra n 89; Burrell v Jamaica (546/1993) Views, CCPR/C/57/D/546/1993 (1996) at para 9.4; Mansaraj and Others v Sierra Leone, supra n 89; Turaeva v Ukbekistan (1284/2004) Views, CCPR/ C/97/D/1284/2004 (2009); El Hagog v Libya (1755/2008) Views, CCPR/C/104/D/1755/2008/ Rev.1 (2012); and Nenova et al. v Libya (1880/2009) Views, CCPR/C/104/D/1880/2009 (2012). 151 Clifton Wright v Jamaica, supra n 108; and de Torres, supra n 96. 152 William Andrews v United States, supra n 113 at para 172. 153 Ibid. at para 177. 154 OC-16/99, The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, supra n 35 at paras 130 and 137. 155 Chad Roger Goodman v The Bahamas, supra n 48 at para 34.

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under Article 4 of the African Charter in most death penalty cases.156 Several of these have been down to a violation of fair trial rights leading to a violation of the right to life.157 The due process rights delineated in the African Charter’s Article 7 are not quite as extensive as those in the iccpr and achr. However, the African Commission has drawn on the due process standards developed in other jurisdictions to elaborate on the judicial guarantees that it considers essential in death penalty cases. For example, in Civil Liberties Organisation v Nigeria the Commission reads into the African Charter the right to public hearings, using cases from the Human Rights Committee and European Court as support for its reasoning.158 The Commission has also produced its Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, which incorporate the fair trial standards of the iccpr as well as those of the African Charter.159 This further harmonises the African Commission’s position on due process standards with the other regional and international human rights decision-making bodies. Before its categorical ruling against the death penalty in Al-Saadoon, the European Court also took an identical position on fair trial rights in capital cases. The European Court in Öcalan concluded that ‘the implementation of the death penalty in respect of a person who has not had a fair trial would not be permissible’, linking the violation of fair trial rights to a violation of the right to life under the echr.160 As Clapham has noted with regard to Öcalan, in states where the national and international legal obligations of the state allow for the death penalty, capital punishment is often imposed without the observance of judicial safeguards. In consequence, refocusing fair trial complaints as right to life violations might be ‘persuasive in new ways’.161 The fact that all the regional human rights bodies and the Human Rights Committee have taken a united

156 Chenwi, supra n 12 at 68. 157 Interights et al. (on behalf of Mariette Sonjaleen Bosch) v Botswana, supra n 81; International Pen, Constitutional Rights Project, Civil Liberties Organisation and Interights (on behalf of Ken Saro-Wiwa Jnr.) v Nigeria, supra n 74; Amnesty International, Comité Loosli Bachelard, Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan, supra n 76; Forum of Conscience v Sierra Leone, supra n 76; and Civil Liberties Organisation, Legal Defence Centre, Legal Defence and Assistance Project v Nigeria, supra n 77. 158 Civil Liberties Organisation, Legal Defence Centre, Legal Defence and Assistance Project v Nigeria, ibid. at paras 35 and 37. 159 DOC/OS(XXX)247 (2003). 160 Öcalan v Turkey, supra n 57 at para 204. 161 Clapham, supra n 69 at 485.

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approach on this issue has huge potential for the success of death penalty challenges in jurisdictions worldwide. D Divergence: The Death Row Phenomenon The European and Inter-American human rights decision-making bodies and the Human Rights Committee have all received challenges to the death penalty on the grounds that an undue delay between sentencing and execution constitutes inhuman or degrading treatment. In the landmark Soering judgment in 1989, the European Court ruled that ‘a considerable delay before execution’, the ‘extreme conditions’ of death row and the other particular circumstances of the case could render inhuman and degrading what was otherwise a lawful death sentence.162 In 2010, the Court went further than it did in Soering in Al-Saadoon and Mufdhi v United Kingdom. In this case, while awaiting their transfer to the Iraqi authorities for prosecution for capital offences for a period of over three years, the applicants ‘were subjected to a well-founded fear of execution’ which it was reasonable to assume ‘caused the applicants intense psychological suffering’ that constituted inhuman treatment and put the United Kingdom in violation of Article 3 of the echr.163 The European Court is currently alone amongst human rights decision-making bodies in taking the position on the death penalty it has adopted in the Al-Saadoon case. Soering, however, went on to be influential across the world and has been followed by parallel decisions in diverse national jurisdictions including Zimbabwe, Canada and India.164 The African Commission has not yet faced a challenge to the death ­penalty based on the death row phenomenon, but the Inter-American region’s human rights bodies have adopted the European Court’s approach in Soering. In Hilaire, the Inter-American Court argued that the applicants, who were ­prisoners on death row, were under the ‘constant threat’ of hanging and were subjected to conditions that served to ‘terrorize and depress’ them.165 The Court referenced Soering to condemn Trinidad and Tobago for inflicting cruel, inhuman and degrading punishment on those awaiting execution, in violation of Article 5 of the achr.166 The Inter-American Commission has also adopted 162 Soering v United Kingdom, supra n 57 at paras 105–111. 163 Al-Saadoon and Mufdhi v United Kingdom, supra n 57 at paras 136–137. 164 Zimbawe Supreme Court, Catholic Commission for Justice and Peace v Attorney-General l.r.c. 277 (1993); Triveniben v. State of Gujarat 1 s.c.j. 383 (1989); Supreme Court of Canada, United States v Burns 1 s.c.r. 283 (2001); and Nowak, supra n 142 at 267. 165 Case of Hilaire, Constantine and Benjamin et al. v Trinidad and Tobago, supra n 36 at para 168. 166 Ibid. at paras 167–170.

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a similar approach and considers that ‘a prolonged period of detention while awaiting execution constitutes cruel, inhuman and degrading treatment’.167 De Torres has noted that the Inter-American bodies have not necessarily been consistent in their application of this standard to all the cases of death row detention brought before them.168 However, that prolonged death row detention per se may constitute inhuman and degrading treatment in violation of the achr and the American Declaration puts the Inter-American system in line with the Soering interpretation in this matter. The Human Rights Committee has taken a consciously and resolutely divergent approach to the issue of death row detention. In stark contrast to the European and Inter-American position, the Human Rights Committee majority has consistently denied that the death row phenomenon violates Article 7 of the iccpr in the absence of ‘compelling circumstances’.169 This has been despite the ‘pressure to conform’ with the Soering line of reasoning as the number of jurisdictions whose courts have adopted the European approach has grown steadily.170 The Human Rights Committee has considered a significant number of death row cases, but the majority position has not substantially changed since the Human Rights Committee’s first engagement with the issue in 1989 in Pratt and Morgan v Jamaica. The Committee stated: In principle prolonged judicial proceedings do not per se constitute cruel, inhuman or degrading treatment even if they can be a source of mental strain for the convicted prisoners. However, the situation could be otherwise in cases involving capital punishment and an assessment of the circumstances of each case would be necessary.171 In Barrett and Sutcliffe v Jamaica, the Committee explained that prolonged detention could not be generally considered cruel and inhuman treatment if the

167 Inter-American Commission on Human Rights, ‘The Death Penalty in the Inter-American Human Rights System: From Restrictions to Abolition’, supra n 6 at 185. 168 See, for example, Case of Fermín Ramírez v Guatemala IACtHR Series C 126 (2005); and de Torres, supra n 96 at 285. 169 See, for example, Kindler v Canada, supra n 34; Simms v Jamaica (541/93) Views, CCPR/ C/53/D/541/1993 (1995); Rogers v Jamaica (494/92) Views, CCPR/C/53/D/494/1992 (1995); Hylton v Jamaica, supra n 89; Joseph and Castan, supra n 129 at 254; and Conte and Burchill, Defining Civil and Political Rights: The Jurisprudence of the Human Rights Committee, 2nd edn (Ashgate, 2009) at 138. 170 Ghandhi, supra n 88 at 59. 171 Pratt and Morgan v Jamaica, supra n 89 at para 230.

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prisoner was ‘merely availing himself of appellate remedies’.172 The Committee’s majority has also argued that it is desirable to avoid setting a ‘cut-off date’ for reasonable detention periods, as this would send a message to states retaining the death penalty that executions should be carried out as expeditiously as possible in order to avoid violating the iccpr.173 However, the Human Rights Committee has been divided on this issue and a few minority opinions have found violations of Article 7 of the icppr based on prolonged detention on death row. This appears to have happened for the first time in Spence v Jamaica,174 then subsequently in LaVende v Trinidad and Tobago, which concerned a detention of 18 years, and Bickaroo v Trinidad and Tobago, where the detention was 16 years.175 In their survey of Human Rights Committee jurisprudence, Joseph and Castan conclude that a ‘sizeable minority’ within the Human Rights Committee is willing to find that ‘extraordinarily long’ detention on death row may per se breach Article 7.176 In a small number of cases, the Human Rights Committee majority has found that ‘compelling circumstances’ existed. In addition to the time spent on death row, these are sufficient to turn the death row phenomenon into a violation of Article 7.177 In Francis v Jamaica the Committee echoed its comments from previous cases, but then, in line with its statement in Pratt and Morgan, went on to argue that ‘each case must be considered on its own m ­ erits’.178 The Committee considered the 13-year delay in the Court issuing a written judgment despite repeated requests from the author; the clearly deleterious psychological impact of incarceration on him; and the ‘regular beatings’ he 172 Randolph Barrett and Clyde Sutcliffe v Jamaica (271/1988) Views, CCPR/C/44/D/271/1988 at 71 (1992) at para 8.4. In the Soering case, supra n 57 at para 106, the European Court was more sympathetic to the predicament of the convicted person, noting that it was ‘a part of human nature that the person will cling to life by exploiting those [appeal] safeguards to the full’. 173 Errol Johnson v Jamaica, supra n 89 at paras 8.2 and 8.4. 174 Wayne Spence v Jamaica (599/1994) Views, CCPR/C/57/D/599/1994 (1996) at individual opinion of Mr Aguilar Urbina. 175 Robinson LaVende v Trinidad and Tobago (554/1993) Views, CCPR/C/61/D/554/1993 (1997) at dissenting opinion by Messrs Bhagwati, Prado Vallejo and Pocar, as well as Ms Chanet and Mrs Gaitan de Pombo; and Ramcharan Bickaroo v Trinidad and Tobago (555/1993) Views, CCPR/C/61/D/555/1993 (1997). See also Cox v Canada (539/1993) Views, CCPR/ C/52/D/539/19930 (1994) at individual opinion by Mr Tamar Ban (partly concurring, partly dissenting). 176 Joseph and Castan, supra n 129 at 265. 177 Errol Johnson v Jamaica, supra n 89 at para 8.5. 178 Francis v Jamaica (606/1994) Views, CCPR/C/54/D/606/1994 (1995) at para 9.1. See also Errol Johnson v Jamaica, ibid.

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e­ xperienced. It ruled that these compelling additional circumstances meant Article 7 had been violated.179 In Kamoyo v Zambia and Wilson v Philippines the Committee similarly found aggravating factors beyond the extended detention that resulted in violation of Article 7.180 The Committee also indicated in Pennant v Jamaica that unreasonably prolonged detention in a ‘death cell’ after a warrant for execution has been issued constitutes inhuman and degrading treatment in violation of the iccpr.181 In this substantial area of death penalty jurisprudence, then, the Human Rights Committee’s approach is still markedly different from that of its European and Inter-American counterparts, as well as from that of several national constitutional courts. However, the substantial dissent from the Committee’s minority on this issue suggests that a departure from a quarter century of precedent may well be possible in the future. 5 Conclusion The interpretation of human rights standards relevant to the death penalty by the national, regional and international human rights bodies surveyed here reveals a substantial and explicit exchange of ideas and norms between jurisdictions, albeit not a balanced or consistent one. The Inter-American Commission and Court, European Court, African Commission and Human Rights Committee have all at some point openly addressed external case law when adjudicating on this topic. A cursory analysis of the use to which external citations have been put by these bodies also indicates that, overwhelmingly, human rights decision-makers have cited international jurisprudence in a supportive sense, to give additional credibility to their reasoning. In some instances, external jurisprudence has clearly been the inspiration for a particular line of reasoning; but in others the causal chain is not immediately clear. The Inter-American system’s engagement with norms and standards from outside the region has undoubtedly been the most consistent and explicit, 179 Ibid. at paras 9.1–9.2. 180 Kamoyo v Zambia (1859/09) Views, CCPR/C/104/D/1859/2009 (2012) at para 6.5: delay of 13 years held to be due to ‘negligence’ by the state party and subsequent violation of Article 7; and Albert Wilson v Philippines (868/99) Views, CCPR/C/79/D/868/1999 (2003) at para 7.4: the anguish was ‘exacerbated’ by treatment in conditions of detention, which were ‘aggravating factors’. 181 Wilfred Pennant v Jamaica (647/1995) Views, CCPR/C/64/D/647/1995 (1998) at para 8.6. See Joseph and Castan, supra n 129 at 259.

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r­ eflecting its generally outward-facing approach. In comparison, the European Court’s acknowledgement of external precedents on this topic is relatively limited, yet still strikingly high compared to its aversion, at least until recently, to canvassing outside opinion in its judgments. It is also notable that the European Court’s landmark judgments on the death penalty, including Soering and Öcalan, have included significant discussion of external jurisprudence to support these major decisions. The African Commission has made the fewest direct references to external case law in the decisions it has made on the death penalty. Nevertheless, it has explicitly referenced international standards to support its rulings on due process guarantees in capital trials and mandatory death sentencing. The Human Rights Committee’s views on this topic are reflective of its approach in other areas, and it appears persistently reluctant to cite external jurisprudence on the death penalty. One notable exception found in this author’s study was the Committee’s discussion of international case law in Kindler. This was acknowledged not to demonstrate harmonisation, but as a means to set apart the Committee’s reasoning from the European position on prolonged death row detention. This exchange of ideas and norms between systems has undoubtedly contributed to a significant degree of harmonisation in death penalty jurisprudence. It is possible to point out at least one instance when each of the human rights bodies explored in this chapter has adopted the precedents set by other regional and international tribunals relating to the death penalty. In developing its position on the mandatory death penalty, the Inter-American Commission explicitly relied upon developments in various national courts of appeal. The European Court’s decision in Öcalan was a clear and open adoption of the interpretations of due process guarantees in capital trials developed in the Inter-American and un human rights systems. Both the Human Rights Committee and the African Commission have also adopted external approaches to human rights decision-making, albeit without full formal acknowledgement of doing so. The Human Rights Committee reversed its earlier permissive stance on the mandatory death penalty in Thompson and yet made no recognition of the Inter-American source of its new approach. The African Commission similarly made only a vague reference to ‘international legal practice’ when ruling – using almost identical language – against the mandatory death penalty in Egyptian Initiative for Personal Rights. The European Court stands alone in having ruled categorically against capital punishment. However, outside Europe there is clear convergence around the interpretation of several key human rights restrictions to its use. With regard to procedural issues, all the human rights bodies surveyed here have ­interpreted interim measures requests to be binding on states parties while

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they consider petitions relating to the death penalty. The interpretation that due process violations in capital trials produce right to life violations, and the absolute requirement for discretionary sentencing in death penalty cases have also been widely accepted regionally and internationally; these both offer powerful routes to challenging the punishment worldwide. Nevertheless, harmonisation of approach with regards to this most sensitive of subjects is neither automatic nor inevitable, as divergent approaches to the death row phenomenon demonstrate. However, this divergence has not occurred in a vacuum of blind or wilful ignorance between the different systems’ human rights adjudicators. Whatever the challenges may be of a universal human rights body taking a different approach to that of its regional counterparts, the Human Rights Committee has at least used its published views to contribute to an informed international dialogue on the matter. A transparent transnational exchange of ideas and norms between human rights decision-makers can only be welcomed as a route to better reasoned decisions and better informed i­nterpretations of ­universal human rights standards.

chapter 3

International Trends in the Recognition of Abortion Rights Elizabeth Wicks* 1 Introduction The issue of abortion rights is a divisive and emotive one. While instinctively supported by the rights to autonomy and health, it inevitably conflicts with the interests, and possibly rights, of the foetus, as well as many strongly held religious beliefs. It is a classic example of a conflict between one person’s freedom of choice and broader societal interests in religion and the sanctity of human life.1 Although most states have chosen to resolve the issue either by favouring one side of the debate over the other, or by entrenching a compromise into national legislation, there remains a wide discrepancy between different states. The focus in this chapter is on the role of international human rights law in seeking to resolve such differences. While there are discernible trends towards the development of some limited protection for access to safe and legal therapeutic abortions at international law, this remains a topic on which considerable discretion is left to each individual state. Even the appropriate role of international law on this topic remains disputed. Do moves towards a right to abortion represent objectionable judicial activism or are they a response to an emerging consensus? If states are unable to agree a position when negotiating international and regional human rights treaties, is it for the bodies enforcing those documents to fill the gap or to respect the lack of agreement? This chapter will begin by considering the extent to which different international and regional bodies speak as one on this topic by an analysis of the use of comparative international materials by these bodies. The bulk of the chapter will

* Professor of Human Rights Law, School of Law, University of Leicester ([email protected]). 1 The issue of whether a foetus has a right to life (even if only a limited right and/or only after viability) impacts significantly upon the issues discussed in this chapter. However, for reasons of space this related but distinct question will not be considered here. It has been discussed elsewhere, such as in Plomer, ‘A Foetal Right to Life? The Case of Vo v France’ (2005) 5(2) Human Rights Law Review 311; and Wicks, ‘The Meaning of Life: Dignity and the Right to Life in International Human Rights Treaties’ (2012) 12(2) Human Rights Law Review 199.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004284258_005

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then focus on identifying, explaining and critiquing two important international trends on the issue of abortion rights: the need for rights to be practical and effective; and the development of a right to reproductive health. Finally, there will be some discussion of the appropriate role of international law on this topic and the continued significance of margins of appreciation given to national authorities. Conclusions will be drawn not just on the future direction of abortion rights but also on the convergence between different human rights bodies on this topic and their (somewhat limited) use of comparative materials. 2

The Use of Comparative Regional and International Materials in Abortion Cases

In recent years, there have been a number of abortion rights cases brought before international and regional human rights bodies. The responses of these bodies have been remarkably similar, despite the disparate rights documents they are tasked with enforcing and the variety of cultural, social and religious perceptions of abortion around the world. In reaching decisions that recognise an evolving right to abortion, albeit one that is significantly limited and never engages directly with freedom of choice, the different bodies have obviously made use of a range of comparative and international materials. The manner in which this has been done varies considerably, however. Three different approaches to comparative materials are evident in the cases and will now be considered in turn. First, the body considering the issue of abortion rights may cite this material and, by doing so, acknowledge its relevance. An example of this approach is the judgment of the European Court of Human Rights in A, B and C v Ireland.2 Relevant European and international material cited includes the third periodic report of Ireland on observance of the International Covenant on Civil and Political Rights (iccpr) and the Human Rights Committee’s concluding observations,3 the report of the Council of Europe Commissioner for Human Rights on his visit to Ireland in 2007,4 the concluding observations of the Committee on the Elimination of Discrimination against Women on Ireland’s periodic report,5 the International Conference on Population and Development 2 3 4 5

Application No 25579/05, Merits and Just Satisfaction, 16 December 2010. Ibid. at para 111. Ibid. at para 109. Ibid. at para 110.

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1994 and its Programme of Action6 and the Parliamentary Assembly of the Council of Europe’s Resolution 1607 from 2008 entitled ‘Access to safe and legal abortion in Europe’.7 The breadth of these sources, their conflicting viewpoints and conclusions, and their particular relevance to Ireland are worth noting. Significantly, however, there is no explicit use of any of these sources in the Court’s judgment. They are merely cited as relevant materials. Given the conflicting evidence provided by such sources, if the Court chose to rely explicitly upon one or more of these, it would need to justify its reason for doing so and, in this particular case, the Court does not do so. By contrast, a second means of using such materials is apparent in the same Court’s judgments in Tysiąc v Poland8 and r.r. v Poland.9 In both of these judgments, the Court not only lists international and regional materials of relevance to the issues in the cases but also specifically refers to them when explaining its conclusions. Thus, in Tysiąc, the Court notes that in its fifth periodic report to the Human Rights Committee (hrc), the Polish Government acknowledged that there had been deficiencies in the manner in which the law had been applied in practice.10 The Court relies on exactly the same point when reaching its judgment in the later case of r.r., but in this judgment also explicitly notes the concern expressed by the Committee on the Elimination of Discrimination against Women ‘as regards access by women in Poland to reproductive health services and to lawful abortion’.11 In a similar vein, the Inter-American Commission on Human Rights when considering a friendly settlement in Paulina Ramírez v Mexico makes reference to the Convention of Belém do Pará (the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women) in the context of the entitlement of victims of sexual violence to ‘the recognition, enjoyment, ­exercise, and protection of all their human rights’.12 In these examples, the external material relied upon has direct relevance to the issues central to the decisions. For example, in the cases against Poland, the European Court needed evidence of the distinction between the law and practice on abortion and the Government’s acknowledgement of this distinction was extremely useful for the Court’s reasoning. 6 7 8 9 10 11 12

Ibid. at para 104. Ibid. at paras 107–108. Application No 5410/03, Merits and Just Satisfaction, 20 March 2007. Application No 27617/04, Merits and Just Satisfaction, 26 May 2011. Tysiąc v Poland, supra n 8 at para 115. r.r. v Poland, supra n 9 at para 194. Case 161-02, Paulina Ramírez v Mexico Report No 21/07 (2007) at para 19.

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Some other bodies make no explicit mention of comparative materials. Thus, in k.n.l.h. v Peru, the Human Rights Committee reached findings of violations in the context of the lack of access to abortion without making any reference to the approach of other human rights regimes, international programmes of action or even states parties’ reports submitted pursuant to the very treaty it was enforcing.13 Despite this, the hrc reaches a judgment that is at the forefront of international thinking upon abortion rights and which mirrors developments under other regimes, including the need for enforceable and effective rights, and the recognition of mental suffering as a result of the denial of access to an abortion. This third approach might be regarded as one of implicit harmonisation under which a very similar approach is adopted but with no explicit cross-referencing of other materials in a final decision on the merits, which is brief and concise. Given the variation in approaches to external sources in the abortion cases considered, it is difficult to draw general conclusions upon the relevance of comparative regional and international materials in this context. It seems clear that external sources are cited to the human rights bodies considering these cases but are only explicitly relied upon in decisions if they strengthen the evidential basis for the decision. However, whether or not the materials are explicitly relied upon in the judgment, it seems likely that awareness of them contributes to the development of law on this topic. This is because, even when there is a reluctance to rely upon comparative regional or international materials when reaching a judgment, there are clear trends to be identified as disparate bodies draw similar conclusions on rights in the abortion context. These trends will now be investigated before an assessment of the role of international law in a topic so overshadowed by state variation and margins of appreciation. 3

Ensuring Rights are Practical and Effective: A Trend towards Procedural Rights in the Context of Abortion

The European Court of Human Rights has always insisted upon the need for rights to be practical and effective.14 Thus, in Tysiąc v Poland, when faced with a country described as having a ‘substantial gap between abortion law and abortion practice’,15 it is perhaps not surprising that the Court found it appropriate 13 14 15

(1153/2003) Views, CCPR/C/85/D/1153/2003 (2005). Airey v Ireland Application No 6289/73, Merits, 9 October 1979. Priaulx, ‘Testing the Margin of Appreciation: Therapeutic Abortion, Reproductive “Rights” and the Intriguing Case of Tysiąc v. Poland’ (2008) 15(4) European Journal of Health Law 361 at 362.

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to reiterate that ‘in the assessment of the present case it should be borne in mind that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective’.16 The applicant in this case suffered from severe myopia. While there was some medical evidence that pregnancy and delivery constituted a risk to her eyesight, the majority of the doctors she consulted refused to authorise an abortion, taking the view that the legal grounds for it were not made out. As Priaulx notes, ‘the considerable barriers that Ms Tysiąc confronted presented a far from isolated case’.17 Polish legislation prohibits abortion in Poland, providing only for certain exceptions. A doctor who terminates a pregnancy in breach of the conditions specified in the legislation is guilty of a criminal offence (although the pregnant woman is not). The Court referred to Poland’s fifth periodic report under the iccpr, in which the Polish government admitted that there had been deficiencies in the manner in which the law had been applied in practice.18 In that report, the Government acknowledged that the law’s provisions are not fully implemented and that some women, in spite of meeting the criteria for an abortion, are not subject to it. There are refusals to conduct an abortion by physicians employed in public health care system units who invoke the so-called conscience clause, while at the same time women who are eligible for a legal abortion are not informed about where they should go.19 The Court’s view on this issue is clear and has formed the bedrock of its subsequent case law on abortion: ‘Once the legislature decides to allow abortion, it must not structure its legal framework in a way which would limit real possibilities to obtain it’.20 The Court concluded that Polish law did not provide any effective mechanisms capable of determining whether the conditions for obtaining a lawful abortion had been met in the applicant’s case.21 The consequence of this for the applicant was found to be ‘a situation of prolonged 16 Tysiąc v Poland, supra n 8 at para 113. 17 Priaulx, supra n 15 at 362. 18 Tysiąc v Poland, supra n 8 at para 115. 19 hrc, Fifth periodic report: Poland, 13 January 2004, CCPR/C/POL/2004/5, at para 107. In its concluding observations to this report, the Human Rights Committee expressed that it was ‘concerned at the unavailability of abortion in practice even when the law permits it’ and called upon Poland to liberalise both its legislation and practice on abortion: see hrc, Concluding observations regarding Poland, 4 November 2004, CCPR/CO/82/POL, at para 8. 20 Tysiąc v Poland, supra n 8 at para 116. 21 Ibid. at para 124.

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uncertainty’ resulting in ‘severe distress and anguish when contemplating the possible negative consequences of her pregnancy and upcoming delivery for her health’.22 On this basis, Poland was found to be in violation of its positive obligations under Article 8 of the European Convention on Human Rights (echr) to safeguard the applicant’s right to respect for her private life in the context of a controversy as to whether she was entitled to a therapeutic abortion.23 Does this finding amount to a right to abortion? Both academic and judicial opinion is divided on this question. Fenwick, for example, finds ‘little plausible support in the jurisprudence for the idea that a “right to abortion” has now been recognised under Article 8 echr’,24 and Priaulx agrees that such an idea would ‘greatly overstate’ the legal significance of the decision.25 On the other side of the fence,26 Cornides argues that Tysiąc ‘looks like an attempt to promulgate a full-fledged “Right to Abortion” – not openly, but through the backdoor’.27 The dissenting opinion of Judge Borrego Borrego argues that the Court ignored the fact that the domestic grounds for abortion were not met, given the medical opinions, and that therefore the Court’s judgment requires a change in substantive law in Poland rather than merely the addition of effective mechanisms for enforcing the law.28 Cornides has even suggested that ‘the formal requirements imposed on legislators wishing to foresee legal restrictions to abortion are so far-reaching that any regulation other than one granting unrestricted access to abortion becomes technically impossible’.29 This, it might be argued, misses the point of the Court’s judgment entirely. The confusion seems to stem from the Court’s focus beyond the applicant’s individual case. While the dissenting judge and some commentators assume that the finding of a violation implies that the applicant should have been able to access an abortion under Polish law, the Court’s actual judgment stops short of that conclusion. Instead, it merely holds Poland to account for failing to provide the applicant with a means of challenging the refusal of an abortion based 22 Ibid. 23 Ibid. at para 128. 24 Fenwick, ‘The Modern Abortion Jurisprudence under Article 8 of the European Convention on Human Rights’ (2013) 12(3/4) Medical Law International 249 at 263. 25 Priaulx, supra n 15 at 363. 26 The same fence on which Priaulx (ibid. at 377) colourfully suggests ‘the judges have got their clothing caught … in the process of getting off it’. 27 Cornides, ‘Human Rights Pitted Against Man’ (2008) 12(1) International Journal of Human Rights 107 at 126. 28 Dissenting Opinion of Judge Borrego Borrego in Tysiąc v Poland, supra n 8. 29 Cornides, supra n 27 at 126.

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on medical opinion. In the Court’s view, the harm suffered by the applicant, for which Poland could and should be held responsible under the Convention, was the uncertainty she experienced in being unable to access a legal mechanism to assert her claim for an abortion; it was not the harm arguably done to her reproductive health, much less the denial of her reproductive autonomy.30 As Priaulx explains, ‘rather than demanding that abortion be made available irrespective of merit, the Court’s concern was that there was a fair and unbiased process by which to determine “merit” in the first place’.31 This focus away from the specifics of the applicant’s factual situation and onto the more general (and admitted) failings of Poland to ensure effective implementation of its laws on abortion could be criticised. Priaulx, for example, argues that ‘the majority decision is something of a fudge; rather than squarely addressing the applicant’s case, the Court appears more intent upon distancing itself from the factual circumstances in favour of exploring the general context of the failings in the Polish abortion regime in order to substantiate its finding that there had been a relevant breach of Article 8’.32 In a very brief separate opinion, Judge Bonello seeks to clarify his understanding of the limited nature of the Court’s judgment. He notes that the Court was not concerned with any right to abortion but rather with whether effective mechanisms existed in Poland to determine whether the domestic conditions to obtain a legal abortion had been met. Judge Bonello wished to explicitly state that his vote for finding a violation in this case ‘goes no further than that’.33 But neither, it might be argued, does the Court’s. Whether the applicant would have satisfied those conditions was irrelevant. The difference that would have been made by the existence of an independent review procedure was to provide women like the applicant with greater certainty as to their legal situation. This is less a right to abortion than it is a right to procedural fairness. A similar approach was taken in A, B and C v Ireland34 in respect of the third applicant. This applicant complained about the failure to implement the constitutional right to an abortion in Ireland in the case of a risk to the life of the pregnant woman. While the Irish Constitution acknowledges the legality of an abortion to save the life of the woman, there had, at the time, been no 30

Thus, Judge Borrego Borrego’s argument that ‘the Court has decided that a human being was born as a result of a violation of the European Convention on Human Rights’ is again missing the point of the judgment. 31 Priaulx, supra n 15 at 372 (emphasis in original). 32 Ibid. at 370. 33 Separate Opinion of Judge Bonello in Tysiąc v Poland, supra n 8 at para 3. 34 Supra n 2.

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legislative implementation of that exception to Ireland’s general criminal prohibition of abortion. The Court was not convinced that either a constitutional action or an ordinary medical consultation process sufficed to satisfy the positive obligation on Ireland to provide an effective and accessible procedure allowing the applicant to establish her entitlement to a lawful abortion. Again, the Court focused on the need for rights to be practical and effective. In the Court’s view, the lack of legislative implementation of the risk to life exception in Ireland had resulted ‘in a striking discordance between the theoretical right to a lawful abortion in Ireland on the ground of a relevant risk to a woman’s life and the reality of its practical implementation’.35 Poland has found itself twice more before the European Court of Human Rights in recent years, seeking to defend its abortion law and practice. In r.r. v Poland,36 the applicant complained that her Article 8 rights had been violated by the Polish authorities’ failure to provide her with timely access to genetic tests to determine whether her foetus was affected with a genetic disorder, and also by the absence of a comprehensive legal framework to guarantee her rights. Polish legislation permitted an abortion to be carried out before viability if prenatal tests or other medical findings indicate a high risk that the foetus will be severely and irreversibly damaged or suffer from an incurable lifethreatening ailment. Therefore, the Court recognised that access to full and reliable information on the foetus’ health was a necessary prerequisite for a legally permitted possibility to have an abortion to arise.37 As in the previous cases, the key issue for the Court was the practical and effective nature of the rights protected under Article 8 and it was emphasised that once a contracting state has adopted statutory regulations allowing abortion in some situations, it must not structure its legal framework in a way which would limit real possibilities to obtain it.38 The Court once more referred to Poland’s fifth periodic report under the iccpr, in which the Polish Government acknowledged that there had been deficiencies in the manner in which the law on abortion had been applied in practice.39 Therefore, the Court explained that ‘if the domestic law allows for abortion in cases of foetal malformation, there must be an adequate legal and procedural framework to guarantee that relevant, full and reliable information on the foetus’ health is available to pregnant women’.40 It 35 36 37 38 39 40

Ibid. at para 264. Supra n 9. Ibid. at para 199. Ibid. at para 200. Ibid. at para 194. Ibid. at para 200.

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appears, therefore, that the requirements of the procedural rights implied into Article 8 encompass a right to adequate information about foetal health alongside a right to an effective mechanism for implementing the laws on abortion. Both information and adequate procedures were also found to be lacking in the more recent case of P. and S. v Poland.41 The applicants in this case also complained about the absence of a comprehensive legal framework guaranteeing timely and unhindered access to abortion under the conditions set out by the applicable laws. The first applicant was a minor who became pregnant following a rape. The Court identified the difficulties she had faced in obtaining the abortion that should have been lawfully available under Polish legislation: The events surrounding the determination of the first applicant’s access to legal abortion were marred by procrastination and confusion. The applicants were given misleading and contradictory information. They did not receive appropriate and objective medical counselling which would have due regard to their own views and wishes. No set procedure was available to them under which they could have their views heard and properly taken into consideration with a modicum of procedural fairness.42 The Court found Poland to be in violation of its positive obligations under Article 8 once more in this case, holding that ‘effective access to reliable information on the conditions for the availability of lawful abortion, and the relevant procedures to be followed, is directly relevant for the exercise of personal autonomy’.43 In both the r.r. and P. and S. cases, Judge de Gaetano issued strongly dissenting opinions in which he queried the role of Article 8 in the abortion context. In r.r. he expressed regret at the Court ‘dragging’ Article 8 into these cases. Later in P. and S., Judge de Gaetano expressed more fully his reservations about the applicability of Article 8: Neither the Convention generally nor Article 8 in particular confer a right to abortion. The issue was in this case – as it was in many other cases – one of regulatory frameworks and procedural mechanisms: in essence, how to enforce a ‘right’ granted by domestic law in the face of opposition, direct or oblique, from public authorities. The issue should t­herefore 41 42 43

Application No 57375/08, Merits and Just Satisfaction, 30 October 2012. Ibid. at para 108. Ibid. at para 111.

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have been examined under Article 6. Invoking Article 8 in such cases not only distorts the true meaning of ‘private life’, but ignores the most fundamental of values underpinning the Convention, namely the value of life, of which the unborn child is the carrier.44 This argument, that there is no ‘right to abortion’ within the terms of the Convention,45 can be compared with the heated debate in the uk surrounding the right to vote under Article 3 of Protocol No 1.46 The Court’s use of the living instrument doctrine encourages it to recognise new aspects and applications of the rights expressed in the text and this often proves to be controversial. To argue, however, that there is no right to abortion in the Convention misses the point that abortion is an aspect of a woman’s private life, to which the contracting parties owe an obligation of respect. It is from this perspective that the focus on the right to respect for private life being a practical and effective right stems. This approach is not restricted to the European Court of Human Rights but has also been applied by other human rights bodies, most notably the InterAmerican Commission on Human Rights (iachr). The case of Paulina Ramírez v Mexico47 involved a 14-year-old girl who was pregnant after being raped and was prevented by the authorities from exercising her right to terminate the pregnancy, present in domestic law. The public prosecution service had authorised the abortion but the hospital failed to perform it and the girl and her mother were subjected to propaganda against abortion, as well as to misleading information about its risks. The author was therefore not e­ xplicitly denied 44 45

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Ibid. at Partly Dissenting Opinion of Judge de Gaetano, para 1. See, for example, the comments by Lord Sumption in November 2013: ‘The text of Article 8 protects private and family life, the privacy of the home and of personal correspondence. This perfectly straightforward provision was originally devised as a protection against the surveillance state by totalitarian governments. But in the hands of the Strasbourg Court it has been extended to cover the legal status of illegitimate children, immigration and deportation, extradition, aspects of criminal sentencing, abortion, homosexuality, assisted suicide, child abduction, the law of landlord and tenant, and a great deal else besides. None of these extensions are warranted by the express language of the Convention, nor in most cases are they necessary implications’. see ‘Lord Sumption gives the 27th Sultan Azlan Shah Lecture, Kuala Lumpur: The Limits of Law’, 20 November 2013, at 7–8, available at: www.supremecourt.uk/docs/speech-131120.pdf. The 2005 judgment in Hirst v United Kingdom (No 2) Application No 74025/01, Merits and Just Satisfaction, 6 October 2005, remains unimplemented at the time of writing. The ongoing saga is well documented here: www.theguardian.com/politics/votes-for-prisoners. Supra n 12.

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her right to access an abortion but instead had her access to it delayed and was persuaded to change her mind. Ultimately, a friendly settlement was reached in this case. In a ‘public acknowledgement of responsibility’, the Government of the State of Baja California admits that ‘it was not possible to end the pregnancy because the public health institution she was referred to denied her medical care and the physicians did not give the family objective information on the risks of performing an abortion’.48 The Government also acknowledged that ‘the absence of an appropriate body of regulations concerning abortion’ resulted in the violation of the petitioner’s human rights.49 This can be compared with the Polish Government’s admission in its reports under the iccpr that ‘the law’s provisions are not fully implemented and that some women, in spite of meeting the criteria for an abortion, are not subject to it’.50 Given these admissions, it is not surprising that the regional bodies tasked with upholding human rights should regard these failings as violating the rights provisions. The iachr, for example, confirmed that the importance of the adoption, by the member states, of criminal, civil or administrative measures in order to ensure that incidents such as the one described in this case are duly sanctioned and do not enjoy impunity. The iachr has repeatedly stated that de jure and de facto access to suitable and effective judicial remedies is indispensable for the protection of all the rights of women, as is states’ compliance with their obligation of acting with due diligence when violations of their human rights occur.51 This emphasis on de facto access to judicial remedies mirrors the approach of the European Court of Human Rights and can perhaps be seen as a separate strand from the Commission’s other comments which emphasise that the health of sexual violence victims should be treated as a priority in legislative initiatives and health policies and programmes.52 The Committee on the Elimination of Discrimination against Women has also adopted a similar approach in the abortion context of identifying procedural rather than substantive failings when women are denied access to ­abortion. l.c. v Peru again involved the tragic repercussions of a young girl 48 Ibid. at annex. 49 Ibid. 50 Supra n 19. 51 Paulina Ramírez v Mexico, supra n 12 at para 26. 52 Ibid. at para 19. Trends relating to reproductive health will be considered more fully below.

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­becoming pregnant after being raped.53 In this case, a 14 year old was repeatedly raped, became depressed and attempted suicide by jumping off a roof, leaving her quadriplegic. She then required an operation to realign her spine and increase the chances of future mobility, but as she was approximately eight weeks pregnant, the doctors refused to operate. Psychiatric treatment for her depression was also denied to her by the doctors due to it being contraindicated during pregnancy. The girl’s mother requested an abortion in order to enable the necessary operation to proceed but this was also refused by a hospital medical committee. l.c. eventually miscarried due to her injuries. When she subsequently underwent the operation on her spine, three and a half months after it was first deemed necessary for her health, it was ineffective and she remains severely disabled. It is hard to envisage a more tragic case, in which a child’s future health depends upon the termination of the pregnancy she has suffered as a result of years of abuse. Under Peruvian law, she was entitled to such an abortion. Article 119 of the Penal Code has only one exception to the state’s general criminal prohibition on abortion and this is in circumstances ‘when it is the only means to save the life of the woman or to avoid serious and permanent damage to her health’.54 However, as Bates notes, this is only an immunity whereas Article 2 of the Peruvian Constitution of 1993 declares that ‘[t]he unborn child is a rights-bearing subject in any event which is beneficial for him’.55 There is therefore no duty imposed on the state that could confer a right to an abortion, but there is a constitutional duty on state officials to protect the rights of the unborn.56 The Committee refers to the right to health protected in Article 12 of the International Covenant on Economic, Social and Cultural Rights (‘the right of everyone to the enjoyment of the highest attainable standard of physical and mental health’) and the fact that this must be realised on a non-discriminatory basis.57 The Committee thus commented that ‘l.c. was a victim of exclusions and restrictions in access to health services based on a gender stereotype that understands the exercise of a woman’s reproductive capacity as a duty rather than a right’.58 Nonetheless, the violation found against Peru focused once 53

(22/2009) Views, CEDAW/C/50/D/22/2009 (2011). See also Bates, ‘Abortion and a Right to Health in International Law: l.c. v Peru’ (2013) 2(3) Cambridge Journal of International and Comparative Law 640. 54 l.c. v Peru, ibid. at para 2.5. 55 Bates, supra n 53 at 642–3. 56 Ibid. at 643. 57 Article 2 icescr. 58 l.c. v Peru, supra n 53 at para 7.7. The Committee added disparagingly that Peru considered l.c.’s ‘reproductive capacity of greater importance than her human rights’.

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more on the lack of a legal procedure for ensuring practical implementation of domestic rights to abortion: Since the State party had legalised therapeutic abortion, it must establish an appropriate legal framework that allows women to exercise their right to it under conditions that guarantee the necessary legal security, both for those who have recourse to abortion and for the health professionals that must perform it.59 These words could be straight from the mouth of the European Court and thus, despite the lack of explicit reliance upon comparative materials, the different international and regional bodies called upon to adjudicate on denials of access to abortion are adopting identical perspectives and imposing identical obligations upon contracting states. Once legal access to therapeutic abortions has been conceded in domestic legislation, the human rights of the pregnant woman require that such access is real and effective, rather than merely theoretical. What if a state has not made such a concession, however? Is there a right to therapeutic abortion that stands independent of procedural guarantees attaching to domestic rights? 4

Protecting Reproductive Health: A Trend towards a Substantive Right to Therapeutic Abortion?

The only international or regional human rights instrument that explicitly recognises a right to abortion does so in the context of reproductive health. The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (‘the African Women’s Protocol’), which was adopted by the second ordinary session of the Assembly of the African Union in Maputo on 11 July 2003, locates a right to abortion within a provision on health. Article 14(2)(c) requires that states parties take all appropriate measures to provide adequate, affordable and accessible health services to women and proceeds to require the protection of the reproductive rights of women by means of the authorisation of medical abortion ‘in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the foetus’. This landmark provision has been signed and ratified by 36 countries of the African Union and entered into force on 25 November 2005. Article 26 explicitly requires states parties 59

Ibid. at para 8.17.

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to ensure the implementation of this Protocol at national level.60 The commitment to permit therapeutic abortion under the African Women’s Protocol does not prevent African states permitting abortion on broader autonomybased grounds because Article 31 specifies that none of the provisions of the Protocol shall affect more favourable provisions for the realisation of the rights of women contained in national legislation or other conventions, treaties or agreements. The explicit requirement of authorisation of therapeutic abortion reflects a wider international trend towards such a right. The Parliamentary Assembly of the Council of Europe (pace) has openly called for the decriminalisation of abortion within reasonable gestational limits.61 It has done so within the context of the need to guarantee women’s effective exercise of their right of access to a safe and legal abortion, and against a backdrop of a focus on reproductive autonomy rather than health.62 The significance of this should not be underestimated. Indeed, Zampas and Gher refer to this pace Resolution as ‘the most progressive pronouncement on the right to abortion by any international or regional human rights system’.63 Certainly, there is no doubt that the Parliamentary Assembly is ahead of the European Court of Human Rights on this topic, but this is perhaps not surprising. The political organ of the Council of Europe calls for a change in policy within member states which would recognise the right of access to safe abortions, while the legal organ ensures that, once conceded by states, such a right of access is practical and effective. Within the United Nations system, the Human Rights Committee has seemed more willing than other treaty bodies to enforce substantive abortion requirements that go beyond the procedural considerations of the European Court. In k.n.l.h. v Peru,64 a 17-year-old woman was denied an abortion despite a scan which showed that she was carrying an anencephalic foetus. The 60

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The states parties are required to indicate the legislative and other measures undertaken for the full realisation of the rights in this Protocol within their periodic reports submitted in accordance with Article 62 African Charter. pace Resolution 1607 (2008), Access to safe and legal abortion in Europe, 16 April 2008, at para 7.1, adopted by 102 votes to 69. Ibid. at para 6: ‘The Assembly affirms the right of all human beings, in particular women, to respect for their physical integrity and to freedom to control their own bodies. In this context, the ultimate decision on whether or not to have an abortion should be a matter for the woman concerned, who should have the means of exercising this right in an effective way’. Zampas and Gher, ‘Abortion as a Human Right: International and Regional Standards’ (2008) 8(2) Human Rights Law Review 249 at 251. Supra n 13.

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child died four days after birth and the mother fell into a state of deep depression. Unlike the cases discussed above, this was not primarily about a failure to implement the relevant domestic law. Peruvian law permitted abortion only on the grounds of saving the life of the pregnant woman or to avoid serious and permanent damage to her health. There was no foetal abnormality ground in Peru. There was, however, some medical evidence of serious harm being caused to the woman’s mental health from being forced to continue the pregnancy, as well as medical evidence that the pregnancy exposed her to a lifethreatening risk. The hrc found Peru to be in violation of Articles 2, 7, 17 and 24 of the iccpr.65 Of particular significance was the finding under Article 766 that the omission on the part of the state in not enabling the author to benefit from a therapeutic abortion was the cause of the mental suffering that she experienced and which amounted to a violation of the right not to be subjected to degrading treatment.67 Whether this is quite as significant as it first appears to be might be queried, however. The hrc noted that a doctor had told the woman that she could terminate the pregnancy in accordance with the domestic legislation permitting abortions in cases of risk to life.68 Thus, it appeared to the Committee that the abortion would have been lawful and so a refusal to act in accordance with the woman’s decision to seek an abortion amounted to a violation of the right to privacy under Article 17.69 This approach, which focuses on whether the abortion would have been lawful in domestic law, mirrors that under the procedural approach discussed above. The focus of the Committee’s views, however, is much more on the implications of the denial of abortion rather than the difficulty in accessing it. The author’s special vulnerability as a minor and the fact that she did not receive, during or after her pregnancy, the necessary medical and psychological support also led to the finding of a violation of Article 24.70 The finding of a violation of Article 2 on the basis of 65 66 67

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Ibid. at para 6.6. Article 7 iccpr: ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’. k.n.l.h. v Peru, supra n 13 at para 6.3. The dissenting opinion by Member Hipólito SolariYrigoyen favoured a further finding of a violation in respect of the right to life under Article 6 for the placing of the author’s life in grave danger by the denial of an abortion. Ibid. at para 2.2. Article 17 iccpr: ‘1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks’. Article 24(1) iccpr: ‘Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such

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the lack of an adequate legal remedy is a clear sign that procedural requirements go hand in hand with substantive requirements. The fact that Peru did not respond to the hrc’s requests for information was undoubtedly significant to the decision. In a later case before the hrc, l.m.r. v Argentina,71 similar conclusions were reached in the context of the mental suffering caused by an inability to access abortion. l.m.r. was a young woman with a mental age of between 8 and 10 years old. Under Section 82.6 of the Argentinean Criminal Code abortion is legal where the pregnancy is the result of the rape of a mentally impaired woman. However, her abortion was prevented by an injunction against the hospital. An appeal to the Supreme Court of Justice of Buenos Aires was successful and the Court held that the abortion would be lawful but a month and a half had passed since the initial request, meaning that the pregnancy was now at 20 to 22 weeks gestation and the hospital refused to perform it at this stage on the basis that the pregnancy was too far advanced. The Committee confirmed that the state’s failure to guarantee l.m.r.’s right to an abortion caused her physical and mental suffering constituting a violation of Article 7 of the iccpr.72 Her right to privacy under Article 17 was also violated due to the interference by the judiciary in an issue that, the state acknowledged, should have been resolved between the patient and her doctor.73 As discussed above, the European Court of Human Rights has approached the topic of abortion rights by means of the procedural guarantees relating to the need for rights to be practical and effective. In A, B and C v Ireland,74 however, the Court was also called upon to consider the substantive issue of the limited grounds on which a lawful abortion was obtainable in Ireland. The first two applicants in this case sought to terminate their pregnancies on health or well-being grounds, neither of which were permitted within Ireland where the sole exception to the criminal prohibition on abortion relates to saving the life of the pregnant woman. The applicants argued that the strict Irish approach was positioned outside of a clear European consensus on the minimum standards for abortion services necessary to preserve a woman’s health and wellbeing, and they cited international materials to do so. However, the Irish Government rejected this proposition, arguing that ‘the international consensus,

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measures of protection as are required by his status as a minor, on the part of his family, society and the State’. (1608/2007) Views, CCPR/C/101/D/1608/2007 (2011). Ibid. at para 9.2. Ibid. at para 9.3. Supra n 2.

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if at all relevant, in fact pointed the other way, namely, towards supporting a State’s autonomy in determining its own abortion laws rather than leaving this to a supranational judicial-making body’.75 In support of this argument, the Government referred to a range of international materials, including the International Conference on Population and Development 1994 (icpd) and its Programme of Action.76 Article 8.25 of the Programme called upon all governments to strengthen their commitment to women’s health and to deal with the impact of unsafe abortion as a major public health concern but, in a compromise born of political negotiation, it also stated that ‘[a]ny measures or changes related to abortion within the health system can only be determined at the national or local level according to the national legislative process’.77 It is this element of the Programme of Action that Ireland sought to rely upon before the European Court. It was able to draw support from a 2010 Recommendation of the Parliamentary Assembly of the Council of Europe, which called on European governments to ensure the full implementation of the icpd Programme of Action by 2015.78 The Irish Government pointed out that this Recommendation has greater significance than the pace Resolution of 2008,79 which, as noted above, calls for the decriminalisation of abortion but was adopted by a split vote due to the divergence of views amongst contracting states.80 The Court did not accept, although neither did it address, the Irish Government’s arguments about an international consensus on abortion being a matter to be determined at national level. Instead, it recognised a consensus amongst a substantial majority of the contracting states towards ‘allowing abortion on broader grounds than accorded under Irish law’.81 Given that consensus, the Court did not regard it as necessary to look further to international trends and views which, it was argued by the applicants and some of the third parties, 75 Ibid. at para 187. 76 A/CONF.171/13/Rev.1. 77 Ibid. at para 8.25. 78 pace Recommendation 1903 (2010), Fifteen years since the International Conference on Population and Development Programme of Action, 29 January 2010. 79 Supra n 61. 80 A, B and C v Ireland, supra n 2 at para 187. 81 Ibid. at para 235. The Court noted (ibid. at para 112) in particular that the first and second applicants could have obtained an abortion on request (according to certain criteria including gestational limits) in some 30 contracting states; while an abortion justified on health grounds would have been possible in approximately 40 contracting states and an abortion justified on well-being grounds in some 35 contracting states. The Court further noted that only three states have more restrictive access to abortion services than in Ireland.

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supported even broader access to abortion.82 Having identified a European consensus towards permitting abortion on grounds of health or well-being, it might have been expected that Ireland’s positioning outside of that consensus would have led to the finding that its restrictions on the Article 8 rights of the applicants were disproportionate and unnecessary in a democratic society. However, the Court declined to take that step and instead broke with its own tradition by conceding a wide margin of appreciation to Ireland notwithstanding the European consensus of which it stood outside.83 There are a number of considerations that may have contributed to this unusual strategy by the Court, such as the peculiarly emotive context of Catholic perceptions of abortion and the growing political backlash against the Court in some states parties that has led to an increasing emphasis (and now even textual embodiment)84 of the margin of appreciation. One cannot help but wonder, however, whether there is a parallel to be drawn here with the Court’s previous approach to the legal recognition of a transsexual’s change of gender. In a series of cases against the uk,85 the European Court granted the state a wide margin of appreciation under Article 8(2) but issued a warning that the laws in this context needed to be kept under continual review as there was an emerging consensus of which the uk’s approach was outside. In subsequent cases86 the Court seemed to lose patience with the uk and its failure to amend its laws to recognise a change in gender and found it to be in violation of ­Article 8. Could the Court be attempting a similar approach in respect of the abortion laws in Ireland? By identifying an emerging (or even already emerged in this case) consensus of which Ireland is outside, and warning the state of this, but continuing to grant a large discretion to the state, is the Court preparing the 82 Ibid. 83 For discussion, see Wicks, ‘A, B, C v Ireland: Abortion Law under the European Convention on Human Rights’ (2011) 11(3) Human Rights Law Review 556. 84 When it comes into force, Protocol No 15 will add a new recital into the preamble of the Convention which reads: ‘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’. 85 Rees v United Kingdom Application No 9532/81, Merits, 17 October 1986; Cossey v United Kingdom Application No 10843/84, Merits, 27 September 1990; and Sheffield and Horsham v United Kingdom Applications Nos 22985/93 and 23390/94, Merits, 30 July 1998. 86 Christine Goodwin v United Kingdom Application No 28957/95, Merits and Just Satisfaction, 11 July 2002; and i. v United Kingdom Application 25680/94, Merits and Just ­Satisfaction, 11 July 2002.

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ground for a later decision that regrets Ireland’s failure to bring its laws in line with the European consensus about which it has been warned, and finds it to be in violation of the Convention? Although the European Court has thus far stopped short of imposing any substantive requirements about the circumstances in which abortion should be lawful, it has expressed concern about the ‘chilling effect on doctors’ of the criminalisation of abortion when they are called upon to decide whether the requirements of a lawful abortion are met in an individual case,87 and has explicitly expressed its view that ‘provisions regulating the availability of lawful abortion should be formulated in such a way as to alleviate this chilling effect’.88 The Court has also placed some emphasis upon the obligations of the state to ‘secure the physical integrity of mothers-to-be’.89 This might imply that the Court would be prepared to impose substantive requirements in respect of therapeutic abortions.90 Such an approach could be compared with the hrc’s General Comment No 28, in which states parties are required to report on whether they provide safe access to abortion for women who become pregnant as a result of rape, so as to enable the hrc to assess their compliance with the prohibition of cruel, inhuman or degrading treatment under Article 7.91 That the legal regulation of abortion engages the pregnant woman’s health and autonomy rights is now in little doubt. As Sifris acknowledges, these rights cannot easily be distinguished. He argues that ‘[o]nly a multi-faceted approach can adequately take account of the numerous ways in which women who are denied access to abortion may suffer’.92 For example, a focus only on autonomy rights may fail to consider the implications of restrictions on abortion on women as a marginalised group, while a focus only on equality rights ‘may result in generalisations and stereotypes, which fail to adequately take account of the individual woman’.93 The increasing focus on reproductive health needs 87 See Tysiąc v Poland, supra n 8 at para 116. 88 r.r. v Poland, supra n 9 at para 193. 89 Tysiąc v Poland, supra n 8 at para 107. 90 Priaulx, supra n 15 at 375–6. 91 Human Rights Committee, General Comment No 28: Article 3 (The equality of rights between men and women), 29 March 2000, CCPR/C/21/Rev.1/Add.10, discussed in Zampas and Gher, supra n 63 at 281. 92 Sifris, ‘Restrictive Regulation of Abortion and the Right to Health’ (2010) 18(2) Medical Law Review 185 at 190. In this context, Sifris argues (at 189) that ‘[i]t is inadequate to only consider restrictions on abortion through the lens of one particular fundamental right as such a one-dimensional approach invariably results in an oversimplification of the ways in which women experience a denial of legal abortion services’. 93 Ibid. at 190.

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to be interpreted broadly if it is to provide an adequate response to pregnant women in need of assistance. The World Health Organization (who) has recommended that any mental health exception to a general prohibition on abortion should include psychological distress, including that caused by rape or incest, or by a diagnosis of foetal impairment, as well as ‘distress caused by detrimental socio-economic circumstances’.94 From this perspective, abortions for reasons as diverse as foetal abnormality, rape and financial concerns cannot easily be distinguished from health considerations. Furthermore, while the focus on a right to health carries the most potential to protect a right to abortion at present, this does not necessarily restrict lawful access to abortion to those required for the preservation of the health of the pregnant woman. This is because the international community has long recognised that unsafe abortion is a major public health concern,95 and, as the who has concluded, the ‘incidence of unsafe abortion is influenced by the legal provisions governing access to safe abortion, as well as the availability and quality of legal abortion services’.96 An important point that is often missed when considering the legality of abortion is that its prohibition will have little preventative effect. Thus the right to an abortion is not about securing access to the procedure but about ensuring its safety. As Hartmann has argued, ‘[w]omen have traditionally sought abortion when they need it, regardless of the law. The crucial difference legality can make is in safety’.97 With the who recognising that ‘[r]estrictive legislation is associated with a high incidence of unsafe abortion’98 and the explicit protection of a woman’s right to health in international law,99 restrictive legal regimes are likely to face increasing difficulties in maintaining strict prohibitions of abortion. When Nicaragua introduced a complete ban on abortion in 2006, the Rapporteur on the Rights of Women of the Inter-American Commission wrote a letter of concern to Nicaragua’s Minister of Foreign Affairs declaring the abortion ban to be contrary 94

World Health Organization, Safe Abortion: Technical and Policy Guidance for Health Systems (who, 2003) at 86. 95 The icpd (supra n 76 at para 8.25) categorised unsafe abortion as ‘a major public health concern’. 96 World Health Organization, Unsafe Abortions: Global and Regional Estimates of Incidence of Unsafe Abortion and Associated Mortality in 2003 (who, 2007) at 2. 97 Hartmann, Reproductive Rights and Wrongs: The Global Politics of Population Control (South End Press, 1995) at 261. Hartmann recognises (at 262), however, that legalisation is ‘only the first step in making safe abortion a real option; spreading low-cost services is the other’. 98 who, supra n 94. 99 Article 12 cedaw; and Articles 2 and 12 icescr.

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to international law.100 Despite the frequent focus on procedural elements of a state’s failing in respect of access to abortion, this view has growing support. While the state still retains considerable discretion to choose the circumstances of legality for abortion, a blanket approach which admits of no exception, and thus devalues not only a woman’s physical and mental health, but also her life, is unlikely to survive a challenge under any of the major international or regional human rights mechanisms. International law’s focus on reproductive health has represented a significant victory for women’s rights and for a vision of human rights that genuinely protects the rights of both men and women.101 However, a focus on reproductive health rather than reproductive autonomy means that only half of the battle has been won. Indeed, perhaps there remains an entirely different battleground yet to be faced. 5

The Role of International Law, the Margin of Appreciation and the Interplay between Procedural and Substantive Rights

As an emotive, moral- and religious-based issue, abortion is at the forefront of debates about subsidiarity, margins of appreciation and the appropriate role of international law. At the drafting stages of many international and regional human rights treaties, a compromise was struck between states with starkly different approaches to the topic resulting in ambiguous clauses and enabling all states to commit to human rights obligations without automatically bringing their abortion laws into conflict with these obligations. For example, the drafters of the echr avoided any decision on whether a foetus has the protection of the right to life under Article 2, while the seemingly more prescriptive approach of the American Convention on Human Rights which declares that life begins at conception is undermined by the use of the proviso ‘in general’.102 The inability of the drafters to reach consensus on whether abortion is a violation of a foetal right to life or an exercise of a woman’s right to autonomy 100 Zampas and Gher, supra n 63 at 279. 101 Joachim reminds us that ‘the inclusion of the issue of reproductive rights and health on the un agenda is remarkable, given the opposition that women’s organizations encountered from conservative countries and even from their own ranks’: see Joachim, Agenda Setting, the un, and ngos: Gender Violence and Reproductive Rights (Georgetown University Press, 2007) at 159. 102 Article 4(1) achr: ‘Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life’.

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(or if, as seems likely, it is both, how such a conflict of rights should be resolved) merely postponed the resolution of these issues to a later date. What the drafters could not resolve became a dilemma for the political and judicial bodies seeking to implement the human rights treaties. As has been discussed above, these bodies have similarly been slow to provide answers for fear of alienating a group of states which not only adopt a contrary position but which also regard the issue as at the very heart of their sovereign law-making rights. Nevertheless, trends towards a partial resolution of the issue have been identified. As discussed above, these have taken the form of a willingness to recognise the need for practical and effective implementation of any rights to abortion recognised within domestic law, as well as some gradual steps towards a focus on substantive reproductive health rights, but with continued ambiguity about the related question of whether the right to life has any application prebirth. All of these developments are rooted in the issue of the appropriate role of international law to intervene in this emotive topic. The lack of global consensus on the nature of abortion has been central to the slow development of abortion rights at an international level. For example, the European Court of Human Rights often refers to a lack of European consensus on an issue as a justification for the granting of a wide margin of appreciation to contracting states on a particular topic. Usually, the emergence of a European consensus will have the effect of reducing the width of the margin and, by implication, justifying the enforcement of European-wide standards.103 An interesting contrast can be made with the Court’s approach to consensus on the topics of abortion and assisted suicide, however. In the abortion context, when only a few states prohibit abortion, the Court has found them to be outside of a broad consensus in favour of the legalisation of abortion.104 By contrast, when four states permit assisted suicide and/or euthanasia, the Court does not question whether they are outside of a consensus to prohibit such actions but instead merely focuses upon the absence of consensus in favour of legalisation.105 This contrast in approach could be explainable in two ways. First, it might be crucial how the issue reaches the Court. In the abortion c­ ases, the 103 However, in the A, B and C case, supra n 2, the Court controversially departed from this usual procedure and declined to narrow the margin despite an emerging consensus: see Section 4 above. 104 A, B and C v Ireland, supra n 2 at para 235. 105 Haas v Switzerland Application No 31322/07, Merits and Just Satisfaction, 20 January 2011; and Gross v Switzerland Application No 67810/10, Merits and Just Satisfaction, 14 May 2013. This comparison is noted in Puppinck, ‘Abortion and the European Convention on Human Rights’ (2013) 3(2) Irish Journal of Legal Studies 142 at 168–9.

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states in the minority are being challenged because their laws are not drafted along the same lines as in other European states, whereas in the more recent assisted suicide cases, the states in the minority are being challenged for not going far enough in the direction away from the position taken by the other states. Secondly, it may be crucial that the trend in both abortion and assisted suicide is moving in the direction of legalisation. Thus, states such as Ireland are regarded as lagging behind the trend to permit abortion, whereas states such as Switzerland are regarded as leading the trend towards legalising assisted suicide, albeit on restrictive terms. One problem with this argument is the question of whether a mere four states can be regarded as constituting a European trend. As Puppinck notes, ‘the Court generally uses the concept of consensus in a specific way, different from its definition in international law’.106 This is because in international law, ‘consensus is an agreement by absence of explicit opposition’, while in the Court’s use of the concept, ‘there is a consensus when a large majority of member states shares a common view on a certain issue’.107 This perhaps opens the door to a flexible view of consensus which takes into account the direction in which trends are developing, thus explaining why the few states which have legalised assisted suicide are not outside of a European consensus, while the few who retain strict prohibitions on abortion are so treated. One interpretation of the emphasis on procedural rights which effectively resolves questions about the appropriate margin of appreciation to be left to states on the issue of abortion is explained by Fenwick: ‘[W]here the state has provided for a degree of access to abortion to be available in law, the state’s margin of appreciation does not extend to the manner in which it is made available’.108 In other words, while the state retains discretion in respect of whether, and on which grounds, to permit access to abortion, it has willingly relinquished such discretion on the manner of implementation of such access as it does permit. There are problems with this interpretation. First, as Fenwick notes, the denial of discretion in how to implement access to abortion appears to ‘accord access to abortion a higher status, as opposed to other offered medical procedures’.109 Secondly, however, it is a potentially risky approach for international law to adopt because the implication that the state’s margin vanishes once it concedes the legality of abortion suggests an obvious response that the way to retain the margin is to prohibit abortion on all 106 Ibid. at 168. 107 Ibid. 108 Fenwick, supra n 24 at 261 (emphasis in original). 109 Ibid.

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grounds in domestic law. This danger has been noted by Bates when discussing the l.c. v Peru case decided by the Committee on the Elimination of Discrimination against Women. She notes that while the Committee would like to see Peru introduce an appropriate legal framework to enable women to access a right to therapeutic abortion, there is another possible means of complying with the judgment: The decision does not suggest that the rights to health or to decide the number and spacing of one’s children in the Convention create a right to therapeutic abortion. This therefore means that complete prohibitions on abortion remain compatible with international law. It thus, hypothetically at least, remains open to Peru to follow Nicaragua in reverting back to an absolute prohibition on abortion…110 The tendency of international and regional bodies to focus more on procedure than substance carries this danger of forcing states to pick one of the extremes: genuine access to abortion or complete prohibition. However, there are also merits in this approach. It ensures that the acceptance of a right to abortion originates at state level, and thus carries with it a widespread acceptance of such a right that might be missing from an external imposition of it. Furthermore, it clarifies the conflicting considerations that might justify the right’s restriction. A moral stance adopted by a state, invariably on the basis of a state religion, that prioritises the life of the foetus over the health, well-being or autonomy of the pregnant woman, might be objectionable to some, but it is a principled balancing of conflicting interests that arguably falls within the jurisdiction of the state’s legal system. By contrast, the often tragic examples of the denial of abortion brought before international and regional bodies relate to a rejection of that very balancing exercise by persons other than the state. Conscientious objections, prevarication, misleading information and delay by doctors, or undue pressure from hospitals, the press or religious personnel, have stood in the way of women accessing the abortion which their own state has acknowledged is lawful. Thus, even if international law is reluctant to demand a particular balancing of the interests of the foetus and the pregnant woman, it is, and must be, prepared to ensure that a state’s balancing of such interests is not undermined by state authorities’ toleration of extralegal pressure. As an explicit right to an abortion is absent from most international and regional instruments, there remains controversy as to whether it is a right that can be implied into broader protections for autonomy. The emphasis on p ­ rocedural 110 Bates, supra n 53 at 655.

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guarantees once the right is conceded at a national level is an effective means of circumventing this controversy. There is also another means of doing so which is similarly emerging as a trend in international law: the development of a right to reproductive health. A right to health is now quite clearly established in international law, although there remains considerable debate about its scope and content.111 Beyond such an explicit right, there is also no doubt that broadly interpreted provisions such as Article 8 of the echr encompass a right to physical and mental integrity.112 While states retain considerable discretion about the grounds on which to permit lawful abortions, a complete criminal prohibition with no exception even for the pregnant woman’s life or grave health issues, is likely to prove problematic if considered by a judicial body with an obligation to enforce positive obligations to protect health or life. Indeed, in terms of the extensive positive obligations recognised under the right to life, it is hard to see how a state that prohibits a life-saving abortion could be said to comply with its international obligations. It is a curious omission in the A, B and C case that the third applicant did not rely upon the state’s positive obligation to take appropriate steps to protect her life. It is, surely, an argument waiting to be heard. There is one final point that cannot be overlooked when considering the role of international law in regulating an issue such as abortion, and that is the phenomenon of the globalisation of health care. Even a state which expresses moral opposition to a form of treatment, and enshrines that in its law, cannot prevent individuals travelling abroad to obtain the treatment. This is true in respect of the uk and assisted suicide,113 just as it is true of Ireland and abortion.114 This inability to enforce the denial of access to a particular t­ reatment, 111 Sifris, supra n 92 at 192. 112 See, for example, X and Y v The Netherlands Application No 8978/80, Merits and Just Satisfaction, 26 March 1985; y.f. v Turkey Application No 24209/94, Merits and Just Satisfaction, 22 July 2003; and A. v Croatia Application No 55164/08, Merits and Just Satisfaction, 14 October 2010. 113 Assisted suicide is a criminal offence under Section 2(1) Suicide Act 1961 (uk), but in recent years the possibility of travelling to Switzerland to obtain assistance from the organisation Dignitas has led to changes to the prosecutorial guidance: see R (on the application of Purdy) v dpp [2010] 1 ac 345. The current guidelines issued by the Director of Public Prosecutions set out an offence-specific policy identifying the facts and circumstances that will be taken into account in deciding whether to prosecute: see Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide, 2010, available at: www.cps .gov.uk/publications/prosecution/assisted_suicide_policy.html. 114 See A, B and C v Ireland, supra n 2, in which all three applicants travelled to the uk to obtain abortions. The Thirteenth Amendment to the Irish Constitution amended Article

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especially when coupled with freedom of movement provisions in the eu and elsewhere, the influence of the Internet and cheap air travel, suggests that regulation of issues such as abortion can no longer be regarded as solely a matter for national governments. If a state so opposed to abortion rights as Ireland can entrench in its Constitution a right to travel abroad to access an abortion, then it is clear that this is a global issue that will ultimately need a global solution. Therefore, a right to abortion might well exist at international law before one exists in every state. In terms of harmonisation, this reality may be as effective in practice at increasing access to safe and lawful therapeutic abortions than any pronouncements by international or regional judicial or political bodies. Abortion rights are an international issue because an increasing number of women are travelling outside of their state’s borders in order to access the treatment. That is far from an ideal situation but it is a pressing reminder that in today’s world, states do not always have the power to deny access to health care, even, and perhaps especially, that relating to controversial procedures such as abortion. 6 Conclusion There is still considerable progress to be made before a right to abortion is universally recognised in international human rights law. The disparate and strongly held views of different states around the world mean that an explicit acknowledgement of such a right in an international document is unlikely to be achieved in the near future. Given this omission, the international and regional political and judicial bodies seeking to implement international human rights have taken some important steps towards protecting a woman’s right to access a safe, and lawful, therapeutic abortion. In doing so, some of these bodies have relied upon comparative regional and international materials to strengthen the evidential basis of their judgments but there have been many other cases where such explicit reliance has been missing. The failure to rely more on external sources is a missed opportunity given that the topic is so divisive. It is surprising that regional bodies have not sought to rely more directly upon trends evolving elsewhere and to directly cite the comparative materials of relevance to the topic. However, the convergence of decisions in respect of abortion suggests that the treaty bodies are nonetheless attaining some indirect justification from other regional and international jurisdictions for the 40(3)(3) to clarify explicitly that the freedom to travel abroad is not limited by the Irish Constitution’s requirement to protect the life of the foetus.

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development of certain trends. The most successful and widespread trend has been a focus on the need for rights to be practical and effective. Thus, any state that legalises access to abortion in certain circumstances will now violate international law if it fails to ensure that such access is realistically available to women in need of it. In this way, international law has positioned itself in a primarily reactive, rather than proactive, position. It responds to developments within national laws and ensures that governments stick to their words on the issue of legal access to abortion. Critics who would prefer to see international law take a more proactive approach to abortion rights will be able to take some solace from the development of a right to reproductive health, sitting within a broader right to health, and also increasingly positioned within the right to physical and mental integrity protected within autonomy-related rights. The circumstances of many of the tragic cases brought before international and regional tribunals illustrate that the denial of an abortion can often result in significant, perhaps irreparable, damage to a woman’s health. In the cases thus far it is also evident that the pregnant ‘woman’ is all too frequently an abused child. While the focus on reproductive health rather than reproductive autonomy might appear to be a compromise with as-yet-unsettled issues about a foetal right to life, it remains a development with considerable potential. It not only focuses attention on the health repercussions of the denial of an abortion, but also introduces us to two significant aspects of a right to therapeutic abortion. Firstly, that the denial of an abortion (even on grounds other than health) may lead to mental suffering such as to harm the woman’s health, and secondly, that the safest abortions are those that are legal. International bodies have spoken out against the criminalisation of abortion, which does not eliminate the practice of abortion but undoubtedly puts women and children in danger of unsafe practices and mental distress. Thankfully, the trend in international human rights law and, just as importantly, in many national jurisdictions, is to move away from such unfortunate results. While there are difficult issues remaining—and the question of foetal rights, especially post-viability, cannot, and should not, be overlooked115—the need for some rights protection for access to abortion, in certain circumstances, is becoming established. It has largely been established with minimal and inconsistent direct reference to external sources. However, the convergence of decisions across regional and international jurisdictions suggests that there is indeed cross-fertilisation on the topic of abortion rights and it might be

115 This vital issue has not been addressed in this chapter but remains an important challenge to the establishment of a right to abortion.

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expected that, as the trends i­ dentified in this chapter develop further, explicit reliance on parallel approaches in other jurisdictions increases. Whether a broader right to abortion situated within a  woman’s right to autonomy will subsequently develop remains uncertain and much further discussion will be needed on that potential future change of focus.

chapter 4

The European Court of Human Rights’ Recourse to External Legal Materials When Interpreting and Applying the Right to Private Life Alastair Mowbray 1 Introduction This chapter considers the use by the European Court of Human Rights of external materials when interpreting and applying the right to private life found within Article 8 of the European Convention on Human Rights (echr). By external materials I mean those sources of human rights norms, principles and standards not found within the echr.1 For reasons of space and as it has already been discussed elsewhere,2 I do not intend to specifically examine the Court’s application of the European consensus doctrine, whereby the Strasbourg judges have regard to the domestic legal arrangements of the majority of member states of the Council of Europe when determining if a respondent state has complied with its Convention responsibilities. We shall focus on domestic judgments of non-­European courts, international criminal law and different Council of Europe treaties. Regarding other regional human rights systems, neither the judgments of the Inter-American Court of Human Rights3 nor the African Court on Human and Peoples’ Rights4 featured in the reasoning of the Court when interpreting private life. However, as we shall analyse

1 For an analysis of the influence of public international law materials on the Court’s interpretation of a range of echr provisions, see the doctoral thesis of my former graduate student Adamantia Rachovitsa, ‘Fragmentation or Unity of International Law Revisited: Analysing the echr when the Court Takes Cognisance of Public International Law Norms’, unpublished PhD thesis, University of Nottingham, 2012, available at: eprints.nottingham.ac.uk/13023/. 2 Dzehtsiarou, ‘Does Consensus Matter? Legitimacy of European Consensus in the Case Law of the European Court of Human Rights’ [2011] Public Law 534. 3 No private life cases are noted in the European Court of Human Rights’ ‘Research Report: References to the Inter-American Court of Human Rights in the case-law of the European Court of Human Rights’, 2012, available at: echr.coe.int/Documents/Research_report_inter_­ american_court_ENG.pdf. 4 An advanced hudoc search on 8 July 2015 of ‘African Court’ and Article 8 echr produced no documents.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004284258_006

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below, materials from the United ­Nations Human Rights Committee were referred to in several Court judgments involving private life. 2

Scope of the Right to Respect for Private Life under Article 8 of the European Convention on Human Rights

The Court, in both its part-time and full-time forms, has declined to provide a comprehensive definition of the breadth of the right to respect for private life. The Court does not consider it possible or necessary to attempt an exhaustive definition of the notion of ‘private life’. However, it would be too restrictive to limit the notion to an ‘inner circle’ in which the individual may live his own personal life as he chooses and to exclude therefrom entirely the outside world not encompassed within that circle. Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings.5 Therefore, I shall examine a selection of leading cases (all categorised as le­ vel one judgments by the Court) dealing with different aspects of private life where the Court has utilised diverse forms of external legal materials as important elements of its reasoning. This will enable us to gain an understanding of, inter alia, the types of materials invoked by the Court and the use being made of those external provisions. 3

Domestic Judgments from States Outside the Council of Europe

From Rees v United Kingdom6 to Sheffield and Horsham v United Kingdom,7 the Court, by an ever diminishing majority, had found the uk’s partial recognition of the new personality of post-operative transsexuals to have met their right to respect for their private lives. However, in Christine Goodwin v United Kingdom8 a unanimous Grand Chamber found the uk’s administrative arrangements no longer satisfied the applicant’s right under Article 8 of the echr. Liberty 5 Niemietz v Germany Application No 13710/88, Merits and Just Satisfaction, 16 December 1992, at para 29. 6 Application No 9532/81, Merits, 17 October 1986. 7 Applications Nos 22985/93 and 23390/94, Merits, 30 July 1998. 8 Application No 28957/95, Merits and Just Satisfaction, 11 July 2002.

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(a leading uk human rights non-governmental organisation) had submitted a study which disclosed no change in the number of European states giving full legal recognition to transsexuals since its previous third party submission in Sheffield and Horsham. But the later study cited judgments from New Zealand and Australia where courts had recognised transsexuals’ assigned gender for the purpose of validating marriages. The Grand Chamber noted: Already at the time of the Sheffield and Horsham case, there was an emerging consensus within Contracting States in the Council of Europe on providing legal recognition following gender re-assignment …. The latest survey submitted by Liberty in the present case shows a continuing international trend towards legal recognition. In Australia and New Zealand, it appears that the courts are moving away from the biological birth view of sex (as set out in the United Kingdom case of Corbett v Corbett) and taking the view that sex, in the context of a transsexual wishing to marry, should depend on a multitude of factors to be assessed at the time of the marriage.9 The Grand Chamber went on to emphasise that [i]n the twenty-first century the right of transsexuals to personal development and to physical and moral security in the full sense enjoyed by others in society cannot be regarded as a matter of controversy requiring the lapse of time to cast clearer light on the issues involved. In short, the unsatisfactory situation in which post-operative transsexuals live in an intermediate zone as not quite one gender or the other is no longer sustainable.10 Having regard to the failure of the uk to enhance the legal recognition of postoperative transsexuals since Horsham and Sheffield, the Grand Chamber determined that there had been a violation of the applicant’s right to respect for her private life. In the above case we can see the Court using judgments from non-European states as a basis for supplementing the unchanging extent of the European consensus (and scientific/medical understanding) when reducing the margin of appreciation accorded to a respondent state.

9 10

Ibid. at para 84. Ibid. at para 90.

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International Criminal Law

A unanimous Chamber took account of this body of law11 when elaborating the positive obligations on states parties, derived from, inter alia, Article 8, to undertake effective investigations and bring prosecutions to punish rape (and sexual abuse). The applicant in m.c. v Bulgaria12 complained to the police that she had been raped by two men a few days previously (she was just under fifteen-yearsold). Two years later the District Prosecutor terminated the proceeding against the men on the grounds that there was insufficient evidence that the men had used force against the applicant or that she had resisted the men. At Strasbourg the applicant contended that the authorities’ failures to investigate and prosecute amounted to a violation of her right to respect for her private life (and a procedural breach of Article 3 of the echr). Interights (another leading uk human rights non-governmental organisation)13 submitted written comments, including analyses of the criminal law applicable to rape in several European countries, a number of states in the usa, Australia, Canada, South Africa and international criminal law (based particularly upon the judgments of the International Criminal Tribunals for Rwanda and the former Yugoslavia). After noting that the criminal law of numerous states had developed to focus on the lack of consent of the victim as the key element of the offence of rape, the Chamber acknowledged that [i]n international criminal law, it has recently been recognised that force is not an element of rape and that taking advantage of coercive circumstances to proceed with sexual acts is also punishable. The International Criminal Tribunal for the former Yugoslavia has found that, in international criminal law, any sexual penetration without the victim’s consent constitutes rape and that consent must be given voluntarily, as a result of the person’s free will, assessed in the context of the surrounding circumstances. While the above definition was formulated in the particular context of rapes committed against the population in the conditions of an armed conflict, it also reflects a universal trend towards regarding lack of consent as the essential element of rape and sexual abuse.14 These evolutions in criminal law were a reflection of societies’ recognition of each person’s sexual autonomy. 11 12 13 14

For diverse considerations of this topic, see van den Herik and Stahn (eds), Future Perspectives on International Criminal Justice (t.m.c. Asser Press/cup, 2010). Application No 39272/98, Merits and Just Satisfaction, 4 December 2003. Due to funding cutbacks, Interights ceased operating on 27 May 2014. m.c. v Bulgaria, supra n 12 at para 163.

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In the light of the above, the Court is persuaded that any rigid approach to the prosecution of sexual offences, such as requiring proof of physical resistance in all circumstances, risks leaving certain types of rape unpunished and thus jeopardising the effective protection of the individual’s sexual autonomy. In accordance with contemporary standards and trends in that area, the member States’ positive obligations under Articles 3 and 8 of the Convention must be seen as requiring the penalisation and effective prosecution of any non-consensual sexual act, including in the absence of physical resistance by the victim.15 The Chamber went on to find that the Bulgarian authorities had unduly focused on the issue of whether the applicant had resisted the two men whilst failing to pay sufficient attention to her situation as a vulnerable young person. In sum, the Court, without expressing an opinion on the guilt of [the two men], finds that the investigation of the applicant’s case and, in particular, the approach taken by the investigator and the prosecutors in the case fell short of the requirements inherent in the States’ positive obligations— viewed in the light of the relevant modern standards in comparative and international law—to establish and apply effectively a criminal-law system punishing all forms of rape and sexual abuse.16 Consequently, there had been a breach of the applicant’s right to respect for her private life (and Article 3 of the echr). So international criminal law was used by the Court as a supplementary source to reinforce the trend in national legal orders towards recognising the absence of consent as the core element of the crime of rape and the consequent echr investigation/prosecution duties incumbent upon member states. 5

European Social Charter

The (former) European Commission of Human Rights invoked the existence of the European Social Charter17 (esc) as a reason for determining that a disability claim fell outside the ambit of Article 8’s right to respect for a person’s private life in Botta v Italy.18 The applicant, who was physically disabled, had 15 16 17 18

Ibid. at para 166. Ibid. at para 185. For commentary, see Harris and Darcy, The European Social Charter: The Protection of Economic and Social Rights in Europe, 2nd edn (Transnational Publishers, 2001). Application No 21439/93, Merits, 24 February 1998.

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complained that he was unable to access/use beaches during a holiday at an Italian seaside town due to the failure of the authorities to ensure the provision of suitable facilities (such as access ramps). Before the Court it was submitted: In the Commission’s view, the sphere of human relations at issue in the present case concerned a particularly broad range of social relations. The rights asserted by the applicant were social in character, concerning as they did participation by disabled people in recreational and leisure activities associated with beaches, the scope of which went beyond the concept of legal obligation inherent in the idea of ‘respect’ for ‘private life’ contained in paragraph 1 of Article 8. … In any event, the social nature of the right concerned required more flexible protection machinery, such as that set up under the European Social Charter. Article 8 was accordingly inapplicable.19 The respondent government agreed and expressed concern that interpreting Article 8 to encompass an obligation on states to provide suitable recreational facilities for all persons would be ‘to transform the Convention institutions into arbiters of the social policies of the states party to the Convention, a role which did not form part of either the object or the purpose of the Convention’.20 However, the applicant contended that his complaint concerned the impairment of his private life and the development of his personality even if there were social and economic aspects of the right being asserted. The Court, unanimously, determined that the right asserted by Mr Botta, namely the right to gain access to the beach and the sea at a place distant from his normal place of residence during his holidays, concerns interpersonal relations of such broad and indeterminate scope that there can be no conceivable direct link between the measures the State was urged to take in order to make good the omissions of the private bathing establishments and the applicant’s private life. Accordingly, Article 8 is not applicable.21 Hence, the Court did not expressly cite the esc as a justification for finding the applicant’s claim fell outside Article 8, but the judgment is a vivid demonstration that there are boundaries to the Court’s protean conception of ‘private life’. 19 20 21

Ibid. at para 28. Ibid. at para 30. Ibid. at para 35.

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The full-time Court used the esc as a key component of its reasoning in Sidabras and Džiautas v Lithuania,22 when it held that statutory bans on persons taking up private sector employment concerned the Article 8 private life of those people. The two applicants had worked for the Lithuanian branch of the kgb (Soviet Security Service) prior to 1991. Subsequently, they had been employed as a tax inspector and a public prosecutor in Lithuania. In 1998 the ‘kgb Act’ was passed by the Lithuanian Parliament. The Act provided that former employees of the kgb (and other Soviet security organisations) were prohibited from working for public authorities for ten years commencing from when the Act came into force and listed forms of private sector employment (including banks and communications systems). During 1999 the applicants were dismissed. Before the Court the applicants contended that the statutory ban on them working in those parts of the private sector amounted to a breach of Article 8 alone and together with Article 14 of the echr. The government submitted, inter alia, that Article 8 did not protect the right to choose a profession or retain a position of employment. Having noted that the Court had previously stated that Article 8 did not guarantee the right to choose a specific profession, the Chamber held: Nevertheless, having regard in particular to the notions currently prevailing in democratic States, the Court considers that a far-reaching ban on taking up private sector employment does affect ‘private life.’ It attaches particular weight in this respect to the text of Article 1 § 2 of the European Social Charter and the interpretation given by the European Committee of Social Rights…23 Under Article 1(2) of the esc states parties undertake ‘to protect effectively the right of the worker to earn his living in an occupation freely entered upon’. Furthermore, the European Committee of Social Rights had found a discriminatory breach of this right in the context of German dismissals of public sector employees who had been active in supporting the work of the security services of the former German Democratic Republic. The majority of the Chamber (five judges) concluded that there had been a breach of the applicants’ rights under Article 14 in combination with Article 8 as the kgb Act was a disproportionate measure (defects included the legislation’s failure to adequately define the excluded categories of private sector employment and the belated enactment/implementation of the ban). Given 22 23

Applications Nos 55480/00 and 59330/00, Merits and Just Satisfaction, 27 July 2004. Ibid. at para 47.

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this breach the majority decided that it was not necessary to consider the applicants’ complaint concerning Article 8 on its own. However, Judges Mularoni and Loucaides issued separate opinions in which they concluded that there had been violations of Article 8. In Sidabras and Džiautas the Court was according significant influence to the relevant part of the esc as that provision had already been applied to a comparable scenario by the Charter’s expert Committee. The Court’s expansive interpretation of Article 8 private life to encompass statutory restrictions on private sector employment ensured a consistent and harmonious approach between the two Council of Europe treaties and their supervisory bodies. 6

Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data

Another Council of Europe treaty that has been accorded a powerful impact in the Court’s protection of private life is the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (‘the Data Convention’). In S. and Marper v United Kingdom,24 Privacy International (a uk charity with the primary aim of promoting respect for the right to privacy around the world), via a firm of lawyers, drew the Court’s attention to key data-protection rules and principles articulated by the Council of Europe and ‘insisted on their high relevance for the interpretation of the proportionality requirement enshrined in Article 8 of the Convention’.25 When the Grand Chamber came to examine whether the extensive statutory powers of the ­police in England to retain and use digital dna profiles and fingerprints of persons held in the Police National Computer system were ‘necessary in a democratic society’, the Court held that [t]he domestic law must afford appropriate safeguards to prevent any such use of personal data as may be inconsistent with the guarantees of … Article [8]. … The need for such safeguards is all the greater where the protection of personal data undergoing automatic processing is concerned, not least when such data are used for police purposes. The domestic law should notably ensure that [personal] data are relevant and not excessive in relation to the purposes for which they are stored; and preserved in a form which permits identification of the data subjects 24 25

Applications Nos 30562/04 and 30566/04, Merits and Just Satisfaction, 4 December 2008. Ibid. at para 57.

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for no longer than is required for the purpose for which those data are stored (see Article 5 of the Data Protection Convention and the preamble thereto and Principle 7 of Recommendation R(87)15 of the Committee of Ministers regulating the use of personal data in the police sector). The domestic law must also afford adequate guarantees that retained personal data was efficiently protected from misuse and abuse (see notably Article 7 of the Data Protection Convention). The above considerations are especially valid as regards the protection of special categories of more sensitive data (see Article 6 of the Data Protection Convention) and more particularly of dna information, which contains the person’s genetic make-up of great importance to both the person concerned and his or her family (see Recommendation No. R(92)1 of the Committee of Ministers on the use of analysis of dna within the framework of the criminal justice system).26 The unanimous Grand Chamber concluded that Article 8 had been breached because the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and dna profiles of persons suspected but not convicted of offences, as applied in the case of the present applicants, fails to strike a fair balance between the competing public and private interests and that the respondent State has overstepped any acceptable margin of appreciation in this regard. Accordingly, the retention at issue constitutes a disproportionate interference with the applicants’ right to respect for private life and cannot be regarded as necessary in a democratic society.27 In this case the Data Convention’s provisions were used by the Grand Chamber as central elements in the Court’s evaluation of the lawfulness, under Article 8(2) of the echr, of a state’s interference with individuals’ right to respect for their private lives. A later Chamber made reference to the Data Convention when determining if covert state surveillance of a suspect’s car journeys, by use of a hidden Global Positioning System (gps) tracking device, amounted to an interference with his right to respect for his private life. In Uzun v Germany,28 the Federal 26 27 28

Ibid. at para 103. Ibid. at para 125. Application No 35623/05, Merits and Just Satisfaction, 2 September 2010.

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Prosecutor General authorised the police to install the hidden gps device as the applicant was suspected of being involved in terrorism. For three months the device was active and it enabled the police to determine the location of the car and its speed once per minute. At the applicant’s trial, data from the device was used, together with other surveillance evidence, to show that he had placed bombs at several locations. Before the Court the respondent state argued that the gps tracking of the applicant’s journeys had not amounted to an infringement of his Article 8 private life. However, the Chamber noted: Thus, the Court has considered that the systematic collection and storing of data by security services on particular individuals, even without the use of covert surveillance methods, constituted an interference with these persons’ private lives (see Rotaru v. Romania [gc], no. 28341/95, §§ 43–44, echr 2000-v…). The Court has also referred in this context to the Council of Europe’s Convention of 28 January 1981 for the protection of individuals with regard to automatic processing of personal data, which came into force—inter alia for Germany—on 1 October 1985…29 Taking account of the authorities’ systematic collection of the gps data on the applicant’s journeys and its use in constructing a pattern of his movements the Chamber held: In the Court’s view, gps surveillance is by its very nature to be distinguished from other methods of visual or acoustical surveillance which are, as a rule, more susceptible of interfering with a person’s right to ­respect for private life, because they disclose more information on a person’s conduct, opinions or feelings. Having regard to the principles established in its case-law, it nevertheless finds the above-mentioned factors sufficient to conclude that the applicant’s observation via gps, in the circumstances, and the processing and use of the data obtained thereby in the manner described above amounted to an interference with his private life as protected by Article 8 § 1.30 But, given the (relatively) less intrusive nature of gps tracking the Chamber adopted a more lenient approach to the application of Article 8(2), compared to the Court’s established jurisprudence regarding state interception of

29 30

Ibid. at para 46. Ibid. at para 52.

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t­ elecommunications. Therefore, the unanimous Chamber found no breach of Article 8. Uzun reveals that the Data Convention has relevance to the determination of the scope of ‘private life’ under Article 8(1), whilst S. and Marper disclosed the use of the Data Convention in the Court’s evaluation of the proportionality of states’ utilisation of privacy data under Article 8(2). 7

United Nations Human Rights Committee

The Court’s primary use of United Nations Human Rights Committee31 (hrc) materials in regard to private life complaints is the citing of hrc comments,32 on states’ periodic reports under the International Covenant on Civil and Political Rights (iccpr),33 as background information regarding the context of the case being determined at Strasbourg. For example, in De Souza Ribeiro v France,34 the Brazilian applicant challenged the lawfulness of his deportation from French Guiana. The Chamber declared his complaint admissible under Article 13 combined with Article 8 of the echr, but went on to conclude (by four votes to three) that there had been no violation of his right to an effective domestic remedy to protect his right to respect for his private and family life. He then successfully petitioned the Grand Chamber to rehear his case. Before the latter body, Ribeiro submitted that he had received most of his schooling in French Guiana, though he did not have residency papers, whilst living there with his parents, who had permanent residency cards. When he was 17-yearsold he was arrested and charged with possession of cocaine. The Cayenne Youth Court, in French Guiana, convicted him and he was sentenced to two years’ probation and placed on a training programme. A few months later he was stopped by the police, at a road check, and found not to have any papers giving him permission to be on French soil. He was arrested and later the same day served with an administrative detention and removal order. At 3.11pm the next day Ribeiro sent two faxes to the Cayenne Administrative Court seeking judicial review and urgent suspension of the deportation order issued against him. At 4 pm he was deported to Brazil. Later that day the Cayenne Administrative Court declared his request for urgent suspension of the deportation 31 32 33 34

Established by Article 28 iccpr. See McGoldrick, The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights (oup, 1994). Article 40(4) iccpr. Article 40(1) iccpr. Application No 22689/07, Merits and Just Satisfaction, 18 December 2012.

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order as devoid of purpose given his removal. Some months later the Cayenne Administrative Court upheld his application for judicial review of the deportation order and the authorities in French Guiana have subsequently issued Ribiero with a series of annual residency permits for his private and family life. In ‘The Facts’ section of the Grand Chamber’s De Souza Ribeiro judgment is a subsection headed ‘Relevant International Instruments and Practice’. The third item in the latter category, after Council of Europe and eu provisions, was an extract from the hrc’s 2008 concluding observations on the fourth periodic report of France: [N]o recourse to the courts is available to persons deported from the overseas territory of Mayotte, involving some 16,000 adults and 3,000 children per year, nor from French Guiana …. The State party should ensure that the return of foreign nationals, including asylum-seekers, is assessed through a fair process that effectively excludes the real risk that any person will face serious human rights violations upon his return. Undocumented foreign nationals and asylum-seekers must be properly informed and assured of their rights, including the right to apply for asylum, with access to free legal aid. The State party should also ensure that all individuals subject to deportation orders have an adequate period to prepare an asylum application, with guaranteed access to translators, and a right of appeal with suspensive effect.35 The Grand Chamber was unanimous in concluding that the applicant had suffered a violation of Article 13 in conjunction with Article 8. Next, and above all, the Court is obliged to observe that, after applying to the administrative court on 26 January 2007 at 3.11 p.m., the applicant was deported to Brazil at 4 p.m. the same day. In the Court’s view the brevity of that time lapse excludes any possibility that the court seriously examined the circumstances and legal arguments in favour of or against a violation of Article 8 of the Convention in the event of the removal order being enforced. The result is that at the time of his removal the applications lodged by the applicant and the circumstances concerning his private and family life had not been effectively examined by any national authority. In particular, bearing in mind the chronology of the facts of the present case, the Court cannot but note that no judicial examination was 35

Ibid. at para 50.

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made of the merits of applicant’s pleadings or of his urgent application for interim measures.36 So in the above case the Grand Chamber cited an earlier hrc report which had addressed the same problem as the application before the Court. However, the Grand Chamber did not expressly incorporate the hrc’s comments into its determination of a breach of the echr. In the contemporaneous case of El-Masri v The Former Yugoslav Republic of Macedonia,37 the Grand Chamber dealt with the echr duties of a state party that had cooperated with the usa’s Central Intelligence Agency’s ‘extraordinary rendition’ programme of detentions, inter-continental transportation and unacknowledged imprisonment and interrogation of suspected terrorists. Despite the denials of the respondent government before the Court that it was complicit in the detention and transfer of the applicant German national to usa agents, the Grand Chamber found convincing evidence to support ElMasri’s contentions. These included being held by armed men in a Macedonian hotel for several weeks, his transfer to the custody of usa agents at Skopje airport (whereupon he was subjected to ‘capture-shock’ maltreatment, which the Grand Chamber found amounted to torture in breach of Article 3 of the echr) followed by his forced transportation to Afghanistan, where he was detained (probably in a cia facility, known as the ‘Salt Pit’, located in a disused brick-works) for four months during which he was repeatedly subjected to brutal interrogations. Eventually, he was flown back to Europe and released in the Albanian countryside. In ‘The Facts’ section of the Grand Chamber’s judgment in El-Masri there was a subsection encompassing ‘International inquiries relating to the applicant’s case’. Following extracts from reports produced by the Parliamentary Assembly of the Council of Europe and the European Parliament there was a brief account of the hrc’s recommendations concerning the applicant, given as part of the Committee’s periodic review of Macedonia’s compliance with the iccpr: ‘[T]he State party should consider undertaking a new and comprehensive investigation of the allegations made by Mr Khaled El-Masri. The investigation should take account of all available evidence and seek the cooperation of Mr El-Masri himself’.38 The Grand Chamber went on to conclude, inter alia, that Macedonia had breached the procedural limb of Article 3 of the echr by failing to conduct an 36 37 38

Ibid. at para 94. Application No 39630/09, Merits and Just Satisfaction, 13 December 2012. Ibid. at para 52.

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effective investigation into the applicant’s complaint that he had been subjected to maltreatment, violating the substantive prohibitions contained within that Article, for which the respondent state was responsible. [T]he Court also wishes to address another aspect of the inadequate character of the investigation in the present case, namely its impact on the right to the truth regarding the relevant circumstances of the case. In this connection it underlines the great importance of the present case not only for the applicant and his family, but also for other victims of similar crimes and the general public, who had the right to know what had happened. The issue of ‘extraordinary rendition’ attracted worldwide attention and triggered inquiries by many international and intergovernmental organisations, including the un human rights bodies, the Council of Europe and the European Parliament. The latter revealed that some of the States concerned were not interested in seeing the truth come out.39 Hence, the Grand Chamber made express reference to the un human rights institutions’ activities with regard to the usa’s extraordinary rendition programme when applying Article 3 to the applicant’s complaints. However, when the Grand Chamber examined El-Masri’s submission that his ordeal had seriously violated his right to respect for his private and family life guaranteed by Article 8, no mention was made of the hrc’s work. Instead, the Grand Chamber noted that its established case law provided that ‘private life’ embraced circumstances where a person had been deprived of their liberty and treatment which undermined a person’s dignity. Given the Court’s earlier findings that Macedonia had breached the applicant’s rights under Article 3 and Article 5 (including the respondent state’s responsibility under the Convention for ElMasri’s detention in Afghanistan by the usa), the Grand Chamber held that Macedonia had also violated his right to respect for his private and family life as his treatment was ‘not in accordance with the law’ as required by Article 8(2). Sometimes applicants have expressly invoked hrc comments to support their claims of breaches of Article 8. For example, A, B and C v Ireland40 concerned three women’s contention that their inability to obtain lawful abortions in Ireland, on health and well-being grounds, violated their right to respect for their private lives. In ‘The Facts’ section of the Grand Chamber’s judgment a 39

40

Ibid. at para 191. For an overview of the Council of Europe’s investigations, see Mowbray, Cases, Materials and Commentary on the European Convention on Human Rights, 3rd edn (oup, 2012) at 257–259. Application No 25579/05, Merits and Just Satisfaction, 16 December 2010.

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subsection outlined ‘Relevant European and international material’. Within the latter the Court noted that the hrc’s concluding observations, issued in 2008, on the third periodic report of Ireland, stated: ‘The Committee reiterates its concern regarding the highly restrictive circumstances under which women can lawfully have an abortion in the State party. … The State party should bring its abortion laws into line with the Covenant’.41 Furthermore, in the applicants’ contention to the Grand Chamber that the Irish legal restrictions on lawful abortions were disproportionate to the legitimate aim of protecting foetal life, they cited the hrc as support for the view that ‘[t]he international human rights standards’ consensus also tended to permitting legal abortion to protect the health and well-being of a woman … and to the decriminalising of abortion’.42 In their joint written third-party submission to the Court, the Centre for Reproductive Rights (a global legal advocacy non-governmental organisation focusing on reproductive rights) and the International Reproductive and Sexual Health Law Programme (a part of the University of Toronto’s Faculty of Law) submitted that the Grand Chamber’s consideration of the case should be ‘informed’ by ‘international human rights laws and comparative standards’.43 These organisations claimed that the hrc believed states were required by international law to permit women to have abortions where necessary to protect their health. The Grand Chamber did not refer to the hrc’s comments in its interpretation and application of Article 8. Instead, the Court focused on its own earlier jurisprudence and doctrines. Confirming its established broad approach to the scope of private life, including the right to personal autonomy and development, the Grand Chamber also accepted that a pregnant woman’s right to respect for her private life should be assessed against countervailing interests, such as those of the unborn child. While Article 8 cannot, accordingly, be interpreted as conferring a right to abortion, the Court finds that the prohibition in Ireland of abortion where sought for reasons of health and/or well-being about which the first and second applicants complained, and the third applicant’s alleged inability to establish her qualification for a lawful abortion in Ireland, come within the scope of their right to respect for their private lives and accordingly Article 8.44 41 42 43 44

Ibid. at para 111. Ibid. at para 172. Ibid. at para 208. Ibid. at para 214.

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Relying on the margin of appreciation doctrine a large majority of the Grand Chamber, 11 votes to 6, concluded that because of the strong moral opposition to abortion in Ireland there had been no violation of Article 8 regarding applicants A and B. Accordingly, having regard to the right to lawfully travel abroad for an abortion with access to appropriate information and medical care in Ireland, the Court does not consider that the prohibition in Ireland of abortion for health and well-being reasons, based as it is on the profound moral views of the Irish people as to the nature of life and as to the consequent protection to be accorded to the right to life of the unborn, exceeds the margin of appreciation accorded in that respect to the Irish State. In such circumstances, the Court finds that the impugned prohibition in Ireland struck a fair balance between the right of the first and second applicants to respect for their private lives and the rights invoked on behalf of the unborn.45 Whilst the dissentients vigorously disagreed with the reasoning of the majority regarding the breadth of the margin of appreciation to be accorded to Ireland,46 they believed that a European consensus existed amongst a significant majority of states parties to permit lawful abortions on health and wellbeing grounds that were not accepted in Ireland. Therefore, according to the Court’s normal approach, the width of the margin of appreciation accorded to Ireland should have been correspondingly reduced. But the majority had given preference to the moral beliefs asserted by the respondent state. [I]t is the first time that the Court has disregarded the existence of a European consensus on the basis of ‘profound moral views.’ Even assuming that these profound moral views are still well embedded in the conscience of the majority of Irish people, to consider that this can override the European consensus, which tends in a completely different direction, is a real and dangerous new departure in the Court’s case-law.47 All the judges were in agreement that there had been a breach of the third applicant’s right to respect for her private life due to the failure of the Irish 45 46 47

Ibid. at para 241. Joint Partly Dissenting Opinion of Judges Rozakis, Tulkens, Fura, Hirvelä, Malinverni and Poalelungi in A, B and C v Ireland, ibid. Ibid. at para 9.

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authorities to provide her with an effective procedure by which she could have established whether she was entitled to an abortion on medical grounds.48 The judgment in A, B and C may be considered to demonstrate that even when parties to a Strasbourg proceeding expressly invoke hrc views, the Court will concentrate upon its own doctrines when interpreting and applying the right to private life. Despite the diametrically opposite analyses of the Court’s margin of appreciation doctrine by the majority and the minority, neither group made reference to the hrc’s comments on Ireland’s restrictive abortion law. Instead, the judges took account of their own perspectives on the European consensus and the significance of Irish moral beliefs regarding abortion. Very interestingly, failings in a state’s administration of its abortion legislation disclosed during the iccpr reporting process were expressly integrated into the Court’s judgment finding a breach of Article 8 in the earlier case of Tysiąc v Poland.49 The applicant contended that the refusal of the authorities to provide her with an abortion, necessary because of her medical condition, had violated her right to respect of her private life. In the Court’s elaboration of ‘The Facts’ of the case it included a section on ‘Relevant Non-Convention Material’, which contained extracts from the hrc’s monitoring of Poland’s abortion law and practice. The Court noted that in 1999 the hrc had expressed its concern about Poland’s ‘strict laws on abortion’.50 The next Polish periodic report acknowledged that ‘the Law’s provisions are not fully implemented and that some women, in spite of meeting the criteria for an abortion, are not subject to it’.51 The hrc, in its subsequent 2004 concluding observations, reiterated its deep concern about restrictive abortion laws in Poland, which may incite women to seek unsafe, illegal abortions, with attendant risks to their life and health. It is also concerned at the unavailability of abortion in practice even when the law permits it, for example in cases of pregnancy resulting from rape, and by the lack of information on the use of the conscientious objection clause by medical practitioners who refuse to carry out legal abortions.52

48 49 50 51 52

A, B and C v Ireland, supra n 40 at paras 267–268. Application No 5410/03, Merits and Just Satisfaction, 20 March 2007. Ibid. at para 48. Ibid. at para 49. Ibid. at para 50.

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When the Court examined whether Poland had complied with its positive obligations to respect the applicant’s right to respect for her private life, the judgment observed that in its fifth periodic report to the iccpr Committee, the Polish government acknowledged, inter alia, that there had been deficiencies in the manner in which the 1993 Act had been applied in practice. This further highlights, in the Court’s view, the importance of procedural safeguards regarding access to a therapeutic abortion as guaranteed by the 1993 Act.53 The majority, of six judges, went on to find a breach of Article 8 because, inter alia, [t]he Court concludes that it has not been demonstrated that Polish law as applied to the applicant’s case contained any effective mechanisms capable of determining whether the conditions for obtaining a lawful abortion had been met in her case. It created for the applicant a situation of prolonged uncertainty. As a result, the applicant suffered severe distress and anguish when contemplating the possible negative consequences of her pregnancy and upcoming delivery for her health.54 So the admission by the respondent state, during the iccpr reporting process, of defects in the implementation of national abortion legislation was a factor in the Court’s focus on the domestic remedies available to the applicant when she had unsuccessfully sought an abortion on medical grounds. This concentration on the procedural aspects of the applicant’s claim also enabled the Court to avoid ruling on the much more controversial issue of whether a woman could claim a right to an abortion via Article 8. More rarely, the Court has noted pertinent hrc case law. In El-Masri,55 ‘The Facts’ contained a subsection ‘Relevant case law of foreign jurisdictions and international bodies’: after extracts from courts of appeal judgments in England and the usa there was a summary of the hrc’s findings in Alzery v Sweden.56 The latter complaint involved an Egyptian who had been refused asylum in Sweden and subsequently deported via American agents who had subjected Alzery to similar rendition maltreatment as El-Masri. The hrc concluded that 53 54 55 56

Ibid. at para 115. Ibid. at para 124. Supra n 37. (1416/2005) Views, CCPR/C/88/D/1416/2005 (2006).

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Sweden had violated Article 7 of the iccpr (prohibition of torture or cruel, inhuman or degrading treatment or punishment) by, inter alia, permitting the American agents’ maltreatment when he was handed over to them at a Swedish airport. However, the legal reasoning element of the Grand Chamber’s judgment in El-Masri did not mention Alzery. A few months earlier a differently composed Grand Chamber57 not only referred to an hrc complaint in ‘The Facts’ section of its judgment, but also cited the un case law in its reasoning under ‘The Law’. That occurred in the highly significant case of Nada v Switzerland,58 where the European Court ruled on the liability of a state party to the echr with regard to the latter’s implementation of United Nations Security Council’s anti-terrorism sanctions.59 The applicant was a dual Italian and Egyptian national who, since 1970, had his home in a tiny Italian enclave surrounded by Swiss territory. Following bombings during 1999, in East Africa by Osama bin Laden’s associates, the Security Council adopted a series of resolutions that introduced sanctions against listed organisations and persons connected with bin Laden and al-Qaeda. The resolutions obliged states to seize the financial assets of listed organisations and persons, together with denying them entry or transit through national territories. Switzerland began implementing these sanctions in 2000, even though it did not formally join the un for two more years. In October 2001 the Swiss Federal Prosecutor started an investigation into Nada. A few weeks later the usa government added his name to the Security Council sanctions list. During 2003 Nada’s special border-crossing permit that enabled him to transit across Swiss territory to and from his Italian home was revoked by the Swiss authorities. In May 2005 the Swiss Federal Prosecutor ended the investigation into Nada, finding the accusations against him were unsubstantiated. Nada subsequently requested the Swiss federal government to delete his name from the national Ordinance that implemented the un sanctions, but that was refused as the government asserted only the un could amend the list of designated persons/organisations. In 2007 the Security Council rejected Nada’s request to be delisted. The Italian government requested the Sanctions Committee to delist Nada in July 2008, but that request was denied. In July 2009 the usa requested Nada’s delisting by the Sanctions Committee. The following month he made a similar request 57 58 59

Only six judges sat in both Grand Chamber formations determining El-Masri and Nada. Application No 10593/08, Merits and Just Satisfaction, 12 September 2012. For an argument that the Court should adopt a cautious approach to indirectly reviewing the actions of the Security Council, see Tomuschat, ‘The European Court of Human Rights and the United Nations’, in Føllesdal et al. (eds), Constituting Europe: The European Court of Human Rights in a National, European and Global Context (cup, 2013) 334.

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and in September 2009 Switzerland notified the Sanctions Committee that the Federal Prosecutor had found no evidence linking Nada with other persons or organisations on the list. On 23 September 2009 Nada’s name was removed from the Security Council’s sanctions list and in early October 2009 the Swiss Ordinance was amended accordingly. Before the Grand Chamber Nada alleged that, inter alia, the Swiss restrictions imposed on his travel and the addition of his name to the list annexed to the Swiss sanctions Ordinance violated his right to respect for his private and family life by preventing him from participating in family gatherings and by damaging his honour and reputation. In ‘The Facts’ the Grand Chamber identified two sets of ‘Relevant international case-law’, firstly, litigation before the (then) Court of Justice of the European Communities60 and, secondly, the hrc case of Sayadi and Vinck v Belgium.61 The latter concerned two Belgian nationals who had been placed on the un sanctions list after their home state had provided information concerning a criminal investigation into their activities. Sayadi and Vinck were then subject to travel bans and their names were not removed from the un sanctions list until 2005 (after a Belgian court had ordered the government to seek their delisting by the Security Council). The hrc found violations of Article 12 (freedom of movement) and Article 17 (protection of honour and reputation) of the iccpr. When the Grand Chamber examined the proportionality of the Swiss measures imposed on the applicant it commented: [T]he Court is surprised by the allegation that the Swiss authorities did not inform the Sanctions Committee until 2 September 2009 of the conclusions of investigations closed on 31 May 2005. Observing, however, that the veracity of this allegation has not been disputed by the Government, and without any explanation having been given by the latter for such delay, the Court finds that a more prompt communication of the investigative authorities’ conclusions might have led to the deletion of the applicant’s name from the United Nations list at an earlier stage, thereby considerably reducing the period of time in which he was subjected to the restrictions of his rights under Article 8 (See, in this connection, ­Sayadi and Vinck (Human Rights Committee))…62 60

61 62

Joined Cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation v Council and Commission 3 September 2008, EU:C:2008:461, where European Community (ec) regulations implementing the same Security Council sanctions system were found to breach ec fundamental rights. (1472/2006) Views, CCPR/C/94/D/1472/2006 (2008). Nada v Switzerland, supra n 58 at para 188.

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Furthermore, the Grand Chamber was also critical of Switzerland’s passive stance towards efforts to have Nada’s name removed from the un sanctions list: It has been established that the applicant’s name was added to the United Nations list, not on the initiative of Switzerland but on that of the United States of America. Neither has it been disputed that, at least until the adoption of Resolution 1730 (2006), it was for the State of citizenship or residence of the person concerned to approach the Sanctions Committee for the purposes of the delisting procedure. To be sure, in the applicant’s case Switzerland was neither his State of citizenship nor his State of residence, and the Swiss authorities were not therefore competent to undertake such action. However, it does not appear that Switzerland ever sought to encourage Italy to undertake such action or to offer it assistance for that purpose (see, mutatis mutandis, the case of Sayadi and Vinck (Human Rights Committee))…63 Therefore, the Grand Chamber went on to conclude, unanimously, that the lengthy restrictions imposed on the applicant’s freedom of movement by the Swiss authorities had violated his right to respect for his private and family life by being disproportionate to the legitimate aims of preventing crime and protecting national security. So, in Nada, hrc case law regarding an analogous complaint was utilised by the Grand Chamber as a component of its proportionality assessment. A more divisive issue for the Grand Chamber involved Nada’s allegation that the Swiss addition of his name to their national list of persons/organisations subject to un sanctions also constituted a breach of Article 8 by impugning his honour and reputation. The Grand Chamber declined to rule on the reputation complaint simply stating that as it had found a breach of Article 8 (discussed above) ‘it does not need to examine that complaint separately’.64 But Judge Rozakis, joined by Judges Spielmann and Berro-Lefevre, issued a concurring opinion in which they disagreed with the way the Court had dealt with the reputational element of Nada’s complaint under Article 8. They considered the Court had wrongly ‘side-stepped’ the reputational complaint. The applicant’s complaint concerning his honour and reputation is not a distinct complaint which is independent from all the other aspects of his allegation of a violation of Article 8 of the Convention. It is one of the 63 64

Ibid. at para 194. Ibid. at para 199.

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constitutive parts of his main complaint that his private and family life were affected by the Swiss authorities’ conduct. It is well known—and undoubtedly the applicant was relying on this—that honour and reputation have been considered by the Court as an element of private life worthy of particular protection under Article 8. By discarding this particular aspect of an otherwise homogeneous and comprehensive complaint, the Court has given the wrong impression that honour and reputation should be examined separately—if at all—and that they do not necessarily belong to the hard core of the constitutive parts of private life.65 Despite the hrc’s finding that the placing of Sayadi and Vinck’s names on the un sanctions list, together with associated publicity, constituted a violation of their right to protection of their honour and reputation under the iccpr, neither the Court nor Judge Rozakis and his two fellow judges made reference to that case law when dealing with Nada’s similar complaint under Article 8. Overall, we have seen that a number of extracts from the hrc’s reporting process and case law have been included in the Court’s private life judgments. However, the majority of these hrc materials have been confined to the ‘The Facts’ section of judgments and they were not discussed in the Court’s reasoning elaborated in ‘The Law’ component of the judgments. Rare examples of hrc materials being expressly referred to in the Court’s application of the right to respect for private life were the respondent state’s acknowledgement of failings in its administration of relevant domestic law during the iccpr periodic reporting process (Tysiąc) and comparable hrc case law when the Court was assessing the proportionality of the respondent state’s interference with the applicant’s private life (Nada). The above Court judgments do not disclose the hrc materials having any significant influence on how the Court interpreted the scope of private life. 8 Conclusions The above case law has disclosed that a broad range of external legal materials have been utilised by the Court in its interpretation and application of the right to respect for private life. These have included non-European domestic jurisprudence, international criminal law, other Council of Europe treaties and hrc reports and case law. Furthermore, the Court’s use of these 65 Ibid. at Concurring Opinion of Judge Rozakis joined by Judges Spielmann and Berro-Lefevre.

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external m ­ aterials has been diverse. They have encompassed supplementing and re-­enforcing developments in the member states’ domestic legal orders as a basis for the Court elaborating positive obligations upon these states to respect applicants’ right to respect for their private lives (Christine Goodwin, m.c.) and ­ensuring a consistent Council of Europe response between different treaty bodies (Sidabras and Džiautas). External materials have also been incorporated in the Court’s reasoning when defining the scope (Uzun) and limitations (S. and Marper, Nada) of the protection of private life under Article 8. However, generally, the Court did not use external materials as the definitive element in its interpretation and application of private life. The Council of Europe’s treaties on social rights and data protection were the most powerful external sources that we encountered. As they were products of the same international organisation that created the echr system it is not surprising that the Court accorded them such weight where their provisions overlapped with the Convention. It is noteworthy that ngos, via third party interventions in Strasbourg litigation, have drawn the Court’s attention to different types of external legal materials in several of the above cases: Liberty in Christine Goodwin, Interights in m.c., Privacy International in S. and Marper, and the Centre for Reproductive Rights and the International Reproductive and Sexual Health Law Programme in A, B and C. We may speculate that the international/global focus of many of these human rights-orientated ngos enables them to bring a wider view of relevant legal materials to the attention of the Court, which has the potential to help cross-pollinate the Court’s jurisprudence with legal developments beyond the Convention.66 A new evolution in Strasbourg proceedings occurred in September 2013 when the Council of Europe’s Commissioner for Human Rights made his first oral intervention in a case before the Court.67 Nils Muižnieks supported his predecessor’s earlier written comments68 in a case brought by an ngo on behalf of a deceased eighteen-year-old, who had profound learning disabilities and was hiv positive.69 The Commissioner, inter alia, contended that the echr 66

67

68 69

For a study of the general interactions between ngos and the Court, see Cichowski, ‘Civil Society and the European Court of Human Rights’, in Christoffersen and Madsen (eds), The European Court of Human Rights between Law and Politics (oup, 2011) 77. Protocol No 14 to echr amended Article 36 echr, from June 2010, to enable the Commissioner to submit written comments and participate in all hearings before Chambers and the Grand Chamber. CommDH(2011)37, 14 October 2011. The Centre for Legal Resources on behalf of Valentin Câmpeanu v Romania Application No 47848/08, Merits and Just Satisfaction, 4 September 2013.

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should be interpreted so as to enable ngos to make applications on behalf of persons with disabilities. He based his argument on a number of grounds including the principle of effectiveness and the case law of other international courts including the Inter-American Court of Human Rights. The Grand Chamber implicitly followed the Commissioner’s proposition that in cases such as this, involving ‘exceptional circumstances’, an ngo could represent a vulnerable victim who had been unable to give his/her formal authorisation for representation.70 So there is now another mechanism which enables the introduction of submissions based upon external legal materials into litigation before the Court. However, the Commissioner has been cautious in exercising this power. He did not make any further interventions until early 2015. Then he submitted written interventions in five applications brought by human rights defenders complaining about their alleged maltreatment, including unlawful detention, by the authorities in Azerbaijan.71 In his interventions the Commissioner noted: The situation of human rights defenders in Azerbaijan is of great concern to the Commissioner. Reprisals, including judicial harassment, against critical voices in general, and those denouncing human rights violations in the country in particular, is a widespread phenomenon in Azerbaijan, to which the Commissioner has repeatedly attempted to bring the attention of the authorities in his reports and interventions.72 Whilst most of the Commissioner’s submissions to the Court were based upon his knowledge of the situation in the respondent state, he also included references to external legal materials including a un General Assembly Declaration73 70 71

72 73

Ibid. at para 112. CommDH (2015)5, Third party intervention by the Council of Europe Commissioner for Human Rights – Hilal Mammadov v Azerbaijan, Application No 81553/12; CommDH (2015)6, Third party intervention by the Council of Europe Commissioner for Human Rights – Intigam Aliyev v Azerbaijan Application No 68762/14; CommDH (2015)7, Third party intervention by the Council of Europe Commissioner for Human Rights – Anar Mammadli v Azerbaijan Application No 47145/14; CommDH (2015)8, Third party intervention by the Council of Europe Commissioner for Human Rights – Rasul Jafarov v Azerbaijan Application No 69981/14; and CommDH (2015)10, Third party intervention by the Council of Europe Commissioner for Human Rights – Leyla Yunusova & Arif Yunusov v Azerbaijan Application No 68817/14. Aliyev intervention, ibid. at para 5. On the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, adopted

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and Guidelines issued by the osce/odihr.74 This unprecedented group of interventions by the Commissioner may be seen as a reflection of the growing anxiety by different Council of Europe bodies regarding the declining respect for human rights by the authorities in Azerbaijan.75

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by General Assembly Resolution 53/144 of 9 December 1998, cited in Yunusova & Yunusov intervention, supra n 71 at para 35. On the Protection of Human Rights Defenders, 10 June 2014 cited in Jafarov intervention, supra n 71 at para 38. For example, in October 2015 the President of the Council of Europe’s Parliamentary Assembly, Anne Brasseur, wrote to President Aliyev of Azerbaijan stating her ‘deepest concerns’ regarding four ‘worrying developments’ in the deteriorating human rights situation in his country, including the harassment and physical attacks on human rights defenders: see Press Release AP195(2015), Strasbourg, 16 October 2015.

chapter 5

Minority Sexual Orientation as a Challenge to the Harmonised Interpretation of International Human Rights Law Frans Viljoen 1 Introduction Few human rights issues have divided the global community as deeply as the rights-based protection of lesbians, gays, bisexuals, transgender and intersex persons (lgbtis or ‘sexual minorities’). This contribution focuses on the rights related to minority sexual orientation (that is, the rights of lgb persons) and not minority gender identity (the rights of ti persons), as such a focus allows for a more productive comparison.1 Differing views on and legal interpretations related to this issue pose a challenge to harmonisation in the interpretation of human rights across the globe. This contribution considers the interpretation of this issue in four human rights treaties: the European Convention on Human Rights (echr), the International Covenant on Civil and Political Rights (iccpr), the American Convention on Human Rights (achr) and the African Charter on Human and Peoples’ Rights, by the four treaty institutions (courts or quasi-judicial bodies, referred to as ‘bodies’ or ‘institutions’ in this contribution) responsible for their interpretation.2 These institutions are the European Court of Human Rights 1 Sexual orientation is here defined as the emotional and sexual attraction to another person, while ‘gender identity’ refers to one’s sense of being, as located on the male–female continuum. Of the four bodies under consideration only one (the European Court of Human Rights) has dealt with gender identity issues in any depth, making a comparison on that basis unlikely to yield insightful results. In Africa, for example, there has been limited engagement on gender identity. For an exception, see the decision of the Kenyan High Court in r.m. v Attorney General and Others, Petition 705 of 2007, 2 December 2010 [2010 eKLR]. 2 Clearly, many other bodies, particularly at the un level, are also of great relevance to the topic under discussion. The Universal Periodic Review (upr) process not only lends itself to a holistic consideration of a state’s human rights record, but also holds promise to integrate the various layers of human rights obligations. On the horizontal plane, within the un itself, this process amalgamates states’ obligations derived from the un Charter and from treaties (within the upr the Netherlands, for example, recommended to Zambia to ‘strive to amend its Criminal Code to decriminalize same-sex activity between consenting adults in

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004284258_007

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(ECtHR), the un Human Rights Committee (hrc), the Inter-American Court of Human Rights (IACtHR) and the African Commission on Human and Peoples’ Rights.3 Because the focus here falls on their interpretation of the rights to dignity and equality irrespective of sexual orientation, this contribution adopts a thematic rather than a rights-specific approach. Before briefly sketching and comparing the interpretive approach to this thematic issue by these institutions, focusing on the extent of cross-pollination,­ the contribution describes the political context within which these bodies function. Political context matters because interpretation is not only a technical-legal process, but also has a profoundly political dimension. This dimension manifests itself when weight has to be attached to the level of agreement between states (‘consensus’) as reflected in many judgments and other treaty interpretations—particularly when sexual orientation is under consideration.4 Because sexual minority rights is a ‘new’ thematic concern, which has not been included explicitly in the four foundational human rights texts under examination, a discussion of the relevance of some form of emerging consensus

accordance­with the recommendation of the Human Rights Committee’: see www.upr-info. org/database/). On the horizontal plane, there is some evidence that it allows for a cumulative and integrated consideration of states’ obligations under the un and the regional human rights system of which they (may) form part (in its recommendation to Barbados, Spain, for example, called for the abolition of the death penalty ‘in compliance with calls made by various international and regional organs in this regard, such as the Inter-American Commission on Human Rights’: see www.upr-info.org/database/). While diplomacy and voluntariness may impede the upr’s effectiveness, these characteristics enhance the potential for crossinstitutional dialogue on the issue of sexual minority rights. 3 Although the African Court on Human and Peoples’ Rights, established under the Protocol to the African Charter on the Establishment of an African Court on Human and Peoples’ Rights (‘African Court Protocol’), is a judicial institution, this discussion focuses on the African Commission, a quasi-judicial body established under the African Charter and functioning since 1987. By mid-2014, the African Court, which started operating in 2006, has delivered judgments on the merits in only two cases, none of which had any bearing on the rights of sexual minorities. 4 See, for example, x and Others v Austria Application No 19010/07, Merits and Just Satisfaction, 19 February 2013, where the minority opinion of the Grand Chamber (Joint Partly Dissenting Opinion of Judges Casadevall, Ziemele, Kovler, Jočienė, Šikuta, de Gaetano and Sicilianos) warns that to negate the relevance of the fact that the great majority of Council of Europe members do not allow second parent adoption by unmarried same-sex couples amounts to taking ‘an unduly technical’ view (at para 15). It adds: ‘While the Court has and must have a sound technical grasp of issues, it must not lose sight of the major trends which are clearly in evidence across our continent, at least in the current circumstances’ (at para 15, emphasis added).

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on this issue, and of the validity of ‘evolutive’ or progressive interpretive approaches to this issue are, if not inevitable, certainly of particular relevance. 2

Political Context

International human rights law, and in particular its main manifestation, treaty law, originates and evolves within the political contexts of intergovernmental organisations (igos). As these igos are made up of states, the national political—and domestic legal—reality of the constituent states inevitably has a bearing on the kinds of normative frameworks adopted and accepted at the international level. Interpretations of these norms are equally framed by the political context within which the interpreting bodies exist. The four human rights systems on which this chapter focuses function under the auspices of igos. In respect of the ECtHR, these are mainly the Council of Europe (CoE), although some of these states are also members of the European Union;5 with regard to the Inter-American Court, this is the Organization of American States (oas); for the Committee, it is the United Nations; and in respect of the African Commission, this is the African Union. A Council of Europe The European Court of Human Rights was established in 1959 as an organ of the CoE. Having dramatically expanded from the limited membership at its founding in 1949, the CoE at present counts 47 members states, and is comprised of states—such as Russia and Moldova—where homosexuality is still a matter of significant moral opprobrium.6 5 Within the eu, to which 28 CoE member states belong, the European Parliament has taken a clear position on sexual orientation: see European Parliament resolution on the situation as regards fundamental rights in the European Union (2000), Res A5-0223/2001, 5 July 2001, at para 83 (‘Repeal discriminatory laws against gays and lesbians in criminal codes of current Member States, as well as assuring that they will not ratify any accession of countries which have discriminatory laws against homosexuality…’). Article 21(1) of the 2000 Charter of Fundamental Rights of the European Union explicitly prohibits discrimination based on sexual orientation. The eu also has, in its external relations, stressed that violations of the rights of ‘homosexuals’ still occur around the world, and called upon ‘the eighty countries in the world which still prohibit homosexuality in their domestic law to change this legislation without delay’: see European Parliament resolution on human rights in the world in 2000 and the European Union Human Rights Policy, Res A5-0193/2001, 5 July 2001, at para 116. 6 Both these states voted against the 2011 Resolution on sexual orientation adopted by the un Human Rights Council: see Section 2C below.

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While sexual orientation rights currently feature prominently on the agenda of the CoE, this has not always been the case. The first step only came in 1981, when the Parliamentary Assembly adopted Recommendation 924 (1981) on discrimination against homosexuals, urging states to decriminalise homosexual acts.7 Over the last decade or so, the Assembly intensified its efforts in this domain;8 and the Committee of Ministers in 2010 took the significant step of recommending that member states adopt and effectively implement ‘legislative and other measures’ to curb discrimination on grounds of sexual orientation, and to ‘promote tolerance’ towards sexual minorities.9 The enlargement of the CoE membership from 1989 posed challenges to the hegemony among members around issues of sexual morality. Under its founding Statute,10 the CoE has made observance of human rights a precondition of membership. Since the Dudgeon case11 in 1981, criminal prohibitions of homosexual activity are clearly in conflict with the European Convention and states parties are therefore expected to repeal such laws. Controversy about states’ compliance with this requirement prompted the Parliamentary Assembly in 1993 to stress the need to end the practice of discrimination against homosexuals

7

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10 11

The recommendation was adopted on 1 October 1981, following the submission by Chair of the Committee on Social and Health Questions of a report on discrimination against homosexuals: see Sanders, ‘Getting Lesbian and Gay Issues on the International Human Rights Agenda’ (1996) 18(1) Human Rights Quarterly 67 at 81. See CoE, Combating Discrimination on Grounds of Sexual Orientation or Gender Identity: Council of Europe Standards (Council of Europe Publishing, 2011); pace Recommendation 1474 (2000), Situation of lesbians and gays in Council of Europe member states, 26 September 2000, at para 11 (‘The Assembly therefore recommends that the Committee of Ministers: i. add sexual orientation to the grounds for discrimination prohibited by the European Convention on Human Rights… ii. extend the terms of reference of the European Commission against Racism and Intolerance (ecri) to cover homophobia founded on sexual orientation, and add to the staff of the European Commissioner for Human Rights an individual with special responsibility for questions of discrimination on grounds of sexual orientation’); and CoE Congress of Local and Regional Authorities, Recommendation 211 (2007) on freedom of assembly and expression for lesbians, gays, bisexuals and transgendered persons, 26 March 2007. In addition, the CoE Commissioner for Human Rights has undertaken significant activities on lgbti rights: see, for example, www.coe. int/en/web/commissioner/thematic-work/lgbti. Recommendation of the Committee of Ministers to member states on measures to combat discrimination on grounds of sexual orientation or gender identity, CM/Rec(2010)5, 31 March 2010. Article 3 Statute of the Council of Europe. Dudgeon v United Kingdom Application No 7525/76, Merits, 22 October 1981.

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in former Communist countries.12 As a matter of formal law, all CoE states have now at least abolished the criminalisation of consensual same-sex relations. B Organization of American States Although much progress has been made in respect of the protection of the rights of lgbti persons in the Americas, in particular in parts of the usa and in Latin America and Canada, the level of protection is by no means uniform in the 35 oas member states. The Inter-American human rights system had an important role in homogenising and solidifying support for normative frameworks in Latin and Central America, but still needs to prioritise exerting pressure on countries in the Caribbean where discriminatory laws still exist. It took some time before the oas pronounced itself on the issue. In 2008, the oas General Assembly adopted the first of a series of annual resolutions on human rights and sexual orientation, which continued until 2012.13 The resolutions follow an evolutionary and increasingly assertive course, and the sequence and process of their adoption is in fact a study in strategic incrementalism. While the Assembly’s 2008 resolution merely expressed concern about ‘acts of violence’ and ‘related violations’ on the basis of sexual orientation,14 its 2009 resolution restates these concerns, but goes further by calling on states to investigate these offences and punish their perpetrators.15 In this resolution the oas Assembly also acknowledged the role of the Inter-American Commission in this regard, and gave its unequivocal political backing to the human rights system to ‘continue to pay sufficient attention to this issue’.16 Building on that resolution, the 2010 resolution reiterates the expressed concerns, restates the need for states to investigate and punish, and then moves the focus to the need to prevent such violations.17 This resolution also requested 12

Written Declaration No 227 on homosexual rights in the new democracies, Doc 6779, 18 February 1993. See also Sanders, supra n 7 at 81. 13 Human Rights, Sexual Orientation, and Gender Identity, oas AG/RES 2435 (xxxviiiO/08), 3 June 2008. Each of these resolutions departs from the explicit premise that rights are universal entitlements, to be enjoyed without distinction. At the same time, this statement is linked to the mission of the oas, which is to offer to everyone ‘a land of liberty and a favorable environment for the development of his personality and the realization of his just aspirations’. 14 Ibid. 15 Human Rights, Sexual Orientation, and Gender Identity, oas AG/RES 2504 (xxxix-O/09), 4 June 2009. 16 Ibid. 17 Human Rights, Sexual Orientation, and Gender Identity, oas AG/RES 2600 (xl-O/10), 8 June 2010, in which the General Assembly resolved to ‘encourage member states to

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the Inter-American Commission to ‘continue to pay due attention to this issue’, adding, more specifically, that the Commission should ‘consider the possibility of conducting’ a regional thematic study on the topic.18 The 2011 resolution reinforces the universalist premise of the oas by making specific reference to the Declaration on Sexual Orientation and Gender Identity,19 presented to the un General Assembly in 2008.20 In the 2012 resolution, in a step very like that of the un Human Rights Council in 2011, the Assembly requested the Inter-American Commission to ‘prepare a study on legislation and provisions in force in the oas member states restricting the human rights of individuals’ on the ground of sexual orientation, and ‘to prepare, based on that study, guidelines aimed at promoting the decriminalization of homosexuality’.21 Having established an lgbti Unit in 2011, the Inter-American Commission in 2013 decided to create a Rapporteurship on the Rights of lgbti to continue the work of the lgbti Unit. The Unit’s activities focus on promotional activities in various countries in the region, including a conference on stigma and discrimination against lgbti persons in the Caribbean, held in Barbados. C United Nations In the un system, this matter has gradually gained wider acceptance, but left in its wake increased polarisation between member states. June 2011, when the un Human Rights Council adopted its first resolution specifically dealing with sexual orientation,22 marks the first time a un body took an official position on this issue. The resolution requested the United Nations High Commissioner for Human Rights to commission a study, to be finalised by December 2011, documenting sexual orientation-based ‘discriminatory laws and practices and acts of violence against individuals … in all regions of the world, and consider­ways to combat discrimination against persons because of their sexual orientation and gender identity’. 18 Ibid. 19 Joint statement on human rights, sexual orientation and gender identity, A/63/635, 18 December 2008. 20 Human Rights, Sexual Orientation, and Gender Identity, AG/RES 2653 (xli-O/11), 7 June 2011. While this resolution restates previously expressed concerns and the need for states to adopt measures to curb violence on the basis of sexual orientation, it goes much further by calling for an end to discrimination on the basis of sexual orientation, and for the adoption of anti-discrimination policies related to sexual orientation. 21 Human Rights, Sexual Orientation, and Gender Identity, AG/RES 2721 (xlii-O/12), 4 June 2012. 22 Res 17/19, Human rights, sexual orientation and gender identity, 17 June 2011.

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how ­international human rights law can be used to end violence and related human rights violations’ based on sexual orientation.23 The vote, which was carried by 23 votes to 19, with three states abstaining, underlines the extent of polarisation across un regions.24 Its adoption paved the way for the first official United Nations report on the issue prepared by the Office of the High Commissioner for Human Rights.25 The report’s findings formed the basis of a panel discussion that took place at the Council in March 2012—the first time a United Nations intergovernmental body had held a formal debate on the subject. The adoption of the 2011 resolution was the culmination of efforts to bring the issue from the periphery to the core of the un human rights agenda. One of its antecedents, the 2008 statement submitted to the un General Assembly (titled ‘Declaration on Sexual Orientation and Gender Identity’), reaffirming ‘that human rights apply equally to every human being, regardless of sexual orientation or gender identity’,26 was endorsed by 66 states. A countergroup of 57 states, spearheaded by the Organisation of Islamic Cooperation, issued an opposing statement.27 In this statement, these states expressed their 23 Ibid. 24 In favour (23): Argentina, Belgium, Brazil, Chile, Cuba, Ecuador, France, Guatemala, Hungary, Japan, Mauritius, Mexico, Norway, Poland, the Republic of Korea, Slovakia, Spain, Switzerland, Thailand, the Ukraine, the United Kingdom, the United States of America and Uruguay. Against (19): Angola, Bahrain, Bangladesh, Cameroon, Djibouti, The Gabon, Ghana, Jordan, Malaysia, The Maldives, Mauritania, Nigeria, Pakistan, Qatar, The Republic of Moldova, The Russian Federation, Saudi Arabia, Senegal and Uganda. Abstentions (3): Burkina Faso, China and Zambia. Of the 13 African members of the Human Rights Council, only one voted in favour of the South Africa-initiated resolution, nine against and two abstained (against (9): Angola, Cameroon, Djibouti, The Gabon, Ghana, Mauritania, Nigeria, Senegal and Uganda. Abstentions (2): Burkina Faso and Zambia). Only three states from the Asia region (Japan, The Republic of Korea and Thailand) voted in favour. 25 Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity, 14 July 2011, A/HRC/19/41. 26 Joint statement on human rights, sexual orientation and gender identity, 18 December 2008, A/63/635. 27 See www.arc-international.net/global-advocacy/sogi-statements/syrian-statement/. These states were, as far as un regions are concerned, from Africa (31) (Algeria, Benin, Cameroon, Chad, Comoros, Côte d’Ivoire, Djibouti, Egypt, Eritrea, Ethiopia, Gambia, Guinea, Kenya, Libyan Arab Jamahiriya, Malawi, Mali, Mauritania, Morocco, Niger, Nigeria, Togo, Rwanda, Senegal, Sierra Leone, Somalia, The Sudan, Swaziland, Tunisia, Uganda, The United Republic of Tanzania and Zimbabwe); from Asia (26) (Afghanistan, Bahrain, Bangladesh, Brunei Darussalam, The Democratic People’s Republic of Korea, Fiji, Indonesia, Iran, Iraq, Jordan, Kazakhstan, Kuwait, Lebanon, Malaysia, The Maldives, Oman, Pakistan, Qatar, Saudi Arabia, The Solomon Islands, The Syrian Arab Republic, Tajikistan,

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s­ erious concern about the lack of a legal basis rendering sexual orientation a protected ground; the erosion of the principle of non-interference in states’ domestic affairs; and the potential misuse of the term ‘sexual orientation’ to normalise pedophilia. D African Union The African Union (au) broke its initial silence on the issue of sexual orientation in June 2015, when it criticized the granting of observer status by the African Commission to an ngo with an explicit agenda to advance the rights of lesbians. In the view of the au’s Executive Council, advancing the rights of lesbians is contrary to ‘African values’.28 Like the Organization of African Unity (oau) before it, the au has as yet not pronounced itself on sexual orientation, as such. It has made veiled references to the issue, in line with concerns expressed at the un. At the July 2010 session in Kampala, the au Assembly, on the urging of Egypt, adopted a resolution related to a perceived loss of ownership of the human rights agenda. Without referring explicitly to sexual orientation, the Assembly ‘strongly’ rejected ‘any attempt to undermine the international human rights system by seeking to impose concepts or notions pertaining to social matters, including private individual conduct, that fall outside the internationally agreed human rights legal framework, taking into account that such attempts constitute an expression of disregard for the universality of human rights’.29 A subsequent au Assembly session was organised around the theme of ‘shared values’. Perhaps overtaken by the popular uprising in the streets across the continent, particularly in Egypt, the debate concluded in a very general statement that made no reference to private conduct or sexual orientation, and did not mention any attempts at ‘undermining’ international human rights.30 What transpired from the discussion was that all oau/au treaties are part of the ‘shared value’ system of Africans. These treaties are thus the starting points for any discussion on sexual orientation issues. At the domestic level,

28 29 30

Turkmenistan, The United Arab Emirates and Yemen) and from Latin America and the Caribbean (1) (Saint Lucia). DOC.EX.CL/Dec 887 (xxvii) Decision on the Thirty-Eighth Activity Report of the African Commission on Human and Peoples’ Rights. See Section C3 below for a more particulars. au Assembly, Decision on the promotion of cooperation, dialogue and respect for diversity in the field of human rights, 27 July 2010, Assembly/AU/17(xv) Add.9, at para 4. au Assembly, Declaration on the theme of the Summit: ‘Towards greater unity and integration through shared values’, 30–31 January 2011, Assembly/AU/Decl.1(xvi).

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almost 70 per cent of African states retain laws that either directly or indirectly criminalise expressions of same-sex sexual orientation.31 3

Sexual Orientation in Treaty Norms and Interpretations

A European Court of Human Rights Adopted in 1950, the European Convention does not make provision for sexual orientation rights. It therefore fell to the European Court, and when it existed, the European Commission of Human Rights, to expand the text to cover the protection of lgbti persons. As Johnson shows,32 although the Commission received complaints—especially from German nationals—in respect of national laws criminalising consensual private homosexual sexual activities since 1955, it ‘robustly rejected’ these complaints for many years, until it declared the Dudgeon case admissible and referred it to the ECtHR.33 The Court’s finding that laws criminalising homosexual acts between consenting adults violated the right to respect for private life under the European Convention coincided with the European Parliamentary Assembly’s call to all member states to abolish such laws. Although the Court has, overall, been more progressive than the political organs, the (quasi-)judicial and (quasi-)political levels have been working more or less in tandem and in support of the same overarching goal—that of extending the level of protection to lgbti persons. A survey of the Court’s jurisprudence has been undertaken by numerous scholars,34 and is not attempted here. The sexual orientation-related decisions of the Court almost uniformly refer to the margin of appreciation. In a recent decision of the Grand Chamber, x and Others v Austria, dealing with the denial of the right to adoption by an unmarried same-sex couple, the position was set out succinctly: when an ‘important facet of an individual’s existence or 31

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ilga, 79 Countries Where Homosexuality is Illegal, available at: www.76crimes.com/76countries-where-homosexuality-is-illegal: 34 states out of 54 (if African un member states are included) have such laws in place. Johnson, ‘Homosexuality and the African Charter on Human and Peoples’ Rights: What Can be Learned from the History of the European Convention on Human Rights?’ (2013) 40(2) Journal of Law and Society 249. Ibid. at 253. For a comprehensive overview of the extensive jurisprudence on lgbti rights by the European Court, see European Court of Human Rights, ‘Factsheet – Sexual orientation issues’, available at: www.echr.coe.int/Documents/FS_Sexual_orientation_ENG.pdf. For an overview of related scholarship, see, for example, Johnson, Homosexuality and the European Court of Human Rights (Routledge, 2013).

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­identity is at stake’ the margin allowed to states will ‘normally be restricted’.35 A state must thus, for example, show that a measure taken was not merely ‘suitable’ but also ‘necessary’ to achieve a legitimate aim.36 However, where there is no European consensus, ‘particularly where the case raises sensitive moral or ethical issues’, the margin widens.37 Still, when discrimination on grounds of sex or sexual orientation under Article 14 is considered, the margin remains narrow and requires ‘particularly convincing and weighty reasons’.38 The ECtHR has for a long time adopted an ‘evolutive’ interpretation, considering the Convention as a living instrument to be interpreted in present-day conditions. In x and Others v Austria, the majority of the Court, referring to this approach, noted that the state must, in its choice of means to protect the family, ‘necessarily take into account developments in society and changes in the perception of social, civil-status and relational issues, including the fact that there is not just one way or one choice when it comes to leading one’s family or private life’.39 The minority in x and Others v Austria took issue with the majority’s finding, arguing that it exceeds the textual limitations of the Convention and stated the law as the majority wished it to be, rather than what it was.40 The minority remarks that the point of evolutive interpretation is ‘to accompany and even channel change; it is not to anticipate change, still less to try to impose it’.41 B Inter-American Court of Human Rights The core treaties of the oas, the American Declaration of the Rights and Duties of Man and the American Convention, also do not explicitly protect the rights of sexual minorities. For a long time this was not an issue that received much prominence within the Inter-American system. Recently, the oas adopted two binding Inter-American instruments: the Inter-American Convention against Racism, Racial Discrimination, and Related Forms of Intolerance (‘Inter-American Anti-Racism Convention’);42 and 35 36 37 38 39 40 41 42

Supra n 4 at para 148. Ibid. at para 140. Ibid. at para 148. See also Chapter 11. Ibid. at para 99. Ibid. at para 140. Ibid. at Joint Partly Dissenting Opinion of Judges Casadevall, Ziemele, Kovler, Jočienė, Šikuta, de Gaetano and Sicilianos. Ibid. at para 23. The Inter-American Anti-Racism Convention, adopted on 6 June 2013, in its preamble speaks of the ‘inherent dignity and equality of all members of the human family’ that are basic principles of the Universal Declaration of Human Rights, the American Declaration

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the Inter-American Convention against All Forms of Discrimination and Intolerance (‘Inter-American Anti-Discrimination Convention’). The initial idea to adopt a single treaty did not succeed, in part due to the inclusion of ‘sexual orientation’ as an explicit ground for non-discrimination in a binding treaty. The end result was one treaty against racism and one against discrimination on other grounds, including sexual orientation. The Inter-American AntiDiscrimination Convention became the first international treaty to specifically include in the very text protection on the basis of sexual orientation (but not gender identity).43 As of August 2016 it has been signed by nine states.44 Although the focus of this contribution is not on the Inter-American Commission of Human Rights, it also played a role in the domain of sexual minority rights.45 It was the body that dealt with, and eventually referred to the InterAmerican Court, the first related case decided by the Court. On 24 February 2012 the Court found Chile in violation of the Convention on the basis that its highest court (the Supreme Court of Chile) refused to grant custody to Ms

43

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of the Rights and Duties of Man, the American Convention on Human Rights and the International Convention on the Elimination of All Forms of Racial Discrimination. It will only enter into force after the deposit of the second instrument of ratification. By August 2016, it had been signed by eleven states (Antigua and Barbuda, Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Ecuador, Haiti, Panama and Uruguay). It provides: ‘[R]ecognizing the duty of adopting national and regional measures to promote and encourage respect for and observance of the human rights and fundamental freedoms of all individuals and groups subject to their jurisdiction, without regard to gender; age; sexual orientation; language; religion; political or other opinion; social origin; economic status; migrant, refugee or displaced status; birth; stigmatized infectiouscontagious condition; genetic trait; disability; debilitating psychological distress; or other social condition’. Argentina, Bolivia, Brazil, Chile, Colombia, Ecuador, Haiti, Panama and Uruguay. In 1999 the Inter-American Commission found a communication related to sexual orientation admissible for the first time in Case 11.656, Marta Lucía Álvarez Giraldo v Colombia Report No 71/99 (1999). This matter concerned the refusal of conjugal visits to a lesbian prison inmate. Finding the matter admissible, the Commission expressed the view that the facts ‘could involve’ a violation of the right to be free from arbitrary or abusive interference with her private life (at para 21). In its arguments, the state justified the prohibition as ‘deeply rooted intolerance in Latin American culture of homosexual practices’ (at para 12). According to the last publicly accessible report, the Commission concluded that it should proceed to analyse the merits of the case, and reiterated ‘its offer’ to assist the parties in reaching a friendly settlement. In another case, the Commission reached a friendly settlement when Argentina reversed its initial refusal to register an ngo working on sexual orientation issues in that country: see Comunidad Homosexual Argentina (Sanders, supra n 7 at 97).

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­Atala Riffo, the mother of three daughters, due to her sexual orientation.46 This is the first time the Court has found that discrimination based on sexual orientation violates the American Convention on Human Rights, in particular Articles 11(2),47 17(1)48 and 2449 read with Article 1(1). The state brought the issue of regional consensus into play by arguing that there was a lack of consensus in some oas member states regarding sexual orientation as a prohibited category for discrimination. The Court responded that any lack of consensus ‘cannot be considered a valid argument to deny or restrict’ the rights of sexual minorities.50 Adopting an approach based on the consent of states and the text of the American Convention, the Court made the following pronouncement: The fact that this is a controversial issue in some sectors and countries, and that it is not necessarily a matter of consensus, cannot lead this Court to abstain from issuing a decision, since in doing so it must refer solely and exclusively to the stipulations of the international obligations arising from a sovereign decision by the States to adhere to the American Convention.51 This approach, which seems to allow little room for a margin of appreciation, as used in the European system, is criticised in a dissenting opinion in this case. Judge Alberto Pérez Pérez differed with the majority on the violation of Article 17(1) based on the lack of consensus among Latin American states ‘with respect to the evolution of the notion of the family and its status as the foundation or basic or natural element of society’.52 He proposes that this is an area ‘in which it is most essential to allow a national margin of appreciation’.53 The lack of consensus on the issue of ‘family’ contrasts with the ‘common ground or a convergence of standards’ among states parties in respect of the prohibition of discrimination based on sexual orientation.54 46 47

Case of Atala Riffo and Daughters v Chile IACtHR Series C 239 (2012). It reads: ‘No one may be the object of arbitrary or abusive interference with his private life’. 48 It provides that the ‘family is the natural and fundamental group unit of society and is entitled to protection by society and the State’. 49 It guarantees equality before the law. 50 Case of Atala Riffo and Daughters v Chile, supra n 46 at para 92. 51 Ibid. 52 Ibid. at Partially Dissenting Opinion of Judge Alberto Pérez Pérez, para 21. 53 Ibid. at para 23 (emphasis in original). 54 Ibid. at para 21.

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C African Commission on Human and Peoples’ Rights Adopted in 1981, the African Charter does not, similarly to the other two regional human rights treaties, contain any reference to sexual orientation. As with the other treaties, its provisions leave room for their application to sexual minorities. Provisions that come to mind in this regard are Article 3 of the African Charter, which entitles every individual to equal protection of the law, and Articles 4 and 5 of the Charter, guaranteeing to every individual respect for their life and the integrity of their person, and prohibiting torture and other cruel, inhuman and degrading treatment or punishment. These provisions have to be read with Article 2 of the African Charter, which prohibits discrimination against individuals on the basis of distinctions of any kind such as race, ethnic group, colour, sex or any status. Article 2 is akin to Article 14 of the European Convention, Article 1(1) of the American Convention and Articles 2(1) and 26 of the iccpr. In the absence of the oau/au taking any explicit stand on this issue, and with the silence of the Charter on this topic, it was left to the African Commission, through its interpretive mandate, to deal with it in the absence of any political position on the topic.55 The African Commission has, in its complaints procedure, not had the opportunity to deal head-on with an argument about equality based on sexual orientation. In one communication, Courson v Zimbabwe,56 the complainant asked the Commission to consider the legal status of homosexuals in Zimbabwe, the criminalisation of sexual conduct between men and statements made by senior political figures against such practices. However, the complainant withdrew the case.57 According to i­nformation on the 55

See, for example, Murray and Viljoen, ‘Towards Non-discrimination on the Basis of Sexual Orientation: The Normative Basis and Procedural Possibilities before the African Commission on Human and Peoples’ Rights and the African Union’ (2007) 29(1) Human Rights Quarterly 86. 56 136/94, William A. Courson v Zimbabwe, 22 March 1995. 57 Ankumah, in The African Commission on Human and Peoples’ Rights: Practice and Procedures (Martinus Nijhoff, 1996) at 174, quotes the Commissioner who acted as rapporteur as saying the following: ‘Because of the deleterious nature of homosexuality, the Commission seizes the opportunity to make a pronouncement on it. Although homosexuality and lesbianism are gaining recognition in certain parts of the world, this is not the case in Africa. Homosexuality offends the African sense of dignity and morality and is inconsistent with positive African values’. In the complaint, the complainant points to Article 60 African Charter, which states that the Commission shall draw inspiration from international law on human and peoples’ rights. The complainant attached the views adopted by the Human Rights Committee in the case of Toonen v Australia (see infra n 69) as an annex to the communication.

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website of an association working on sexual minority rights in Zimbabwe, Gays and Lesbians of Zimbabwe (galz), the complaint was withdrawn after galz made contact with the author and implored him to withdraw the matter.58 One of the threshold questions for the Commission to determine is whether sexual orientation is a protected ground under the African Charter. Although this question has not been settled definitively in a communication directly related to the issue, there are clear indications that it favours such an approach. In one of its communications, Zimbabwe Human Rights ngo Forum v Zimbabwe, the Commission for the first time mentioned ‘sexual orientation’, affirming that the aim of the non-discrimination principle under Article 2 of the African Charter is to ‘ensure equality of treatment for individuals irrespective of’ a number of grounds, including ‘sexual orientation’.59 This reference to sexual orientation is, however, made in passing, based on the views of the author Shestack, and does not provide a precedent as far as the facts of the case go. By making use of the prohibition of discrimination based on ‘other status’ the Commission has pronounced against discrimination based on another non-enumerated ground, disability,60 clearly establishing that ‘other status’ can be interpreted broadly to include grounds other than those listed under Article 2 of the African Charter. Further, even though the Charter does not mention the concept ‘indigenous person’, the Commission has in its practice, 58

A representative of galz wrote as follows to him: ‘We acknowledge that gay and lesbian rights in Zimbabwe are a constitutional issue and must be dealt with at this level. However, many of our members feel that, as an organisation, we cannot support your efforts lest we jeopardise our “understanding” with the government which allows us a relatively large amount of freedom’: see galz.org/campaigns/courson-complaint/. One of the factors weighing heavily on galz was the fact that the complainant did not consult with galz or any other grass-roots local civil society grouping before submitting the complaint. In addition, Courson was not a national, but a member of the Magnus Hirschfeld Centre for Human Rights in the usa, and would have had to bring the communication in the public interest. These circumstances were pounced upon by the government-supporting Zimbabwean press, which portrayed Courson as ‘a white, foreign pervert poking his nose in where he was not wanted’: see galz.org/campaigns/courson-complaint/. 59 245/02, Zimbabwe Human Rights ngo Forum v Zimbabwe, 15 May 2006, at para 169: ‘Together with equality before the law and equal protection of the law, the principle of non-discrimination provided under article 2 of the Charter provides the foundation for the enjoyment of all human rights. As Shestack has observed, equality and non-discrimination “are central to the human rights movement”. The aim of this principle is to ensure equality of treatment for individuals irrespective of nationality, sex, racial or ethnic origin, political opinion, religion or belief, disability, age or sexual orientation’. This observation is made obiter as the case did not turn on the issue of sexual orientation. 60 241/01, Purohit and Moore v The Gambia, 29 May 2003, at paras 50 and 52–54.

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resolutions and communications61 recognised this concept and protected the rights of ‘indigenous peoples’ in the absence of any reference to the word or concept ‘indigenous’ in the Charter. This stands as an unequivocal example that the protection of the African Charter is not denied to groups merely because it does not explicitly recognise that group by name. There is also at least some indication in the Commission’s state reporting practice that sexual minorities also fall within the Charter’s protective scope. As early as 2006, the Commission in its concluding observations on the Periodic Report of Cameroon expressed concern ‘about the upsurge in intolerance towards sexual minorities’ in the context of vulnerable groups.62 The Commission clarified the position when it adopted its first resolution devoted to sexual orientation and gender identity in 2014,63 calling on states to ensure that human rights defenders, including those advocating for the rights of sexual minorities, are allowed to work in an ‘enabling environment’ that is ‘free of stigma, reprisals or criminal prosecution’ as a result of their human rights protection activities, including in relation to the rights of sexual minorities. Significantly, both sexual orientation and gender identity are mentioned in the context of violence by states and non-state actors. This resolution in many ways corresponds with the oas resolutions of 2008 to 2012.64 Acknowledging that sexual conduct cannot be equated with sexual identity, particularly in Africa where the ‘open’ acceptance of a ‘gay identity’ is quite rare due to societal stereotyping and pressure, the Commission established a Committee on the Protection of the Rights of People Living with hiv (‘hiv Committee’) mandated to ‘integrate a gender perspective and give special attention to persons belonging to vulnerable groups, including women, children, sex workers, migrants, men having sex with men, intravenous drugs users and prisoners’. 61

62 63

64

See, for example, 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009; and Report of the African Commission Working Group on Indigenous Populations/Communities in Africa, 14 May 2003, DOC/OS(XXXIV)/345. 39th Ordinary Session, 11–25 May 2006. Resolution 275 on Protection against Violence and other Human Rights Violations against Persons on the basis of their real or imputed Sexual Orientation or Gender Identity, 55th Ordinary Session, 12 May 2014. The Commission called for an end to ‘all acts of violence and abuse’ based on these grounds, and the conduct of the ‘proper investigation and diligent prosecution of perpetrators, and establishing judicial procedures responsive to the needs of victims’. It mentions, as examples of specific steps that should be taken, anti-discrimination laws and laws ‘prohibiting and punishing all forms of violence’.

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Standing as a clear aberration to the trend is the Commission’s refusal in 2010 of the application for observer status of the Coalition of African Lesbians (cal) in 2010.65 To qualify for observer status with the African Commission, an organisation must have objectives and activities in consonance with the fundamental principles and objectives enunciated in the au Constitutive Act and in the African Charter and be an organisation working in the field of human rights.66 As part of its reasoning for the refusal, the Commission noted that the African Charter does not explicitly recognise the rights to non-discrimination on sexual orientation.67 The fact that this refusal was made by a slender majority vote of Commissioners underlines the important role of individual Commissioners and their level of sensitisation and information. Following the adoption of its 2014 resolution, the Commission in March 2015 reversed its 2010 decision by granting observer status to cal. This decision provoked the most explicit political response from the au to date. When the au Executive Council considered the Commission’s Activity Report containing the cal decision, in June 2015, it ‘request[ed]’ the African Commission to ‘take into account the fundamental African values, identity and good traditions, and to withdraw the observer status granted to ngos who may attempt to impose values contrary to the African values’; to ‘review its criteria for granting Observer Status to ngos’; and to ‘withdraw the observer status granted to the Organization called cal, in line with those African Values’.68 By the end of 2015, the Commission had not yet responded to this ‘request’. 65

66 67

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The application for observer status was submitted to the Commission in May 2008 and deferred on numerous occasions until it was eventually considered in May 2010 at the Commission’s 47th session. Resolution 33, Criteria for the Granting of Observer Status with the African Commission on Human and Peoples’ Rights, 25th Ordinary Session, 5 May 1999. See 28th Activity Report of the African Commission, EX.CL/600 (xvii) at para 33: ‘The reason being that, the activities of the said Organisation do not promote and protect any of the rights enshrined in the African Charter’. Further clarification was provided by members of the Commission during question time at a Conference celebrating 30 years since the entry into force of the African Charter, organised by the Centre for Human Rights, University of Pretoria, in July 2011. There are at least two responses to this contention: (i) As will be discussed more fully below, according to the text of the African Charter, sexual minorities are rights-bearers; and (ii) The Charter has generally been interpreted as a living instrument, and not as a captive of the original textual strictures, for example, by including indigenous peoples within its protective ambit although this group has not been mentioned explicitly in the Charter. DOC.EX.CL/Dec 887 (xxvii) Decision on the Thirty-Eighth Activity Report of the African Commission on Human and Peoples’ Rights.

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D Human Rights Committee There is no binding un human rights treaty devoted to or explicitly mentioning sexual orientation. The closest the international community has come is the non-binding Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity, adopted – mostly by non-state representatives – in 2006.69 Numerous un human rights bodies, consisting of independent experts nominated and elected by states parties, have held the view that lgbti persons are rights-holders under existing un human rights treaties.70 With respect to the Human Rights Committee’s mandate, Article 26 of the iccpr grants to all persons the equal protection of the law, and prohibits discrimination on a number of listed grounds, including ‘sex’. It is important to note that the list is open-ended, as exemplified by the use of the phrase ‘or other status’. Article 17(1) of the iccpr stipulates that ‘[n]o one shall be subjected to arbitrary or unlawful interference with his privacy’. In Toonen v Australia,71 the Committee concluded that the criminalisation of consensual same-sex acts by adults in private violated the right to privacy. In what could be considered an obiter view, as it does not relate to a right found to have been violated, the Committee expressed the view that the word ‘sex’ in Article 26 (and in Article 2(1)) of the iccpr includes ‘sexual orientation’.72 The Committee’s view in Toonen is surprising and unsubstantiated. It is surprising because in as much as the remark has been made on the basis that the 69

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The Yogyakarta Principles depart from a universalist premise, but acknowledge that their consistent revision has to take account of legal developments and the ‘experiences of persons of diverse sexual orientations and gender identities over time and in diverse regions and countries’: see www.yogyakartaprinciples.org/principles_en.pdf. See Committee on Economic, Social and Cultural Rights (cescr), General Comment No 14 (2000): The right to the highest attainable standard of health (article 12 of the International Covenant on Economic, Social and Cultural Rights), 11 May 2000, E/C.12/2000/4, at para 18; cescr, General Comment No 15 (2002): The right to water (arts. 11 and 12 of the International Covenant on Economic, Social and Cultural Rights), E/C.12/2002/11, at para 13; cescr, General Comment No 18: The Right to Work, 24 November 2005, E/C.12/GC/18, at para 12; cescr, General Comment No 20: Non-discrimination in economic, social and cultural rights (art. 2, para. 2, of the International Covenant on Economic, Social and Cultural Rights), E/C.12/GC/20, at para 32; Committee against Torture, General Comment No 2: Implementation of article 2 by States parties, CAT/C/GC/2, at para 21; and Committee on the Elimination of Discrimination against Women, General Recommendation No 28 on the core obligations of States parties under article 2 of the Convention on the Elimination of All Forms of Discrimination against Women, CEDAW/C/GC/28, at para 18. (488/92) Views, CCPR/C/50/D/488/1992 (1994). Ibid. at para 8.7.

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state sought the Committee’s ‘guidance’ on the matter, what the state actually asked was whether the term ‘or other status’ (and not ‘sex’) encompasses ‘sexual orientation’.73 It lacks substantiation not only because no argument to that effect was made by the parties, but also because the Committee does not provide any reasoning whatsoever for its conclusion. It seems that the Committee was oblivious to the fact that, by opting for this route, rather than the relatively uncontroversial possibility of expressing a view on the scope of the phrase ‘or other status’, it was locating itself in the debate about the suitability of viewing ‘sex’ as including ‘sexual orientation’.74 On numerous occasions, at the end of examining periodic state reports, the hrc has issued concluding observations confirming the position in Toonen, for example, in reply to Kenya’s second periodic report under the iccpr,75 Zambia’s third report,76 Botswana’s initial report77 and Namibia’s initial report.78 4

Comparative Reliance

A European Court of Human Rights The ECtHR has in the context of sexual orientation only once in a majority judgment placed reliance on any of the three bodies under review, namely the IACtHR.79 It has done so in a case decided in 2012, Zontul v Greece,80 73 74

75 76 77 78 79

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Ibid. at para 6.9. Subsequently, in Joslin v New Zealand (902/99) Views, CCPR/C/75/D/902/1999 (2001), two Committee members in a separate concurring view referred to the Committee’s ‘established view’ that the term ‘sex’ in Article 26 includes ‘sexual orientation’; and in Young v Australia (941/00) Views, CCPR/C/78/D/941/2000 (2003), at para 10.4, citing Toonen the Committee referred to its ‘earlier jurisprudence that the prohibition against discrimination under article 26 comprises also discrimination based on sexual orientation’. In as much as the initial view on this matter may have been an obiter remark, in Joslin and Young it became integral to the Committee’s jurisprudence and has subsequently been confirmed: see x v Colombia (1361/05) Views, CCPR/C/89/D/1361/2005 (2007); and Fedotova v Russian Federation (1932/10) Views, CCPR/C/106/D/1932/2010 (2013). 24 March 2005, CCPR/CO/83/KEN. 20 July 2007, CCPR/C/ZMB/CO/3. 28 March 2008, CCPR/C/BWA/CO/1. 26 July 2004, CCPR/CO/81/NAM. See (as at end of August 2012) European Court of Human Rights, ‘Research Report: References to the Inter-American Court of Human Rights in the case-law of the European Court of Human Rights’, available at: www.echr.coe.int/Documents/Research_report _inter_american_court_ENG.pdf. Application No 12294/07, Merits and Just Satisfaction, 17 January 2012.

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in which the ECtHR for the first time found a violation of Article 3 (prohibition of torture and inhuman or degrading treatment) involving conduct directed at an lgbti person. In this case, a gay asylum seeker was, together with other asylum seekers, intercepted and detained by the Greek coastguard. During his detention, Zontul suffered sexual abuse. The form of abuse had a clear link to Zontul’s sexual orientation: the guards compelled him to undress in the bathroom, asked him how deep into his anus he would be able to ‘take’ an object, and then one of the guards proceeded to penetrate his anus with a truncheon.81 The Court also characterised the sexual abuse as rape and concluded that the treatment to which Zontul had been subjected, in view of its cruelty and its intentional nature, had unquestionably amounted to an act of torture from the standpoint of the Convention. One of the issues before the ECtHR was whether sexual abuse in the form of bodily penetration with the truncheon constituted ‘rape’. In determining this issue, the Court made reference to the jurisprudence of three international courts: the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda and the IACtHR. Although all three these courts have accepted that penetration with an object amounts to an act of torture, one could assume that the weight attached to the only human rights court (the Inter-American Court) as opposed to ad hoc criminal courts would be of particular significance. In this respect, the ECtHR placed reliance on the IACtHR’s judgment in Miguel Castro Castro Prison v Peru.82 The facts of this case were analogous to those in Zontul, although the case against Peru related to a heterosexual context, where the IACtHR found that an unwarranted digital inspection of a detainee’s vagina by a number of hooded guardians constitutes the elements of rape and comprises torture.83 It is not clear if the Inter-American case was introduced by the Centre for Justice and Accountability, acting as amicus curiae, by the complainant, or by the Court itself.84 According to the judgment, the Centre for Justice and Accountability made reference to un instruments, the Toonen decision of the Human Rights Committee, an oas Resolution and the Yogyakarta Principles 81 82 83 84

Ibid. at para 10. IACtHR Series C 160 (2006). Ibid. at para 312; and Zontul v Greece, supra n 78 at para 65. Zontul v Greece, ibid. Compare para 79 (the complainant’s argument, in which no mention is made of the Inter-American Court as part of the legal instruments invoked to have the Court characterise the conduct as ‘torture’) and para 81 (in which the Inter-American case law is also not mentioned, but reference is made to the 2008 oas Resolution, supra n 13 at para 2.2).

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in support of its contention that states have an obligation to ensure the protection of the rights of sexual minorities.85 In addition to citing the judgments by the ad hoc criminal tribunals, the ECtHR also cited the Miguel Castro Castro Prison case as part of the legal framework on the definition of ‘torture’.86 Soon after the Zontul case was decided, the ECtHR in another case, x and Others v Austria,87 found another Article 3 violation on the basis of sexual orientation. In that case, no reference was made to any regional or un instruments or jurisprudence or, perhaps surprisingly, to the Zontul case. While in many respects the main reason explaining the absence of reliance on other regional courts by the ECtHR could be the lack of comparable jurisprudence, this cannot be said for the judgment in the case of x and Others v Austria, delivered on 19 February 2013.88 In this case, the ECtHR heard from amici curiae who referred it to the recent judgment by the IACtHR in the case of Atala Riffo and Daughters v Chile,89 decided on 24 February 2012.90 In its amicus brief, Amnesty International pointed out that differences in treatment based on sexual orientation required particularly convincing and weighty reasons, and referred specifically to the Atala judgment in support of the contention that ‘sexual orientation is part of a person’s intimacy and is not relevant when examining aspects related to an individual’s suitability as a parent’.91 There seems to be a tendency among judges of the ECtHR to be slightly less reticent to make explicit reference to non-European sources in their separate concurring or dissenting opinions on sexual orientation-related issues. 85 86 87 88

89 90 91

Ibid. at para 81. Ibid. at para 65. Supra n 4. The application was filed on 24 April 2007, heard on 3 October 2012 (that is, about seven months after the Atala judgment) and deliberated upon by the Court on the date of the hearing and on 9 January 2013. Supra n 46. x and Others v Austria, supra n 4 at paras 78 and 88. Ibid. It should be noted that Amnesty International, as well as the applicant (at para 69), also referred to the un Convention on the Rights of the Child, in particular, to the principle that the best interests of the child should be the ‘primary consideration’ in all actions concerning children, thus placing ‘important limits on the States’ margin of appreciation, prohibiting them, for instance, from applying different standards based on the composition of the child’s family or the sexual orientation of a parent’. Although the Court’s judgment mentions (at para 49) the relevant provisions of the Convention on the Rights of the Child as part of the relevant ‘international conventions and Council of Europe’ materials, these provisions have not found their way into the Court’s judgment on the substance of the issue.

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In Fretté v France,92 for example, Judges Bratza, Fuhrmann and Tulkens referred to the un Human Rights Committee’s view in Toonen, in support of the observation that sexual orientation is ‘covered’ by Article 14 of the Convention, whether based on a broad interpretation of ‘sex’ (with reference to Toonen) or on the basis of ‘other status’ (with reference to a finding of the erstwhile Commission).93 B Inter-American Court of Human Rights The single judgment of the Inter-American Court dealing with sexual minority rights, in the Atala case, is replete with references to international human rights law. However, the Court bases its legal findings in the first place on the text of the American Convention, and on an interpretive approach based on the American Convention and the Court’s own precedents. This primacy of the American Convention regime is illustrated in the IACtHR’s determination whether sexual orientation is a protected ground under the Convention. The Court’s conclusion that ‘the sexual orientation of persons is a category protected by the Convention’94 is based on its interpretation of Article 1(1) of the American Convention. Under this provision, states parties undertake to ensure to everyone under their jurisdiction the full exercise of their rights, without any discrimination on the basis of a number of factors, including ‘sex’. However, the list is open-ended, in that it concludes with the phrase ‘or any other social condition’. These ‘general obligations to respect and guarantee’ Convention rights are interpreted in light of the ‘interpretation criteria set forth in Article 29 of that Convention’.95 These criteria impel 92 Application No 36515/97, Merits and Just Satisfaction, 26 February 2002. 93 See Sutherland v United Kingdom Application No 25186/94, Commission Report, 1 July 1997. See also Hämäläinen v Finland Application No 37359/09, Merits and Just Satisfaction, 16 July 2014, where three judges in their dissenting opinion made reference (at para 16) to Principle 3 of the Yogyakarta Principles in support of the view that ‘the gender reassignment undergone by one spouse’ was not ‘a compelling reason justifying the dissolution of a marriage where both spouses expressly wish to continue in their pre-existing marital relationship’. 94 Case of Atala Riffo and Daughters v Chile, supra n 46 at para 91. 95 Article 29 provides: ‘No provision of this Convention shall be interpreted as: a. permitting any State Party, group, or person to suppress the enjoyment or exercise of the rights and freedoms recognized in this Convention or to restrict them to a greater extent than is provided for herein; b. restricting the enjoyment or exercise of any right or freedom recognized by virtue of the laws of any State Party or by virtue of another convention to which one of the said states is a party; c. precluding other rights or guarantees that are inherent in the human personality or derived from representative democracy as a form of government; or d. excluding

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the IACtHR ‘to choose the alternative that is most favorable to the protection of the rights enshrined in said treaty, based on the principle of the rule most favorable to the human being’.96 In addition, the Court also relied on ‘the provisions of the Vienna Convention on the Law of Treaties, and the standards established by the ECtHR and the mechanisms of the United Nations’.97 The Vienna Convention on the Law of Treaties (vclt) has been referred to in support of the ‘evolutive’ interpretation, adopting the view that ‘human rights treaties are living instruments whose interpretation must consider the changes over time and present-day conditions’.98 When the IACtHR first made reference to the vclt, it placed specific reliance on Articles 31(2) and 31(3).99 This reliance is framed as mandating the Court to take into account not only the text, but also the ‘system of which it is part’.100 Decisions of the ECtHR are also quoted, seemingly merely to reinforce the already established principle of interpreting a human rights treaty as a ‘living instrument’. Universal and regional approaches are thus invoked as support for the specific position developed by the IACtHR on the basis of the American Convention. The vclt and ECtHR cases are not quoted in support of perhaps the most crucial aspect of the Inter-American Court’s interpretive

or limiting the effect that the American Declaration of the Rights and Duties of Man and other international acts of the same nature may have’. 96 Case of Atala Riffo and Daughters v Chile, supra n 46 at para 84, making reference in a footnote to, for example, OC-5/85, Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts. 13 and 29 American Convention on Human Rights) IACtHR Series A 5 (1985) at para 52. 97 Case of Atala Riffo and Daughters v Chile, ibid. at para 91. 98 OC-16/99, The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law IACtHR Series A 16 (1999) at para 114. 99 Article 31(2) stipulates that the word ‘context’ for the purpose of the interpretation of a treaty comprises ‘in addition to the text, including its preamble and annexes: (a) Any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) Any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty’. Article 31(3) determines that in addition to the ‘context’, the following have to be taken into account: ‘(a) Any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) Any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) Any relevant rules of international law applicable in the relations between the parties’. 100 OC-16/99, The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, supra n 98 at para 113.

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approach, namely its approach to adopt the interpretation that most favours the human being (pro homine). As for the ECtHR, the IACtHR placed specific reliance on the case of Salgueiro da Silva Mouta v Portugal,101 in which the ECtHR found that the list of categories in Article 14 of the European Convention has ‘illustrative purposes and is not exhaustive’.102 The Inter-American Court also referred to the European Court’s finding in Clift v United Kingdom103 that sexual orientation may be included as one of the categories under the term ‘another condition’, and is similar to the other specific examples on the list, ‘which are considered as personal characteristics in the sense that they are innate or inherent to the person’.104 As for the un mechanisms, the Court refers to findings of the Human Rights Committee; concluding observations of this Committee and numerous reports by un special mechanisms. Once again, Toonen is cited as a landmark decision, but in addition to Toonen reference is also made to x v Colombia105 and Young v Australia.106 The Committee’s concluding observations are cited—clearly only as an example of a much more extensive trend.107 A very extensive list of reports related to sexual orientation adopted by un special mechanisms is also referenced.108 In addition to these sources, the IACtHR also refers to political landmarks adopted by both the un and oas. The Court notes, in the first place, that since 2008 the oas General Assembly has approved four successive resolutions referring to the protection of persons against human rights violations based on sexual orientation.109 In addition, the Court referred to the 2008 statement to the un General Assembly and to the 2011 Resolution by the un Human Rights Council.110

101 102 103 104 105

106 107 108 109 110

Application No 33290/96, Merits and Just Satisfaction, 21 December 1999. Case of Atala Riffo and Daughters v Chile, supra n 46 at para 87. Application No 7205/07, Merits and Just Satisfaction, 13 July 2010. Case of Atala Riffo and Daughters v Chile, supra n 46 at para 87. Supra n 74 at para 7.2 (‘The Committee recalls its earlier jurisprudence that the prohibition against discrimination under Article 26 comprises also discrimination based on sexual orientation’). Supra n 74 at para 10.4. Human Rights Committee, Concluding observations regarding Poland, 28 July 1999, CCPR/C/79/Add.110, at para 23. Case of Atala Riffo and Daughters v Chile, supra n 46 at para 90. Ibid. at para 86. Ibid. at para 90.

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In addition to relying on international human rights law in determining whether sexual orientation is a protected ‘category’ under the American Convention, the IACtHR also relies extensively on international law in its definition of the concept of family as ‘not limited only to marriage’.111 Citing the ECtHR cases of Salgueiro da Silva Mouta v Portugal112 and Karner v Austria,113 the Court notes that international ‘case law is consistent on this point’.114 General comments adopted by numerous un treaty bodies are cited in support of the contention that ‘there is no single model for a family’.115 On the specific issue of conventional protection for same-sex couples, the Court makes reference to the ECtHR judgment in Schalk and Kopf v Austria,116 in which that Court held that same-sex couples enjoy the right of a ‘family life’ protected under the echr.117 So although the IACtHR in Atala emphasises that the textual differences between the European and American Conventions related to the protection of the family, its finding that ‘the imposition of a single concept of family’ constitutes a violation of Article 17, due to the impact of such a conceptual understanding on the ‘family unit’,118 is firmly rooted in and influenced by international law and, in particular, the case law of the ECtHR. While the IACtHR has taken pains to align its approach to the interpretation of the substantive rights in the American Convention to interpretations in the European and un systems, it has not done so in respect of its remedial orders. Compared to the remedies ordered by the ECtHR in comparable cases, the IACtHR in Atala adopted a much more wide-ranging and generous approach. In Salgueiro da Silva Mouta, the ECtHR accepted that a declaration of rights constituted sufficient just satisfaction, together with costs and expenses.119 In other cases related to sexual orientation and parenthood, such as Karner v Austria120 and Fretté v France,121 the European Court rejected claims for nonpecuniary damages and restricted its orders to costs and expenses. Following its long-standing approach, as set out in a long line of precedents, the IACtHR in Atala emphasises restorative elements and transformative 111 112 113 114 115 116 117 118 119 120 121

Ibid. at para 142. Supra n 101. Application No 40016/98, Merits and Just Satisfaction, 24 July 2003. Case of Atala Riffo and Daughters v Chile, supra n 46 at para 143. Ibid. at para 172. Application No 30141/04, Merits and Just Satisfaction, 24 June 2010. Case of Atala Riffo and Daughters v Chile, supra n 46 at para 174. Ibid. at para 175. Supra n 101 at paras 39–43. Supra n 113 at paras 45–50. Supra n 92 at paras 53–58.

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measures to ensure non-repetition. It, for example, ordered the publication of excerpts of the judgment; it required that the full judgment should be posted on the government’s website for one year; and it ordered that a training programme should be implemented for public officials to overcome gender stereotypes and homophobia. In addition, the IACtHR reiterated its call for ‘conventionality control’, according to which ‘legal and administrative interpretations’ should be ‘applied in accordance with the principles established in the jurisprudence of this Court in the present case’.122 In arriving at its remedial order, the Court rejected the argument by Chile, with reference to the ECtHR case of Salgueiro da Silva Mouta v Portugal, that a declaration that the rights had been violated is adequate reparation, thus making an award of compensation redundant.123 Judge Alberto Pérez Pérez, in a partially dissenting opinion, supported the Court’s finding that Article 11(2) (the right to non-interference in one’s private life) had been violated, but was of the view that there was no need to find a violation of Article 17(1) (the right of family to be protected).124 While placing even more extensive reliance on the case law of the European Court than the majority, he reiterated that ‘the extensive citation of judgments by the [ECtHR] does not imply that the Inter-American Court should take these as required precedents’, but emphasised that this case law is of persuasive value ‘to the extent that the arguments contained therein may be intrinsically convincing’.125 Factors mentioned as determining the persuasiveness of a judgment include the status of a particular court and the personality of the relevant judge. Judge Pérez continued: ‘In view of the status of the [ECtHR] and the similarity between its functions and those of the Inter-American Court, the judgments cited in this reasoned vote are of great importance’.126 As for the Court’s general interpretive approach, it adopts—as has been well established in its jurisprudence—an approach similar to that of the European Court, namely that ‘human rights treaties are living instruments, whose interpretation must go hand in hand with evolving times and current living conditions’.127

122 Case of Atala Riffo and Daughters v Chile, supra n 46 at para 284. 123 Ibid. at para 288. 124 Ibid. at Partially Dissenting Opinion of Judge Alberto Pérez Pérez. 125 Ibid. at para 17. 126 Ibid. 127 Case of Atala Riffo and Daughters v Chile, supra n 46 at para 83.

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C African Commission on Human and Peoples’ Rights Under Articles 60 and 61 of the African Charter, the African Commission is obliged to find interpretive guidance in a wide array of sources.128 Despite this clear injunction, there is no consistency or clearly discernable trend in the Commission’s reliance on these sources. In some cases there is no reliance on such sources, while in others it is in abundance. As the Commission has no case law on sexual orientation, the question of a trend in this regard remains unanswered. Some of the special mechanisms of the Commission have shown an openness to issue joint statements, for example, on International Day in Support of Victims of Torture, and, most pertinent to this discussion, on the International Day Against Homophobia and Transphobia. The latter was adopted on 17 May 2014 by a number of un special rapporteurs, the Inter-American Commission, an expert from the Organization for Security and Co-operation in Europe and Commissioner Alapini-Gansou, the African Commission’s Special Rapporteur on Human Rights Defenders in Africa. D Human Rights Committee The Human Rights Committee has not in any of its views related to sexual orientation made explicit reference to any of the regional human rights treaties or findings. However, a careful analysis of its findings reveals the hidden or unacknowledged influence of the European Court’s decisions. By the time a un treaty body for the first time adopted a finding on sexual orientation, and more particularly, on the criminalisation of private same-sex conduct between consenting males, the ECtHR had already dealt with this issue in three cases. In Dudgeon v United Kingdom,129 decided in 1981, the Court framed the violation of such a statute in Northern Ireland as a matter of interference in private life and found a violation of Article 8 of the echr. Just like the ECtHR in Dudgeon and in two subsequent judgments (Norris v Ireland130 decided in 1988 and Modinos v Cyprus131 decided in 1993), the hrc in 128 Under Article 60 of the Charter, the Commission ‘shall draw inspiration’ from international human rights law, including, in particular, from the Universal Declaration of Human Rights, other human rights instruments adopted by the un, and the instruments adopted by un specialised agencies. Under Article 61, it must ‘take into consideration … other general or specialised international conventions laying down rules expressly recognised’ by au member states, ‘general principles of law recognised by African states’ and ‘legal precedents’. 129 Supra n 11. 130 Application No 10581/83, Merits and Just Satisfaction, 26 October 1988. 131 Application No 15070/89, Merits and Just Satisfaction, 22 April 1993.

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Toonen v Australia, decided in 1994, declined the opportunity to make a finding on the basis of non-discrimination, and thus thought it unnecessary – just as the ECtHR did – to ‘consider whether there has also been a violation’ of Article 26 of the iccpr.132 Similar to the ECtHR, the Committee frames the issue as one of interference in private life, and found a violation of the corresponding provision in the iccpr, Article 17(1) read with Article 2(1). This approach was probably informed by the great extent of similarity between the facts in the Toonen matter and that in Dudgeon. In both instances, the matter arose from a single subnational entity (Northern Ireland and Tasmania) which had a law in place at odds with the rest of the state (the uk and Australia as a federal unit); there was significant domestic expression of opposition to the abolition of the law;133 and the relevant provisions had not been ‘enforced for a decade’.134 The issue of ‘consensus’ also arose in both instances. In Toonen, the hrc, in assessing the ‘reasonableness’ of the restriction, held that moral justification cannot be considered as a matter ‘exclusively of domestic concern’ as such an approach would ‘open the door’ to removing the Committee’s supervisory role.135 As these laws were not enforced, they could in the Committee’s view hardly be described as essential for the protection of morals. The hrc further noted that there was, on the one hand, consensus in the rest of Australia that there was no need for such a law and, on the other hand, that there was no consensus for its retention even within Tasmania.136 The Committee further held that the prohibition of ‘arbitrary’ interference means that a law restricting privacy must be reasonable, and that the reasonableness requirement implies that ‘any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case’.137 Without making explicit reference to the ECtHR, or the notion of ‘margin of appreciation’, this formulation invokes the European Court’s standard approach to the limitation of rights.138 132 Supra n 71 at para 11. See Dudgeon v United Kingdom, supra n 11 at para 70: ‘[T]he Court accordingly does not deem it necessary to examine the case under article 14 as well’. 133 See the derogatory comments (to the extent that homosexuals should be ‘rounded up and “dumped” on an uninhabited island’) by members of Parliament, church leaders and members of the general public: Toonen v Australia, supra n 71 at para 2.5. 134 Ibid. at para 8.2. 135 Ibid. at para 8.6. 136 Ibid. at para 8.6. 137 Ibid. at para 8.3. 138 See Helfer and Miller, ‘Sexual Orientation and Human Rights: Towards a United States and Transnational Jurisprudence’ (1996) 9 Harvard Human Rights Journal 61 at 66, referring (at n 21) to, for example, Dudgeon v United Kingdom.

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While the Committee’s preference to opt for an approach based on the right to privacy may be explained from this point of view, it also makes more noticeable the Committee’s shying away from explicitly relying on Dudgeon as a useful analogous precedent. Indeed, the Committee made reference to the ECtHR judgment in Dudgeon (and in Norris and Modinos) only in one respect, namely in relation to its finding that the term ‘other status’ in Articles 26 and 2(1) of the iccpr encompasses ‘sexual orientation’.139 However, it is only in the summary of the author’s arguments – and not in its finding as such – that the Committee makes reference to these cases. In any event, it is not this argument, but the Court’s reasoning on the right to privacy, which the Committee implicitly followed in Toonen. In Joslin v New Zealand,140 the Committee held that the refusal by the state to allow a lesbian couple to marry did not amount to a violation of Article 23(2) of the iccpr. Countering the complainant’s argument that this refusal constituted discrimination on the basis of sex and sexual orientation, the state argued that the fundamental understanding of marriage in the iccpr, ‘as being between a man and a woman’, is in line with the understanding ‘in other international instruments’ such as the Universal Declaration of Human Rights and the echr.141 The state’s argument is based on the textual provisions of Article 26, which uses the ‘gender-specific terms of “men” and “women”’, compared to the ‘gender-neutral terms’ used in all other provisions.142 In addition, the state relied on the corresponding duality (between gender-neutral terms used in the treaty, generally, and the gender-specific terms in the treaty provision dealing with marriage) in Article 16 of the Universal Declaration.143 In support of its argument, the state also referred to decisions of the ECtHR, ‘which have repeatedly found that the equivalent provision of the European Convention does not extend to homosexual couples’.144 In its brief finding, the Committee does not refer to any of these instruments or cases, and bases its finding on the wording of Article 23(2). However, by referring in its finding to the way in which this

139 140 141 142 143

Toonen v Australia, supra n 71 at para 7.5. Supra n 74. Ibid. at para 4.2. Ibid. at para 4.3. Ibid. at para 4.3, which provides, in the only gender-specific reference in the Declaration, for the right of ‘[m]en and women … to marry’. 144 Ibid. at para 4.4, referring to, for example, Rees v United Kingdom Application No 9532/81, Merits, 17 October 1986, at para 49; and Cossey v United Kingdom Application 10843/84, Merits, 27 September 1990.

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provision has ‘consistently and uniformly’ been understood, the Committee arguably gives an indirect nod to the sources cited in the state’s argument.145 In Fedotova v Russia,146 the complainant alleged that her rights had been violated because the Russian government prevented her and others from holding a peaceful demonstration in Moscow to promote tolerance towards gays and lesbians in Russia. She was also convicted of an offence (‘public actions aimed at propaganda for homosexuality (sexual act between men or lesbianism) among minors’) for displaying posters celebrating her own homosexuality close to a secondary school building.147 Rejecting the state’s argument that the restriction of her rights was justifiable on the basis that the law and its application was aimed at protecting morals and the rights of minors, the Committee concluded that the restriction was not based on reasonable and objective criteria.148 It found a violation of her right to freedom of expression (Article 19(2)) and non-discrimination (Article 26). As part of her argument, the complainant relied on a legal opinion of the International Commission of Jurists, which engages with and differentiates the present case from the Committee’s finding in Hertzberg v Finland.149 Preempting­reliance on this finding, the opinion argues, with reference to Toonen and Dudgeon, that the Committee’s jurisprudence is similar to that of the ECtHR in its view of ‘public morals’ as an evolving concept.150 The Human Rights Committee was also referred to the judgment of the ECtHR in Alekseyev v Russia151 and other international soft law,152 but it did not make any reference to 145 146 147 148

149 150 151 152

Joslin v New Zealand, supra n 74 at para 8.2. Supra n 72. The posters read: ‘Homosexuality is normal’ and ‘I am proud of my homosexuality’. One of the important findings was that criminalising ‘propaganda of homosexuality’ was discriminatory in that propaganda of heterosexuality or sexuality generally was not targeted in the same way (at para 10.6). (61/79) Views, CCPR/C/15/D/61/1979 (1982). Reference is made to Toonen v Australia, supra n 69; and the judgment of the European Court in Dudgeon v United Kingdom, supra n 11. Applications Nos 4916/07 et al., Merits and Just Satisfaction, 21 October 2010. See Fedotova v Russian Federation, supra n 74 at para 7.1. Committee on the Rights of the Child, General Comment No 3 (2003): hiv/aids and the rights of the child, CRC/GC/2003/3; Committee on the Rights of the Child, Concluding observations on the second periodic report regarding the United Kingdom, CRC/C/15/ Add.188, 4 October 2002, at para 44(d) (see Fedotova v Russian Federation, ibid. at n 21); the reports of the Special Rapporteur on the right to education (A/HRC/8/10/Add.1 and A/HRC/4/29/Add.1); and European Committee of Social Rights, International Centre for the Legal Protection of Human Rights (interights) v Croatia (45/2007) Merits, 30 March 2009 (see Fedotova v Russian Federation, ibid. at n 22).

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these sources in its finding in this matter. In this particular instance, the Committee’s unwillingness to take up the invitation to place reliance on the European case law may be questioned on the basis that the case cited was decided against Russia itself. Overall, the reason for the Committee’s reluctance to take up the invitations to refer to the European Court’s decisions in my view lies in the global breadth and width of states parties to both the iccpr and the First Optional Protocol. The lack of unanimity among member states, as expressed in diverse national laws, and the polarising response to statements and resolutions adopted within the un, described in Section 2 above, in all likelihood instilled in Committee members an acute awareness of and sensitivity to these differences, and alerted them to the complexity of a harmonised approach in this domain. This variance has also manifested itself within the Committee, as reflected in minority views in matters involving sexual orientation. Against this background, the Committee seems to steer a course between adherence to the universality of rights and deference to the variance of views at the domestic level, represented by claims based on cultural mores made by national governments. It would therefore perhaps be unfair to deduce that the Committee is not ‘interested in’ developing a ‘horizontally integrated international human rights jurisprudence’,153 and more accurate to conclude that its view is that it cannot brush aside the divergence across the globe. Although there are indications that the ECtHR has informed the Committee’s approach, it does not frame its findings explicitly as relying on that source. Explicit reliance on the European Court’s decisions by a body interpreting an instrument of global reach would leave that body open to a charge of privileging—or worse, imposing—a European position on the rest of the world. For many years, only the European system among the three established regional human rights systems engaged with the issue of sexual orientation, meaning that the bulk of possible reference materials emanated from that system. Reliance on regional jurisprudence would therefore inevitably have meant reliance on and (at least the perception of) privileging the European system. As the other regional systems increasingly engage with this issue, as exemplified by the Inter-American Court’s 2012 decision in Atala, and the African Commission’s 2014 Resolution, these concerns may at least partially fall away. For the foreseeable future, however, these concerns may well persist due to the preponderance of available case law from the European system and the fact that effective regional systems of adjudicating human rights still do not exist in vast parts of the world. 153 Davidson, ‘Introduction’, in Conte et al., Defining Civil and Political Rights: The Jurisprudence of the United Nations Human Rights Committee (Ashgate, 2004) 1 at 11.

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5 Conclusion A Emerging Trends of Limited Influence through Cross-Pollination There is a limited but nascent trend among at least three of the four bodies under review towards reliance on each other’s jurisprudence in respect of issues related to minority sexual orientation. The ECtHR has, in its numerous judgments dealing with sexual orientation, made reference to the findings or recommendations of only one of the other bodies under discussion – the Miguel Castro Castro Prison v Peru judgment of the Inter-American Court. In the first case it has decided, the Atala case, the Inter-American Court placed repeated reliance on the jurisprudence of both the ECtHR and un Human Rights Committee (as well as other un sources). While the hrc has not placed explicit reliance on any external sources, its jurisprudence reveals some unacknowledged influence of the European system, in particular. The African Commission has not had the opportunity to show its hand on the thematic area under consideration in the exercise of its complaints mandate. The Extent of Reliance on External Jurisprudence on Sexual Orientation Partially Reflects the General Trend of Reliance on Such Sources The thematic-specific inclinations of the European and Inter-American Courts and the Human Rights Committee largely confirm the general tendencies of these bodies towards interpretive reliance on external sources within these institutions. The European Court’s disinclination to rely on non-European interpretive sources is certainly not peculiar to this thematic area, but has been a constant feature of the Court’s overall case law.154 It is thus largely correct to typify the European Court’s stance on both matters dealing with sexual orientation, and in general, as monologic rather than dialogic.155 The Inter-American Court’s Atala judgment provides an insufficient sample on which to found any far-reaching conclusion. Based on this judgment, though, there is clear evidence supporting the general observation that this Court is a ‘major, though selective, importer of human rights interpretations’, that it ‘often cites’ European precedent in comparable cases, and that the findings and recommendations of the Human Rights Committee are a B

154 Voeten, ‘Borrowing and Non-Borrowing among International Courts’ (2010) 39(2) Journal of Legal Studies 547, for example, at 564. 155 See, for example, Killander, ‘Interpreting Regional Human Rights Treaties’ (2010) 13 sur – International Journal on Human Rights 145 at 154.

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‘frequent source’ of interpretive inspiration.156 The lack of reliance on the African human­rights system in Atala also bears out the general tendency of the Inter-American Court to make very little reference to the African system.157 In respect of sexual orientation issues, the general justification for such limited reliance, namely the dearth of relevant African jurisprudence, applies with even greater force. The un Human Rights Committee’s general practice of ‘not openly citing regional human rights precedents’158 is confirmed in its jurisprudence on sexual orientation, as starkly illustrated by the Toonen case. So too, is the concealed influence of the regional systems, or at least, of the European Court. On the very sparse evidence available, the African Commission, in contrast, seems to move away from its general approach when it comes to the issue of sexual orientation. In many other thematic domains, it has relied frequently (if inconsistently) on ECtHR judgments,159 and has shown an openness to rely on judgments of the IACtHR,160 and to the jurisprudence of un treaty bodies.161 Not infrequently, the Commission refers to all three ‘systems’ in its judgments.162 However, in its 2014 Resolution dealing with sexual orientation, the Commission refers only to the African Charter as the substantive basis of its resolution, and does not make mention of any other instrument or context, thus seemingly shying away from its general approach of adopting a universalist stance of placing strong reliance on international sources. 156 Neuman, ‘Import, Export, and Regional Consent in the Inter-American Court of Human Rights’ (2008) 19(1) European Journal of International Law 101 at 109. See also Pasqualucci, The Practice and Procedure of the Inter-American Court of Human Rights (cup, 2013) at 13, describing the Inter-American Court as an effective contributor to the ‘harmonization of international law’ by ‘influencing and being influenced by other sources of international law’. 157 Killander, supra n 155 at 154. 158 Neuman, ‘The External Reception of Inter-American Human Rights Law’ (2011) Special Edition Quebec Journal of International Law 99 at 111. 159 See, for example, 253/02, Antonie Bissangou v Congo, 29 November 2006, at paras 69, 70, 74 and 76. On the Commission’s interpretive approach in general, see Viljoen, International Human Rights Law in Africa, 2nd edn (oup, 2012) at 325–327. 160 See, for example, 255/02, Garreth Anver Prince v South Africa, 7 December 2004, at para 42. 161 See, for example, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, supra n 61 at paras 206–208, 216– 217, 227 and 248. 162 See, for example, 301/05, Haregewoin Gebre-Sellaise and ihrda (on behalf of former Dergue officials) v Ethiopia, 7 November 2011, at paras 185, 193 and 208; and Centre for Minority Rights Development (Kenya) v Kenya, supra n 159, at paras 155, 207 and 213.

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C Political Context as a Factor Determining External Influence Political context is a prominent factor that not only determines a body’s approach to sexual orientation, but also informs the extent of its reliance on external interpretations. There is a close but not necessarily linear correlation between the advances and achievements of international human rights bodies on minority sexual orientation, and the political position on this issue of the intergovernmental organisations within which these bodies function. The CoE was the first intergovernmental organisation to express itself favourably on the issue, and has taken a leading role on this matter, compared to the other three igos. Having established itself as the most progressive body adjudicating such cases, the ECtHR seems to find little opportunity, or incentive, to make reference to any of the other systems in this regard. Arguably, the IACtHR was able to follow its generally accepted universalist approach in respect of sexual orientation because the political context within which it functions has, by the time it delivered its first judgment, to a great extent aligned itself with the situation prevailing in Europe. The un Human Rights Committee, as a body with global membership, is constrained by the diversity of political views across regions on this particular thematic issue. The global division (with small exceptions) between the Western European and Other, Eastern European and Latin American un regions, on the one hand, and the Asian and African regions, on the other, is clearly a factor that may have a bearing on the interpretations by the Committee. This constraint arguably explains its reluctance to place explicit reliance on the one region from which most interpretive materials emanate. The extent of implicit reliance on the European precedents may be explained by the fact that the Committee is made up of independent experts and not government-instructed representatives. Despite the adoption of the Human Rights Council’s 2011 Resolution,163 which saw the advances at the quasi-judicial level filtering through to the political realm, the lingering tension among un member states is likely to limit the extent of the Committee’s embrace of foreign jurisprudence in this domain. It is in Africa, of the three regions within which fully functional regional systems exist, that the global political divide becomes also an intra-regional fault line. This schism no doubt complicates interpretation and poses a challenge to the African Commission in its quest to play its supervisory role, while at the same time acknowledging that regional protection is subsidiary to national protection and cannot be divorced from continental currents and trends. The question is whether the Commission, aware of homophobic attitudes in parts 163 Supra n 22.

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of Africa and the perception that homosexuality is a ‘Western import’, would ground any jurisprudential advances on sexual minority rights in autochthonous legal reasoning and sources. The incremental steps taken by the African Commission over the last decade or so, culminating in its 2014 Resolution and the 2015 granting of observer status to cal, already put the Commission at loggerheads with the prevailing attitude in many au member states, and on a collision course with the au’s political organs. The discretion to rely on nonAfrican (and, in particular, European) jurisprudence to decide on issues related to discrimination on the basis of sexual orientation in Africa cannot be delinked from the prevailing construction of same-sexuality as a ‘racial marker’ and as the continuation of colonial politics.164 D Other Factors Influencing Comparative Reliance Some factors determine the extent of comparative reliance by all four bodies equally. One of these factors is dependence on arguments presented to them by counsel or amici curiae. This is all the more so in bodies with weak secretarial and research support. Lawyers presenting cases are likely to seek precedent supporting their positions from whatever source they could identify. Reliance on international precedent also requires that the relevant sources are accessible and available in a working language of the receiving body. Timing is of the essence in this respect here—as new cases are decided, they need to be brought to the attention of other bodies. This necessitates sharing of experiences, closer collaboration, access to recent case law and training on and awareness of each other’s activities. E Future Prospects and Evolution With no case law and very limited normative engagement on sexual minority rights, the African human rights system stands to benefit most from the other institutions—despite profound differences between them. In deciding the threshold question whether ‘sexual orientation’ is a protected ground under the Charter, for example, the African Commission (or Court) would find useful guidance in precedents from all three bodies under discussion.165 164 See Hoad, African Intimacies: Race, Homosexuality, and Globalization (Minneapolis University Press, 2007) at 82; and Hildebrandt, ‘Routes to decriminalization: A comparative analysis of the legalization of same-sex sexual acts’ (2014) 17(1/2) Sexualities 230 at 246–247. 165 In this respect, an important factor is the close similarity in the wording of the ‘umbrella provision’ of Article 2 African Charter, and the provisions of Article 14 echr, Article 1(1) achr and Articles 2(1) and 26 iccpr.

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The fact that the European system has evolved to now deal with issues of same-sex marriage and adoption by same-sex couples, does not detract from the fact that the ECtHR also dealt (and still deals) with issues that fit with the contemporary challenges most likely to be faced by other bodies, in particular, the African Commission or Court. One of these issues is decriminalisation of consensual sexual relations between adults of the same sex. If a similar trajectory is followed in Africa as in Europe, this may well be the first issue to be dealt with by the African human rights system. As the African Charter omits the right to privacy, the question may be posed whether the European Court’s privacy jurisprudence would be a useful source of guidance. The omission of this right from the Charter could be explained as an explicit attempt by the drafters to ensure that the overly individualistic notion of privacy would not trump the emphasis on collective rights in the Charter. To remedy this omission, the Commission may build on its own jurisprudence in the Ogoniland case,166 where it placed reliance on the ‘implied rights’ theory to find the existence of the rights to shelter and food on the strength of existing Charter rights such as the right to dignity, health and family. It is arguable that the Commission may similarly derive a right to privacy from explicitly guaranteed Charter rights such as the right to bodily security, dignity, property and freedom of association. Factors weighing heavily towards a conclusion that privacy should be understood as being part of the Charter’s protective scope are, first, the inclusion of this very right in subsequent African (oau/au) human rights treaties; second, the fact that all African constitutions now provide for the right to privacy,167 leading to at least some domestic courts (other than South African courts) finding a violation of this right in the context of sexual minority rights.168 Other issues that may arise, and which are aligned more closely to the issue raised in the Commission’s 2014 Resolution, include conditions of detention of homosexual prisoners. In x v Turkey,169 for example, the ECtHR in 2013 found that the solitary confinement constituting ‘total isolation’ of a gay prisoner 166 155/96, Social and Economic Rights Action Center (serac) and Center for Economic and Social Rights (cesr) v Nigeria, 27 October 2001. 167 Heyns and Kaguongo, ‘Constitutional Human Rights Law in Africa’ (2006) 22(4) South African Journal on Human Rights 673 at 684. 168 See Kasha and Others v Rolling Stone and Another (Miscellaneous Cause 163/2010, High Court of Kampala, 30 December 2010 (per Justice Musoke-Kibuuka)), in which the Ugandan High Court ruled that the publication of photos, names and addresses of ‘homosexuals’, under the heading ‘Hang them; they are after our kids!!!!!’ in the tabloid Rolling Stone, constitutes a violation of the affected persons’ dignity and privacy under the Ugandan Constitution. 169 Application No 24626/09, Merits and Just Satisfaction, 9 October 2012.

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from other inmates, combined with the ban on him taking any open-air exercise, constituted not only ‘inhuman and degrading treatment’,170 but also discriminated against him on grounds of his sexual orientation.171 Some further matters likely to emerge in Africa include the refusal of a governmental body to register an lgbti organisation, or the refusal to provide medicines to those in need due to their sexual orientation. It remains to be seen what the effect would be of the very expansive mandate of the African Court on Human and Peoples’ Rights, namely to adjudicate on the ‘interpretation and application’ not only of oau/au treaties, but all human rights treaties ratified by the ‘states concerned’.172 This is a far-reaching provision, which appears to grant the Court jurisdiction over, for example, the iccpr. A finding of a violation of an iccpr right by the Court invites the spectre of conflicting jurisprudence by two international bodies, the Court and the Committee. Although there is also an injunction on the Court to ‘apply … other international instruments’,173 and the broad interpretive guidance of Article 60 of the Charter arguably also applies to the Court, there is no compulsion on or guarantee that the Court would align its findings with that of the un treaty body (which, after all, is only a quasi-judicial body and not a court). However, as the first case decided on the merits by the Court illustrates,174 this eventuality is not likely to arise frequently: the African Charter has been modelled on the iccpr and the International Covenant on Economic, Social and Cultural Rights and reflects most of their provisions. It is only in those instances where the Charter falls short on substance that reliance would in all likelihood be placed on a ‘non-African’ treaty. Clearly, the right to privacy, which is protected under the iccpr but not the African Charter, is one such instance. If it is faced 170 In violation of Article 3 echr: see ibid. at paras 42–45. 171 Ibid. Although the prison authorities invoked security measures (related to the gay prisoner’s protection from other prisoners) to justify his treatment, the Court found – implicitly deriving a vindictive motive from the unexplained excessive measures taken – that his sexual orientation was the ‘main reason’ for these measures (at para 57). See, however, the Partly Dissenting Opinion of Judge Jočienė, in which she (i) reiterates that Article 14 echr does not have an ‘independent existence’; (ii) finds no evidence of an intention to discriminate; and (iii) concludes that it was not necessary to have dealt with the matter under Article 14. 172 Article 3 Protocol to the African Charter on the Establishment of an African Court on Human and Peoples’ Rights. 173 Article 7 Protocol to the African Charter on the Establishment of an African Court on Human and Peoples’ Rights. 174 9/2011 and 11/2011, Mtikila v Tanzania, Judgment, 14 June 2013, at paras 123–124, deeming it unnecessary to decide where the provisions of the iccpr had been violated.

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with a challenge that an African state’s laws criminalising consensual homosexual acts violate the right to privacy under the iccpr, would the Court follow Toonen, or deviate from it on the basis of, for example, ‘regional consensus’? The weight to be accorded to regional consensus and the question of reliance on the ‘margin of appreciation’ are crucial issues with which the African Commission (and African Court) have not yet dealt with decisively. It will be their challenge to steer a course between allowing some leeway to the deep regional divisions on the issue of sexual orientation, on the one hand, and locating their jurisprudence in international trends and retaining their role as autonomous supervisory bodies, on the other. The African bodies would do well to build on the African Commission’s jurisprudence of adopting a proportionality test akin to that used by the European Court,175 without necessarily invoking the ‘margin of appreciation’ terminology. Such an approach would also be in line with the Committee’s practice. Even if a harmonised approach by the four bodies may—at least at this juncture—as a result be unattainable in respect of issues such as marriage and adoption, such an approach would lead to similar outcomes among the four bodies in, at a minimum, cases of violence and gross discrimination on the basis of sexual orientation. Closer synergy between the four bodies would contribute to solidifying the prohibition of at least the most egregious violations based on minority sexual orientation as unequivocally part of jus cogens. 175 See, for example, 152/96, Media Rights Agenda v Nigeria, 31 October 1998, at paras 67–70.

chapter 6

Concepts of Substantive Gender Equality: Looking for Coherence among the Regional and International Perspectives Magdalena Forowicz 1 Introduction The purpose of this chapter is to compare the approach taken to gender equality in one international system and two regional systems in order to determine (i) whether cross-fertilisation or judicial dialogue occurs between them; and (ii) if it does, whether it helps achieve some normative and interpretive coherence in law and in practice in the context of gender equality. The underlying assumption of this chapter is that such coherence can strengthen the relationship between the un and the different regional human rights systems as well as reinforce the level of protection granted to gender equality. Section  2 presents the basic concepts which are used throughout the analysis. Section 3 reviews in turn the requirements of the Convention on the Elimination of All Forms of Discrimination against Women (cedaw), the European Convention on Human Rights (echr), and the African Charter on Human and Peoples’ Rights and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (‘the Women’s Protocol’). The fourth section examines the practice of the Committee on the Elimination of Discrimination against Women (the Committee which monitors implementation of the cedaw), the European Court of Human Rights (ECtHR) and the African Commission and Court on Human and Peoples’ Rights. Due to the lack of case law on the general concept of gender equality, specific attention is paid to the case law relating to affirmative action measures, which are an integral part of substantive equality. This evaluation aims at identifying any potential interactions with external sources as well as at determining whether a specific approach has been taken to gender equality. Section  5 analyses the findings of Sections  3 and 4 in the light of the nature and aim of the international and regional human rights systems.

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Concepts of Gender Equality

This chapter will refer to three basic concepts used in the field of equality: formal, substantive and transformative.1 Formal equality assumes that equality is achieved if the law treats all persons alike. It can be traced back to ­Aristotle and his dictum that equality means that ‘things that are alike should be treated alike’.2 Formal equality relies on the proposition that fairness requires ­consistent or equal treatment. The formal approach to equality and non-­discrimination supports the position that a person’s individual physical or personal characteristics should be viewed as irrelevant in determining whether they have a right to some social benefit or gain. Formal equality does not take into account that although two persons may be equal in the eyes of the law, they may be unequal in reality.3 It has no ambition to remedy this legal inequality. Further, formal equality does not support the idea of positive or reverse discrimination. In contrast to this, substantive equality is concerned with ensuring the ability of individuals to compete on an equal basis. It has been argued that it deals with the second part of Aristotle’s dictum that ‘things unalike should be treated unalike’.4 A far-reaching conception of substantive equality is concerned with equality of outcome or result. From this perspective, the notion of equality is based on the recognition that identical treatment can in practice reinforce inequality because of past or ongoing discrimination.5 Substantive equality is also primarily concerned with achieving a fairer distribution of benefits, whereas formal equality is based on a notion of procedural fairness stemming from consistent treatment.6 A less far-reaching concept of substantive equality, situated between formal equality and the equality of result, is the equality of opportunity.7 On this view, true equality cannot be achieved if individuals begin the race from different starting points.8 However, equality 1 This distinction has been covered extensively in academic literature: see, for instance, Fredman, Discrimination Law (oup, 2011); and Bamforth, ‘Conceptions of Anti-Discrimination Law’ (2004) 24(4) Oxford Journal of Legal Studies 693. 2 Aristotle, Nicomachean Ethics, V.3. 1131a10-b15; Politics, III.9. 1280a8-15, III.12. 1282b18-23. 3 Waddington and Hendriks, ‘The Expanding Concept of Employment Discrimination in Europe: From Direct and Indirect Discrimination to Reasonable Accommodation Discrimination’ (2002) 18(4) International Journal of Comparative Labour Law and Industrial Relations 403 at 407. 4 Aristotle, supra n 2. 5 Fredman, supra n 1 at 14. 6 Ibid. 7 Ibid. at 18. 8 Ibid.

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of opportunity does not go as far as to demand equality of outcomes.9 Rather, it posits that ‘once individuals enjoy equality of opportunity, the problem of institutional discrimination has been overcome, and fairness demands that they be treated on the basis of their individual qualities, without regard to sex or race’.10 An equal opportunities approach thus aims to equalise the starting point rather than the end result.11 Some authors have moved beyond the formal and substantive divide to develop a transformative version of equality, which posits that gender equality can be achieved only when social hierarchy and power structures based on sex and gender are transformed.12 Transformative gender equality does not aim to develop gender-neutral policies but rather tries to take gender appropriately into account.13 It requires a redistribution of power and resources and a restructuring of social institutions so that they are no longer male-dominated.14 This process bestows a positive role onto institutions to remove barriers and to change practices that lead to the oppression of women. Substantive and transformative equality may overlap as transformative equality can be seen as a type of substantive equality with systemic and structural dimensions.15 3

International and Regional Legal Instruments

Convention on the Elimination of All Forms of Discrimination against Women The cedaw was adopted on 18 December 1979 and entered into force on 3 September 1981. It is the only international instrument of this type which is exclusively addressed to women. Article 1 of the cedaw provides that ‘discrimination against women’ means ‘any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital

A

9 Ibid. 10 Ibid. See also Byrnes, ‘Article 1’, in Freeman et al. (eds), The un Convention on the Elimination of All Forms of Discrimination Against Women: A Commentary (oup, 2012) 51 at 56. 11 Fredman, ibid. at 8–19. 12 Fredman, ‘Beyond the Dichotomy of Formal and Substantive Equality: Towards a New Definition of Equal Rights’, in Boerefijn et al. (eds), Temporary Special Measures: Accelerating De Facto Equality of Women under Article 4(1) un Convention on the Elimination of All Forms of Discrimination against Women (Intersentia, 2003) 111. 13 Ibid. at 115. 14 Ibid. 15 Byrnes, supra n 10.

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status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field’. This definition is wide and encompasses the concepts of substantive and formal equality. The cedaw further enshrines wide-ranging obligations on the states parties. Pursuant to Article 2 of the cedaw, they are required to pursue by all appropriate means and without delay a policy aimed at eliminating discrimination against women. Further, states parties are required to take in all fields, especially in political, social, economic and cultural ones, all appropriate measures to ensure the full development and advancement of women in order to guarantee them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men (Article 3 of the cedaw). Article 4(1) of the cedaw provides that temporary special measures adopted by states parties aimed at accelerating de facto equality between men and women are not considered as discrimination. However, such measures cannot entail as a consequence the maintenance of unequal or separate standards and must be discontinued when the objectives of equality of opportunity and treatment are attained. The cedaw Committee’s General Recommendation No 25 on temporary special measures16 sheds light not only on the provision but also the scope of equality protection under the cedaw. The Committee used the concept of de jure and de facto equality and substantive and formal equality interchangeably.17 On this view, the core of the approach under the cedaw is to guarantee substantive equality. Accordingly, Article 4(1) of the cedaw has to be read in the context of the overall objective and purpose of the Convention, which was to eliminate all forms of discrimination against women with a view to achieving women’s de jure and de facto equality with men in the exercise of their rights.18 States parties are obliged ‘to respect, protect, promote and fulfil this right to non-discrimination for women and to ensure the development and advancement of women in order to improve their position to one of de jure as well as de facto equality with men’.19 In this context, three obligations are central to the states parties’ efforts: first, they must ensure that there is no direct or 16

Committee on the Elimination of Discrimination against Women, General Recommendation No 25: Article 4, paragraph 1, of the Convention (temporary special measures), in Compilation of general comments and general recommendations adopted by human rights treaty bodies, HRI/GEN/1/Rev.9 (Vol. ii) at 365. 17 Ibid. at para 7. 18 Ibid. at para 4. 19 Ibid.

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indirect discrimination against women in their laws and that women are protected against discrimination in the public and private spheres by competent tribunals as well as the provision of sanctions and remedies; secondly, they must improve the de facto position of women through concrete and effective policies and programmes; and thirdly, they must address gender relations and gender-based stereotypes resulting from individual acts, law, and legal and societal structures and institutions.20 The Committee considered that both formal and substantive equality are necessary.21 Guaranteeing an identical treatment to women with men would not be enough; biological as well as socially and culturally constructed differences between men and women must also be taken into account.22 This may require at times a differential treatment in order to address these differences.23 For the Committee, this also involved guaranteeing an equality of opportunity and an equality of results.24 In this context, the Committee found that equality of results was the logical corollary of de facto or substantive equality.25 These results can be both quantitative and qualitative in nature, as they may refer to women enjoying their rights in various fields in equal numbers with men or to equality in decision-making.26 Further, the Committee referred to a concept of transformative equality when it found that the ‘lives of women and men must be considered in a contextual way, and measures adopted towards a real transformation of opportunities, institutions and systems so that they are no longer grounded in historically determined male paradigms of power and life patterns’.27 B European Convention on Human Rights The European Convention on Human Rights has not established a comprehensive and well-developed body of gender equality case law. Article 14 of the echr provides that ‘[t]he enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other 20 Ibid. at para 7. 21 Ibid. at para 8. 22 Ibid. 23 Ibid. 24 Ibid. 25 Ibid. at para 9. 26 Ibid. 27 Ibid. at para 10.

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status’. In addition, the preamble of Protocol No 12 to the echr establishes the principles that ‘all persons are equal before the law and are entitled to the equal protection of the law’. The protection afforded by Article 14 of the echr is significantly limited by the fact that it does not create an additional right not to be discriminated against, but rather only when the case falls within the scope of one or more other echr rights. This excludes cases of discrimination in relation to rights which are not included under the echr, such as economic or social rights. echr rights need not have been violated for Article 14 of the echr to be invoked, as it is an ‘autonomous’ provision. However, the alleged violation of Article 14 of the echr will not in general be examined by the ECtHR when a violation is found of another substantive Article (in a case when both provisions are invoked).28 This remains subject to the exception in the case of a ‘clear inequality of treatment’.29 This gap was remedied by Protocol No 12, which provides a non-discrimination principle that can be invoked independently of other echr rights. It should be noted, however, that the Protocol is only applicable to the 18 contracting states which have ratified it (at the time of writing). In addition, Article 14 of the echr and Protocol No 12 do not provide a separate and express principle of non-discrimination on the basis of gender, but only a general non-discrimination principle. They also appear to be general and neutral with regard to the type of equality (formal, substantive, transformative) that is guaranteed. African Charter on Human and Peoples’ Rights and the Women’s Protocol Under the African regional human rights system, the right to non-­discrimination on grounds of sex is mostly protected by the African Charter on Human and Peoples’ Rights and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa. Both instruments differ in scope, approach and the number of ratifications. Further, while the Women’s Protocol clearly embraces a substantive notion of gender equality, the same does not explicitly flow from the provisions of the African Charter. It has been argued nonetheless that the protection of the African Charter extends to substantive equality and includes affirmative action measures.30 C

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Aziz v Cyprus Application No 69949/01, Merits and Just Satisfaction, 22 June 2004, at para 35. 29 Ibid. 30 Umozurike, The African Charter on Human and Peoples’ Rights (Martinus Nijhoff, 1997) at 30; and Umozurike, ‘Equality and Non-Discrimination under the African Charter’, in

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The African Charter was adopted in 1981 and came into force in 1986. It has been ratified by 53 of the 54 African Union member states. Significantly, the Charter was adopted two years after the adoption of the cedaw, which appears to have influenced the shaping of the provisions dealing with women’s rights under the African Charter. Two Articles of the Charter explicitly address women’s rights, namely Article 2 and Article 18(3). Article 2 of the Charter provides that ‘[e]very individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status’. Its application is limited to the scope of the African Charter and it can only be invoked in relation to a right protected by the Charter.31 Further, the prohibition on discrimination on grounds of sex is not a stand-alone provision as it is included among a long list of other prohibited discrimination grounds. Article 2 of the Charter provides a non-exhaustive list whose application can be extended to ‘other statuses’. The word ‘distinction’ in Article 2 is confusing as it would appear to indicate that any distinction is discriminatory, which would appear to exclude the concept of affirmative action or positive action measures. Significantly, Article 3 of the African Charter further provides that ‘[e]very individual shall be equal before the law’ and that ‘[e]very individual shall be entitled to equal protection of the law’. Textually, it appears to go further than Article 2 of the Charter as it does not limit itself to the provisions of the African Charter and could therefore appear to include other human rights which are not contained in the African Charter.32 The member states therefore have to ensure that there is no discrimination in the implementation of laws and that the effects of these laws do not discriminate among those to which they apply.33 Article 18(3) of the African Charter is more specific and enjoins states to ‘ensure the elimination of every discrimination against women and also ensure the protection of the rights of the woman and the child as stipulated in international declarations and conventions’. This provision therefore broadens the application of the Charter and embraces other international human rights instruments. While it has been found that this provision establishes an Bogdandy and Wolfrum (eds), Gleichheit und Nichtdiskriminierung im nationalen und internationalen Menschenrechtsschutz (Springer, 2003) 171 at 174. 31 Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa (Martinus Nijhoff, 2003) at 80. 32 Ibid. at 80. 33 Ibid. at 83.

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i­nsufficient recognition of human rights,34 it can also be argued that Article 18(3) of the Charter can be construed to mean that states are to implement the rights of women protected in international instruments regardless of whether or not they are parties and which were adopted before and after the African Charter.35 According to this view, the rights included in international human rights instruments, including the cedaw, could be enforced under the ­Charter.36 Moreover, the African Court on Human and Peoples’ Rights could interpret the Charter provisions in light of international law.37 Such an ambitious approach would then allow it to deduce a more far-reaching concept of substantive equality and creates the possibility of using affirmative action measures under the African Charter. However, considerations relating to the legitimacy and the institutional credibility of the African Commission or Court are bound to weigh against such an interpretation of Article 18(3) of the Charter. Finally, the African Charter reaches beyond individual equality and also provides in Article 19 that ‘[a]ll 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’. Inspired by other international human rights ­systems, the Commission established a three-pronged test in order to determine whether a violation of non-discrimination has occurred. It used a similar approach to the ECtHR, which has been already explained above. Due to the dissatisfaction with the provisions of the Charter concerning women’s rights and the lack of improvement in the situation of African women, the African Union adopted in 2003 a specific protocol on women’s rights,38 which came into force two years later. At the time of writing, 51 of the 54 African Union member states have signed but only 36 have ratified the Protocol. The Protocol sets out an ambitious rights catalogue including civil, ­political, economic, social, cultural and collective rights. With respect to some rights, it goes beyond the existing human rights instruments. In comparison to the cedaw, the African Women’s Protocol provides some unique rights for women, including special protection of elderly women, widows’ rights, the 34

Nsibirwa, ‘A Brief Analysis of the Draft Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women’ (2001) 1(1) African Human Rights Law Journal 40 at 41; and Murray, ‘A Feminist Perspective on Reform of the African Human Rights System’ (2002) 2(2) African Human Rights Law Journal 205 at 205–6. 35 Chirwa, ‘Reclaiming (Wo)manity: The Merits and Demerits of the African Protocol on Women’s Rights’ (2006) 53(1) Netherlands International Law Review 63 at 70. 36 Ibid. 37 Ibid. 38 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa.

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right to abortion, the right to food security and special protection of women with disabilities. The Protocol has nonetheless been criticised for not bringing about sufficient improvement in the realisation of women’s rights.39 The Women’s Protocol completes, develops and specifies the concept of gender equality and non-discrimination contained in the African Charter. It expressly recalls and notes international law relating to the rights of women. The provisions concerning non-discrimination against women included in the Protocol correspond in most part to the concept of substantive equality. ­Similarly to the cedaw, Article 1 of the Protocol defines ‘discrimination against women’ as ‘any distinction, exclusion or restriction or any differential treatment based on sex and whose objectives or effects compromise or destroy the recognition, enjoyment or the exercise by women, regardless of their marital status, of human rights and fundamental freedoms in all spheres of life’. The Protocol enjoins the state to ‘combat all forms of discrimination against women through appropriate legislative, institutional and other measures’.40 In line with Articles 2(f) and 5(a) of the cedaw, Article 2(2) requires states parties to ‘commit themselves to modify the social and cultural patterns of conduct of women and men through public education, information, education and communication strategies, with a view to achieving the elimination of harmful cultural and traditional practices and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes, or on stereotyped roles for women and men’. By requiring states to take corrective and positive action concerning discrimination against women in law and in fact,41 the Protocol goes in line with the requirements of Article 4 of the cedaw which provides for temporary special measures. This requirement is further specified in Article 9 (participative governance and equal participation of women in national political life) and Article 12(2) (promotion of literacy, education and training for women, enrolment and retention of girls in schools; organisation of programmes for women leaving school prematurely). In addition, member states must guarantee equal opportunities for women with respect to education and employment. Article 12(1) requires states parties to take all appropriate measures to eliminate all forms of discrimination against women and guarantee equal opportunity and access in the sphere of education and training. Moreover, Article 13 requires 39

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See, for instance, Davis, ‘The Emperor Is Still Naked: Why the Protocol on the Rights of Women in Africa Leaves Women Exposed to More Discrimination’ (2009) 42(3) Vanderbilt Journal of Transnational Law 949. Article 2(1) Women’s Protocol. Article 2(1)(d) Women’s Protocol.

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states parties to adopt and enforce legislative and other measures to guarantee women equal opportunities in work and career advancement and other economic opportunities. 4

The Practice of the Committee and of the Regional Bodies

A The Committee The practice of the Committee on the Elimination of Discrimination against Women concerning formal and substantive gender equality is of great interest for other international, regional and national courts and other competent bodies. As the cedaw goes beyond the concept of discrimination used in many international, regional and national instruments, it is unsurprising that other national and regional bodies refer to it frequently and use it as a source of inspiration. However, the reverse is also possible (albeit less frequent), whereby the Committee takes into account other external instruments which may not go as far as the Convention. There are nonetheless no references to other international instruments in the Committee’s concluding observations relating to national implementation reports. The Committee’s approach towards ­formal and substantive equality is mostly evidenced in these concluding observations, which follow a similar approach to the one adopted in General Recommendation No 25. The Committee has stressed that both formal and substantive equality needed to be provided in laws and practices in order to ensure that the Convention was respected.42 In one instance, the Committee has criticised a state for the ‘narrow focus primarily on de jure equality rather than the realization also of de facto, or substantive, equality of women as required under the Convention’ and the ‘lack of efforts to assess the impact of laws and policies on women’s equality in such sectors as decision-making, education, employment and health’.43 The Committee has also used other standard statements 42 Byrnes, supra n 10 at 63–5; Committee on the Elimination of Discrimination against Women, Concluding observations regarding Malawi, CEDAW/C/MWI/CO/6, at paras 12–15; Concluding observations regarding Jamaica, CEDAW/C/JAM/CO/5, at paras 21–22; Concluding observations regarding Burundi, A/56/38 (2001) at paras 55–56; Concluding observations regarding Benin, CEDAW/C/BEN/CO/1-3, at paras 19–20; Concluding observations regarding Malaysia, CEDAW/C/MYS/CO/2, at para 8; Concluding observations regarding China, CEDAW/C/CHN/CO/6, at para 10; and Concluding observations regarding Armenia, CEDAW/C/ARM/CO/4/Rev. 1, at paras 12–13. 43 Concluding observations regarding Benin, ibid. at para 19. See also Concluding observations regarding Andorra, A/56/38 (2001) at paras 49–50.

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concerning de facto equality in its comments on national implementation reports in relation to the collection and analysis of data, the dissemination of concluding observations, temporary special measures and equality of opportunities. With regard to the collection of data, the Committee has underlined that states parties should improve the collection of comprehensive data disaggregated by sex and develop measureable indicators to assess trends in the situation of women and progress towards the realisation of women’s de facto equality.44 It was not surprising to find such references in the comments of the Committee with regard to temporary special measures, which are an important means of accelerating the realisation of women’s de facto equality. In this context, the Committee has frequently criticised the states parties for misunderstanding, misapplying, or providing no or insufficient special temporary measures to eliminate discrimination against women.45 The Committee has also on a number of occasions referred to the concept of equality of opportunity when it has criticised states for not providing such measures to support de facto equality.46 The communications of the Committee show a different pattern from the one that can be seen in the concluding observations. In the complaints that came before the Committee, there were very few references to the concepts of formal (or de jure) and substantive (or de facto) equality. In one such rare instance, a dissenting opinion in the case of M.E.N. v Denmark47 noted that the definition of refugee in the 1951 Convention relating to the Status of Refugees must be interpreted in line with the obligations of non-discrimination against women and substantive equality under Article 2(a) of the cedaw.48 In the case 44

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Committee on the Elimination of Discrimination against Women, Concluding observations regarding Papua New Guinea, CEDAW/C/PNG/CO/3, at paras 53–54; Concluding observations regarding Malawi, CEDAW/C/EGY/CO/7, at paras 51–52; Concluding observations regarding Ukraine, CEDAW/C/UKR/CO/7, at paras 44–45; and Concluding observations regarding Azerbaijan, CEDAW/C/AZE/CO/4, at paras 41–42. See, for example, Concluding observations regarding Albania, CEDAW/C/ALB/CO/3, at paras 22–23; Concluding observations regarding Panama, CEDAW/C/PAN/CO/7, at paras 16–17; Concluding observations regarding Guinea Bissau, CEDAW/C/GNB/CO/6, at paras 21–22; and Concluding observations regarding Armenia, CEDAW/C/ARM/CO/4/Rev.1, at paras 16–17. See, for example, Concluding observations regarding Lesotho, CEDAW/C/LSO/CO/1-4, at para 31(d); Concluding observations regarding Tunisia, CEDAW/C/TUN/CO/6, at para 43; Concluding observations regarding Azerbaijan, supra n 44 at para 31; and Concluding observations regarding Slovenia, CEDAW/C/SVN/CO/4, at paras 29–30. (35/2011) Admissibility, CEDAW/C/55/D/35/2011 (2013). Ibid. at Individual Opinion (dissenting) of Member Dubravka Šimonović, joined by Members Ruth Halperin-Kaddari, Violeta Neubauer and Silvia Pimentel, para 9.

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R.K.B. v Turkey,49 the Committee emphasised that the ‘full implementation of the Convention requires States parties not only to take steps to eliminate direct and indirect discrimination and improve the de facto position of women, but also to modify and transform gender stereotypes and eliminate wrongful gender stereotyping, a root cause and consequence of discrimination against women’.50 Here, the Committee has therefore indicated that the cedaw refers to the transformative kind of equality. There were otherwise few explicit references to the concept of equality that the cedaw protected. Unlike in its concluding observations, the Committee made more, albeit still few, references to other international and regional human rights instruments in its communications. As regards the exhaustion of remedies, the Committee found that pursuant to the long-standing jurisprudence of other international human rights bodies, in particular the Human Rights Committee, the authors of the communication are required to raise in substance before domestic courts the alleged violation of the provision of the cedaw, which enables the state party to remedy an alleged violation before the same issue may be raised before the Committee.51 Further, the Committee cited in the context of the accountability of states for the conduct of non-state actors, the text of General Recommendation No 19,52 which provides that ‘[u]nder general international law and specific human rights covenants, States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and for providing compensation’.53 The Committee also referred to the case law of the Human Rights Committee (hrc) when it considered the notion of ‘persistent violation’ as defined by

49 50 51

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(28/2010) Views, CEDAW/C/51/D/28/2010 (2012). Ibid. at para 8.8. Constance Ragan Salgado v United Kingdom (11/2006) Admissibility, CEDAW/ C/37/D/11/2006 (2007) at para 8.5; Vienna Intervention Centre against Domestic Violence and the Association for Women’s Access to Justice on behalf of Banu Akbak, Gülen Khan and Melissa Özdemir v Austria (6/2005) Views, CEDAW/C/39/D/6/2005 (2007) at para 7.2; and Vienna Intervention Centre against Domestic Violence and the Association of Women’s Access to Justice on behalf of Hakan Goecke, Handan Goecke and Guelue Goecke v Austria (5/2005) Views, CEDAW/C/39/D/5/2005 (2007) at para 7.2. Committee on the Elimination of Discrimination against Women, General Recommendation No 19: Violence against women, in Compilation of general comments and general recommendations adopted by human rights treaty bodies, HRI/GEN/1/Rev.9 (Vol. ii) at 331. Ibid. at para 9. See also A.T. v Hungary (2/2003) Views, CEDAW/C/36/D/2/2003 (2005) at para 9.2.

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the hrc.54 These references to other instruments were not substantial, as the Committee seemed to cite them as background legal information or en passant instead of actively relying on them in support of its reasoning. Moreover, the sources cited here were closely related to the cedaw as they were also instruments which were adopted under the auspices of the un. The Committee appeared to be reluctant to follow up on the references to international law made by parties in the case. For instance, the state referred to ECtHR jurisprudence in support of its argument that deprivation of liberty is a measure of last resort and that it may be imposed only if and insofar as it complies with the principle of proportionality.55 While the Committee agreed that it is necessary to verify whether detention would amount to a disproportionate interference of the perpetrators’ rights, it further considered that it could not supersede women’s human rights to life and to physical and mental integrity (based on its own case law).56 It therefore did not give further consideration to the argument based on the ECtHR’s case law. B European Court of Human Rights In the Belgian Linguistic case,57 the Court considered that Article 14 of the echr should be interpreted broadly as referring to both substantive and formal equality.58 According to the Court, ‘Article 14 of the Convention not only 54

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The Human Rights Committee stated that a ‘persistent violation is understood to mean the continuation of violations which the State party committed previously, either through actions or implicitly’: Eugeniusz Kurowski v Poland (872/1999) Admissibility, CCPR/C/77/D/872/1999 (2003) at para 6.4. See Cristina Muñoz-Vargas y Sainz de Vicuña v Spain (7/2005) Admissibility, CEDAW/C/39/D/7/2005 (2007) at para 11.4. Vienna Intervention Centre against Domestic Violence and the Association for Women’s Access to Justice on behalf of Hakan Goekce, Handan Goekce and Guelue Goekce v Austria, supra n 51 at para 8.17; and Vienna Intervention Centre against Domestic Violence and the Association for Women’s Access to Justice on behalf of Banu Akbak, Gülen Khan, and Melissa Özdemir v Austria, supra n 51 at para 8.13. Vienna Intervention Centre against Domestic Violence and the Association for Women’s Access to Justice on behalf of Hakan Goekce, Handan Goekce, and Guelue Goekce v Austria, ibid. at para 12.1.5; and Vienna Intervention Centre against Domestic Violence and the Association for Women’s Access to Justice on behalf of Banu Akbak, Gülen Khan, and Melissa Özdemir v Austria, ibid. at para 12.1.5, referring to A.T. v Hungary, supra n 53 at para 9.3. Case ‘Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium’ v Belgium Applications Nos 1474/62 et al., Merits, 23 July 1986. Ibid. at para 10 (Section I.B.): the Court found that ‘[t]he competent national authorities are frequently confronted with situations and problems which, on account of differences inherent therein, call for different legal solutions; moreover, certain legal inequalities tend only to correct factual inequalities. The extensive interpretation mentioned above

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requires that persons in a similar situation must be treated in an equal manner but also requires that persons whose situations are significantly different must be treated differently’.59 A clear example of substantive equality is the possibility of granting affirmative action or positive action measures. While this concept does not feature prominently in the Court’s case law, there are some important cases which expand on the availability of such measures under the Convention and which indicate that the Court is slowly moving towards the recognition of a more meaningful concept of substantive equality. In Wintersberger v Austria,60 a disabled person had been dismissed from his employment by the state. According to Austrian law, if an employer wanted to dismiss a favoured disabled person,61 he had to file an application with the Disabled Persons Committee to grant an authorisation for a dismissal. In exceptional circumstances, this authorisation could be granted retroactively, especially when the employer did not know at the time of the dismissal that such an authorisation would have been required. No approval was required to dismiss persons without disability. The applicant argued, among other things, that he had been a victim of discrimination as compared to non-disabled employees because a retroactive authorisation for a dismissal was only provided for favoured disabled persons. The Court found that Austrian law aimed to provide protection for favoured disabled persons and that the differential treatment as regards the requirement of authorisation was justified as a measure of positive discrimination. The claim was declared inadmissible on this point. Neither the applicant nor the Court cited any external sources to support their reasoning. This is not surprising in the context of an admissibility decision, where the Court does not elaborate on the merits of the case. The case provided, nonetheless, an opportunity for the Court to reinforce its position regarding the legitimacy of positive action measures, which was not seized.

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cannot consequently be accepted’. See also Besson, ‘Gender Discrimination under eu and echr Law: Never Shall the Twain Meet?’ (2008) 8(4) Human Rights Law Review 647 at 661. Hoogendijk v The Netherlands Application No 58641/00, Admissibility, 6 January 2005. Application No 57448/00, Admissibility, 27 May 2003. The favoured disabled status (begünstigte Behinderte) is granted by the Austrian Federal Ministry of Labour, Social Affairs and Consumer Protection to Austrian citizens, Swiss citizens, citizens of another member state of the European Economic Area (eea), refugees with the right to permanent residence or permanent residents. These persons must have a disability level of at least 50 per cent. With this status, they can obtain certain services and assistance necessary for professional integration. They further benefit from higher protection in case of dismissal. They may also benefit from additional vacation days and they can claim certain tax returns.

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In D.H. and Others v Czech Republic,62 concerning discrimination against Roma children, who had been placed in ‘special schools’ for children with learning disabilities in disproportionate numbers, the Court stated that ‘Article 14 does not prohibit a member State from treating groups differently in order to correct “factual inequalities” between them; indeed in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of the Article’.63 This passage therefore opens the possibility for the use of affirmative or positive action under the Convention but does not expand on this possibility. The Court cited here its own case law64 but it did not expand on the availability of such measures under the Convention. The applicant had referred to international law and the ‘relevant United Nations materials’, the ‘relevant Community law and practice’ and the ‘Council of Europe sources’ sections in the judgment had enumerated several international instruments. The Court considered positive action measures more thoroughly in Andrle v Czech Republic by emphasising the specificity of the domestic context and the wide state margin of appreciation.65 However, neither the Court nor the applicant referred to international law. In that case, the applicant complained that he was discriminated against in the enjoyment of his property rights on account of his sex. Specifically, he claimed that the pension scheme, which established a different pensionable age for women caring for children and for men in the same position, did not pursue any legitimate aim. The ECtHR again recalled that Article 14 does not prohibit states from treating groups differently in order to correct inequalities between them and may in certain circumstances require them to do so.66 It accepted that the measure at issue pursued the legitimate aim of compensating for ‘the factual inequality and hardship arising out of the combination of the traditional mothering role of women and the social expectation of their involvement in work on a full-time basis’.67 The Court emphasised that the contested measure was rooted in the specific historical circumstances of former socialist Czechoslovakia.68 Given the gradual nature of demographic 62 63 64

65 66 67 68

Application No 57325/00, Merits and Just Satisfaction, 13 November 2007. Ibid. at para 175. Case ‘Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium’ v Belgium, supra n 57 at para 10; Thlimmenos v Greece Application No 34369/97, Merits and Just Satisfaction, 6 April 2000, at para 44; and Stec and Others v United Kingdom Applications Nos 65731/01 and 65900/01, Merits, 12 April 2006, at para 51. Application No 6268/08, Merits, 17 February 2011. Ibid. at para 48. Ibid. at para 53. Ibid. at para 56.

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shifts and changes in social perceptions as well as the difficulties of reforming the whole system, the Court found that the respondent government could not ‘be criticised for progressively modifying its pension system’ instead of pushing for a complete change at a faster pace.69 The state had to choose among different methods of equalising the retirement age, which is a complex and demanding exercise requiring the evaluation of other important factors. In view of the lengthy ongoing pension reforms, the Court was not convinced that ‘the timing and the extent of the measures undertaken by the Czech authorities to rectify the inequality in question have been so manifestly unreasonable as to exceed the wide margin of appreciation allowed in such a field’.70 According to its view, the state could not be criticised in the specific circumstances of the case for failing to ensure a reasonable relationship of proportionality between the difference in treatment and the legitimate aim pursued.71 Overall, the ECtHR case law cited above indicates that both substantive and formal equality are protected, including the possibility of relying on affirmative action measures. However, the Court did not refer directly to international or regional sources in this context. As the Andrle case demonstrates, the Court seems to be unwilling to tamper with the margin of appreciation available to states in this field. This may further explain its reluctance to rely on external sources, which could be viewed by the contracting states as an instance of judicial activism. Further, the lack of harmonised international and regional standards on gender equality does not favour their reception at the echr level. C The African Commission and Court The African Commission on Human and Peoples’ Rights has considered only a few cases relating to women’s rights72 and even fewer cases concerning 69 70 71

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Ibid. at para 58. Ibid. at para 60. Ibid. at para 61. The Court further differentiated this case from Konstantin Markin v Russia Application No 30078/06, Merits and Just Satisfaction, 22 March 2012, where it held that the exclusion of the father from the entitlement to parental leave violated Articles 8 and 14 echr (Konstantin Markin, at para 49). For the Court, the difference between the two cases lay in the fact that parental leave (unlike a pension scheme) was a short measure which did not affect the entire lives of members of society, did not have serious financial ramifications and did not alter long-term planning as part of national economic and social strategies (Andrle, at para 59). See, for instance, 245/02, Zimbabwe Human Rights ngo Forum v Zimbabwe, 15 May 2006; 269/03, Interights (on behalf of Husaini and Others) v Nigeria, 11 May 2005; 249/02, Institute for Human Rights and Development in Africa (on behalf of Sierra Leonean Refugees in Guinea) v Guinea, 7 December 2004; 236/00, Doebbler v Sudan, 4 May 2003; and 227/99,

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discrimination against women.73 There is therefore scant evidence as to the Commission’s approach to gender equality in its case law. Although it was charged with the interpretation of the Women’s Protocol until the African Court on Human and Peoples’ Rights was established, the African Commission has barely paid attention to this instrument. The communications in which the applicants and/or the Commission have referred to the Women’s Protocol are rare.74 Nevertheless, some features of substantive equality can be discerned from the Commission’s jurisprudence. The Commission found that states parties to the African Charter may need to take temporary special measures in favour of underprivileged groups in order to eliminate the conditions that give rise to discrimination. It considered that ‘in certain cases, positive discrimination or affirmative action helps to redress imbalance’.75 It further recalled that it was ‘a well established principle of international law that unequal treatment towards persons in unequal situations does not necessarily amount to impermissible discrimination’.76 Thus, legislation which recognises such differences is not necessarily discriminatory.77 There are insufficient cases to evaluate whether the Court is willing to engage in judicial dialogue with other courts or bodies as regards substantive equality. Nevertheless, the Court has shown such willingness in the past when establishing a test for discrimination.78 It can therefore be argued that it may be willing to do the same in relation to gender equality. For its part, the Court has not had the opportunity to consider any cases concerning discrimination on grounds of sex and it remains to be seen how it will interpret equality under the African Charter and the Women’s Protocol in the future. Like the cedaw Committee, the African Commission’s comments with regard to the national implementation reports paid considerable attention to women’s rights as well as discrimination against women. Indeed, the guidelines for national periodic reports under the African Charter, the guidelines for state reporting under the Women’s Protocol, as well as the guidelines for economic, social and cultural rights in the African Charter require member Democratic Republic of Congo v The Republics of Burundi, Rwanda and Uganda, 29 May 2003. 73 323/06, Egyptian Initiative for Personal Rights and Interights v Egypt, 16 December 2011. 74 Ibid. 75 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009, at para 196. 76 Ibid. 77 Ibid. 78 See 9/2011 and 11/2011, Tanganyika Law Society and the Legal and Human Rights Centre v Tanzania and Reverend Christopher R. Mtikila v Tanzania, Judgment, 14 June 2013, at paras 116–119 (together with paras 107–111 and 114–115).

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states to focus on the situation of women and their rights. The periodic state reports as well as the Commission’s concluding observations therefore contain meaningful information about the situation of women’s rights as well as the requirements that must be fulfilled in this context. In its concluding observations, the Commission has frequently made comments on the situation concerning the discrimination of women in the respective states. On occasion, the Commission has also commented on the availability or lack of affirmative action measures in the respective states. Thus, it has found that in some states, where insufficient efforts had been made, further steps had to be taken in order to implement affirmative action measures with regard to the involvement of women at all levels of government;79 to women willing and available to contribute to the social, economic and political development of the country;80 or to minorities living in the country.81 Moreover, the Commission has welcomed the adoption of an affirmative action policy aimed at addressing gender disparity in schools (including lowering the pass mark for girls).82 The African Commission’s concluding observations clearly refer to the notion of substantive equality by underlining the need to rely on affirmative action measures. There is, however, a lack of references to other international or regional human rights instruments in this context. 5

Gender Equality and Legal Pluralism: The Way Forward

The standards of protection contained in the cedaw, the echr, the African Charter and the Women’s Protocol, as well as the corresponding case law and 79

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African Commission on Human and Peoples’ Rights, Concluding observations and recommendations on the 2nd periodic report of Benin, 45th Ordinary Session, 13–27 May 2009, iv, at para 40; Observations finales et recommandations relatives aux rapport initial de la République du Kenya, 45ème Session Ordinaire, 16–30 Mai 2007, vi, at para 46; and Concluding observations and recommendations on the consolidated 2nd to 10th periodic report of Tanzania, 43rd Ordinary Session, 7–22 May 2008, ii, at para 16. African Commission on Human and Peoples’ Rights, Concluding observations and ­recommendations on the initial, 1st, 2nd, 3rd and 4th periodic report of Ethiopia, 47th Ordinary Session, 12–26 May 2010, iv, at para 38; and Concluding observations and recommendations on the 3rd periodic report of Nigeria, 44th Ordinary Session, 10–24 November 2008, iii, at para 22. African Commission on Human and Peoples’ Rights, Concluding observations and recommendations on the initial report of Niger, 35th Session, 21 May – 4 June 2004, v, at para 31. African Commission on Human and Peoples’ Rights, Concluding observations and recommendations on the consolidated 2nd to 10th periodic report of Tanzania, supra n 79 at para 11.

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recommendations, depict a diverse picture of the concept of gender equality. They further indicate that there is little dialogue or cross-fertilisation between the different systems reviewed in this chapter. Despite this, all the legal instruments considered, as interpreted by the respective bodies, coalesce around an approximate concept of substantive gender equality. Nevertheless, the extent to which substantive equality is protected across the human rights systems reviewed varies. Overall, a number of differences can be noted among the cedaw, the echr, the African Charter and the Women’s Protocol. While all of them protect substantive equality, the extent and the meaning of this protection is different. Only the cedaw provides for both formal and substantive equality, including affirmative action measures, equality of opportunity and equality of results. In this context, affirmative action measures are not only meant as exceptions to the principle of non-discrimination, but rather as an integral requirement of gender equality. There is nonetheless a lack of case law on the matter and the Committee has rarely referred to international and regional sources in this context. The African Charter and the Women’s Protocol grant a less extensive, yet still significant, protection to substantive equality. The two instruments taken together refer to formal and substantive equality, which includes affirmative action and equality of opportunity. There are some indications in the Commission’s case law showing its willingness to recognise substantive equality (including affirmative action) and to look beyond its own jurisdiction for inspiration when interpreting the African Charter or the Women’s Protocol. This evidence is nonetheless insufficient to draw any significant conclusions in this respect. The protection afforded by the echr is less far-reaching than that provided by the cedaw, the African Charter and the Women’s Protocol. The echr provisions are general and neutral as to the type of gender equality that is protected. They also make no provision for affirmative action measures. Various concept of gender equality could therefore be accommodated under the echr and the task of defining gender equality more precisely has been left to the ECtHR. However, there is a lack of comprehensive ECtHR case law relating to gender equality. The case law available appears to indicate that both substantive and formal equality are protected, including the possibility of relying on affirmative action measures. The Court has not referred to other international or regional sources in this context, but it would not be surprising to find such references in its future case law. The main difference with the remaining systems considered is that gender equality is not a stand-alone requirement under the echr. While Protocol No 12 has remedied this omission, the low number of ratifications does not guarantee a widespread use among the member states. As a result, substantive equality and affirmative action have not yet consolidated into a stand-alone requirement under the echr.

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There is little evidence of judicial dialogue or cross-fertilisation between the Committee, the African Commission and Court, and the ECtHR. At this stage, such a dialogue or cross-fertilisation may not be fruitful because under the echr the exact meaning of substantive equality and affirmative action does not yet appear to have crystallised. Once this occurs, a meaningful exchange could reinforce, rather than dilute, the protection granted to gender equality across the systems. The Committee, the ECtHR, and the African Commission and Court may be willing to engage in judicial dialogue, as they are generally well integrated into the international legal system and are overall pre­disposed to refer and to receive international law and case law in their respective regimes. As the gender equality laws of the regional systems enter into a more mature phase, it is to be hoped that they engage in a more meaningful ­exchange with the cedaw and the Committee in order to reinforce the protection of gender equality.

chapter 7

Judges of the World, United? Collective Aspects of the Right to Work in Regional Human Rights Systems Rory O’Connell* 1 Introduction The right to work is an integral part of the international human rights system, enshrined as it is in Article 23 of the Universal Declaration of Human Rights 1948 (udhr). The Committee charged with monitoring the observance of the International Covenant on Economic, Social and Cultural Rights 1966 (­i cescr) has indicated that there are individual and collective dimensions to this right; the collective dimensions relate to the right to form trade unions and the right of trade unions to act freely.1 This chapter will examine how different international courts and monitoring bodies understand the collective dimension of the right to work,2 and in particular consider whether the systems influence each other and whether there is a common law on the collective aspects of the right to work or whether there are examples of divergence as between the different systems. By the collective aspects of the right to work this chapter understands the circumstances when workers act collectively to assert their interests. The key aspects of this are the right to form unions, the right of workers and unions to participate in employment governance (for example, through processes of consultation) and the right to engage in collective action including strikes.

* An earlier version of this paper was presented at an esran uki (Economic and Social Rights Network – uk and Ireland) workshop in Essex on 24 April 2014 and I am very grateful to participants for comments. I also sincerely thank Dr Alice Donald (Middlesex) for her detailed feedback. I also received valuable advice from my colleague Alice Diver (tji) and Fiona O’Connell. Responsibility for any errors or omissions is mine alone. 1 Committee on Economic, Social and Cultural Rights, General Comment No 18: The Right to Work, 24 November 2005, E/C.12/GC/18, at para 2. 2 An earlier paper examined the individual aspect of the right to work as it is indirectly protected in the case law of the European Convention on Human Rights: see O’Connell, ‘The Right to Work in the European Convention on Human Rights’ (2012) European Human Rights Law Review 176.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004284258_009

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The next section of this chapter presents the textual provisions on these questions in the different human rights systems at the international and regional levels. In presenting this overview, it is worth noting that some texts tend to focus on particular groups of rights (civil and political or economic, social and cultural) and the approach to the collective aspect of the right to work may be influenced by the type of text that is at issue. A further and not unrelated point is that some texts may establish enforcement mechanisms other than a traditional judicial-type remedy. Texts associated with civil and political rights are more likely to have an enforcement mechanism consisting of an individual complaint procedure. While frequently different texts are established for different types of rights, the indivisibility of human rights must not be forgotten. Some aspects of the right to work are encountered in texts associated with civil and political rights (for example, the prohibition of forced labour and the right to join unions). Also rights sometimes thought of as traditional civil or political rights are frequently of value in right-to-work cases (for example, freedom of expression, non-discrimination, fair trial rights and even the right to life). The subsequent sections will examine the case law and other pronouncements on the specific issues of the right to organise and the right of collective action. 2

Textual Overview

A International The udhr provides unequivocal recognition for the right to work in Article 23. This recognises distinct elements of the right to work including free choice of occupation, just and favourable work conditions, protection against employment, equal pay for equal work, just and favourable remuneration and the right of a worker to ‘form and join trade unions for the protection of his interests’.3 Article 24 also recognises the right to rest and leisure. Article 4 prohibits the most egregious violations of the right to work: slavery, servitude and the slave trade. 3 Article 23 reads: ‘1. Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment. 2. Everyone, without any discrimination, has the right to equal pay for equal work. 3. Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection. 4. Everyone has the right to form and to join trade unions for the protection of his interests.’

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The udhr was not intended to be a formally binding legal instrument and was supposed to be completed by later treaties. The treaties which make the udhr rights legally binding in international law include aspects of this right. They are, together with the udhr, referred to as the International Bill of Rights. The International Covenant on Economic, Social and Cultural Rights provides a relatively detailed understanding of the right to work. Articles 6 and 7 cover the individual aspects of the right including free choice of occupation, remuneration, safe and healthy working conditions and opportunity for promotion and rest. Article 6 also envisages provision of training programmes and vocational guidance as well as policies to promote development and full and productive employment. Article 8 of the icescr addresses the collective dimensions, including the right to form and join trade unions, subject to the rules of the organisations and also subject to restrictions necessary in a democratic society. Unions themselves have the right to join national federations, which have the right to join international ones.4 Unions have a right, again subject to restrictions necessary in a democratic society, to operate freely.5 There is also a right to strike which must be exercised in accordance with national laws.6 The ­Article recognises that limitations may be placed on police, armed forces or state ­administration.7 Finally, Article 8 expressly provides that states parties to the International Labour Organization’s 1948 Convention No 87 concerning Freedom of Association and Protection of the Right to Organize may not act prejudicially to the rights in that Convention. As originally adopted, the icescr did not have a complaints mechanism but more recently the un has adopted an Optional Protocol to the icescr which allows for complaints. This Protocol entered into force in 2013; as of September 2015, 21 states have ratified the Protocol. The International Covenant on Civil and Political Rights 1966 (iccpr) is also relevant to a discussion of the right to work. It prohibits slavery, servitude and forced or compulsory labour.8 It also expressly includes the ‘right to form and join trade unions for the protection of [the worker’s] interests’ as part of the freedom of association in Article 22. This Article creates a qualified right and Article 22(2) sets out the circumstances in which this broader right might be restricted. Article 22 also includes a provision expressly naming 4 5 6 7 8

Article 8(1)(b) icescr. Article 8(1)(c) icescr. Article 8(1)(d) icescr. Article 8(2) icescr. Article 8 iccpr.

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the I­ nternational Labour Organization Convention No 87 of 1948 concerning Freedom of Association and Protection of the Right to Organize; Article 22(3) precludes states parties to that treaty from acting prejudicially to the rights protected therein. The iccpr provides for monitoring by the Human Rights Committee (hrc) through a state reporting system; there is also an individual communications procedure under the first Optional Protocol. The hrc also has the important avenue of interpreting the Covenant through issuing general comments. These provisions in the main planks of the International Bill of Rights also highlight an important element in this discussion. The international standards in this area frequently include allusion to the work of the International Labour Organization (ilo). The ilo predates even the udhr, dating back to the aftermath of World War i. The ilo identifies four core priorities in its 1998 Declaration on Fundamental Principles and Rights at Work9 which bind all members of the ilo even if they have not ratified the relevant specific convention. The first of these priorities is ‘freedom of association and the effective recognition of the right to collective bargaining’.10 The collective dimensions are recognised in various treaties of the ilo: as well as the 1948 Convention No 87 on freedom of association mentioned above, the ilo has adopted the 1949 Convention No 98 concerning the Application of the Principles of the Right to Organize and to Bargain Collectively and the 1981 Convention (No 154) concerning the Promotion of Collective Bargaining. The ilo has mechanisms for monitoring how states observe their obligations under the conventions;11 it also has complaints procedures including one specifically to the Freedom of Association Committee.12 B Regional: Europe The European mechanisms for protection of human rights are found within two main international or supranational organisations: the Council of Europe and the European Union. The Council of Europe has long been concerned with the protection of human rights and two of its main treaties—the European Convention on Human Rights 1950 (echr) and the European Social Charter 9 International Labour Conference, 86th Session, 18 June 1998. 10 Ibid. at para 2(a). 11 See www.ilo.org/global/standards/applying-and-promoting-international-labour-­standards/ lang--en/index.htm. 12 Details of the Committee are available at: www.ilo.org/global/standards/applying-and -promoting-international-labour-standards/committee-on-freedom-of-association/lang --en/index.htm.

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1961 (esc)—include protection for the collective dimension of the right to work. The European Union’s engagement with human rights is much more recent; its fundamental focus has been on economic and political matters. More recently, the European Union has adopted texts that explicitly address human rights including the right to work. The echr has long been regarded as the premier human rights instrument in Europe, but is one which textually at least focuses on civil and political rights. As with the iccpr, the echr expressly prohibits slavery, servitude and forced or compulsory labour.13 The echr also protects freedom of association and assembly, including the right of a worker ‘to form and to join trade unions for the protection of his interests’ subject to restrictions necessary in a democratic society.14 The European Court of Human Rights (ECtHR) ensures the observance of state obligations under the echr;15 states undertake to abide by its decisions.16 Within the Council of Europe, it is the European Social Charter system which provides the most explicit and extensive protection for social and economic rights. The original esc of 1961 has been amended several times, most notably with the creation of a collective complaints procedure in 1995 and the adoption of the Revised esc in 1996. The 1961 Charter provides extensive guarantees in relation to the right to work, covering just conditions of work, safe and healthy working conditions, fair remuneration, vocational guidance and training, and certain rights for working abroad and migrants. It also explicitly affirms the right to organise17 and to bargain collectively.18 The right to organise includes special provisions on the police and armed forces. Collective bargaining includes promotion of joint consultation, promotion of voluntary negotiations, use of machinery for arbitration and the right of ‘workers and employers to collective action in cases of conflicts of interest, including the right to strike’.19 At a number of points these Articles are interesting for also protecting the rights of employers, for example, the employer’s right to o­ rganise20 and the employer’s right to collective action.21 13 Article 4 echr. 14 Article 11 echr. 15 Article 19 echr. 16 Article 46 echr. 17 Article 5 esc. 18 Article 6 esc. 19 Ibid. 20 Article 5 esc. 21 Article 6(4) esc.

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The Revised esc maintains the rights in the esc, amplifies some and adds others. Articles 5 and 6 are maintained with the same wording as in the original. The Revised esc, however, adds two new Articles affecting collective aspects of the right to work with a view to enhancing the opportunities for participation in workplace governance. These provide for a right to information and consultation22 and the right to take part in the determination and improvement of the working conditions and working environment.23 The European Committee of Social Rights (‘the esc Committee’ or ecsr) is charged with monitoring state compliance with the esc provisions and issuing regular conclusions on that compliance. An ilo representative participates in this review.24 As well as adopting conclusions, the esc Committee hears collective complaints regarding the situation or law in countries which have accepted the 1995 Protocol on the collective complaints procedure.25 There is n ­ othing equivalent to the echr obligation on states to abide by 22

23

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25

Article 21 esc (revised) reads: ‘With a view to ensuring the effective exercise of the right of workers to be informed and consulted within the undertaking, the Parties undertake to adopt or encourage measures enabling workers or their representatives, in accordance with national legislation and practice: a. to be informed regularly or at the appropriate time and in a comprehensible way about the economic and financial situation of the undertaking employing them, on the understanding that the disclosure of certain information which could be prejudicial to the undertaking may be refused or subject to confidentiality; and b. to be consulted in good time on proposed decisions which could substantially affect the interests of workers, particularly on those decisions which could have an important impact on the employment situation in the undertaking.’ Article 22 esc (revised) reads: ‘With a view to ensuring the effective exercise of the right of workers to take part in the determination and improvement of the working conditions and working environment in the undertaking, the Parties undertake to adopt or encourage measures enabling workers or their representatives, in accordance with national legislation and practice, to contribute: a. to the determination and the improvement of the working conditions, work organisation and working environment; b. to the protection of health and safety within the undertaking; c. to the organisation of social and socio-cultural services and facilities within the undertaking; d. to the supervision of the observance of regulations on these matters.’ Khaliq and Churchill, ‘European Committee of Social Rights: Putting Flesh on the Bare Bones of the European Social Charter’, in Langford (ed.), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (cup, 2009) 428 at 431. Additional Protocol to the European Social Charter Providing for a System of Collective Complaints 1995. See Khaliq and Churchill, ibid.; and Alston, ‘Assessing the Strengths and Weaknesses of the European Social Charter’s Supervisory System’, in de Búrca and de Witte (eds), Social Rights in Europe (oup, 2005) 45.

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­ CtHR ­judgments; rather in cases where a finding of non-conformity is issued, E the views of the esc Committee are transmitted to the Committee of Ministers which must make, by a two-thirds vote, a recommendation to the state concerned.26 The European Union has only become explicitly concerned with human rights more recently. The most significant manifestation of this is the drafting of the 2000 Charter of Fundamental Rights of the European Union (‘the eu Charter’). Whilst originally considered a non-binding document, the 2009 Treaty of Lisbon elevated the Charter to the same legal status as the treaties themselves.27 The Charter is important as an example of a regional instrument which includes both civil and political rights and social and economic ones. As might be expected, the Charter prohibits slavery, servitude, forced or compulsory labour and trafficking in human beings.28 It also protects freedom of association and assembly including the right to form and join trade unions.29 Freedom to choose an occupation and to engage in work is protected; the Charter also specifies the eu rights to seek employment, to work, to exercise the right of establishment and to provide services in any member state.30 Title iv of the Charter on ‘Solidarity’ includes rights of workers or their representatives to information and consultation,31 collective bargaining and action,32 as well as other right-to-work protections (for example, placement services, fair and just working conditions and protection against unjustified dismissal).33 The rights in the Charter highlight the possibility of conflict between rights; thus the Article on collective bargaining and action also refers to the rights of employers to defend their interests. Similarly, as well as recognising the right to work, the Charter recognises a ‘freedom to conduct a business’.34 This freedom, like the right to property, is not an absolute right but is subject to qualification.35 Article 52(5) introduces an important complication. This is a distinction between rights and principles. According to this provision, there are principles 26 27 28 29 30 31 32 33 34 35

Article 9 Additional Protocol to the European Social Charter Providing for a System of Collective Complaints 1995. Article 6 Treaty on European Union. Article 5 eu Charter. Article 12 eu Charter. Article 15 eu Charter. Article 27 eu Charter. Article 28 eu Charter. Articles 29–31 eu Charter. Article 16 eu Charter. Case C-12/11 McDonagh v Ryanair, 31 January 2013, EU:C:2013:43, at para 60.

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in the Charter and these principles shall be implemented by eu officials and institutions and the member states in the scope of eu activity, but importantly they are ‘judicially cognisable only in the interpretation of such acts and in the ruling on their legality.’ Confusingly, the Charter does not make explicit which of the interests identified in it are rights and which are principles.36 As well as being a complication, this introduces some ambiguity into the Charter. It is also reminiscent of the idea that there is a difference between civil and political rights on the one hand and social and economic rights on the other, in so far as it may reflect an idea that the latter are ‘principles’ or goals rather than enforceable rights. However, while this may have been an intention behind the introduction of the distinction, it has not been very explicitly explained in the Charter text. C Regional: The Americas The Inter-American human rights system is one of the oldest. As early as 1947, the Inter-American system adopted the Inter-American Charter of Social Guarantees, recognising workers’ rights.37 The Charter of the Organization of American States (oas) speaks about respect for fundamental rights.38 It also identifies economic development as an important aim of the states. Article 45 specifies that labour unions, among other organisations, play a major role in contributing to society and development. Article 46 addresses labour issues, recognising the need to harmonise to social legislation so that the ‘rights of the workers shall be equally protected’. The American Declaration of the Rights and Duties of Man 1948 predates the 1948 Universal Declaration of Human Rights. The American Declaration recognises freedom of association and specifically in relation to ‘labour union’ interests.39 The Declaration also affirms the right to work in Article 14, including a right to remuneration suitable to the worker and the worker’s family. As with the Universal Declaration, the American Declaration is completed by treaties which translate the principles in the Declaration into binding international legal obligations. The American Convention on Human Rights (achr) prohibits slavery, involuntary servitude and forced or compulsory labour.40 36 37 38 39 40

Lenaerts, ‘Exploring the limits of the eu Charter of Fundamental Rights’ (2012) 8(3) European Constitutional Law Review 375 at 399–400. Burgorgue-Larsen and Úbeda de Torres, The Inter-American Court of Human Rights: Caselaw and Commentary (oup, 2011) at 619. Articles 3(l) and 17. Article 22. Article 6 achr.

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The Convention also provides that the right to associate, including for ‘labor purposes’, is protected; the right is subject to qualification and there can be special restrictions for the police and army, even to the point of ‘deprivation’.41 The Convention takes a minimalist approach to social and economic rights. The sole Article of Chapter 3 on economic, social and cultural rights is headed ‘Progressive Development’ and speaks of achieving progressively the ‘rights implicit in the economic, social, educational, scientific and cultural standards’ in the oas Charter.42 The Convention creates the Inter-American Court of Human Rights (IACtHR), and states undertake to comply with the judgments to which they are parties.43 The provisions on economic and social rights in the Convention and Charter being somewhat brief, the oas has adopted the Protocol of San Salvador as an Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights. This provides more extensive and explicit protection for the right to work,44 just, equitable and satisfactory conditions of work45 and trade union rights.46 The last of these includes the right of unions to confederate and establish international organisations; the right to strike is recognised. The trade union rights are qualified rights and states may establish special restrictions for police, armed forces and essential public services (though the Article does not specify ‘deprivation’ as being permitted). Article 8 also expressly recognises the right not to belong to a union. The Protocol though is a limited measure in a number of ways: not all states have ratified it, while only the trade union rights and right to education allow for petition to the Inter-American Court of Human Rights.47 D Regional: Africa The African Charter on Human and Peoples’ Rights enshrines the right to freedom of association and also the right not to be compelled to join an association (subject to the principle of solidarity).48 The Article is quite brief and makes no explicit mention of trade unions or labour interests. The Charter has a similarly brief provision on the right to work, including equitable and satisfactory 41 42 43 44 45 46 47 48

Article 16 achr. Article 26 achr. Article 68 achr. Article 6 Protocol. Article 7 Protocol. Article 8 Protocol. Burgorgue-Larsen and Úbeda de Torres, supra n 37 at 619. Article 10.

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conditions and the principle of equal pay.49 The African Commission on Human and Peoples’ Rights has adopted the Pretoria Declaration on Economic, Social and Cultural Rights in Africa (2004) which adds some more detail to the Charter text. This specifies that the right to associate also includes the right to strike, collective action and ‘other related trade union rights’.50 The African system has had to deal with some cases involving violations of the right to work51 and the right to associate,52 but very few involving the trade union rights considered in this chapter and so limited reference is made here to the African experience.53 3

Arguments for a Harmonious Interpretation

The right to work, in its collective aspect, is protected across a wide range of human rights treaties. In some instances there is a strong agreement in the texts on certain aspects of this right, most notably the right to be free from slavery or forced labour, but also the right to form associations including trade unions. These rights are typically found in all human rights treaties including those primarily focusing on civil and political rights. However, it is only in the texts more explicitly concerned with social and economic rights that we find more detailed provisions on the right to work, including collective aspects such as collective bargaining (including the right to strike) and rights to consultation and information. Some commentators have identified reasons for international courts and committees to pursue a harmonious interpretation of these disparate provisions. Ebert and Oelz have approached this question from the viewpoint of what role human rights courts attach to ilo standards and findings in this 49 50

51 52

53

Article 15. African Commission, Resolution on Economic, Social and Cultural Rights in Africa, 36th Ordinary Session, 7 December 2004. The earlier Resolution on the Freedom of Association, 11th Ordinary Session, 9 March 1992, does not mention trade unions, the right to strike or collective action. These include a case concerning practices analogous to slavery: see 54/91 et al., Malawi African Association and Others v Mauritania, 11 May 2000. Olaniyan, ‘Civil and Political Rights in the African Charter: Articles 8–14’, in Evans and Murray (eds), The African Charter on Human and Peoples’ Rights: The System in Practice, 2nd edn (cup, 2008) 213. One case involving the right to strike was declared inadmissible due to non-exhaustion of domestic remedies: see 135/94, Kenya Human Rights Commission v Kenya, 11 October 1995.

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­area.54 They suggest that human rights courts are not only making increasing use of ilo material but also making more sophisticated use of ilo material.55 According to their analysis, the Inter-American Court of Human Rights and the European Court of Human Rights both rely on ilo material for three essential reasons: first, to provide support and legitimacy to their conclusions; second, as a source of factual information to support their decision-making; and third, to assist in the interpretation of the relevant human rights convention.56 In these ways, ilo material might further the harmonisation of human rights law across universal and regional instruments by providing a specialist body of material on which to rely. These observations suggest how legal institutions in practice make use of material from other systems. While much can be made of the practice of relying on these different relevant sources, one scholar identifies a more principled or philosophical reason to support an integrated interpretation. Mantouvalou argues for an integrated approach to the interpretation of human rights texts, relying on the capabilities theory of rights as developed by Nussbaum.57 The capabilities approach embraces a notion of freedom different from the negative liberty idea of the mere absence of constraint; freedom rather is more about the ability to do something. The ‘positive’ freedom entailed by the capabilities approach requires attention to the reality of choice, the importance of relations and the need for ‘voice’. Positive freedom requires that there be a number of options or choices realistically available to agents. The capabilities approach also emphasises the importance of relationships rather than conceiving of the individual as an isolated actor. As Mantouvalou has noted, the ECtHR has expressly recognised the importance of being able to develop relationships in a workplace.58 Finally, the capabilities approach requires a capability to affect one’s environment and context; for Mantouvalou this translates into a requirement of an ‘effective’ ‘voice at work’.59 54

55 56 57

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Ebert and Oelz, Bridging the Gap between Labor Rights and Human Rights: The Role of ilo Law in Regional Human Rights Courts, International Institute for Labour Studies Discussion Paper Series DP/212/2012 (2012). Ibid. at 4. Ibid. at 7–9. Mantouvalou, ‘Labour Rights in the European Convention on Human Rights: An Intellectual Justification for an Integrated Approach to Interpretation’ (2013) 13(3) Human Rights Law Review 529. Ibid. at 552, referring to Niemietz v Germany Application No 13710/88, Merits and Just Satisfaction, 16 December 1992; and Sidabras and Džiautas v Lithuania Applications Nos 55480/00 and 59330/00, Merits and Just Satisfaction, 27 July 2004. Mantouvalou, ibid. at 553.

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These principles imply that human rights texts, such as the echr, need to be interpreted to give a more sophisticated protection to labour rights, including the collective dimensions such as free association and the right to strike.60 This more philosophical approach would provide a basis for courts and committees in some systems to provide a more expansive or activist interpretation of texts, which has the effect of expanding the interpretation of texts to include aspects more explicit in the treaties formally concerned with social and economic rights. Having established some of the key texts in relation to the right to work and in particular its collective dimensions, and identified some of the arguments for a harmonious interpretation of these different texts, the next sections will examine some of the relevant case law particularly in the European and InterAmerican systems to see if common issues and principles emerge and whether the regional systems rely upon each other’s work. 4

Right to Organise

At the heart of the collective aspect of the right to work is the possibility to organise. This entails the right of trade unions to associate but also the right to identify membership criteria, to autonomous self-organisation (‘to draw up their own rules and to administer their own affairs’ according to the ECtHR)61 and indeed to exclude some persons from membership. According to the esc Committee, states may impose conditions for the recognition or registration of trade unions, provided these requirements do not create an obstacle to forming trade unions.62 The esc Committee has examined whether such rules for instance are objective, subject to review and not manifestly disproportionate.63 The esc Committee has issued conclusions which criticise states for failing to recognise sufficient autonomy to unions in how they organise themselves. For instance, it has criticised the uk for preventing unions from disciplining union members for failing to carry out strike action.64 It has also criticised the uk for banning trade unions from 60 61 62 63 64

Ibid. at 551–4. Associated Society of Locomotive Engineers and Firemen (Aslef ) v United Kingdom Application No 11002/05, Merits and Just Satisfaction, 27 February 2007, at para 38. ecsr, Conclusions concerning Portugal, XIII-5 (1997) Article 5, 30 September 1997, alluding to a now repealed legislative requirement. ecsr, Conclusions concerning Bulgaria, 2004 Vol 1 Article 5, 31 May 2005. ecsr, Conclusions concerning United Kingdom, XIX-3 (2010) Article 5, 3 December 2010.

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indemnifying members who have been fined for an offence or for contempt of court.65 The ECtHR holds that the right to form and join trade unions is an important freedom and that interference with it can only be justified if the proportionality test is met.66 The ECtHR has upheld the right of a union to decide on its own membership criteria and in particular to deny membership to members of political parties fundamentally hostile to its own values.67 In reaching this decision, the ECtHR expressly referred to the ilo Convention No 8768 and aligned itself with the previously expressed view of the esc Committee in some of its conclusions.69 The ECtHR has given different indications on the scope of the margin of appreciation in freedom of association cases. On the one hand, it has said the margin of appreciation will be a limited one.70 However, it has also said that there is a wide margin of appreciation when it comes to the regulation of trade unions and collective action, due both to the heterogeneity of state practice and the sensitive nature of the social and economic issues in question.71 The difference may be that the former comments related to issues of the right to organise, while the latter comments referred to the regulation of collective action and in particular the right to strike. The IACtHR has held that Article 16 of the American Convention protects both an individual and social aspect of the right to free association.72 According to the Court the former included ‘the right to use any appropriate means’ to exercise free association rights, while the social dimension allows members to achieve objectives and benefits together.73 In asserting the importance of these rights the IACtHR referred to the Protocol of San Salvador but also the ilo Convention No 87 and the case law of the ECtHR.

65 Ibid. 66 Associated Society of Locomotive Engineers and Firemen (Aslef ) v United Kingdom, supra n 61 at para 37. 67 Ibid. 68 Ibid. at para 38. 69 ecsr, Conclusions concerning United Kingdom, XIX-3 (2010), supra n 64. 70 Associated Society of Locomotive Engineers and Firemen (Aslef ) v United Kingdom, supra n 61 at para 46. 71 Sindicatul ‘Păstorul cel Bun’ v Romania Application No 2330/09, Merits and Just Satisfaction, 9 July 2013, at para 133. 72 Case of Huilca Tecse v Peru IACtHR Series C 121 (2005) at paras 69–71. 73 Ibid. at paras 70–71.

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A The Right Not to Associate The two main regional courts, the ECtHR and IACtHR, both recognise the right not to join a trade union (what might be called the negative aspect of freedom of association), with the corresponding prohibition on closed shops. This position was adopted by the IACtHR in Baena Ricardo,74 and by the ECtHR in Young, James and Webster v United Kingdom among others.75 The ECtHR has said that the state has to protect persons from abuses by trade unions.76 Harris and others note, however, that the ECtHR ruling in Young, James and Webster was carefully worded to apply to the factual situation.77 They also note that the ECtHR has relied on findings of the esc Committee in such cases.78 The esc Committee also recognises the right not to associate.79 The Committee considered that a closed shop requirement struck at the ‘very substance of the freedom enshrined in Article 5’.80 This phrase is also found in ECtHR case law on the topic.81 The esc Committee in its conclusions, has gone further and said that a practice in collective bargaining of according priority to union members in hiring decisions is a breach of Article 5; the esc Committee was not impressed by the argument that the presence of such clauses in collective agreements absolved the state of its ultimate responsibility.82 The esc Committee also makes clear that the freedom not to associate must be recognised not just as a matter of law but also in practice.83 Interestingly, in this conclusion on Sweden the Committee also emphasised that the European 74 75 76 77

78 79 80 81 82 83

Case of Baena Ricardo et al. v Panama IACtHR Series C 72 (2001) at para 159. Young, James and Webster v United Kingdom Applications Nos 7601/76 and 7806/77, Merits, 13 August 1981. Associated Society of Locomotive Engineers and Firemen (Aslef ) v United Kingdom, supra n 61 at para 43. Harris et al., Harris, O’Boyle and Warbrick: Law of the European Convention on Human Rights, 3rd edn (oup, 2014) at 744. The ecsr has also commented on the careful language of the ECtHR in this case, noting that the Court abstained on the idea of the negative right: Conclusions concerning Denmark, X-1 (1987) Article 5, 30 June 1987; and Conclusions concerning Denmark, xi-i (1989) Article 5, 31 July 1989. Harris et al., ibid. at 745, referring to Sigurjónsson v Iceland Application No 16130/90, Merits and Just Satisfaction, 30 June 1993. ecsr, Confederation of Swedish Enterprise v Sweden (12/2002) Merits, 15 May 2003. Ibid. at para 30. The ecsr did not expressly rely on the echr jurisprudence to reach this conclusion, though it did allude to it. Sorensen and Rasmussen v Denmark Application No 52562/99, Merits and Just Satisfaction, 11 January 2006, at para 54. ecsr, Conclusions concerning Iceland, XIX-3 (2010) Article 5, 3 December 2010. ecsr, Conclusions concerning Sweden, XIV-1 Vol 2 (1998) Article 5, 30 March 1998. See also ecsr, Conclusions concerning Sweden, XV-1 Vol 2 (2000) Article 5, 30 March 2000;

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­ onvention on Human Rights and the European Social Charter were not the C same; the fact that a state gave recognition to Convention rights did not automatically mean that the Charter rights were being respected.84 Despite this statement on the independence of the instruments, the esc Committee does refer to ECtHR rulings which support its position.85 As noted above, employers also benefit from the Article 5 right and in one case an employer organisation challenged Finnish rules requiring employers to belong to a national organisation to benefit from the collective bargaining privilege of derogating from national legislation.86 The esc Committee concluded that this was not a violation of Article 5 read in harmony with Article 6 unless the ‘very substance’ of the freedom was endangered, citing the ECtHR.87 This position seems ubiquitous among regional human rights treaties: the African Charter explicitly protects the right not to associate in its text.88 On the other hand, this is a position not endorsed by the ilo, whose attitude is more agnostic. Ebert and Oelz89 cite the ilo compilation on its freedom of association decisions, which indicates that it is permissible for states to permit or to ban ‘union security clauses’.90 B Special Groups One consideration the human rights texts and institutions have had to address is whether the right to organise applies equally to all groups including the public sector and more particularly, the police and military. While most of these special groups have concerned public sector workers, the ECtHR has also had to deal with claims of a right to organise within a religious community.

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85 86 87 88 89 90

Conclusions concerning Denmark, XV-1 Vol 1 (2000) Article 5, 30 March 2000; and Conclusions concerning Denmark, XVIII-1 Vol 1 (2006) Article 5, 31 October 2006. ecsr, Conclusions concerning Sweden, XIV-1 Vol 2 (1998), ibid. See also ecsr, Conclusions concerning Norway, XV-1 Vol 2 (2000) Article 5, 30 March 2000; and Conclusions concerning Denmark, XIV-1 Vol 1 (1998) Article 5, 30 March 1998. ecsr, Conclusions concerning Denmark, XVIII-1 Vol 1 (2006) Article 5, 31 October 2006, referring to Sorensen and Rasmussen v Denmark, supra n 81. ecsr, Federation of Finnish Enterprises v Finland (35/2006) Merits, 16 October 2007. Ibid. at para 29. The ecsr explicitly mentioned Gustafsson v Sweden Application No 15573/89, Merits and Just Satisfaction, 25 April 1996. Article 10(2). Ebert and Oelz, supra n 54 at 9. International Labour Organization, Freedom of Association: Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ilo (ilo, 2006) at paras 364–5.

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With regard to special groups of workers such as the police and military, the ECtHR has referred to ilo Conventions Nos 87 and 98 as bolstering the position that special rules apply to them.91 The esc system permits states to restrict but not to ‘completely deny police officers’ right to organise.’92 This means that they must be able to form or join genuine organisations to represent their interests and these organisations should enjoy most of the rights of trade unions.93 The esc Committee welcomed the removal of previous restrictions on police organisations which would have been violations of the Charter; these were restrictions precluding police organisations from petitioning rights protection bodies without first exhausting internal hierarchical procedures and a sweeping prohibition on expression incompatible with discipline.94 A complaint about denial of the right to organise in the Irish Police has been registered with the esc Committee but it has not yet issued its views.95 The esc system provides the possibility to limit the right to organisation in the military, and the esc Committee has rejected efforts to provide an imaginative interpretation on this point which might support a conclusion different from the literal wording of the Charter.96 According to the Committee, states may even suppress this right in the military context.97 The ECtHR has had to consider the application of trade union rights within religious communities. In Sindicatul ‘Păstorul cel Bun’ v Romania it expressly relied on ilo Convention No 87 and ilo Recommendation No 19898 to consider whether working for a religious community counted as partaking in an 91 92 93 94 95 96

97 98

Trade Union of the Police in the Slovak Republic and Others v Slovakia Application No 11828/08, Merits and Just Satisfaction, 25 September 2012, at para 67. ecsr, European Council of Police Trade Unions v Portugal (11/2001) Merits, 21 May 2002, at para 25. Ibid. at para 26. Ibid. at paras 45–47. ecsr, European Confederation of Police v Ireland (83/2012). ecsr, European Federation of Employees in the Public Services v Portugal (5/1999) Merits, 4 December 2000; European Federation of Employees in Public Services (eurofedop) v Italy (4/1999) Merits, 4 December 2000; and European Federation of Employees in Public Services (eurofedop) v France (2/1999) Merits, 4 December 2000. On other questions the ecsr has shown itself willing to expand the interpretation of the Charter, even going against the prima facie reading of the text in cases involving migrants, especially migrant children. ecsr, European Federation of Employees in Public Services (eurofedop) v Italy, ibid. at para 27. International Labour Conference, Recommendation No 198 concerning the employment relationship, 15 June 2006.

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employment relationship.99 The ECtHR acknowledged the distinctive nature of religious communities, including their spiritual purposes, but concluded this was not sufficient to undo the existence of an employment relationship based on the ilo criteria of working according to instructions and receiving remuneration.100 The Court then had to consider whether the domestic courts had appropriately sought to ensure both freedom of religion and association.101 In striking this balance, the Grand Chamber nevertheless drew attention to the principle of the autonomy of religious institutions; there is no right to dissent within religious organisation, rather freedom is secured by the possibility to exit.102 The Grand Chamber (unlike the Chamber) found that the national court’s decision was not ‘unreasonable’,103 and that the applicants had options open to them including forming an association not hostile to the traditional hierarchical organisation of the Church, or participating in the existing institutions.104 The Grand Chamber was also influenced by the variety of approaches to constitutional regulation of churches in Europe. A significant minority dissented, arguing it would have made more sense to regulate the collective action of the union rather than refusing to recognise it.105 C Threats to the Right to Organise All the regional systems have dealt with cases involving fundamental threats to trade union activities though these have included different types of threat, for example, physical violence, discrimination and punishment for exercising free expression rights. These threats have included the most extreme, such as the extrajudicial execution of a trade union leader, as condemned by the Inter-American Court

99

100 101 102 103 104 105

Sindicatul ‘Păstorul cel Bun’ v Romania, supra n 71 at para 142. The Court also referred to Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation [2000] oj L 303/16. It did not refer to the European Social Charter though this was one of the sources listed in the earlier section on international standards (at para 58). Ibid. at paras 142–148. Judge Wojtyczek disagreed on this point in his concurring opinion. Ibid. at para 159. Ibid. at paras 137 and 165. Ibid. at para 164. Ibid. at paras 170–171. Ibid. at Joint Partly Dissenting Opinion of Judges Spielmann, Villiger, López Guerra, Bianku, Møse and Jäderblom.

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of Human Rights in Huilca Tecse.106 Huilca Tecse had been a labour leader for many years and had helped file a complaint before the ilo arising out of the restriction of trade union rights by the Fujimori regime in 1992.107 He had also addressed demonstrations protesting against the Government measures. He was gunned down in front of two of his children. The IACtHR has found this to be a violation of the right to life but also the trade union rights in Article 16(1) of the American Convention since the extrajudicial execution had also had a more generally intimidating effect on Peruvian workers.108 The Court approved reparations for the violation; these required extensive measures of reparation, including prescribing that one university teach a course on human rights and labour law and requiring the public recollection of the contribution made by the deceased to society and the display of a monument to him as well as providing psychological care for his survivors.109 The IACtHR has also faced a case of mass dismissal of public employees who participated in a work stoppage and an anti-government rally, Baena Ricardo v Panama.110 After the workers were dismissed, a legislative act was passed which applied retrospectively to them; the law provided for the dismissal of workers who engaged in anti-democratic activity.111 The IACtHR noted that the ilo considered that the law violated Convention No 98112 and rejected an argument that it could invoke the Protocol of San Salvador (the Inter-American Commission on Human Rights had so argued, noting that Panama had signed the Protocol).113 The IACtHR relied on the right to a fair trial, against retroactive penal laws and to judicial protection (Articles 8, 9 and 25 of the achr) to address this violation.114 The IACtHR also considered the right to assembly (Article 15 of the achr), but found there was no violation115 and the right to freedom of association (Article 16 of the achr), referring to the ilo Constitution which recognised freedom of association as a requirement for ‘universal and lasting peace’.116 The Court considered that Article 16 included a right and 106 Case of Huilca Tecse v Peru, supra n 72. The respondent state acquiesced in the complaint and so damning factual allegations were accepted. 107 Ibid. at para 60. 108 Ibid. at para 78. 109 Ibid. at paras 103 and 113. 110 Case of Baena Ricardo et al. v Panama, supra n 74. 111 Ibid. at para 88(p). 112 Ibid. at paras 162–163. 113 Ibid. at para 99. 114 Ibid. at paras 107–108, 115 and 143. 115 Ibid. at para 150. 116 Ibid. at para 157.

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a freedom, the freedom being the right not to associate,117 and referred to the decision by the ilo Committee on Freedom of Association that the Panama law violated ilo Convention No 98 because of its implications for trade union leaders. In doing so it observed that the ilo Committee of Experts had also criticised the law.118 The Court took particular account of these ilo findings in concluding that the state had interfered with the right to associate unjustifiably119 and ordered the reinstatement of the workers, or their instatement in posts with equivalent conditions, or failing that, indemnification. The state was also ordered to provide appropriate support to successors of deceased victims.120 The European Convention system has also dealt with cases involving violence, or threats of violence against trade union activists. In Akkoc v Turkey,121 the applicant’s husband had been involved in a trade union considered to be unlawful by the authorities. He had been killed by unknown persons, possibly pro-state paramilitaries. There had been threats to his life and, in view of the risks involved for persons in opposition groups in south-east Turkey, there arose an obligation to take steps to protect his life as well as to investigate his killing. The Court found that the authorities did not take reasonable steps to protect his life, and had not carried out a proper investigation.122 However, the Court did not consider whether there had been a violation of Article 11 of the echr. The ECtHR has dealt with several cases involving expression by trade union activists and leaders. In several of these cases, the ECtHR seems to expect a standard of conduct from trade unionists which restricts how they express themselves, thus permitting the punishment of satirical images123 or excessive 117 Ibid. at para 159. Article 8(3) of the Protocol of San Salvador also explicitly protects the right not to associate. 118 Ibid. at para 162. 119 Ibid. at paras 171–173. 120 Ibid. at para 203. This willingness of the Court to order wide-ranging reparations and specifically the reinstatement of dismissed employees is also evident in Case of Acevedo Jaramillo et al. v Peru IACtHR Series C 144 (2006). 121 Applications Nos 22947/93 and 22948/93, Merits and Just Satisfaction, 10 October 2000. 122 Ibid. at paras 94 and 99. Harris et al. note that positive obligations in relation to freedom of association are also considered in Ouranio Toxo and Others v Greece Application No 74989/01, Merits and Just Satisfaction, 20 October 2005: see Harris et al., supra n 77 at 739. The European Court of Human Rights also recognises that employees must be protected from discrimination on grounds of union membership: Danilenkov and Others v Russia Application No 67336/01, Merits and Just Satisfaction, 30 July 2009. 123 Palomo Sánchez and Others v Spain Applications Nos 28955/06 et al., Merits and Just Satisfaction, 12 September 2011.

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rhetoric.124 Most strikingly, in Szima v Hungary,125 the Court expressed a very limited view on the role of trade unions. The applicant was a trade unionist who had published comments on the trade union’s website on staff remuneration, as well as allegations about nepotism and political influence in the police. The Court expressed the view that a trade union leader was entitled to express views about matters like police remuneration; however, it suggested that if a trade union leader expressed views on how the police force was managed and criticised police leaders for serving political interests, then this was treated as being ‘outside the legitimate scope of trade union-related activities’ and so had to be considered from the general viewpoint of free expression rather than the view of trade union-related expression.126 The Court considered that the trade union leader should have been aware of the importance of loyalty and trust in the police force and that she had failed to relate her value judgments to a factual basis. In these circumstances the punishment of a fine and demotion were assessed as proportionate.127 Judge Tulkens dissented: in particular she thought the majority too quickly dismissed the trade union dimension of the case and had adopted a limited view of the role of trade unions; she also considered that demotion (if not a fine) was a harsh penalty.128 In the Slovak Trade Union of Police case129 a Government minister had responded to calls for the Government to resign by making statements critical of this call, and also threatening not to communicate with trade union representatives; furthermore the minister transferred one of the union representatives to a lower position in the police force.130 The Court stressed the duty of ‘loyalty and reserve’ which was important in all employment relations but especially when public servants including the police were involved.131 In finding that there had been no violation of Article 11 of the echr read in the light of Article 10, the Court stated that a publicly expressed call for the Government to resign had to be understood in this context of loyalty and reserve.132

124 Szima v Hungary Application No 29723/11, Merits and Just Satisfaction, 9 October 2012; and Trade Union of the Police in the Slovak Republic and Others v Slovakia, supra n 91. 125 Ibid. 126 Ibid. at para 31. 127 Ibid. at para 32. 128 Ibid. at Dissenting Opinion of Judge Tulkens, paras 4 and 6. 129 Trade Union of the Police in the Slovak Republic and Others v Slovakia, supra n 91. 130 Ibid. at paras 6–11. 131 Ibid. at para 57. 132 Ibid. at para 69.

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Right to Collective Bargaining and Action

The right to strike is not expressly mentioned in the ilo Convention (No 87) concerning Freedom of Association and Protection of the Right to Organise, or the Convention (No 98) concerning the Application of the Principles of the Right to Organise and to Bargain Collectively; however, the complaints bodies of the ilo (the Committee on Freedom of Association and the Committee of Experts) have developed principles which apply to strikes. Indeed, some participants in the ilo (employer representatives) have challenged the notion of a right to strike, as pointed out by the uk Government in the rmt case, which is discussed below. Among human rights regimes, the European systems have given the most detailed attention to collective action rights, with the European Committee of Social Rights having the most detailed jurisprudence.133 Within the European Union and European Convention systems, the right to collective bargaining and action has seen something of a see-saw motion in the past decade. A European Committee of Social Rights Perhaps unsurprisingly, among the human rights systems, the European Committee of Social Rights has the most extensive jurisprudence on the right to strike. The European Social Charter explicitly protects the right to strike. According to the esc Committee, banning a category of workers including civil servants as a whole from exercising the right to strike, violates the Charter.134 Where there is an issue that some categories of workers provide essential ­services like electricity and water supply then certain restrictions may be permitted, such as the imposition of a minimum service requirement; but simply prohibiting categories of workers from striking was disproportionate.135 Similarly, the state must ensure that any limitations are narrowly targeted; for example, it is not sufficient to restrict the rights of all prison service employees, rather the state must target measures to those employees whose service is necessary.136 133 In neither the text of the American Convention nor that of the echr is there any explicit mention of a right to strike. There is an argument that Huilca Tecse implicitly recognises within the Inter-American system the right to strike as an appropriate means to exercise free association rights: see Burgorgue-Larsen and Úbeda de Torres, supra n 37 at 624, para 24.11. 134 ecsr, Conclusions concerning Albania (2010) Article 6(4), 22 October 2010. 135 Ibid. 136 Ibid.

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In Confederation of Independent Trade Unions in Bulgaria v Bulgaria,137 the esc Committee considered a complaint about the denial of the right to strike to workers in the energy, health care and communication sectors as well as a partial restriction on civil servants. The Committee noted that the right to strike was subject to justifiable limitations provided these could be shown to be prescribed by law, for a legitimate aim and proportionate under Article G of the Revised esc.138 The Committee accepted that the Bulgarian legislation satisfied the first two criteria but was disproportionate in containing a general ban on all strikes in the specified sectors.139 The Committee also considered the Bulgarian requirement that railway workers continue to provide 50 per cent of services even when striking. The Committee considered that a requirement to provide an essential minimum of services could be justifiable, but the legislation was unclear as to how the 50 per cent would be calculated and so the prescribed-by-law criterion was not met.140 The Committee also considered that the aim of protecting the economy was too vague and unsubstantiated.141 The final element of the complaint was that the law only permitted civil servants to carry out symbolic strikes. The Committee concluded that some restriction on the rights of civil servants might in certain circumstances be justified but not a complete withdrawal of the right from all civil servants.142 Imposing compulsory arbitration will also violate the right to collective bargaining in the view of the esc Committee, at least if the proportionality test in the Charter is not met.143 On the other hand, it is acceptable to require exhaustion of conciliation and mediation procedures before a strike can be called, provided the time involved in such procedures is not so long as to impair the effectiveness of strike action.144 137 Confederation of Independent Trade Unions in Bulgaria, Confederation of Labour ‘Podkrepa’ and European Trade Union Confederation (etuc) v Bulgaria (32/2005) Merits, 16 October 2006. 138 Ibid. at para 24. 139 Ibid. at para 27. See also ecsr, Conclusions concerning Slovak Republic, XIX-3 (2010) Article 6(4), 3 December 2010, holding that a minimum service requirement might be justified but not simply banning employees in particular sectors from striking; Conclusions concerning Czech Republic, XIX-3 (2010) Article 6(4), 3 December 2010; and Conclusions concerning Georgia (2010) Article 6(4), 22 October 2010. Minimum service might include provision of transport to schools, hospitals and government buildings: Conclusions concerning Latvia, XIX-3 (2010) Article 6(4), 3 December 2010. 140 Confederation of Independent Trade Unions in Bulgaria v Bulgaria, supra n 137 at para 35. 141 Ibid. at para 36. 142 Ibid. at paras 44–47. 143 ecsr, Conclusions concerning Moldova (2010) Article 6(3), 22 October 2010. 144 ecsr, Conclusions concerning Albania (2010) Article 6(4), 22 October 2010.

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The esc Committee has criticised restrictions on the right to strike in the uk, whereby a union can only take strike action against the immediate employer, and furthermore cannot take strike action against a future employer.145 This restriction on secondary or sympathy strikes would later come to the European Court of Human Rights (see below discussing the rmt case). In the same conclusions, it considered that the notification requirements in the uk, whereby a union has to notify an employer that it is balloting for strike action as well as notifying the employer of actual strike action, were excessive.146 The esc Committee has also criticised the approach of Belgian judges who have ruled on the appropriateness and lawfulness of strike action considering such questions as whether the strike was proportionate, that is, whether it could have taken place at a less damaging time.147 If the right to strike is reserved to trade unions, then the formation of a union must not be subject to excessive restrictions;148 a delay of 30 days has been held to be overly restrictive.149 A requirement in Germany that strikes concern the conclusion of collective agreements is also in violation of the Charter.150 The esc Committee has also criticised a requirement that a union vote by a super majority (that is, a requirement for more than a simple majority) to carry out a strike as an excessive restriction.151 Similarly excessive requirements as to the representativeness of the union will breach Article 6.152 Where public authorities have a reserve power to intervene to end a strike (for example, by imposing arbitration) then this must comply with the requirements in Article G of the Revised esc.153 The right to strike entails the obligation that employees not be subject to dismissal; if dismissal is formally available but there is an inflexible ­customary 145 ecsr, Conclusions concerning United Kingdom, XVIII-1 Vol 2 (2006) Article 6(4), 31 ­October 2006; and Conclusions concerning United Kingdom, XIX-3 (2010) Article 6(4), 12 March 2010. 146 Ibid. 147 ecsr, Conclusions concerning Belgium, XVI-1 Vol 1 (2003) Article 6(4), 30 May 2003. See similar criticisms in Conclusions concerning The Netherlands (2010) Article 6(4), 22 ­October 2010. 148 ecsr, Conclusions concerning Slovak Republic, XIX-3 (2010) Article 6(4), 3 December 2010; and Conclusions concerning Germany, XIX-3 (2010) Article 6(4), 3 December 2010. 149 ecsr, Conclusions concerning Portugal, XVII-1 (2005) Article 6(4), 28 February 2005. See also Conclusions concerning Portugal (2010) Article 6(4), 22 October 2010. 150 ecsr, Conclusions concerning Germany, supra n 148. 151 ecsr, Conclusions concerning Latvia, XIX-3 (2010) Article 6(4), 3 December 2010. See also Conclusions concerning Lithuania (2010) Article 6(4), 22 October 2010. 152 ecsr, Conclusions concerning Romania (2010) Article 6(4), 22 October 2010. 153 ecsr, Conclusions concerning Norway (2010) Article 6(4), 14 December 2010.

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rule that this is never imposed in practice, then this will satisfy the esc.154 The Committee has criticised as insufficient the protection against dismissal offered by the uk, where employees are only protected from dismissal for a period of 12 weeks.155 Furthermore, any deductions from the wages of a striking employee must reflect the length of the strike; an employer should not be permitted to deduct a day’s wages if a strike did not last a full day.156 The right to strike also has a potentially individual aspect for the esc Committee.157 The esc Committee implies that non-unionised workers should also be protected from dismissal if they participate in strike action.158 The esc Committee has interpreted the right to include also a right to picket provided the picketing does not amount to intimidation.159 Therefore, any state limitation on picketing must satisfy a justification test of being prescribed by law, pursuing a legitimate aim and being proportionate.160 In European Trade Union Confederation v Belgium, the esc Committee found the Belgian position on picketing to be unclear and also to violate fair procedures (judicial procedures allowed a unilateral application which excluded unions from the original hearing and the possibility to lodge an appeal was not enough to justify the restriction).161 Until the twenty-first century, the European Court of Human Rights did not tend to regard collective bargaining and action as part of the right to associate in Article 11 of the echr.162 Then a series of cases from Wilson to Demir and 154 ecsr, Conclusions concerning Denmark, XIX-3 (2010) Article 6(4), 3 December 2010; and Conclusions concerning Belgium (2010) Article 6(4), 22 October 2010. 155 ecsr, Conclusions concerning United Kingdom, XIX-3 (2010) Article 6(4), 12 March 2010. 156 ecsr, Conclusions concerning France (2010) Article 6(4), 22 October 2010. 157 ecsr, Conclusions concerning Armenia (2010) Article 6(4), 22 October 2010. 158 ecsr, Conclusions concerning Denmark, XIX-3 (2010) Article 6(4), 3 December 2010; Conclusions concerning The former Yugoslav Republic of Macedonia, XIX-3 (2010) Article 6(4), 22 October 2010; and Conclusions concerning Georgia (2010) Article 6(4), 22 October 2010. 159 ecsr, European Trade Union Confederation v Belgium (59/2009) Merits, 13 September 2011. Three committee members (Jimena Quesada, Belorgey and Işik) wanted to use stronger language in asserting picketing as an ‘integral or essential part of the fundamental right to strike’ (emphasis in original). 160 Ibid. at para 40. 161 Ibid. at paras 43–44. Three Committee members ‘dissented’ arguing that the ecsr should have used the ECtHR language of positive obligations rather than the language of interference: see ibid. at Dissenting Opinion of Mr Luis Jimena Quesada joined by Mr JeanMichel Belorgey and Mr Rüçhan Işik. 162 Harris et al., supra n 77 at 747, referring to National Union of Belgian Police v Belgium Application No 4464/70, Merits, 27 October 1975; Swedish Engine Drivers’ Union v Sweden

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Baykara suggested considerably greater protection for collective action within the echr framework. In Wilson v United Kingdom,163 the ECtHR handed down one of its most important decisions on trade union rights. The decision concerned the question as to whether an employer could offer incentives to employees to in effect renounce their trade union rights; the esc Committee had criticised this possibility.164 In the landmark decision of Wilson v United Kingdom, the ECtHR, referring to esc and ilo material,165 found that this practice was a breach of Article 11 of the echr. The uk subsequently reformed its legislation in the Employment Relations Act 2004 on this point and the reformed legislation has been considered by the esc Committee. The legislation prohibits employers from offering financial incentives in order to discourage w ­ orkers from joining a trade union, taking part in trade union activities or making use of trade union services; it also prohibits incentives to join a particular trade union or to withdraw from collective bargaining arrangements.166 The esc Committee found that the reformed legislation was still not in compliance with Article 6(2) of the European Social Charter in so far as the legislation only gave workers offered the incentive the opportunity to complain.167 The esc Committee found that the failure to give co-workers a right to complain and the failure to give trade unions a right to complain about breach of their collective bargaining rights meant that the esc was still being violated.168 In Demir and Baykara v Turkey the Grand Chamber of the ECtHR recognised a right to collective action as part of Article 11 of the echr.169 Any suggestion, however, that this points to a common position on the right to collective action needs to Application No 5614/72, Merits, 6 February 1976; and Schmidt and Dahlström v Sweden Application No 5589/72, Merits, 6 February 1976. 163 Wilson, National Union of Journalists and Others v United Kingdom Applications Nos 30668/96 et al., Merits and Just Satisfaction, 2 July 2002. 164 ecsr, Conclusions concerning United Kingdom, XVII-1 Vol 2 (2005) Article 6(4), 28 February 2005. 165 Wilson, National Union of Journalists and Others v United Kingdom, supra n 163 at para 47. The uk law had also been criticised by the un Committee on Economic, Social and Cultural Rights: see Concluding observations regarding United Kingdom, 4 December 1997, E/C.12/1/Add.19, at para 11. 166 Employment Relations Act 2004 (uk), Section 29 inserting a new Sections 145A and 145B into the Trade Union and Labour Relations (Consolidation) Act 1992. 167 ecsr, Conclusions concerning United Kingdom, XIX-3 (2010) Article 6(2), 12 March 2010. 168 Ibid. 169 Demir and Baykara v Turkey Application No 34503/97, Merits and Just Satisfaction, 12 November 2008.

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be tempered with reference to two important European developments, one in the European Union system and one in the echr system. B European Union Within the European Union, several decisions of the Court of Justice (cjeu) indicate that it recognises other rights in the European Union system which may have the effect of limiting collective action rights. These are the famous— or some might say infamous—cases of Viking and Laval.170 In these cases, the cjeu saw collective action as being a limitation on the fundamental freedoms of the European Union system, that is, the freedom to provide services171 and the freedom of establishment.172 The cases have been described as ‘disappointing’ and ‘ambivalent’ as regards human rights protection.173 In Viking, trade unions threatened with collective action if the Viking company sought to reflag one of its ferries. The company wanted to do this to take advantage of less stringent employment requirements in Estonia as compared to Finland. The trade union threat constituted an interference with freedom of establishment, according to the cjeu. The cjeu expressly referred to the right to take collective action as protected in the European Social Charter and ilo Convention No 87174 as well as the eu Charter of Fundamental Rights. The cjeu concluded that collective action interfering with freedom of establishment fell within the scope of eu law175 and that this fundamental freedom (establishment) could be relied on as against a private party.176 The cjeu found that the collective action interfered with this freedom and so moved to consider whether the interference was justified. The cjeu indicated that 170 Case C-438/05 International Transport Workers’ Federation and Finnish Seamen’s Union v Viking Line abp and oü Viking Line Eesti [2007] ecr I-10779 (‘Viking’); and Case C-341/05 Laval un Partneri [2007] ecr I-11767 (‘Laval’). For discussion, see Hinarejos, ‘Laval and Viking: The Right to Collective Action versus eu Fundamental Freedoms’ (2008) 8(4) Human Rights Law Review 714; and Rasnic, ‘Shootout at the ecj Corral: Management 4, Labor 0; European Labor Dispute Law after Viking Line’ (2013) 9(2) South Carolina Journal of International Law and Business 353. 171 Article 56 Treaty on the Functioning of the European Union, formerly Article 49 Treaty establishing the European Community. 172 Article 49 Treaty on the Functioning of the European Union, formerly Article 43 Treaty establishing the European Community. 173 Davies, ‘One Step Forward, Two Steps Back? The Viking and Laval Cases in the ecj’ (2008) 37(2) Industrial Law Journal 126 at 147. 174 Viking, supra n 170 at para 43. 175 Ibid. at para 55. 176 Ibid. at para 61.

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‘in principle’ collective action to protect workers’ interests could be a legitimate interference.177 However, it also indicated that proportionality here required there to be a serious threat to the jobs or conditions of the workers; it also required that the measure be suitable. In this case the trade union’s policy on flags of convenience also applied where it operated to preclude registration in a country that had higher standards.178 Laval was a Latvian company which posted workers to work in Sweden. A Swedish union blockaded Laval’s facilities, pursuant to collective action lawful under national law. Subsequently, other unions launched sympathy action. The issue turned on whether the Latvian company was bound to accept a Swedish collective agreement; the unions were attempting to compel the foreign company to sign up.179 In this case, Directive 96/71/EC180 permitted states to insist on certain minimum conditions for the treatment of workers but also specified that this option had to be exercised through one of a number of specified modalities. The cjeu again recognised the right to strike as protected in the European Social Charter and ilo Convention No 87.181 In this case, however, it was interfering with the freedom to provide services, one of the key economic freedoms of the Union. The cjeu recognised that collective action to prevent social dumping might be a justifiable restriction.182 However, in this case the union action was not justified; Directive 96/71/EC provided for some protection, while the national position on pay was not based on a clear, accessible provision of law.183 The cases are striking to a human rights lawyer for the willingness of the cjeu to recognise the horizontal effect of these fundamental freedom provisions as against non-state actors. Within the field of constitutional law it is rare, though not unheard of, for constitutional rights to have some form of direct horizontal effect.184 Direct horizontal effect in relation to international human rights law is even more unusual: human rights treaties are typically seen as imposing obligations on states. There are possibilities to provide for indirect horizontal effect in relation to both constitutional rights and ­international human 177 178 179 180 181 182 183 184

Ibid. at paras 77–79. Ibid. at para 89. Laval, supra n 170 at para 51. Directive concerning the posting of workers in the framework of the provision of services [1997] oj L 18/1. Laval, supra n 170 at para 90. Ibid. at para 103. Ibid. at paras 108 and 110. Butler, ‘Constitutional Rights in Private Litigation: A Critique and Comparative Analysis’ (1993) 22(1) Anglo-American Law Review 1.

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rights law,185 but what is most striking to a human rights or constitutional lawyer is the possibility for the eu treaties to give rise to direct horizontal effect, unmediated by a state action, interpretive or positive obligations doctrine. These cases demonstrate how the economic freedoms in Union law may be used to limit the exercise of collective action rights by trade unions. It is not just these economic freedoms (services and establishment) which provide this opportunity. The eu Charter also includes rights to property and, more importantly, a right to conduct a business. All of these rights could be deployed by employers against the exercise of unions’ rights to collective action – Viking and Laval have shown the way. By way of contrast, when employers have sought to use the rights in the echr to the same end, the European Court of Human Rights has rebuffed such efforts.186 C European Convention on Human Rights As discussed, the eu case law is one area where a common European position on collective action may seem under threat.187 The Viking and Laval cases may appear to mark a divergence from the ECtHR approach heralded in Wilson and Demir. There is, however, a second and more recent development in Strasbourg, where the ECtHR seems wary of following the implications of the Wilson to Demir line of cases. This is the case of rmt v United Kingdom, which considered instances of industrial dispute at the cusp of the recession.188 The applicants challenged two aspects of the uk’s trade disputes legislation: the nature of the information a union was obliged to provide an employer before balloting for industrial action and the statutory prohibition on secondary strikes. With regard to these measures, the ilo bodies had indicated that they were interested in developments in the uk regarding notice requirements. More directly, however, the ilo bodies had indicated that a general ban on sympathy strikes was contrary to freedom of association.189 The ilo Committee of Experts was especially concerned that a ban on sympathy strikes was undesirable in the contemporary context of decentralised centres of work.190 The European Committee of Social Rights had found that both elements of the uk 185 In international human rights law, this may occur through ‘positive obligations’ on states to regulate private behaviour or by treating courts as arms of the state even when they are adjudicating private complaints. 186 Gustafsson v Sweden, supra n 87. 187 Rasnic, supra n 170 at 353–75. 188 National Union of Rail, Maritime and Transport Workers v United Kingdom Application No 31045/10, Merits and Just Satisfaction, 8 April 2014. 189 Ibid. at paras 28–33. 190 Ibid. at paras 32–33.

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framework – the notice requirement and the ban on sympathy strikes – violated the European Social Charter.191 The ECtHR rejected as inadmissible the complaint about notice requirements; the applicant had ultimately been able to exercise its Article 11 rights despite some delay and so the complaint was an abstract one.192 The case centred therefore on the question of sympathy strikes. The applicant union spelled out the implications for workers if a ban on sympathy strikes was maintained: In the modern economy, the workforce was becoming increasingly fragmented through the transfer of undertakings or part of them, the creation of complex corporate structures, agency work, privatisation, the contracting-out of services leading to further sub-contracting, non genuine self-employment and so forth. This led to a situation in which persons performing the same job at the same place of work could have different employers, meaning that they could not legally support one another in time of industrial conflict.193 The counterposition of the government was that excessive use of secondary strikes had caused widespread disruption affecting many people not directly involved in the original cause of industrial action and deterring foreign investment.194 The ECtHR found that sympathy or secondary strikes fell within the ambit of Article 11, relying on the interpretations offered by the ilo bodies and the esc Committee.195 The ECtHR had no difficulty in finding that the limitation on the right was prescribed by law and that the aim was the legitimate one of protecting the rights and freedoms of others (not just the employers).196 The ECtHR accepted that strike action fell under Article 11 and defined collective action as the possibility to ‘strive for the protection of their members’ interests’.197 The ECtHR accepted that a wide margin of appreciation applied in such a case involving the regulation of collective action rather than a more invasive measure such as the dissolution of a union.198 The Court thought that 191 192 193 194 195 196 197 198

Ibid. at paras 34–37. Ibid. at para 45. Ibid. at para 56. Ibid. at para 61. Ibid. at paras 76–78. Ibid. at para 82. Ibid. at para 85. Ibid. at para 86.

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the regulation at issue did not strike at the core of free association rights; furthermore, it was a matter of social and economic policy adopted by a democratically elected parliament.199 The uk government argued against reliance on the views of the ilo and esc Committee, and one minority opinion also expresses serious concerns about this.200 The Court reaffirmed the legitimacy of referring to esc Committee and ilo Committee opinions, notwithstanding objections of the uk Government.201 Despite however accepting the legitimacy of using these bodies’ opinions ‘as a point of reference and guidance’,202 and in particular accepting that the uk’s approach was at one extreme end of a spectrum, the Court did not find a breach of Article 11. Rather it noted the difference in its role compared with that of the other international bodies. The esc Committee and ilo bodies monitored the situation in a more general or abstract sense; the ECtHR’s role was to decide if there was a breach of the Convention on the facts before it and not in any hypothetical situation.203 This factor was combined with the margin of appreciation: in the area of social and economic policy, including industrial relations, the Court would not interfere unless the legislature’s choice was ‘manifestly without reasonable foundation’.204 The Court thought that a decision implicitly endorsed by successive uk governments over a 20-year period indicated a ‘democratic consensus’.205 Furthermore, it was open to the state to adopt a bright-line rule rather than an individuated approach.206 The Court concluded with a particular warning that its competence only covered the Convention and not ilo Conventions or the esc; this meant that the expert bodies in those systems might legitimately reach different conclusions from the Court.207 6 Conclusions The Inter-American cases contain some of the most extreme examples of antiunion activity, including assassination and the mass dismissal of workers who 199 Ibid. at para 89. 200 Ibid. at Concurring Opinion of Judge Wojtyczek. 201 Ibid. at paras 93–98. 202 Ibid. at para 97. 203 Ibid. at para 98. 204 Ibid. at para 99. 205 Ibid. 206 Ibid. at paras 101–104. 207 Ibid. at para 106.

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engage in a demonstration. The IACtHR is willing to rely on material from the ilo and also the European Convention to bolster its own position on the interpretation of the American Convention. The cases demonstrate the fundamentally important political aspect of trade union activities, in particular their role in countering government abuses. The cases are also noteworthy (as is often the case with the Inter-American system) for the variety and specificity of the remedies that the Court orders. In the Huilca Tecse case, for example, this included public display of a bust of the deceased recalling his contributions publicly and the creation of a university course on labour law and human rights. In Baena Ricardo, the remedies ordered included the reinstatement of those dismissed in the same or equivalent posts, or failing that, compensation as well as financial support for the relatives of workers who died after being dismissed. The European material is the most extensive and also shows some interesting tensions. Both these factors may be explained by the existence of three reasonably well-established systems which have their own enforcement mechanisms: the European Union system, the European Convention on Human Rights and the European Social Charter. The first tension is that the states may accord differing levels of respect to the different systems. In particular, they may accord greater respect to the decisions of the Court of Justice of the European Union and the European Court of Human Rights as expressing binding judicial decisions, as compared to the findings in other systems such as the European Social Charter mechanism or the ilo system. The rmt litigation also shows that states approach international bodies differently. The uk had simply ignored the adverse options of the ilo and esc mechanisms, which is why the applicant union sought to prioritise the echr complaint. The material from the esc Committee also shows that the Committee regularly draws attention to the failure of states to address earlier criticisms, for example, about the excessive time for registering a trade union in Portugal or the uk’s rules on notification of a strike ballot. There may also be the emergence of a cleavage between the European Union and the other European systems, in that the former may offer greater scope for limiting or undermining trade union freedom. The esc Committee has noted that there is no presumption that eu secondary legislation is compatible with the European Social Charter. It noted that a different situation might prevail in the European Convention system given that the European Union made more frequent reference to civil and political rights208 and, indeed, the Convention. The European Union case law in this area seems to run the risk of allowing 208 ecsr, Confédération française de l’Encadrement cfe-cgc v France (56/2009) Merits, 23 June 2010, at paras 29–33.

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employers new tools to challenge collective action. The eu approach is striking for requiring protection for economic freedoms against the collective action of trade unions. Furthermore, provisions of the eu treaties are directly enforceable in domestic courts against trade unions (that is, given horizontal effect). A third point is that the eu Charter contains a right to conduct business against which collective action rights may need to be balanced. Third, while the ECtHR has made efforts to rely on, in particular, European Social Charter material, in the twenty-first century there may be limits to that process. In several recent cases the ECtHR seems to be hesitant about endorsing the integrated approach, or at least as much as it did in the cases of Wilson and Demir. This might be seen in some of the trade union free expression cases as well as in the recent rmt judgment on sympathy strikes. In several cases dealing with freedom of expression in a trade union context, the Court seems to have supported a position which might be thought to restrict the role of trade unions and trade union related speech. This criticism can be made on the basis of the cases of (and was made by the dissenters in) Palomo Sánchez and Szima. This ambivalence may also be evident in the rmt case, where the Court sends somewhat mixed messages. On the one hand, it strongly defends the legitimacy of referring to the work of the expert bodies in the esc and ilo systems. It nevertheless declines to reach the same conclusion that would have been expected on the basis of esc Committee decisions and conclusions. Partly this is because the ECtHR distinguishes its role as being one of addressing whether there is a violation on the facts before it, which is different from the more generalised approach of the other bodies. But, in addition, the ECtHR chose to underline explicitly that its competence only extended to the European Convention, and that therefore one might legitimately expect different conclusions from the other bodies. Some of the concurring opinions were also interesting on this point. Judges Ziemele, Hirvelä and Bianku stressed the ‘softer’ role of dialogue with expert bodies in the other systems, as distinct from the more ‘abrupt’ process of an ECtHR judgment.209 Judge Wojtyczek expressed more scepticism about the role of the integrated approach to interpretation, noting in particular the tendency that it might encourage trends towards judicial activism, and noting the optional nature of the esc obligations (10 states not having accepted the right to strike), as well as the caveated language of the ilo Committee on sympathy strikes.210 Judge Wojtyczek’s view was that 209 National Union of Rail, Maritime and Transport Workers v United Kingdom, supra n 188 at Joint Concurring Opinion of Judges Ziemele, Hirvelä and Bianku. 210 Ibid. at Concurring Opinion of Judge Wojtyczek.

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s­ ympathy strikes were not covered by Article 11 of the echr, and he indicated that the contrary view could be ‘legitimately criticized for judicial activism’.211 More generally, the detailed protection of the right to organise and the right to collective action that is found in the esc Committee jurisprudence does not find a frequent echo in the case law of the ECtHR. The esc Committee provides detailed guidance, for example, on the impermissibility of deducting a day’s wages in cases of strikes lasting less than a day; on notice requirements; and on the scope to limit strikes in essential services. It is not clear that the ECtHR would adopt these views or whether it would see them as being within the margin of appreciation of the states rather than affecting the central purpose of Article 11. In conclusion, judges and committee members of the different systems do rely on each other. This interchange sometimes leads to striking agreement (for example, on the right to associate as containing a right not to associate); however, there are also differences. The Inter-American system cases have mainly considered a small number of egregious violations; within Europe there may be limits to the degree of harmony as between the eu and the Council of Europe approach, and even within the Council of Europe there are some limits as to how far the ECtHR may adopt the views of the esc Committee. 211 Ibid. at para 10.

chapter 8

The Influence of International Human Rights Law on the Right to Health Jurisprudence of the European Region Jacinta Miller 1 Introduction The European region provides a useful case study for an examination of the extent to which there has been any consensus of understanding in respect of the right to health, as defined in Article 12 of the International Covenant on Economic, Social and Cultural Rights (icescr). The chapter starts by providing an overview of Article 12, which is commonly regarded as the ‘cornerstone of the right to health’1 and, as such, the international standard by which understanding of the right is assessed here. The main focus of the chapter, however, is to map the extent to which judicial and quasi-judicial bodies in the European region mirror the language, concepts and approaches encapsulated in Article 12. In particular it is the approaches of the European Committee of Social Rights (‘the esr Committee’) responsible for monitoring implementation of the European Social Charter (esc), the European Court of Human Rights (ECtHR) in respect of the European Convention on Human Rights (echr), the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (cpt) and the Court of Justice of the European Union (cjeu) which are considered. A review of the jurisprudence of these bodies suggests that it is only in recent years that a consensus of understanding beyond mere acknowledgement of the right to health has slowly developed. That emerging consensus starts with the language associated with approaches in international law to the categorisation of: the content of the right as freedoms or entitlements; obligations within the right as positive or negative obligations which can be further described in the terminology of ‘respect, protect and fulfil’; and policy questions of what should be made available and who should have access to what is available. Non-discrimination and the requirement to consider the additional 1 The term ‘cornerstone’ in reference to Article 12 icescr was used by Paul Hunt in his Report of the Special Rapporteur on the right to health, submitted in accordance with Commission resolution 2002/31, E/CN.4/2003/58, at para 11.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004284258_010

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barriers facing vulnerable groups in accessing their right to health with reference to these frameworks is another common theme within the jurisprudence. The linkage of non-discrimination and concepts of vulnerability with these approaches suggests a more nuanced stance by the courts to state discretion in the context of finite resources, with the greatest deference afforded to the state on policy questions related to what entitlements to make available. However, the extent to which the language of the international right to health is adopted is variable across the European judicial and quasi-judicial bodies, suggesting that there is still more to be done in developing acceptance of, as well as understanding of, the right to health. 2

Article 12 of the International Covenant on Economic, Social and Cultural Rights

General Comment No 14 is an important landmark in the development and understanding of Article 12 of the icescr.2 It was finalised in 2000 and provides detail on the content and scope of the right to health. From the 1990s onwards, the Committee on Economic, Social and Cultural Rights (cescr) established to monitor implementation of the icescr developed a recurrent pattern of terminology to describe economic, social and cultural rights in its concluding observations on state reports. This resulted in an increasingly coherent and consistent jurisprudence on economic, social and cultural rights including the right to health,3 which formed the basis of the General Comment. Unsurprisingly, since 2000 the General Comment has frequently been referred to and emphasised within the work of the cescr as well as that of the Special Rapporteur on the right to health.4

2 cescr, General Comment No 14: The right to the highest attainable standard of health (article 12 of the International Covenant on Economic, Social and Cultural Rights), 11 May 2000, E/C.12/2000/4. 3 Sepúlveda, The Nature of the Obligations under the International Covenant on Economic, ­Social and Cultural Rights (Intersentia, 2003) at 97; and O’Flaherty, ‘The Concluding Observations of United Nations Human Rights Treaty Bodies’ (2006) 6(1) Human Rights Law Review 27. 4 Since 2000 the cescr and the Special Rapporteur have regularly referred states to General Comment No 14 for further guidance on the right: see, for example, cescr, Concluding observations regarding Gabon, 29 November 2013, E/C.12/GAB/CO/1, at para 28; Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Arnand Grover, 9 August 2013, A/68/297, at para 7; and Joint Letter of Allegation to Uganda, 21 February 2013, uga 6/2012, at 3 and 4.

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The right to health is described in the General Comment as being a right to ‘freedoms and entitlements’ that are necessary for an individual to achieve the ‘highest attainable standard of physical and mental health’.5 The scope of the right is understood by reference to Article 12(2) of the icescr, which groups those freedoms and entitlements within four broad programmatic areas: maternal and child health; environmental and industrial hygiene; control of communicable and non-communicable diseases; and provision of necessary health care. These four areas have been further elaborated upon in the core obligations outlined in the General Comment. One example is found in the provision of medicines as per the World Health Organization (who) Action Programme on Essential Drugs.6 The breadth of the right does not mean that it is a guarantee that the state ensures all aspects contributing to health status: it ‘is not a right to be healthy’.7 Whitehead best explains the limits on the state’s ability to control all aspects of health in her discussion of causes of health inequalities. Whitehead divides the factors which she identifies as contributing to health inequalities as ‘inevitable’ (for example, ageing or genetics) or ‘inequitable’ (for example, discrimination).8 It is in the context of ‘inequity’ in respect of freedoms and entitlements that the right to health has relevance. However, the standard of implementation (defined as the ‘highest attainable standard of health’9) to which the state is held to account is not ‘inequity’ but non-discrimination and equality as identified by reference to the Preamble and Articles 1 to 4 of the icescr.10 These provisions identify the approach to lawful limitation of the right, a point that can be lost given the programmatic framing of the right. A key characteristic of General Comment No 14 is the multidisciplinary ethos associated with it, including the embedding of terminology and concepts from both legal and health disciplines. From the health perspective this includes the acknowledgment that the right is based upon a broad socio-medical model of health, with the definition of health being taken from the who Constitution.11 The definition of health used provides that the scope of the right is broad and includes factors other than health care provision. Principles such as equitable 5 6 7 8

General Comment No 14, supra n 2 at para 8. See ibid. at para 43(d). Ibid. at para 8. Whitehead, ‘The concepts and principles of equity and health’ (1991) 6(3) Health Promotion International 217. 9 Article 12(1) icescr. 10 General Comment No 14, supra n 2 at paras 18, 22 and 47. 11 Toebes, The Right to Health as a Human Right in International Law (Intersentia, 1999) at 24.

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health care, a focus on vulnerable groups and recognition of public health and primary health care approaches (all terminology and approaches associated with good health system design) are embedded in the language of the General Comment.12 The language of the framework of ‘availability and accessibility’,13 which has become synonymous with discussions on economic, social and cultural rights, and in particular the right to health, has its origins in the primary health care approach which was first outlined in the Declaration of Alma-Ata in 1978.14 Hunt describes the framework of availability and accessibility as a useful means by which to evaluate policy, and as such it appears to be particularly associated with discussions on ‘entitlements’ necessary for health.15 Embedding health approaches and language in monitoring and advocacy on the right to health has been central to its current understanding, although it has also given rise to legal issues, which require further clarification. One example relates to the use of socio-economic status as a comparator to document health inequalities, which in turn raises the debate on distributive justice.16 However, use of such concepts as vulnerability and disadvantage (with those living in poverty being a recognised group) has contributed to socioeconomic status increasingly being recognised as a relevant consideration in jurisprudence on the right to health in international human rights law.17 Health language, concepts and approaches thus colour and inform the legal nature of the right, as this example of socio-economic status highlights. It is nevertheless in the more traditional legal language and concepts in General Comment No 14 that the juridical right is identifiable. 12 13 14 15 16

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General Comment No 14, supra n 2 at para 38 (primary health care and the Declaration of Alma-Ata) and para 43(f) (public health strategy requirement). Other aspects of this framework include affordability, acceptability and quality. who, The International Conference on Primary Health Care, Alma-Ata, ussr, 6–12 September 1978, A57/14. Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Paul Hunt, E/CN.4/2005/51, at para 47. See Craven, The International Covenant on Economic, Social and Cultural Rights: A Perspective on Its Development (Clarendon Press, 1995) at 175. Cf. Fredman, ‘Positive duties and socio-economic disadvantage: Bringing disadvantage onto the equality agenda’ (2010) 15(3) European Human Rights Law Review 293, who highlights that comparators which impact on socio-economic status are recognised comparators, as well as noting that the concept of social disadvantage is increasingly becoming a relevant aspect in the jurisprudence. Some of the earliest concluding observations have signalled that the purpose of collecting disaggregated data has been to ‘ascertain the precise situation of the most vulnerable and disadvantaged groups’: see cescr, Concluding observations regarding Mexico, 8–25 February 1988, E/1986/3/Add.13, at para 29.

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The right to the highest attainable standard of health—the standard of implementation to which the state is held to account—is understood by reference to the Preamble and Articles 2(1) and 3 of the icescr, thus emphasising the importance of non-discrimination and equality within the standard. Although no absolute standard of health is identified as the measure a state must achieve, states are required to achieve progress in health standards.18 Progress is assessed with reference to population health status indicators, such as mortality and morbidity data, as well as health system and societal indicators. The cescr has required states to provide baseline data on population health and health systems and to disaggregate that data in order to assess ‘progress’ with equality of access. The Committee has used this collective data to highlight ‘concerns’ in respect of the right to health.19 It should be noted, however, that the existence of health inequalities or the noting of ‘concerns’ is not conclusive that there has been a violation of the right to health, but it does suggest that a violation may exist when the conduct of the state is considered.20 A second point to be noted is that progression is assessed in the context of the core obligations as outlined in the General Comment and in terms of the state itself, not comparatively with other states or against a universal standard of health. Such an approach accepts that the standards of health vary between states and thus raises a question as to the universality of the right.21 However, there are some minimum or universal standards associated with the right to health that can be inferred based upon the core obligations outlined in the General Comment and with reference to health policy and practice. For example, immunisation and provision of essential drugs are core obligations found at paragraph 44 of the General Comment, which identifies the unicef childhood ­immunisation programme and the who Action Programme on Essential Drugs 18 19

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Article 2(1) icescr states ‘with a view to achieving progressively the full realization of the rights recognized in the present Covenant’. See, for example, General Comment No 14, supra n 2 at para 43(f); and cescr, Concluding observations regarding Egypt, 29 November 2013, E/C.12/EGY/CO/2-4, at paras 6, 14 and 21. The cescr raises a concern over the ‘retrogression in the effective enjoyment of rights’, which includes health, recommends that disaggregated data is collected as part of monitoring strategy and speaks of those in a vulnerable position being excluded from access. For a discussion on the emphasis on quantitative data as a means of monitoring the right to health, see Murphy, Health and Human Rights (Hart Publishing, 2013) Chapter 4. See Whitehead, supra n 8. In respect of the requirements of a human right including ‘universality’, see Arambulo, Strengthening the Supervision of the International Covenant on Economic, Social and Cultural Rights: Theoretical and Procedural Aspects (Hart Publishing, 1999) at 62, who critiques Cranston in What are Human Rights (Bodley Head, 1973).

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as minimum standards. who health policy documents are also used more generally to identify standards that health systems should be meeting.22 The duty of non-discrimination, the obligation of equality and the requirement of progress also provide universal standards within the right. So although the baseline health status from which progress starts and the extent of resources which are available will vary from state to state, the core question—as to whether a state has discriminated against an individual or whether its conduct has impacted upon an individual’s equal opportunity to attain health—can always be asked. The emphasis on collective data demonstrating health inequality means that the individual nature of the right to health is at times lost in the state reporting mechanism as well as in the reports of the Special Rapporteur. Nevertheless, this is not to dispute that such an approach impacts positively on an individual’s right to health as it requires the state to question why a health inequality exists, as well as to consider how to correct it. Further, although the Special Rapporteur and the cescr are consistent in using the term ‘concern’ in relation to both entitlements and freedoms, the blurring of the individual right is less evident in the context of freedoms necessary for health.23 For example, lengthy waiting times for mental health care services in Sweden24 and forced sterilisations in Brazil25 are both described as matters of concern. The individual nature of the right remains much clearer in the example of forced sterilisations as the causal relationship between the population statistic and state conduct is more easily inferred. Forced sterilisations should not take place at all: even the existence of one incident is a clear violation of the right to bodily integrity. Assessing a lengthy waiting time as a violation, however, requires a consideration of action or inaction by the state and the impact of state 22

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See, for example, cescr, Concluding observations regarding the Russian Federation, 20 May 2011, E/C.12/RUS/CO/5, at para 29. A ban on an ‘opoid substitution therapy’ is raised as a concern and the state is directed to the recommendations by who and the unaids programme, which both recommend use of these therapies as well as needle exchange programmes. The work of the Committee under the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights may provide further guidance on the individual nature of the right to health. The Optional Protocol came into force on 5 May 2013. There are currently 20 states parties to the Optional Protocol. Information is available at: indicators.ohchr.org. Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Paul Hunt, Mission to Sweden, A/HRC/4/28/Add.2, at para 43. See, for example, cescr, Concluding observations regarding Brazil, 23 May 2003, E/C.12/1/ Add.87, at para 27.

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c­ onduct on health. Establishing a causal relationship between state conduct and its impact on health is further complicated as cognisance must be given to state discretion as to how limited resources are to be used to achieve progress in the context of existing health needs.26 Deference to state discretion in the context of entitlements can be viewed in two categories: access and availability. The first and least complex area is related to equal ‘access’ to available health entitlements.27 A subcategory of this, and one in which there is limited deference to state discretion, is that of access to health entitlements in the context of lawful deprivation of liberty. This often relates to persons in prisons, mental health hospitals, care homes or immigration detention centres. In those institutional contexts, even in those states that dispute whether a right to health exists such as the United States, there is a recognition that state obligations exist in respect of the health of those individuals.28 It is in the second policy categorisation of entitlements to health that the greatest deference to state discretion is found; this relates to the question of what entitlements to health to make available, and the extent to which they should be made available, as it gives rise to choices in the context of limited resources.29 The lawful limitation of the right to health requires that the same criteria applicable to non-absolute civil and political rights should be considered. For example, the right to health of the individual can be limited for the greater good in the context of public health or public security with concepts of necessity and proportionality being used to assess whether the limitation is ­lawful.30 However, as an economic, social and cultural right, two further factors are considered relevant by the cescr in examining the right to health: the baseline from which progress starts and whether the state has used the ‘maximum available resources’.31 The concepts of maximum available resources and 26 27

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The term ‘to take steps’ includes data collection, planning, policymaking and legislation. This is not to say that dealing with access is a straightforward question. Difficulties arise in the context in which access is assessed, for example, the ‘postcode lottery’, effectiveness of treatment and clinical need, and where access overlaps with the issue of availability. See Hunt’s discussion of Hamilton v Landrieu 351 F Supp. 549 (1972) before the United States District Court, relating to prison conditions and provision of health care for prisoners in Hunt, Reclaiming Social Rights (Ashgate, 1996) at 56. The judgments in R v Cambridgeshire Health Authority; Ex parte B [1995] 1 wlr 898 and Soobramoney v Minister of Health (Kwazulu-Natal) (CCT32/97) [1997] zacc 17; 1997 (12) bclr 1696, both highlighted the difficulties of deciding what treatments to make available in the context of limited resources. Article 4 icescr. Article 2(1) icescr.

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­ rogressive realisation emphasise the limits of the right of the individual in the p context of a wider good (particularly in respect of entitlements which are not determined on the basis of law alone but also involve choices made by those in government and society). It is on the basis of the concept of progressive realisation that justiciability is debated, with a sliding scale of opinion as to the justiciable nature of the right to health. The cescr at one end of the scale is very clear that the substantive right to health is fully justiciable.32 The approach in the United Kingdom, as with many states, is less absolute. While rejecting the right as justiciable, the uk acknowledges that the right gives rise to principles which should inform policy, and that there are obligations and duties that can be litigated that contribute to effective implementation of the right.33 These principles in the main relate to the procedural aspects of decision-making and policymaking such as transparency in the way a decision is made,34 but at times can include substantive elements of the right such as non-discrimination.35 Two frameworks outlined in General Comment No 14 have been used by the cescr and the Special Rapporteur to examine state action and policy and are useful in examining limitations of the right. The obligations framework of ‘respect, protect and fulfil’ provides a means to evaluate state conduct.36 As a framework it acknowledges the negative and positive aspects of human rights obligations, an approach which is accepted in the context of civil and political rights litigation within the European Courts.37 In addition, the framework of availability and accessibility has been used within international law to frame 32 33

34 35

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See, for example, cescr, Concluding observations regarding the United Kingdom, 22 May 2009, E/C.12/GBR/CO/5, at para 13. Fifth Periodic Report of the United Kingdom under the icescr, 7 August 2007, E/C.12/ GBR/5, at para 74. See also King, ‘The Justiciability of Resource Allocation’ (2007) 70(2) Modern Law Review 197; King, Judging Social Rights (cup, 2012); and Nolan, Children’s Socio-Economic Rights, Democracy and the Courts (Hart Publishing, 2011) at 134. General Comment No 14, supra n 2 at para 43. This also includes that decisions are based upon scientific and epidemiological evidence. See, for example, Ex parte A, D and G [2000] 2 fcr 525 (individual needs and non-­ discrimination); and Ross v West Sussex Primary Care Trust [2008] ewhc 2252 (respect for human rights). General Comment No 14, supra n 2 at para 33. See Koch, ‘Dichotomies, Trichotomies or Waves of Duties?’ (2005) 5(1) Human Rights Law Review 81, in relation to the existence of these duties in the case law of the European Court of Human Rights. For a critique of the limited adoption of positive duties in the context of human rights by the cjeu, see Butler, ‘The European Union and International Human Rights Law’, Regional Office for Europe of the un High Commissioner for Human Rights, 2011, at 14–17, available at: www.europe.ohchr.org/Documents/Publications/ EU_and_International_Law.pdf. However, there is evidence of some recognition: see, for

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questions on the state approach to policy. In essence the framework provides a means to ask focused legal questions in the context of executive and legislative action and policy and, as such, the language has become very recognisable in the jurisprudence of the cescr.38 The requirement to look at the way in which decisions are taken as well as the impact on an individual’s opportunity to attain or maintain health means that international, regional and national health policy, standards and approaches have become an important resource for the cescr and other bodies in assessing the implementation of the right to health. Although standards and policies of several organisations are acknowledged within General Comment No 14 (for example, unicef), of particular importance is the policy and advocacy of the who.39 The influence of the who begins with the definition of the right to health as a right to ‘the highest attainable standard of health’, a definition that has its origins in the Preamble of the who Constitution.40 It is therefore no surprise that the who has advocated for and included a rights-based approach in health policy, programming and research.41 The importance of embedding the right to health in a policy approach is also reflected in General Comment No 14 and has been a focus of early work by the Special Rapporteur on the right to health.42 As well as embedding rights language in policy, the language and concepts of who initiatives such as the Health for All strategy (1977) and the Declaration of Alma-Ata (1978) have been embedded in General Comment No 14.43 ‘Framing strategies’ that describe issues in the language example, Case C-60/00 Carpenter [2002] ecr I-6279, in which the positive obligation in respect to family life was considered. 38 General Comment No 14, supra n 2 at para 12. 39 General Comment No 14, supra n 2 at paras 57 and 63–65. See, for example, who, Review of Social Determinants and the Health Divide in the European Region (who, 2014). 40 Constitution of the World Health Organization (adopted 22 July 1946 and entered into force 7 April 1948). The statement ‘the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being’ is found in the Preamble to the Constitution. 41 Meier, ‘The World Health Organization, the Evolution of Human Rights, and the Failure to Achieve Health for All’, in Harrington and Stuttaford (eds), Global Health and Human Rights: Legal and Philosophical Perspectives (Routledge, 2012) 163. 42 See, for example, Report of the Special Rapporteur on the right of everyone to the highest attainable standard of physical and mental health, Paul Hunt, Mission to the World Trade Organization, E/CN.4/2004/49/Add.1. See also wto, who and World Intellectual Property Organisation, Promoting Access to Medical Technologies and Innovation: Intersections between Public Health, Intellectual Property and Trade (who, wto and wipo, 2013), the foreword of which begins with reference to a right to health. 43 Meier, supra n 41 at 176.

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of rights have been recognised by Tsutsui, Whitlinger and Lim as an effective mechanism, which can be used by social movements to develop respect for human rights.44 It is therefore unsurprising that the language and concepts associated with the right to health have become part of health advocacy.45 In the following section the extent to which jurisprudence in the European region has adopted the language, concepts and approaches associated with Article 12 of the icescr is examined. 3

The Right to Health Jurisprudence in Europe

The development of jurisprudence on the right to health in the European region starts from a point of limited recognition of the right within the European treaties. There is no formal recognition of a right to health in the echr and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, while health rights in the esc and the Charter of Fundamental Rights of the European Union (‘eu Charter’) are separated across several provisions of the treaties. Only in the esc is any conformity in language found with Article 12 of the icescr, as both reflect the language of the who Constitution in its recognition of a right to health. A The European Social Charter The right to health within the esc and the Revised esc of 1996 (‘Revised esc’)46 is found in Article 11 providing for ‘a right to protection of health’ and Article 13 providing for ‘a right to social and medical assistance’.47 The Charter was drafted prior to the icescr coming into force, though long after the who Constitution was created; therefore, it is unsurprising that the approach to health rights in the treaty is different to the icescr. However, uniquely within

44

Tsutsui, Whitlinger and Lim, ‘International Human Rights Law and Social Movements: States’ Resistance and Civil Society’s Insistence’ (2012) 8 Annual Review of Law and Social Science 367 at 374, who highlight how women’s rights movements framed issues in the language of human rights to achieve change. 45 See, for example, esr Committee, International Planned Parenthood Federation – ­European Network (ippf En) v Italy (87/2012) Merits, 10 September 2013. 46 European Social Charter, as revised 3 May 1996, entered into force 1 July 1999. 47 Other rights within the Charter also have relevance for a right to health, such as the right to safe and healthy working conditions (Article 3). The focus in this discussion is on Articles 11 and 13.

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the European region the definition of the right to health found in the who Constitution and Article 12 of the icescr is found in Part 1 of the Charter in respect of Article 11, where it is stated that ‘[e]veryone has the right to benefit from any measures enabling him to enjoy the highest possible standard of health attainable’. However, despite the initial recognition in the esc of the who Constitutional statement of the right, until recent years there has been a limited recognition of the right to health defined as the ‘highest attainable standard of health’ in the jurisprudence of the esr Committee. The esr Committee is a body of independent experts created under Articles 24 and 25 of the esc. Their approach to the right to health is examined with reference to the conclusions they have made in respect of state reports48 and their opinions in response to collective complaints.49 In a search of the jurisprudence of the esr Committee within the Council of Europe database the explicit use of the ‘right to the highest attainable standard of health’ was found in only four of the collective complaints made to the esr Committee under the Revised esc. Three of these complaints were filed in 2012 and 2013 and one was filed in 2006.50 In all four complaints the esr Committee identifies Article 12 of the icescr and General Comment No 14 as important sources from which the principles informing the right to health are derived, but in its decisions it refers to previous jurisprudence of the Revised esc as supporting authority for the stance it takes on health issues. In respect of state reports, the conclusions of the esr Committee, although referring to international or Council of Europe standards, make limited reference to international human rights law.51 However, this does not mean that the approach taken by the esr Committee has not developed in parallel with, or has not been influenced by, the evolving jurisprudence of the cescr on Article 12 of the icescr. 48

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Amendments were made to the term of office of the Committee members and their role in developing conclusions was explicitly stated in the Protocol amending the European Social Charter in 1991. Article D Revised esc. esr Committee, International Federation for Human Rights (fidh) v Greece (72/2011) Merits, 23 January 2013; Médecins du Monde – International v France (67/2011) Merits, 11 September 2012; Marangopoulos Foundation for Human Rights (mfhr) v Greece (30/2005) Merits, 6 December 2006; and International Planned Parenthood Federation – European Network (ippf En) v Italy, supra n 45. See, for example, esr Committee, Conclusions concerning Albania, Andorra, Armenia, Azerbaijan, Belgium, Bulgaria, Cyprus, Estonia, Finland, France, Georgia, Ireland and Italy, 2009 Vol 1. Although reference has been made to the un Climate Framework, no other United Nations documents are referred to in this volume in the monitoring of Articles 11 and 13.

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State implementation of the right to health is considered by the esr Committee with reference to epidemiological data, including morbidity and mortality data, as well as service provision and societal data. The development of a more structured approach to discussion of the de facto situation on health is recognisable across time in the observations of the esr Committee, which in recent years has mirrored the language used by the cescr. It is questionable as to whether the convergence in approach is as a result of more general acceptance of the right to health or as a direct or indirect influence (via health policy and advocacy). The focus in earlier conclusions by the esr Committee with regards to health seems to be on steps taken by states in terms of their effectiveness, as well as health standards.52 The approach becomes more nuanced in later conclusions with the esr Committee requesting more disaggregated information, which allows for the examination of entitlements associated with the right in the context of inequality of health status.53 The terminology of access specifically related to health also seems to originate at a later date, in fact after the development of General Comment No 14. A search for the term ‘access to health’ or ‘access to health care’ within the concluding comments produces limited results until 2001.54 In the conclusions in respect of Article 11 after 2001 the term is more frequently referred to, and is used in the context of a discussion on a state’s health system.55 From 2005 there is an even greater usage of the term: for example, it appears 21 times in volume 1 of Conclusions XVII-2.56 In the reporting cycle on Articles 11 and 13 in 2009 the term ‘access to health/health care’ appears 70 times in Conclusions XIX-2 of the esr Committee.57 The esr Committee’s focus on discriminatory state conduct in state reports and the complaints mechanism (in the ­context 52 53 54

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See, for example, esr Committee, Conclusions concerning Turkey, XIII-1 (1990–1991) at 234. esr Committee, Conclusions concerning France, 2009 Vol 1 (2010) at 300. esr Committee, Conclusions XIV-1 Vol 1 (1998) at 47, where access to health care for the economically deprived is mentioned in the context of the rising cost of health care in the general introduction section; and Conclusions XV-1 Vol 1 (2000) at 261 and 267, where access to health care related to personal resources is mentioned three times regarding France. See, for example, esr Committee, Conclusions XV-2 Vol 2 (2001), where the term is used seven times, mainly as heading in the discussion of the state health system (for example, at 390). esr Committee, Conclusions XVII-2 Vol 1 (2005). esr Committee, Conclusions XIX-2 (2010). It should be noted that in the concluding comments on the Revised esc in the same year there is more limited use of the term with it occurring only seven times in volume 1 and three times in volume 3.

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of freedoms and entitlements) has always been evident but increasingly it is being associated with the language of access and availability.58 While the framework of describing the right remains firmly associated with Part 2 of Articles 11 and 13, there is evidence of a shift in terminology in evaluating those rights in line with that used by the cescr. The convergence of approach between the cescr and the esr Committee is most evident in the context of the collective complaints mechanism. The complaint brought by Médecins du Monde59 provides a good example of this. Article 12 of the icescr, General Comment No 14 and Article 24 of the Convention on the Rights of the Child are specified as relevant sources of international human rights law within the case. The framework of access and availability, and the concept of vulnerability (the Roma as a minority group living in poverty being the vulnerable group), are clearly identifiable in the case. However, it must be acknowledged that authority in support of findings is taken from the conclusions on state reports by the esr Committee and from previous decisions in the context of collective complaints rather than the cescr jurisprudence.60 The esr Committee, as with the cescr, is clear that certain universal standards do exist which the state must meet, and refers to who documents as authority, for example, in relation to vaccination.61 The jurisprudence of the esr Committee is not binding but a review of the Case Law Digest of the European Social Charter62 provides further insight into the esr Committee’s stance in respect of Articles 11 and 13 of the Charter, and whether it has been influenced by, or is an influence on, other bodies. The Digest suggests that the definition of health stated in the who Constitution informs the esr Committee’s understanding of Article 11 of the esc.63 As with Article 12 of the icescr, the broad definition of health provides that the scope of the right to health is wide and the definition contains a consideration of what may constitute an impact on health. An example of this is the expansion 58

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See, for example, esr Committee, Conclusions XIX-2 (2010) at 58. Comments are made in respect of Article 11 and Croatia, in relation to Roma access to health care, and in respect of the Czech Republic the request for information on ‘disadvantaged groups’ and their ‘access to health care’ is discussed at 91. Médecins du Monde – International v France, supra n 50. Ibid. at para 140. See also para 150, where the case of Marangopoulos Foundation for Human Rights (mfhr) v Greece, supra n 50, provides the authority for the statement that the state must implement a public health education policy. Ibid. at para 160. Council of Europe, Digest of the Case Law of the European Committee of Social Rights, 1 September 2008, available at: www.coe.int/en/web/turin-european-social-charter/ case-law. Ibid. at 81, citing Conclusions 2005, Statement of Interpretation of Article 11(5).

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of Article 11 to include environmental health, an area specifically stated in Article 12 of the icescr but not in Article 11 of the esc, within the area of ‘causes of ill health’.64 At a wider policy level within the Council of Europe, there is also recognition that the scope of Articles 11 and 13 of the esc could be broader,65 that health rights are of increasing importance and there are common values and principles which inform the development of health systems (examples include equity, quality and efficiency).66 As well as evidence of an emphasis on common values, such as the protection of vulnerable groups, there is also some evidence of a common approach to monitoring. The esr Committee requires that ‘acceptable progress in health’ must be made as measured by statistical data67 and, unlike the cescr, it provides a single standard towards which European states must work. In particular it provides that epidemiological data ‘must show an improvement and not be too far behind the European average’.68 The closest the cescr has come to setting a universal standard is to be found in the core obligations of General Comment No 14, in which it refers to the standards set by the who in the context of certain health programmes or illnesses (for example, Essential Drugs).69 The esr Committee also refers to who standards and objectives as important standards in assessing progressing,70 and to European Union legislation.71 A final point of convergence between the esr Committee and the cescr includes a shared acceptance that civil and political and economic, social and cultural rights are conceptually linked in order to achieve the protection of human 64

See, for example, esr Committee, Conclusions XII-1 (1990–1991) Section 5.9 (environmental and radioactive pollution). 65 Council of Europe Parliamentary Assembly, Recommendation 1626 (2003), The reform of health care systems in Europe: Reconciling equity, quality and efficiency, 1 October 2003, at para 10(iii). 66 Ibid. 67 See, for example, Council of Europe, Form for the reports to be submitted in pursuance of the 1961 European Social Charter and the 1988 Additional Protocol, 26 March 2008, at 23, available at: www.coe.int/en/web/turin-european-social-charter/drafting-reports#Forms, which highlights the need for statistics on the main health indictors. See also Council of Europe, Digest of the Case Law, supra n 62 at 87–88, in relation to the requirement of statistical data to monitor the effectiveness of tobacco control strategies and for vaccination uptake. 68 Council of Europe, Digest of the Case Law, ibid. at 81, citing esr Committee, Conclusions concerning Lithuania 2005, at 336–338. 69 General Comment No 14, supra n 2 at para 12(a). 70 See, for example, Council of Europe, Digest of the Case Law, supra n 62 at 83, and reference to who standards in relation to level of hospital beds which should be made available. 71 See, for example, International Federation for Human Rights (fidh) v Greece, supra n 50 at para 4, which lists the relevant European Union directives in relation to minimum standards for the reception of asylum seekers.

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dignity and that ‘health care is a prerequisite for the preservation of human dignity’.72 Given the close relationship between health and human dignity, it is unsurprising that individuals have also sought to find a remedy for right to health violations via litigation of civil and political rights. B The European Convention on Human Rights Individuals have successfully used the guarantees to ensure civil and political rights under the European Convention on Human Rights in order to obtain remedies for violations of economic, social and cultural rights. As such there is a growing body of case law generated by the European Court of Human Rights which deals with aspects of health across a range of echr rights.73 These include aspects of freedoms protected by Articles 2 (right to life), 3 (freedom from torture and inhuman and degrading treatment), 5 (security and liberty of the person) and 6 (fair trial).74 In addition, entitlements to health, such as access to health care, have also been litigated in the context of Article 8 (right to private and family life). Article 14 (non-discrimination) in association with other rights of the Convention also has relevance. To examine whether convergence between international law and the jurisprudence on European Convention rights can be identified, the focus of this section is on cases decided by the ECtHR which use the terminology associated with a right to health. A search of hudoc, the ECtHR’s case law database, identifies 43 cases in which the Court has used the term ‘right to health’.75 However, in general these cases tend to refer simply to the phrase ‘right to health’ or ‘right to health care’ without considering the meaning in the context of the international right to health. An example of this constrained approach by the ECtHR is found in the case of Goginashvili v Georgia.76 Within the case there is a reference to the term ‘right to health care’ originating from a provision of the Georgian Prison Code being considered in the case.77 However, although the term ‘right to health care’ is used, there is no discussion of it as a substantive right. The only reference to 72 73 74

75 76 77

Federation of Human Rights Leagues v France (14/2003) Merits, 8 September 2004, at para 31. For examples and an overview of the range of issues, see ECtHR, ‘Fact Sheet: Health’, December 2015, available at: www.echr.coe.int/Documents/FS_Health_ENG.pdf. However, the right claimed must be recognised in domestic law: see ECtHR, ‘Fact Sheet: Guide on Article 6. Right to a Fair Trial (Civil Limb)’, May 2013, at para 12, available at: www.echr.coe.int/Documents/Guide_Art_6_ENG.pdf. As at 20 May 2015. This includes both judgments and decisions of the ECtHR. Application No 47729/08, Merits, 4 October 2011. Ibid. at para 37. Article 24 of the Prison Code titled ‘Right to Health Care’ states: ‘A [detained] accused/convict shall have the right to use all the necessary medical facilities’.

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international law by the Court is to a report on the prisons by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.78 While the case was found to be admissible, no violation of Article 3 was found as there was ‘a sufficient degree of due diligence, providing the applicant with prompt and systematic medical care’.79 However, within those cases identified in which the term ‘right to health’ is used there are some which suggest a growing recognition of the approaches associated with Article 12 of the icescr and General Comment No 14. Three cases decided by the ECtHR make reference to General Comment No 14,80 and a fourth makes reference to the definition of the phrase ‘right to the highest attainable standard of health’.81 Kutepov v Russia is one of the cases in which General Comment No 14 is mentioned, albeit briefly.82 The case, as in Goginashvili v Georgia, concerns a prisoner’s right of access to medical care in the context of Article 3 of the echr. Many of the same principles were considered in both cases; however, it is only in Kutepov that the international right to health was acknowledged as relevant law. In finding a violation of Article 3 of the echr in the particular facts of Kutepov, the Court stated: [A]s a result of the inadequacy of his medical treatment, the applicant has been exposed to prolonged mental and physical suffering diminishing his human dignity and lasting for several years. The authorities’ failure to provide the applicant with the medical care he needed thus amounted to inhuman and degrading treatment within the meaning of Article 3 of the Convention.83 As well as referring to General Comment No 14 as a relevant standard of international law, the Court’s judgment partially mirrors the language of the General Comment when it states that ‘[i]n Convention terms, detainees have a right to adequate medical treatment and not a right to be healthy’.84 The term which differentiates the approach of the ECtHR from that of the cescr is ‘adequate’. 78 79 80

81 82 83 84

Ibid. at para 43. Ibid. at para 81. Konstantin Markin v Russia Application No 30078/06, Merits and Just Satisfaction, 22 March 2012; Kutepov v Russia Application No 13182/04, Merits and Just Satisfaction, 5 December 2013; and Dubská and Krejzová v Czech Republic Applications Nos 28859/11 and 28473/12, Merits and Just Satisfaction, 11 December 2014. r.r. v Poland Application No 27617/04, Merits and Just Satisfaction, 26 May 2011. Supra n 80 at para 36. Ibid. at para 62. Ibid. at para 57 (parallel phrasing in General Comment No 14 is found at para 36).

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The Court stated that it has always interpreted Article 3 of the echr as giving rise to an obligation of medical assistance which is ‘adequate’ to ‘secure the health and well-being of detainees’.85 What the term ‘adequate’ means, however, is something the Court acknowledges is difficult to determine,86 but it includes assessing whether ‘diagnosis and care’ was ‘prompt and accurate’, a ‘strategy of care’ was evident, and necessary treatment was available as were opportunities to review care.87 The term ‘adequate’ also includes a comparative element, with the standard of care received within the prison being assessed against the standard of care for all citizens of the state. Although use of the standard of adequacy appears to demonstrate a reluctance to go further than a minimum standard, the approach in the context of ‘detention’ situations appears compatible with the cescr approach, particularly when it is considered that who health policy standards may be considered to be a relevant factor in the assessment of what is adequate.88 Konstantin Markin v Russia,89 another case in which General Comment No 14 is referred to, is not a case involving a health issue: it is essentially about equal rights to parental leave for fathers which gave rise to complaints under Articles 8 and 14 of the echr. However, the partly concurring and partly dissenting opinion of Judge Pinto de Albuquerque is highly relevant to a discussion on judicial attitudes to social rights, and it is in this context that the cescr approach in its general comments (including General Comment No 14) is referenced. Judge Pinto de Albuquerque highlighted that ‘[t]he Court has been increasingly open to admitting the protection of social rights’ within the ambit of Article 14 of the echr.90 Moreover, Judge Pinto de Albuquerque points out that the Court has increasingly acknowledged social rights such as ‘the right to medical treatment’ outside the duty of non-discrimination. He categorises the right as ‘the right to medical treatment for people under the state’s authority’

85 Ibid. at para 47. 86 Ibid. at para 48. 87 Ibid. 88 See, for example, Pakhomov v Russia Application No 44917/08, Merits and Just Satisfaction, 30 September 2010, at paras 49 and 50. Reference is made to who, Treatment of Tuberculosis: Guidelines for National Programs (who, 1997); and Treatment of Tuberculosis: Guidelines, 4th edn (who, 2009). 89 Supra n 80. 90 Ibid. at partly concurring, partly dissenting opinion of Judge Pinto de Albuquerque. It is also in the context of discrimination, with its emphasis on disaggregated information and a focus on vulnerable groups, that the cescr initially developed its understanding of the right to health.

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and ‘the right to medical treatment for all citizens’.91 It should be noted that the examples he provides in relation to the latter are about access to available treatments in terms of respect for parental consent,92 failure to protect against harm within health care93 and removal of barriers to access lawfully permitted treatment,94 not what types of health care to make available. The one exception in the examples given is found in the case of A, B and C v Ireland,95 where the issue of availability of abortion services as well as access to those services was considered. In A, B and C v Ireland a violation of Article 8 of the echr was found only in the case of Applicant C as access to abortion, which was available in Ireland where the mother’s life was in danger, was denied to C despite the recognition that her medical condition meant a pregnancy put her life in danger.96 No violation of Article 8 was found in relation to Applicants A and B as abortion was not available in Ireland to protect the health of the mother, and protection of health was the reason A and B required an abortion.97 The issue of availability of care, and not access, was thus at the heart of Applicant A’s and B’s cases. The Court’s deference to the state’s discretion as to what care to make available is decisive in this case, although on the basis of morals as decided by the state, rather than on resources. The ECtHR acknowledged that a wide margin of appreciation was afforded to the state, despite stating that there was a consensus across many European states that abortion should be available in broader circumstances than that of a threat to the mother’s life.98 The Court, however, suggested that consensus was not sufficient to narrow the margin of appreciation in this instance given the ‘sensitive moral and ethical issues’ and the public debate that had taken place in Ireland, which had informed the state’s abortion law.99 A further factor in the Court finding that there was no 91 Ibid. 92 Glass v United Kingdom Application No 61827/00, Merits and Just Satisfaction, 9 March 2004. 93 Oyal v Turkey Application No 4864/05, Merits and Just Satisfaction, 23 March 2010 (in this instance HIV-infected blood products). 94 Tysiąc v Poland Application No 5410/03, Merits and Just Satisfaction, 20 March 2007. No mechanisms of appeal existed and the civil remedy was retroactive. 95 Application No 25579/05, Merits and Just Satisfaction, 16 December 2010. See also Chapter 3 in this volume for discussion of international trends in abortion-related rights. 96 Ibid. at paras 22–25. 97 Ibid. at para 167. Only the complaints under Articles 8, 13 and 14 were held to be admissible; all other grounds of complaint were ruled inadmissible. 98 Ibid. at para 235. 99 Ibid. at paras 233 and 239.

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violation of A’s and B’s Article 8 rights was that they could lawfully travel to another jurisdiction to access an abortion.100 Although the ECtHR does adopt a different approach to issues of availability and access in this instance, the inherent political sensitivities might mean the approach is unique. r.r. v Poland101 is another case in which abortion is considered, although in this instance the issue is access rather than availability of a service, specifically access to genetic testing as a precursor to making a decision on whether to have an abortion. No reference was made in r.r. v Poland to Article 12 of the icescr or General Comment No 14 as relevant standards of international human rights law; however, a third party submission by the Special Rapporteur on the right to health was considered. The Special Rapporteur highlighted that ‘[n]umerous international conventions broadly recognised a woman’s right to the highest attainable standard of health, including access to appropriate reproductive care’.102 The issue in this case was not about making a service available, which of itself gives rise to a question of resources, but rather access to an existing available service (genetic testing) which could have ameliorated the Applicant’s ‘anguish’ by identifying whether the foetus had a genetic disorder. Ultimately the state had created barriers to accessing care already available, and in the context of a right to health framework it is in the creation of barriers to access that a violation can be found. In these circumstances, the Court found a violation of Article 3 (freedom from inhuman or degrading treatment) as well as Article 8 (right to private and family life). In the course of the judgment in r.r. v Poland the Court cites two other echr cases as cases relating to ‘insufficient availability’ of health care,103 although the Court ruled that both were inadmissible when the wide margin of appreciation afforded to the state in the context of allocation of resources was considered.104 In Pentiacova the issue related to the level of publicly funded haemodialysis care105 and in Nitecki the issue was the extent to which a drug for treating Lou Gehrig’s disease should be made available. The ECtHR in r.r. v Poland highlights that in both the cited cases there is an acknowledgment that the question of available health care may fall within the scope of Article 8 100 101 102 103

Ibid. at para 242. Supra n 81. Ibid. at para 122. Pentiacova and Others v Moldova Application No 14462/03, Admissibility, 4 January 2005; and Nitecki v Poland Application No 65653/01, Admissibility, 21 March 2002. 104 r.r. v Poland, supra n 81 at para 198. 105 The facts are similar to the South African right to health case of Soobramoney v Minister of Health (Kwazulu-Natal), supra n 29.

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of the echr but also observes that the state’s margin of appreciation is wide given that it involves ‘an assessment of the priorities in the context of the allocation of limited state resources’.106 The Applicants ‘had access to the standard of health care offered to the general public’ and comparison of those standards with other states was rejected. In many ways the core difference between the approach of a court, which must rule as to a violation of an individual’s rights, and that of a treaty body which concludes with the expression of ‘concerns’, is found in Pentiacova with the requirement of establishing a chain of causation between conduct of the state in not providing the health care in issue and outcome for the individual. In examining the admissibility of the Article 2 (right to life) complaint, the ECtHR stated that ‘[t]he fact that a person has died of this disease is not, therefore, in itself proof that the death was caused by the shortcomings in the medical care system’.107 The ECtHR also highlights that not every difference in treatment is forbidden; however, where differences exist they must be justified in law in terms of what is described as a ‘reasonable relationship of proportionality between the means employed and the aim sought to be realised’.108 A more recent case, Dubská and Krejzová v Czech Republic,109 highlighted that the issue of availability of care is not always about resources and the ‘positive obligations’ of the state. The Applicants were challenging a Czech law forbidding ‘health professionals assisting with home births’, which they argued was a violation of their right to private life under Article 8 of the echr.110 The Court looked to a wide range of international law including Article 12 of the icescr, Article 24 of the Convention on the Rights of the Child (the right to health) and the Convention on the Elimination of All Forms of Discrimination against Women, as well as looking at the approach of the who to the issue of home births.111 Relevant aspects of international law and policy highlighted included the right to ‘control one’s health and body’ and the right of equality of opportunity to a health system, which must also consider child and maternal health.112 In considering the admissibility of the case, the Court said that ‘[d]ecisions regarding the circumstances of giving birth, including the choice of the place, therefore fall within the scope of the mother’s private life for the 106 107 108 109 110 111 112

r.r. v Poland, supra n 81 at paras 218–219. Pentiacova and Others v Moldova, supra n 103 at Section C. (law). Ibid. at Section F. (law). Supra n 80. Ibid. at para 69. Ibid. at paras 45–58. Ibid. at para 48, citing from General Comment No 14, supra n 2 at paras 8 and 14.

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purposes of Article 8’.113 However, while acknowledging that the issue was within the scope of Article 8 of the echr and that the right imposed positive obligations upon the state, the Court chose to focus on the ‘negative obligation’ associated with the right.114 In essence, the focus was on whether a law which created a barrier to individual choice to have a home birth was in violation of Article 8 of the echr. Although the Court found that there was an interference with the Applicant’s right to private life, it was lawful. The state acted ‘in accordance with the law’ to protect the life and health of the mother and child, and given that there was limited consensus on an approach to home births across European states, the state was afforded a wide margin of appreciation in this case.115 Another aspect within the ECtHR jurisprudence, which shows parallels to the approach to the right to health in international law, is the recognition by the Court of the concept of ‘vulnerable groups’.116 Peroni and Timmer have noted that the concept of a ‘vulnerable group’ first appears in the case law of the ECtHR in 2001.117 They explain vulnerability as being ‘shaped by social, historical or institutional forces’, associated with ‘an identifiable group’ and involving ‘harm’.118 It is an approach which mirrors the equality approaches of the South African Constitutional Court and of the cescr, both of which require that special attention should be given to vulnerable groups when implementing the right to health.119 The jurisprudence of the ECtHR in respect of rights and health can be ­categorised within a right to health framework. The cases can generally be categorised as those dealing with freedoms (consent, deprivation of liberty and environment), which may or may not require a consideration of ­discrimination

113 114 115 116

Ibid. at para 75. Ibid. at para 78. Ibid. at para 93. See further Peroni and Timmer, ‘Vulnerable groups: The Promise of an Emerging Concept in European Human Rights Convention Law’ (2013) 11(4) International Journal of Constitutional Law 1056. 117 Chapman v United Kingdom Application No 27238/95, Merits, 18 January 2001. 118 Peroni and Timmer, supra n 116 at 1063 and 1065, citing Chapman v United Kingdom, ibid., as the first case in which the concept is used. 119 See, for example, Treatment Action Campaign and Others (CCT8/02) [2002] zacc 15; and cescr, Concluding observations regarding China, 13 May 2005, E/C.12/1/add.107, at paras 15–16, 38 and 60, highlighting discrimination against various groups including migrants, those with disabilities, minorities and those with hiv/aids.

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aspects;120 entitlements including access in the context of deprivation of liberty121 and in the wider population;122 and in terms of ‘sufficient availability’ of entitlements.123 The cescr’s variation in approach towards lawful limitation of the right to health can also be identified within the ECtHR case law and includes deference to the state in the context of choices as to types of care to make available.124 Unsurprisingly, the least controversial area in relation to health and rights under the echr relates to the issue of freedoms, non-­ discriminatory access to care and state responsibility for health of those within its care as a result of lawful deprivation of liberty, with many of those cases giving rise to questions of whether a violation of Article 3 of the echr exists. The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment The impact of torture and inhuman or degrading treatment or punishment on health is well recognised both in detention situations and, increasingly, in the context of health care settings.125 The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment provided for the creation of a Committee to examine the right in the context of those individuals who have been deprived of their liberty.126 Nowhere within the Convention is the right to health mentioned,127 and in a database search of cpt documents only four references are found to the ‘right to healthcare’ in relation to three site visits.128 However, while the cpt does not comment

C

120 See, for example, v.c. v Slovakia Application No 18968/07, Merits and Just Satisfaction, 8 November 2011. A violation of Articles 3 and 8 was found in relation to medical sterilisation of women. The Court did not find it necessary to consider Article 14 echr. 121 Pakhomov v Russia, supra n 88. 122 r.r. v Poland, supra n 81. 123 Pentiacova and Others v Moldova, supra n 103. 124 Ibid. (in respect of resources). See also A, B and C v Ireland, supra n 95, for an example of state discretion in relation to availability outside the resource framework. 125 Grover and Gaziyev, ‘A Contribution by the Special Rapporteur on the Right to Health: Right to Health and Freedom from Torture and Ill-Treatment in Healthcare Settings’, in Center for Human Rights and Humanitarian Law, Torture in Healthcare Settings: Reflections on the Special Rapporteur on Torture’s 2013 Thematic Report (2014) 3. 126 Article 1 of the Convention. 127 Health is mentioned twice in the Explanatory Report to the Convention: see paras 62 (‘mental health institutions’ are defined as places where an individual may be deprived of his/her liberty) and 71 (limiting access for a Committee site visit is allowed in circumstances where it could be ‘detrimental to health’). 128 These include cpt, Report on the Visit to the Former Yugoslav Republic of Macedonia (Law Enforcement Agencies), 21 November 2007, CPT/Inf (2008) 22; Report on the Visit to

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on a specific right to health, there is evidence that the right is recognised.129 Furthermore, health and aspects of health care are perceived as relevant to identifying and preventing violations of the right to be free from torture and inhuman and degrading treatment and punishment,130 a fact which is clearly evident in the cpt Standards produced with the intention to ‘give a clear advance indication to national authorities of [the cpt’s] views’.131 Within the cpt Standards, health and health care are referred to throughout the document. The aspects related to health that the cpt will look to include access to health care, equivalence of care with the general public, independence of health professionals, confidentiality of data, environmental conditions, illness as a basis for differential treatment and consent to treatment.132 All these aspects, it can be argued, fall within the area of freedoms and access to treatment rather than the more controversial issue of availability of care. Limitations on such rights must be based on clear medical justifications, not only legal principles. So, for example, the cpt is clear that there is ‘no medical justification for segregation of a prisoner solely on the grounds that they are hiv positive’.133 What constitutes health care includes preventive and ­curative care, as well as information necessary to access care.134 The standard of care spoken of is in terms of ‘equivalence of care’ with treatment to be provided in ‘conditions comparable to those enjoyed by patients in the outside community’.135 In common with the cescr, the esr Committee and the ECtHR, the cpt looks to health policy and standards, including those of the who, to identify acceptable conditions. For example, in respect of its site visit to Serbia and Montenegro the cpt recommended that in order to ‘remedy the deficiencies’ (namely the level of multi-resistant tuberculosis within the prison) the state should look to ‘guidelines … in relevant international literature, mainly from the World Health Organisation’.136

129 130 131 132 133 134 135 136

Norway (Psychiatric Establishments), 11 April 2006, CPT/Inf (2006) 14; and Report on the Visit to Lithuania (Police Establishments), 8 April 2000, CPT/Inf (2001) 22. See, for example, cpt, cpt Standards: ‘Substantive’ sections of the cpt’s General Reports, CPT/Inf/E (2002) 1 – Rev. 2015, at 38, para 31. Ibid. at 29, para 53. Ibid. at 5. Ibid. at 38. Ibid. at 43, para 56 (footnote 2). Ibid. at 38, para 32. Ibid. at 40, para 38. cpt, Report on the Visit to Serbia and Montenegro, 16–28 September 2004, CPT/Inf (2006) 18, at para 163.

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Acknowledging the relevance of health and health care to torture and illtreatment, while maintaining the focus of investigations on violations of the substantive freedom from torture under the Convention is compatible with international law. Arguably this approach reflects the position that a more effective remedy for the human rights violation, which negatively impacts upon health, is found in the civil and political right of freedom from torture. For example, the Special Rapporteur on the right to health investigates complaints involving torture only where an additional factor that is relevant to the right to health is raised, such as access to care or ‘forced feeding’.137 This focus on civil and political rights also appears to be reflected in the nature of the international human rights documents referred to by the cpt. A database search of cpt documents finds references to the International Covenant on Civil and Political Rights, frequent references to the echr and some references to European Union documents, but no references to either the esc or the icescr. The cpt regularly refers to the echr in its reports, although in the context of health it is arguably more limited. One example is found in the 2008 site visit to Nicosia Central Prison in Cyprus where the cpt ‘recall[ed] that the European Court of Human Rights has found negligent or dysfunctional healthcare provision in prison to constitute a violation of Article 3 of the European Convention on Human Rights’.138 The cpt has also referred to European Union legislation in reference to standards of facilities and care.139 D The European Union There is an increasing recognition of the impact of eu law on the rights to health and health care.140 The approach to human rights by the cjeu is twofold. The cjeu views human rights as ‘general principles’ of eu law reflecting member state constitutional traditions as well as member state ratifications of the echr.141 More recently, as a result of reforms under the Treaty of ­Lisbon, 137 Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Paul Hunt, Addendum Summary of cases transmitted to Governments and replies received, E/CN.4/2005/51/Add.1, at para 3. 138 cpt, Report on the Visit to Nicosia Central Prison, Cyprus, 9 December 2008, CPT/Inf (2012) 34, at para 70. 139 See, for example, cpt Standards, supra n 129, citing (at 69, n 4) Council Directive 2003/9/ EC laying down minimum standards for the reception of asylum seekers [2003] oj L 31/18. 140 See McHale, ‘Fundamental Rights and Health Care’, in Mossialos et al., (eds), Health Systems Governance in Europe: The Role of European Union Law and Policy (cup, 2010) 282 at 288. 141 In Case 11/70 Internationale Handelsgesellschaft [1970] ecr 1125, it was first stated that ‘respect for fundamental rights forms an integral part of the general principles of law

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the Charter of Fundamental Rights of the European Union has created binding human rights obligations for eu institutions.142 A third aspect when completed, although it is one for future consideration, is eu accession to the echr.143 The cjeu’s approach to human rights, including the right to health, must also be seen in the context of the objectives of the eu treaties and the internal market.144 Jurisprudence related to the eu Charter of Fundamental Rights is developing; however, whether the Charter has the potential to indirectly influence the domestic law of the member states is still open to question.145 While the Charter contains no specific right to health, the two aspects of freedoms and entitlements associated with a right to health can nevertheless be identified. These are ‘individual integrity’146 and Article 35, which refers to a right to preventive and curative treatment in line with national laws and the right to ‘a high level of human health protection’. Since 2007 there has been some reference by the cjeu to health in the context of the Charter. Any references to Article 35 appear limited, and are made in the context of a public health law approach.147 This is in line with the Court’s general approach to human rights,

142

143 144 145 146

147

protected by the Court’ (at para 4). That recognition is now acknowledged in Article 6(3) Treaty on European Union. See Article 51 eu Charter. See also, for example, Joined Cases C-267/10 and C-268/10 Rossius and Collard, 23 May 2011, EU:C:2011:332, at para 32. The cjeu found that it did not have the competence to reply to a preliminary reference in respect of Article 35 of the Charter and specifically whether a national law on tobacco was compatible with the object of protecting public health. See also Ahmad v The Secretary of State for the Home Department v aire Centre [2014] ewca Civ 988, at para 67. This is a case relating to access to nhs treatment in the uk of a Pakistani national married to an eu citizen with permanent residence in the uk. Article 35 of the Charter was raised in support of the argument but all parties accepted it could not be used as a ground of appeal. Article 6(2) Treaty on European Union provides that the Union shall accede to the Convention. Case C-399/11 Melloni, 26 February 2013, EU:C:2013:107. For an overview, see Chalmers, Davies and Monti, European Union Law, 3rd edn (cup, 2014) at 261–275. See Fontanelli, ‘National Measures and the Application of the eu Charter of Fundamental Rights: Does curia.eu Know iura.eu?’ (2014) 14(2) Human Rights Law Review 231. Articles 1–4 eu Charter: Article 1 declares that ‘[h]uman dignity is inviolable’ and Article 3(1) reads that ‘[e]veryone has the right to respect for his or her physical and mental integrity’. See, for example, Joined Cases C-159/12 to C-161/12 Venturini, 5 December 2013, EU:C:2013:791, referring to Article 35 eu Charter (along with Article 52 Treaty on the Functioning of the European Union) as support for the principle that rights can be limited to ensure a high level of health protection.

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which has been described as ‘negative’ in nature.148 In essence, this means that the concept of public health provides a justification for limiting the actions of eu institutions or Member States, rather than creating any ‘positive entitlements’.149 However, the cjeu does acknowledge an individual right to access health care, although the starting point of evaluating that right is the right of free movement of services and people within the internal market. Da Costa Leite Borges has described this as an individualistic approach rather than a ‘communitarian approach’ where health is viewed as a ‘social good’.150 This is exemplified in case law such as Kohll151 and Watts.152 The free movement case law of the cjeu related to health highlights not only the limited influence of international human rights law in the context of health, but also a potential contradiction with not only the right to health but the idea of a ‘high level of health protection’.153 Although the cjeu requires that the clinical need of an individual should be considered (which is consistent with a right to health approach) in their right to access health services within the eu, the starting point of evaluation is access to services in the internal market rather than the individual’s right to health, or the right to health of others within the state.154 In contrast to a right to health approach, resources and progress in health standards are not factors to be considered; this raises questions as to the impact of the cjeu approach on national health systems and others’ rights to health.155 In essence, as suggested by Da Costa Leite Borges, the approach shows a limited consideration for equity. Subsequent case law of the cjeu did recognise that prior authorisation should be required before an individual was treated in another jurisdiction, recognising that the state should have some control over the use of resources.156 Directive 2011/24/EU was passed with the intention of clarifying the law on cross-border access 148 McHale, supra n 140 at 294, citing De Schutter, ‘Fundamental rights and the transformation of governance in the European Union’, Reflexive Governance in the Public Interest Programme Working Paper REFGOV-FR-13 (2007). 149 Ibid. 150 Da Costa Leite Borges, ‘Making sense of human rights in the context of European Union health-care policy: Individualist and communitarian views’ (2011) 7(3) International Journal of Law in Context 335. 151 Case C-158/96 Kohll v Union des Caisses de Maladie [1998] ecr I-1931. 152 Case C-372/04 Watts v Bedford Primary Care Trust and Secretary of State for Health [2006] ecr I-4325. 153 Case C-158/96 Kohll, supra n 151. 154 Case C-372/04 Watts, supra n 152. 155 McHale, supra n 140 at 304. 156 Da Costa Leite Borges, supra n 150.

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to health services;157 however, it has also been subject to criticism in that it may potentially create unequal access to health care.158 McHale suggests that ­Article 35 of the Charter and eu accession to the echr has the potential to ameliorate the difficulties raised by the current approach,159 although to date that evidence is limited. The opinion of Advocate General Jääskinen in Novo Nordisk160 suggests that there is the potential to see a change in approach. The case is the only case identifiable within the ‘Eur-Lex’ database that referred to Article 12 of icescr and used the term ‘right to the highest attainable standard of health’. ECtHR case law in which a right to health was recognised was also acknowledged.161 The Advocate General suggested that public health takes priority over commercial interests, imposes a positive obligation and, as such, public health, rather than commercial freedom of expression, should be given priority in the approach to interpretation of Directive 2001/83/EC related to advertising for medical products.162 The concept of protection of public health seems to be substituted for the term ‘right to health’. This provides hope that the right will in the future be considered; nevertheless, the acknowledgment of the right in the cjeu case law remains limited. Although there is limited evidence of a reference to Article 12 of the icescr, or even a right to health approach in the jurisprudence of the cjeu, there is evidence of an increasing reference to the icescr, as well as the International Covenant on Civil and Political Rights in general, which is to be welcomed.163 This seems to follow the same pattern of the ECtHR case law in that the relevant international law as well as domestic law is identified as the context 157 Directive 2011/24/EU on the application of patients’ rights in cross-border healthcare [2011] oj L 88/45. 158 Da Costa Leite Borges, supra n 150 at 349. Although the Directive removes the requirement of prior authorisation, it works on a basis of individual reimbursement, requiring individual payment. 159 McHale, supra n 140 at 304. See also Opinion of Advocate General Ruiz-Jarabo Colomer in C-444/05 Aikaterini Stametelaki v npdd Organismos Asfaliseos Eleftheron Epangelmation [2007] ecr I-3185, at para 40. 160 Opinion of Advocate General Jääskinen in Case C-249/09 Novo Nordisk AS v Ravimiamet [2011] ecr I-3155. 161 Ibid. at para 49. 162 Ibid. at paras 45–50. 163 See, for example, Case C-244/06 Dynamic Medien Vertriebs GmbH v Avides Media AG [2008] ecr I-505, at para 39, where reference is made to the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child; and Case C-133/06 European Parliament v Council fo the European Union [2008] I-3189, at para 16.

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in which eu law is considered.164 There is also evidence of reference to who documents. The first reference to a who document in the curia case law search is found in 1998 within the Coldiretti judgment.165 In recent years who expertise and documents have been referred to in defining terms such as ‘health’166 and ‘disabled’167 and to provide supporting scientific evidence in the context of harmonising laws.168 The who Framework Convention on Tobacco Control169 was referred to in justifying the harmonisation of laws on controls on tobacco.170 The approach in these cases serves to support the idea of a ‘public health’ approach providing the justification for limiting rights or harmonising law within the context of the eu treaty aims. Although some cjeu cases do make reference to ECtHR case law in its judgments on health care, in the main the approach within the cjeu does appear to be more insulated from developments on the understanding of Article 12 of the icescr than that of the Council of Europe. That there is limited reference to Article 12 of the icescr and other regional norms on the right to health belies the extent to which the eu has the potential to make an impact upon individual and collective health and highlights the need for the right to health to be recognised in the jurisprudence of the eu.171

164 See, for example, Case C-5/12 Betriu Montull, 19 September 2013, EU:C:2013:571, in which Article 10(2) icescr was referred to in relation to a case on maternity leave; Opinion of Advocate General Trstenjak in Case C-282/10 Dominguez, 8 September 2011, EU:C:2011:559, referring to Article 7 icescr in relation to fair pay; and Case C-73/08 Bressol and Others [2010] ecr I-2735, referring to Articles 2(2) and 13 icescr in the context of equal access to medical education. 165 Case T-149/96 Coldiretti and Others v Council and Commission [1998] ecr II-3841. 166 See Case C-579/12 RX-II Réexamen Commission v Strack, 19 September 2013, EU:C:2013:570, in which the definition of health from the who Constitution was referenced. 167 C-360/11 Commission v Spain, 17 January 2013, EU:C:2013:17. 168 See, for example, C-15/10 Etimine [2011] ecr I-6681 (borate concentrations in water); and C-446/08 Solgar Vitamin’s France and Others [2010] ecr I-3973 (labelling where fluoride content in bottled water exceeds that in natural waters). 169 Entered into force 27 February 2005. 170 Case C-380/03 Germany v Parliament and Council (Tobacco Advertising ii) [2006] ecr I-11753. 171 See, for example, Hancher and Sauter, eu Competition Law and Internal Market Law in the Healthcare Sector (oup, 2012) at 5, in relation to a categorisation of impact. See also Weiß, ‘Human Rights in the eu: Rethinking the Role of the European Convention on Human Rights after Lisbon’ (2011) 7(1) European Constitutional Law Review 64 at 80, who suggests that accession to the echr may require a change in the cjeu’s human rights methodology. See also McHale, supra n 140 at 304.

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Article 12 of the icescr: The ‘Cornerstone’ of the Right to Health?

There is evidence of a growing consensus in the jurisprudence associated with the esc, echr and the Convention for the Prevention of Torture on the scope of the right to health, based upon Article 12 of the icescr. There is an acknowledgment of the right to health in the context of the eu Charter but there is a limited recognition of Article 12 of the icescr. Thirty years on from the description of the sources of the right to health as having three common aspects – the declaration of a basic right to health, the standard by which that right is measured and prescriptive ways to implement the right172 – a great deal more detail can be added. Generally, there is a growing recognition that the right’s core standard is ‘the highest attainable standard of physical and mental health’. Beyond this the standard is understood by reference to duties of nondiscrimination and a concept of equality that requires a consideration of the position of vulnerable groups in society.173 Approaches adopted by the cescr to examine state policy towards the freedoms and entitlements necessary for health can be identified in the European jurisprudence with reference to terms such as available and accessible health care. The deference to state discretion is greatest in the context of the question of what care to make available. However, it must also be said that while there is evidence of a growing consensus under the esc, the echr and the Convention on the Prevention of Torture that consensus appears to be a recent development and more needs to be done to ensure fulfilment of a right to health within the European region. 172 Van Boven in Rene-Jean Dupuy, ed. The Right to Health as a Human Right, Workshop, The Hague Academy of International Law and the United Nations University (Sijthoff & Noordhoff, Alphen aan den Rijn, The Netherlands) 1979 at 54–55. 173 Leary, ‘The Right to Health in International Human Rights law’ (1994) 1(1) Health and Human Rights 23, in reviewing understanding of the right to health, highlights the aspect of non-discrimination. The concept of vulnerability has been a more recent development.

chapter 9

Is the International Convention on the Elimination of All Forms of Racial Discrimination the De Facto Minority Rights Treaty? David Keane and Joshua Castellino 1

The Status of Universal Minority Rights

The historic marginalisation of minority rights under the United Nations individual human rights system has been extensively discussed.1 The reasons are not settled, although it is apparent that the failure of the League of Nations Minorities Treaties to protect minorities from the atrocities of World War ii was a factor in the rejection of a specific clause on minority rights in the Universal Declaration of Human Rights.2 This led to the understanding that the nascent United Nations had little interest in promoting the rights of minorities in its early decades, considered anachronistically collective and counterproductive in the newly forged individualised system. As a consequence, there was an identification of a need to invigorate minority protection in the un in the 1970s, beginning with the impetus provided by Special Rapporteur Capotorti,3 and continuing with a range of special procedures and declaratory standards designed to complement the only legally binding universal clause on minority rights, Article 27 of the International Covenant on Civil and Political Rights 1 See, for example, Oestreich, ‘Liberal Theory and Minority Group Rights’ (1999) 21(1) Human Rights Quarterly 108; and Castellino, ‘No Room at the International Table: The Importance of Designing Effective Litmus Tests to Protect Minorities at Home’ (2013) 35(1) Human Rights Quarterly 201. 2 Wippman, ‘The Evolution and Implementation of Minority Rights’ (1997) 66(2) Fordham Law Review 597 at 603. The proposal was for a limited, individual-oriented minority rights article in the Universal Declaration. See further Eide, ‘The Non-Inclusion of Minority Rights: Resolution 217C (iii)’, in Alfredsson and Eide (eds), The Universal Declaration of Human Rights: A Common Standard of Achievement (Martinus Nijhoff, 1999) 701. A minority rights clause was mooted but rejected in the drafting of the European Convention on Human Rights: see Thornberry and Martín Estébanez, Minority Rights in Europe (Council of Europe, 2004) at 40. 3 Capotorti, Study of the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, Sub-Commission on Prevention of Discrimination and Protection of Minorities, E/CN.4/Sub.2/384/REV.1.

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(iccpr). As Rodley notes, with the subsequent demise of Soviet control in Eastern Europe and the collapse of the Soviet Union itself, ‘the door was open for a return to older agendas’,4 including the construction of a regional minority rights framework in Europe through the Framework Convention for the Protection of National Minorities (fcnm) and related standards. The literature reflects this viewpoint and widely accepted timeline in the evolution of minority rights, on the understanding that the contemporary United Nations displays a heightened interest in protecting minorities.5 Nevertheless, there remains a question as to whether a universal minority rights standard in the form of a treaty is desirable, or achievable. Article 27 of the iccpr is a legally binding universal standard, but it is a single provision in a wide-ranging treaty, or ‘brief, weight-bearing article’.6 Similarly, the existence of a binding regional standard in Europe, the fcnm, leads to the disjunction of a regional standard with no international counterpart. No other region has attempted to draft minority rights standards, as a stand-alone treaty comparable to the fcnm, or as a provision in a wider document comparable to Article 27 of the iccpr. Rehman notes the ‘unfortunate reality that the regions where some of the worst minority rights violations take place, for example South Asia, the Middle East and Africa remain devoid of initiatives to protect minorities’.7 Complexity is added by the schism in the minority rights discourse, whereby indigenous peoples are increasingly considered a sui generis branch of human rights law. This is evidenced in twin ‘soft law’ declaratory standards, the un Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities 1992 (‘the un Declaration on Minorities’)8 and the un Declaration on the Rights of Indigenous Peoples 2006,9 with interest and momentum far more clearly aligned in the realisation of the rights of indigenous peoples.10 Strategically, indigenous peoples remain within the minority 4

Rodley, ‘Conceptual Problems in the Protection of Minorities: International Legal Developments’ (1995) 17(1) Human Rights Quarterly 48 at 49. 5 For an outline of the current un approach, see Office of the High Commissioner for Human Rights, ‘Fact Sheet No. 18: Minority Rights’, available at: www.ohchr.org/Documents/ Publications/FactSheet18rev.1en.pdf. 6 Thornberry and Martín Estébanez, supra n 2 at 13. 7 Rehman, International Human Rights Law, 2nd edn (Longman, 2010) at 471. 8 ga Res 47/135 annex, 18 December 1992. 9 ga Res 61/295 annex, 13 September 2007. 10 Contrast, for example, the published works on the un Declaration on Minorities and the un Declaration on the Rights of Indigenous Peoples: there is no single book on the former, while the latter has already generated several books in its much shorter lifetime. See, for example, Allen and Xanthaki (eds), Reflections on the un Declaration on the Rights of

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rights discourse. This is necessary given the absence of a reference to ‘indigenous’ within the text of the iccpr as well as the range of human rights treaties. Yet practically, the indigenous and minority rights discourses have split, and while a universal and legally binding standard on indigenous peoples appears at least possible if not likely on the basis of the un Declaration on the Rights of Indigenous Peoples and antecedent binding International Labour Organization (ilo) instruments,11 a comparable international instrument for the residual national, ethnic, religious or linguistic minorities appears far less probable. Furthermore, it is noteworthy that regional standards continue to evolve in terms of the rights of indigenous peoples, widely discussed and litigated in the Inter-American context and increasingly in the African system, but appear far more ponderous in relation to the residual national, ethnic, religious or linguistic minorities, with the exception of Europe. Against this backdrop, this chapter argues that minority rights as a universal concept found a legally binding expression in the International Convention on the Elimination of All Forms of Racial Discrimination 1965 (icerd), prior to the revival generated by Capotorti. That the icerd is often overlooked or underestimated is best understood as a misreading of its core aims, often assumed to be a narrow, rather than a wide, gauging of the meaning of ‘racial discrimination’. As a consequence, states parties have been somewhat left behind by the Committee on the Elimination of Racial Discrimination’s (cerd) evolving interpretation of its mandate, especially its gradual incorporation of a wide range of group rights in implementing its core brief, the elimination of all forms of ‘racial discrimination’. The broad approach undertaken by the cerd since its inception has narrowed the gap on the ostensibly wider concept of minority rights, to the point where it becomes appropriate to investigate the extent to which the icerd differs from Article 27 of the iccpr and related standards in its understanding of minority groups. This leads to the question whether, effectively and unacknowledged, there exists a universal minority rights treaty in the form of the icerd. Allied to this is the apparent impracticality in promoting the translation of the existing 1992 un Declaration into a legally binding treaty, despite its recent 20th anniversary revealing clear

11

Indigenous Peoples (Hart Publishing, 2011); Joffe et al. (eds), Realizing the un Declaration on the Rights of Indigenous Peoples: Triumph, Hope, and Action (Purich, 2010); and Charters and Stavenhagen, Making the Declaration Work: The United Nations Declaration on the Rights of Indigenous Peoples (iwgia, 2009). Convention (No 169) concerning indigenous and tribal peoples in independent countries; and Convention (No 107) concerning the protection and integration of indigenous and other tribal and semi-tribal populations in independent countries.

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c­ oncerns around implementation.12 The consistent inclusion of indigenous peoples under the icerd further underlines its status as the treaty equivalent or elaboration of Article 27 of the iccpr (despite predating the iccpr), a ­legally binding universal ‘minority rights’ instrument. The current discourse which views the limited Article 27 of the iccpr as the only universal minority rights provision appears to underline the idea that there is no real comprehensive international support for minority rights at present, beyond the indigenous rights discourse. An understanding that minorities are protected in a dedicated treaty at the international level, and have been since 1965, may stimulate the creation of further regional standards outside Europe, including indigenous peoples but also non-indigenous national, ethnic, racial or linguistic minorities. Thornberry and Martín Estébanez note that ‘[a] regional system must be expected to take universal norms as a basis, adapt the standards to its particular geopolitical space, and where possible enhance them’.13 This process needs clarity as to what the universal norms are. 2

Minority Rights versus the International Convention on the Elimination of All Forms of Racial Discrimination

Marc Weller notes that [i]n the absence of a comprehensive and universal binding set of rules, the development of minority protection has been left to regional agreements and judicial interpretation of wider human rights treaties.14 Weller is capturing the notion that there are a range of sources for minority rights in international and regional human rights law, but that none of these represent a universal and binding legal standard. As noted, the primary sources are Article 27 of the iccpr, which is a legally binding provision but is not a minority rights treaty; the un Declaration on Minorities, which is a universal statement but is not legally binding; and the Framework Convention on National Minorities, which is the only binding minority rights treaty but is limited in its geographical scope to the Council of Europe. Hence Weller argues for the 12 13 14

See Report of the Secretary General, Effective promotion of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, A/68/304. Thornberry and Martín Estébanez, supra n 2 at 11. Weller (ed.), Universal Minority Rights: A Commentary on the Jurisprudence of International Courts and Treaty Bodies (oup, 2007) preface.

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need to add ‘momentum to the idea of a convention on minority rights as part of universal international law’.15 Similarly, Rehman writes that the un Declaration on Minorities ‘needs to be converted into a binding treaty’.16 These statements may be viewed against the backdrop of numerous historical treaties such as the Convention for the Settlement of the Frontier between Greece and Turkey 1881,17 which show that minority protection has been a key axis along which international law has evolved. The treaty approach was consolidated and internationalised under the League of Nations ‘Minorities Treaties’, although these were not universal in scope as emphasised by Eide: ‘far from elaborating a universal law on minorities, the minority arrangements under the League applied only to some states’.18 It included only one non-European­State, Iraq.19 There are variations across the Minorities Treaties although they all display certain commonalities and collectively affirm a difference in the pre-World War Two and post-World War Two approaches to a rights-inclusive international order, the former protecting human rights only through a limited minority rights regime, the latter emphasising human rights with a marginalisation of minority rights. Weller’s statement concerning ‘judicial interpretation’ of wider human rights treaties pertains to the manner in which quasi-judicial bodies have made a strong contribution to the development of emerging standards of minority protection, such as the un Human Rights Committee’s monitoring and case law on Article 27 of the iccpr. Similarly, the understanding of wider treaties includes the range of international human rights treaties within its ambit, such as the Convention on the Elimination of All Forms of Discrimination against Women, the International Covenant on Economic, Social and Cultural Rights, and the Convention on the Rights of the Child, all of which offer implied or express protection to minorities within their broader remit which have since been drawn out by the treaty monitoring bodies in their particular spheres of enquiry. Although a broad characterisation, it is apparent that the icerd is usually considered a ‘wider human rights treaty’ of relevance to minority rights, whereas it is arguable that in effect it has evolved into the premier minority 15 Ibid. 16 Rehman, supra n 7. 17 Also discussed in the context of boundary settlements by Anderson, International Boundaries (Routledge, 2003) at 333. 18 Eide, ‘Introduction: Mechanisms for Supervision and Remedial Action’, in Weller (ed.), supra n 14, 1 at 5. 19 Ibid.

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rights treaty in all but name, eviscerating the need for a binding legal status for the un Declaration on Minorities. It is clear that unlike the fcnm, the icerd is universal in reach; unlike the un Declaration on Minorities it is legally binding; unlike Article 27 of the iccpr it is a treaty rather than a provision, with a treaty body that deals solely with questions of minority, indigenous and other marginalised groups; and unlike the ilo Conventions it is broader than (but includes) indigenous peoples and, crucially, has significantly wider reach in terms of states parties.20 The ratification of the icerd is high, with states in agreement as to the need to eliminate ‘all forms of’ racial discrimination, numbering 177 states parties. Although difficult to state with certainty, it can be speculated that a comparable treaty on minority rights would not attract such broad support. States openly hostile to international oversight of minority rights, such as Turkey, have ratified the icerd; similarly France, which has effectively opted out of Article 27 of the iccpr via a declaration, has ratified the icerd. Neither state would consider the icerd a minority rights instrument. The characterisation of overt international concern with minority and indigenous groups as the elimination of all forms of racial discrimination has ensured its wide support among states. The hesitation that many may have with regard to considering the icerd a ‘universal minority rights treaty’ pertains to its scope, which is limited to ‘racial discrimination’, the definition of which is contained in Article 1(1) of the Convention: In this Convention, the term ‘racial discrimination’ shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. The scope of the Convention is confined to the five grounds—race, colour, descent, or national or ethnic origin—with the absence of any indicative phrase preceding the enumeration of the grounds (‘such as’ being an example), or an open-ended ‘or other status’ ground which is found, inter alia, in Article 2 of the iccpr non-discrimination clause, affirming that the five grounds are a closed, definitive set. Any group that seeks recognition of its rights under 20

There are currently fewer than 35 states that are subject to the collective regimes of the two ilo Conventions.

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the icerd must come under one of the five listed grounds. The need to dynamically interpret the treaty to draw in certain groups was highlighted in 1996 when the cerd held that caste-based discrimination was a form of descentbased discrimination, the third ground in Article 1(1), and therefore a form of racial discrimination, in the context of India’s state report.21 The word ‘caste’ is absent from the treaty, but the Committee wished to draw in Dalit and other groups which had been campaigning for inclusion within the international human rights mechanisms, and activated the ground ‘descent’ in this regard.22 The rationale for choosing the word ‘descent’ has not been clarified, although a link with the drafting process in which an Indian amendment had resulted in the inclusion of the term appears to have led the cerd members to conclude that it must, at the time, have meant caste. This is contested,23 but 1996 marks the continuation of an interpretative process whereby the cerd is increasingly providing a legal ‘home’ for marginalised groups in the international system in the absence of a minority rights or indigenous rights treaty. The cerd consolidated its interpretation with General Recommendation No 29 on descent-based discrimination,24 generating an international movement against caste and descent-based discrimination that is impacting a range of groups and states beyond the traditional South Asian polities associated with caste. Yet it is apparent from India’s reaction to the cerd’s 1996 interpretation that in no way did it view Dalits as forming part of its Convention obligations, a stance it continues to maintain.25 The caste issue is an example of an expansive approach by the cerd to its mandate to eliminate all forms of racial discrimination, indicative of a gradual but distinct process whereby the Convention has grown to incorporate comprehensive and universally binding norms protecting a range of groups, including minorities. The extent to which this has resulted in the potential characterisation of the icerd as a universal minority rights treaty depends on the legal understanding of what a minority is, beginning with how it is iterated in Article 27 of the iccpr, the pre-eminent minority rights provision. Article 27 reads: 21

cerd, Concluding observations regarding India, 22 August 1996, CERD/C/304/Add.13, at para 14. 22 See further Keane, Caste-based Discrimination in International Human Rights Law (Ashgate, 2007) Chapter 5. 23 Ibid. 24 cerd, General Recommendation xxix on article 1, paragraph 1, of the Convention (Descent), A/57/18 at 111 (2002). 25 See further Keane, supra n 22.

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In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language. The general limitations of Article 27 have been well documented, including its qualified opening which places the onus upon states to determine whether or not such minorities may exist within their jurisdictions.26 The extent to which the Human Rights Committee has developed jurisprudence on Article 27 also portrays how that body has overcome these inherent limitations.27 To further elaborate its approach, the Human Rights Committee has issued General Comment No 23 on Article 27, including an instruction to states not to exploit its negative wording to deny the existence of minorities and therefore the exercise of minority rights.28 Further to Article 27, the composite concept of minorities found also in the Capotorti definition, the un Declaration on Minorities and the fcnm, lists four groupings in total—national, ethnic, religious or linguistic minorities—with the un Declaration on Minorities listing all four, the fcnm covering only national minorities (albeit broadly understood in practice), and Article 27 of the iccpr and the Capotorti definition covering three, ethnic, religious and linguistic. Mapping these groups against Article 1(1) of the icerd, the grounds ‘national’ and ‘ethnic’ origin are found in both the icerd and the composite minority standards. Therefore, national and ethnic minorities clearly find protection in both. There are thus two groups that appear not to be covered by the icerd but which find protection in the minorities standards—religious and linguistic minorities. This needs to be put into the perspective of groups covered by the icerd which do not find protection in the minorities standards, such as caste groups, since the term ‘descent’ does not appear in Article 27 of the iccpr or in the un Declaration on Minorities. The rights granted in the icerd and in 26 27 28

See Joseph and Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (cup, 2013). Orlin et al. (eds), The Jurisprudence of Human Rights: A Comparative Interpretive Approach (Åbo Akademi University Institute for Human Rights, 2000). Human Rights Committee, General Comment No 23: Article 27 (Rights of Minorities), 8 April 1994, CCPR/C/21/Rev.1/Add.5, at para 6.1. It reads: ‘Although article 27 is expressed in negative terms, that article, nevertheless, does recognize the existence of a “right” and requires that it shall not be denied. Consequently, a State party is under an obligation to ensure that the existence and the exercise of this right are protected against their denial or violation’.

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the minorities standards appear broadly equivalent. For example, the icerd has several references to cultural rights of great import to minority groups, in its Articles 1, 2, 5 and 7, and in this regard it affirms the indivisibility of human rights in its approach to the elimination of all forms of racial discrimination. Before examining the groups not expressly included in the icerd, it is worth recalling that the original purpose of the treaty was not to examine or proclaim minority rights. In 1967, two years after the icerd was opened for signature, John Humphrey wrote that ‘in the higher bodies of the un at least, there has never been any serious intention of doing anything about minorities’.29 In this regard, and as indicated above, it is apparent that the icerd was not conceived of as a universal minority rights treaty, with the elimination of racial discrimination considered a very different and narrower pursuit. As noted, its wide ratification is indicative of the broad state support for the elimination of racial discrimination, as opposed to the more fractious questions around the granting of minority rights. Yet it is possible that for many state parties, the exact import of the treaty was not well understood at the time of signature, and the reach of the icerd was not fully ascertained and determined until much later in its life. This is evident from the initial approach of state parties to the treaty, which believed it to be an instrument that was largely not relevant to groups within their own jurisdictions. The Committee’s early history of engagement with state parties reflects this approach. As described by former cerd member Michael Banton, a review of the first 45 state reports shows that more than half the states in question emphatically denied that any form of racial discrimination existed on their territories.30 A number of states further declared that ‘such discrimination was unthinkable or inconceivable in their territories’.31 In 1972, Madagascar, having received a communication from the Committee outlining the required format for state reports, wrote in its report that ‘the Malagasy Government considers that the detailed questionnaire in the aforementioned communication is intended for countries in which either de facto or de jure racial discrimination exists’.32 In response, the Committee issued General Recommendation No 2, which held that the communication was ‘addressed to all states parties without 29

Humphrey, ‘The United Nations Sub-Commission on the Prevention of Discrimination and the Protection of Minorities’ (1968) 62(4) American Journal of International Law 869 at 872. 30 Banton, International Action against Racial Discrimination (oup, 1996) at 106. 31 Ibid. 32 Buergenthal, ‘Implementing the un Racial Convention’ (1977) 12(2/3) Texas International Law Journal 187 at 190.

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distinction, whether or not racial discrimination exists in their respective territories’.33 Following the issuing of the Recommendation, the number of states making assertions similar to that of Madagascar, that no racial discrimination existed on their territories, dropped accordingly.34 Nevertheless, some states continue to assert absolute racial homogeneity to the Committee, with Egypt, Jamaica and Qatar being recent examples. Therefore, the cerd’s first task was to convince states that racial discrimination was a domestic issue. These early state reports were not intended to deceive the Committee; rather they were genuine views based on the common misperception that racial discrimination is discrimination on the basis of skin colour only, the paradigmatic example being apartheid South Africa. Racial discrimination was not more widely understood as involving, for example, ethnic groups of the same nationality or ‘race’, despite the clear indications in the Article 1(1) definition that ‘racial discrimination’ as a legal concept was broader than ‘race’. This distinction has allowed the cerd to continually expand its mandate, while remaining within the scope provided by Article 1(1). As cerd member Patrick Thornberry noted in 2005: [I]t is an obvious point—but easily missed—that the umbrella term for the Convention is ‘racial discrimination,’ not race. Thus, racial discrimination is given a stipulative meaning by the Convention: as precisely the five terms set out in Article 1, which means ‘race’ but four other terms as well. It is thus clear that the scope of the Convention is broader than … notions of race, which in any case may express many usages.35 This expansive approach has narrowed the gap between the understanding of minority rights and the elimination of racial discrimination to the point where it is meaningful to ask whether much difference exists between the two concepts. Given the much higher state support for the elimination of racial discrimination, the cerd’s interpretative approach has offered a means for the concerns raised in the minority rights discourse to be addressed at the international level, via a dedicated and legally binding mechanism. It is possible that universal minority rights protection has been in place since 1965, although 33

cerd, General Recommendation ii concerning States parties’ obligations, A/8718 at 38 (1972). 34 Buergenthal, supra n 32. 35 Thornberry, ‘The Convention on the Elimination of Racial Discrimination, Indigenous Peoples, and Caste/Descent-based Discrimination’, in Castellino and Walsh (eds), International Law and Indigenous Peoples (Martinus Nijhoff, 2005) 17 at 19.

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it required a dynamic treaty body to cajole state parties into examining their own ‘racial’ groups, including minorities, indigenous peoples and other vulnerable groups, as part of their treaty obligations. However, for this to be accepted there are still obstacles that need to be addressed. The first is the seeming lacuna that arises as to linguistic and religious minorities who do not form a part of the icerd remit. The second is the extent to which states have resisted the cerd’s approach, refusing to acknowledge the manner in which the Committee has broadened its mandate. The following sections will explore these questions. 3

Linguistic Minorities and the International Convention on the Elimination of All Forms of Racial Discrimination

The word ‘language’ appears just once in the icerd, in the first paragraph of the preamble, in the context of … one of the purposes of the United Nations which is to promote and encourage universal respect for and observance of human rights and fundamental freedoms for all, without distinction as to race, sex, language or religion. Preambles form a material part of treaties and set the general context for the substantive elements that are found in the treaty. Yet in this passage, although the preamble identifies four grounds, the treaty then focuses exclusively on the first as part of that set, leaving the others outside its remit. The reference to language is, as a result, oblique, giving no mandate within the treaty for the expression of ‘linguistic rights’ or the protection of what may be termed ‘linguistic minorities’.36 Nevertheless, the practice of the Committee indicates a clear concern with such groups, whereby it appears uncontested that linguistic groups are within the remit of the cerd if there is a link to ethnicity. The evidence for this can be seen in recent cerd sessions, with the 2012 review of states parties offering a sample. The following are quotations from the Concluding observations regarding Laos, which dealt extensively with language: The Committee expresses its concern at the insufficient measures taken to preserve the ethnic languages spoken in the State party, in particular 36

See de Varennes, Language, Minorities and Human Rights (Martinijus Nijhoff, 1996).

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the non-written languages, which are part of the national cultural heritage … In this regard, the Committee recommends that the State party explore all possibilities for capturing and documenting ethnic languages, traditional knowledge and cultures, and develop their teaching in schools … The Committee urges the State party to take the necessary measures to preserve the cultural heritage of ethnic groups, including their languages … The Committee is concerned that some ethnic groups do not have equal access to public services … [and] justice … because of remoteness and language barriers.37 In the same session, the cerd raised issues for linguistic groups in Turkmenistan, recommending the preservation of the language of groups such as the Baluchis, as well as concerns that ‘children belonging to ethnic minorities continue to have limited possibilities to study and receive education in their mother tongue as there is a limited number of schools and textbooks in minority languages’.38 For Mexico, the Committee welcomed the General Act on the Linguistic Rights of Indigenous Peoples,39 and for Qatar, the Committee requested clarification of Article 9 of the Labour Code and recommended that the state party revise the provision to ensure that contracts and other documents under the Labour Code concerning their employment are provided in the languages of the migrant workers.40 In relation to Vietnam, the cerd found that the State party should increase the provision of bilingual education programmes for ethnic minority children and of training in local languages for Kinh teachers in ethnic minority areas, … [and] allow ethnic minority languages to be taught and used as a medium of instruction in schools.41 Indeed, in this one session, 6 out of 11 concluding observations had specific language or linguistic minority recommendations. 37 38 39 40 41

cerd, Concluding observations regarding Laos, 7 March 2012, CERD/C/LAO/CO/16–18, at paras 18–22. cerd, Concluding observations regarding Turkmenistan, 8 March 2012, CERD/C/TKM/ CO/6–7, at paras 10 and 20. cerd, Concluding observations regarding Mexico, 6 March 2012, CERD/C/MEX/CO/ 16–17, at para 7. cerd, Concluding observations regarding Qatar, 8 March 2012, CERD/C/QAT/CO/13–16, at para 12. cerd, Concluding observations regarding Vietnam, 6 March 2012, CERD/C/VNM/CO/ 10–14, at para 14.

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Similarly, sessions in 2013 saw recommendations in relation to language for Belarus, where the Committee noted ‘measures to ensure the use, acceptance and teaching of minority languages as well as other initiatives to maintain the “tolerant core” of Belarusian society’.42 For Chad, the Committee requested information on ethno-linguistic communities.43 For Chile, the Committee included a section on indigenous languages and education, in which it regretted that Mapudungun is taught only in the first four grade level in primary schools where there are a large number of indigenous students, as well as a more general commendation on the work being done to preserve and promote the use of the languages of indigenous peoples.44 There was an express reference to minority languages in the Concluding observations regarding Sweden: The Committee notes with appreciation a number of legislative and policy developments regarding the elimination of racial discrimination, including: […] The adoption of the Act on National Minorities and National Minority Languages (2009:724), providing for measures to promote and revitalize national minority languages.45 Indigenous language protections were also noted for Venezuela,46 meaning five out of eight countries examined in the eighty-third session led to recommendations in relation to linguistic rights. A unesco working paper on the rights of persons belonging to linguistic minorities, which ‘attempts to clarify the nature and extent of the rights of persons belonging to minorities in the area of language’, does not have a single reference to the icerd.47 It was written in the late 1990s, in which the competence of the cerd in relation to language had not been developed, and the 42 43

44 45 46 47

cerd, Concluding observations regarding Belarus, 29 August 2013, CERD/C/BLR/CO/ 18–19, at para 7. cerd, Concluding observations regarding Chad, 28 August 2013, CERD/C/TCD/CO/16–18, at para 6. The document is only available in French (‘… des données sur les particularités ethno-linguistiques…’). cerd, Concluding observations regarding Chile, 27 August 2013, CERD/C/CHL/CO/19–21, at paras 5 and 15. cerd, Concluding observations regarding Sweden, 29 August 2013, CERD/C/SWE/CO/ 19–21, at para 4. cerd, Concluding observations regarding Venezuela, 28 August 2013, CERD/C/VEN/ CO/19–21, at paras 5 and 11. De Varennes, ‘To Speak or Not to Speak: The Rights of Persons Belonging to Linguistic Minorities’, Working Paper prepared for the un Sub-Committee on the Rights of Minorities, 21 March 1997, available at: www.unesco.org/most/ln2pol3.htm.

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absence of a reference to language in the legal remit of the Convention meant it was not considered potentially relevant. It ought to be highlighted that the cerd’s concluding observations are highly streamlined in their present form, with approximately 20 operative paragraphs in total. The references to language thus carry significant weight in terms of the Committee’s perceptions of both its mandate and the obligations of states parties. This mandate is largely unacknowledged, probably due to its recent impetus, with no singular work outlining the cerd’s remit on language or ethnolinguistic minorities. Similarly, the Committee itself has not issued its own understanding of its role in minority language protection via a general recommendation. Yet it has developed an important role in the protection of ethno-linguistic minorities, with the defence of minority languages forming a key battleground for enabling such protection. This is a complex area and it seems appropriate to recommend a thematic discussion on this issue in the future in which the role of the cerd could be carved out in conjunction with governments, experts and ngos in the area of linguistic minority rights. It is apparent that linguistic minorities are firmly within the ambit of the icerd where there is a link with ethnicity. This would not include all linguistic minorities; Irish speakers in Ireland, for example, would not be part of the remit of the icerd, lacking any ethnic differentiation with the majority. Yet the link with ethnicity is more often present than not when it comes to vulnerable languages or linguistic groups, as evidenced in the increasingly wide referencing to language preservation and linguistic minority protection in the practice of the cerd. 4

Religious Minorities and the International Convention on the Elimination of All Forms of Racial Discrimination

The status of religious minorities under the icerd is less straightforward. This is linked to the history of the icerd, which began as a response to a global outbreak of anti-Semitic graffiti in the winter of 1959, known as the ‘Swastika epidemic’.48 An initial resolution from the then un Sub-Commission condemned this manifestation of ‘religious and racial prejudices’, but a later decision in the Third Committee of the General Assembly was to split the issues of racial and religious discrimination, resulting in two separate Resolutions,

48

See further Keane, ‘Addressing the Aggravated Meeting Points of Race and Religion’ (2006) 6(2) Maryland Law Journal of Race, Religion, Gender and Class 367 at 371.

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1780 (xvii)49 and 1781 (xvii)50 respectively. They called for the preparation of draft declarations and conventions dealing separately with racial discrimination and religious intolerance.51 From there, the icerd quickly received state support and the Convention was drafted in just two years. The fortunes of the ‘religion convention’ were very different, whereby an initial proposal that included a draft convention drifted, resulting only in a non-binding declaration on religious intolerance some twenty years later.52 In this sense the experience of seeking to create a universal binding standard on religious discrimination or intolerance has been analogous to that of creating a universal binding standard on minority rights, and it is perhaps not insignificant that religious minorities are common to both. The possibility of creating a global legal instrument on freedom of religion or belief has not entirely disappeared. For example, Malcolm Evans writes that ‘[r]ecommencing work on a un Convention on discrimination based on Religion or Belief would roll back the essentially negative approaches of recent years and champion a more positive vision of what religious freedom has to offer’.53 The travaux préparatoires to the icerd reveal that the un Declaration on the Elimination of All Forms of Racial Discrimination 1963,54 which preceded the treaty, stated explicitly in its Article 3(1) that ‘[p]articular efforts shall be made to prevent discrimination on the basis of race … especially in the fields of … religion’. Nevertheless, the definition of racial discrimination in Article 1(1) in the resulting icerd of 1965 covers only ‘race, colour, descent and national or ethnic origin’, and religion does not obviously fall within its ambit. Yet this needs to be read in conjunction with Article 5(d)(vii) of the Convention, whereby states are required to prohibit and eliminate racial discrimination in the enjoyment of the ‘right to freedom of thought, conscience and religion’. 49

ga Res 1780 (xvii), Preparation of a draft declaration and a draft convention on the elimination of all forms of racial discrimination, 7 December 1962. 50 ga Res 1781 (xvii), Preparation of a draft declaration and a draft convention on the elimination of all forms of religious intolerance, 7 December 1962. 51 Keane, supra n 48. 52 United Nations Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, ga Res 36/55, 25 November 1981. 53 Evans, ‘Advancing Freedom of Religion or Belief: Agendas for Change’ (2012) 1(1) Oxford Journal of Law and Religion 5 at 14. Evans believes that the arguments against returning to the drafting of a un Convention on the Freedom of Religion or Belief all come down to the rationale that it would be unwise to run the risk of unsettling the consensus that exists around the accepted standards. Yet no such consensus exists, he argues, and if it does, it has done little to stem the tide of rising hostility and violence (at 9). 54 ga Res 1904 (xviii), 20 November 1963.

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According to a former Special Rapporteur on Freedom of Religion or Belief, Abdelfattah Amor, this provision means that ‘racial, in the sense of ethnic matters, fully encompass the religious aspect’.55 In the early days of the Committee, there was debate on whether the Convention covered religious discrimination. A 1984 case involving Norway led to significant discussion on the topic within the Committee. The Norwegian Supreme Court had assessed a conviction of a defendant for distributing leaflets vilifying Islam as well as Norwegian immigration policy regarding Islamic foreign workers and Islamic immigrants.56 According to the cerd’s report, the author of the leaflets ‘had treated the religious beliefs of the immigrants as the hallmark of their racial and ethnic identity and had explicitly invoked racial categories and racist attitudes’.57 In the discussion on the judgment, members of the cerd specifically questioned whether Article 1 of the Convention applied to religious discrimination. According to Sullivan, [s]ome members believed attacks on identifiable ethnic or national groups would breach the Convention but attacks on a specific religion would not. Others disagreed, stating that good grounds could be found for extending the Convention to cover attacks against religion.58 The first Special Rapporteur on religious intolerance for the Commission on Human Rights, Angelo Ribeiro, recommended in his 1988 annual report that the procedures established by the cerd be used to monitor the implementation of international standards on the elimination of religious intolerance and discrimination.59 Although the cerd has made no express statement that religious discrimination forms part of its remit, there is conclusive evidence from the reporting procedure that this approach has been adopted if there is a link with race or ethnicity. For example, the Committee’s Concluding observations to Nigeria’s state report, issued in 2005, highlight the link between race and religion, and the willingness on the part of the cerd to address i­ nstances 55

Amor, World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance, ‘Racial Discrimination and Religious Discrimination: Identification and Measures’, A/CONF.189/PC.1/7, at para 55. 56 Sullivan, ‘Advancing the Freedom of Religion or Belief through the un Declaration on the Elimination of Religious Intolerance and Discrimination’ (1988) 82(3) American Journal of International Law 487 at 508–509. 57 Ibid. at 509. 58 Ibid. 59 Report submitted by Mr. Angelo Vidal d’Almeida Ribeiro, Special Rapporteur appointed in accordance with Resolution 1986/20 of the Commission on Human Rights, E/CN.4/1988/45, at para 73.

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of religious intolerance. The Committee noted that ‘[i]n the light of the “intersectionality” of ethnic and religious discrimination, the Committee remains concerned that members of ethnic communities of the Muslim faith, in particular, Muslim women, can be subjected to harsher sentences than other Nigerians’.60 In its Concluding observations to Turkmenistan’s first report, the Committee referred to Article 5(d) of the Convention: [W]hile stressing the complex relationship between ethnicity and religion in Turkmenistan, [the Committee] notes with concern information that members of religious groups do not fully enjoy their rights to freedom of religion and that some religious confessions remain unregistered. … The Committee recalls the State party’s obligation to ensure that all persons enjoy their right to freedom of religion, without any discrimination based on national or ethnic origin, in accordance with Article 5(d) of the Convention.61 Ghana’s state report of 2002 described how religious intolerance could be considered a form of indirect racial discrimination: The protection granted against racial discrimination under Chapter 5 of the Constitution, and enforced by the chraj [Commission on Human Rights and Administrative Justice] under Chapter 18 of the Constitution, has been exercised in practice numerous times. … While detailed statistics relating to these cases are not available, fewer than five related directly to racial discrimination. The majority of the complaints of discrimination received were cases of religious discrimination which, because religion in Ghana is often related to ethnicity, could be classified indirectly, in some cases, as racial discrimination.62 In an illuminating passage in its consideration of Georgia’s report, the ­Committee clarified: 60 61 62

cerd, Concluding observations regarding Nigeria, 19 August 2005, CERD/C/NGA/CO/18, at para 20. cerd, Concluding observations regarding Turkmenistan, 18 August 2005, CERD/C/TKM/ CO/5, at para 17. cerd, Report submitted by Ghana, 31 May 2002, CERD/C/431/Add.3, at para 127. cerd’s Concluding observations to Ghana’s report repeated this paragraph and called for ‘more detailed information’ on the matter: cerd, Concluding observations regarding Ghana, 21 March 2003, CERD/C/62/CO/4, at para 16.

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Religious questions are of relevance to the Committee when they are linked with issues of ethnicity and racial discrimination. In this connection, and while acknowledging the effort made by the State party to fight ethno-religious violence, the Committee remains concerned about the situation of ethno-religious minorities, such as the Yezidi Kurds (art. 5).63 The Committee recommended that Georgia include detailed information in its next periodic report on ‘the situation of ethno-religious minorities’, and in particular that it ‘adopt a bill on freedom of conscience and religion designed to protect those minorities against discrimination and … acts of violence’.64 The observation was repeated when the Committee examined Tanzania’s report, but the phrasing was more general: Religious questions are of relevance to the Committee when they are linked with ethnicity and racial discrimination. In this connection, the Committee is concerned about the lack of information on the ethnoreligious composition of the State party’s population and about allegations­ of tensions between ethno-religious groups (arts. 5 and 7). The Committee recommends that the State party include detailed information in its next periodic report on the situation of ethno-religious communities and the measures taken to promote tolerance between them.65 The Tanzanian example shows that the cerd is inquiring into ethno-religious discrimination as a matter of course. The Article 5 obligations in relation to religious intolerance must, however, be construed narrowly, and apply only when an infringement on religious freedom has an ethnic component. Thus, the cerd is not concerned with religious groups per se. There must also be distinctions of ethnicity. Similar to the themes around language, there is no general recommendation outlining its role in relation to ethno-religious groups despite the possibility for this to form an important contribution or clarification on states’ reporting obligations. Furthermore, the legal basis for the cerd’s examination of ethno-religious groups appears stronger than it does for ethno-linguistic groups, given the Article 5 basis for the former and the absence of any s­ ubstantive 63

cerd, Concluding observations regarding Georgia, 15 August 2005, CERD/C/GEO/CO/3, at para 18. 64 Ibid. 65 cerd, Concluding observations regarding Tanzania, 17 August 2005, CERD/C/TZA/CO/16, at para 20.

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reference to ‘language’ or ‘linguistic’ that would underline its mandate over the latter. Yet it is perhaps possible to ascertain that the cerd may be more reluctant to engage with religious than linguistic questions in relation to minorities, although its practice at present indicates that where there is a link with ethnicity, ethno-religious and ethno-linguistic minorities find protection under the Convention. Religious questions have rarely found easy course in the United Nations, and it may perhaps be more opportune for the cerd to first engage with ethno-linguistic minorities via a thematic discussion and general recommendation. 5 Conclusion The growing link between racial discrimination and protection of minorities has not gone unnoticed within the un architecture. In March 2013, the un Secretary-General issued a Guidance Note on Racial Discrimination and Protection of Minorities,66 which asks to what extent the organisation can combine­its efforts to combat and prevent racial discrimination and to advance minority protection, as these are frequently interlinked.67 It states: On the one hand, standards and mechanisms devoted to combatting racial discrimination benefit minorities, who are often targets of racial discrimination. On the other hand, minority rights contribute to the efforts to combat racial discrimination, by directly reinforcing prohibition of racial discrimination and also through participatory rights and other rights that indirectly contribute to efforts to combat such discrimination.68 The wording is generalised and fails to capture the manner in which the elimination of all forms of racial discrimination has grown. The document does not categorise the extent to which the cerd’s interpretation of its mandate in the past fifty years, or indeed clarification of the scope available under the definition of racial discrimination in Article 1(1) of the icerd, has encroached upon the realm traditionally considered minority rights. The cerd complements 66

Guidance Note of the Secretary-General on Racial Discrimination and Protection of Minorities, 2013, available at: www.ohchr.org/Documents/Issues/Minorities/GuidanceNote SG.pdf. 67 Ibid. at para 7. 68 Ibid.

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the work of the un Declaration on Minorities and the Independent Expert,69 as well as the protections under Article 27 of the iccpr and the regional standards including the fcnm, providing a universal and binding source for minority group protection. It engages indigenous peoples within the instrument, in line with Human Rights Committee interpretations in relation to Article 27 of the iccpr, and has developed additional mechanisms such as the Urgent Appeals and Early Warning Mechanism to address emergency threats to minorities and other groups.70 There is a clear need for greater regional protection of minority rights outside Europe. The fcnm provides an adaptable template, as do the various European standards developed such as the Lund Recommendations on the Effective Participation of National Minorities in Public Life.71 Yet minority groups in Asia and Africa find little express protection or recognition, and only indigenous groups find any real protection in the Americas. Article 27 of the iccpr ought not to be considered the only international standard available as a reference point to minorities outside of Europe. The important role of the icerd as the legal ‘home’ of minority and indigenous groups may lead to greater understanding that such groups have always been part of the un international human rights standards, and have always had a particular treaty designed to house the work of the international community on the realisation of their rights. Regional standards tend to flow from universal, rather than other regional, standards. In this regard, the existence of a minority rights treaty, largely unacknowledged, may lead to the increased regional protection of minority rights. It could therefore be asserted that the icerd is the most appropriate treaty for what can broadly be termed minority rights. It appears to cover the vast majority of groups, indigenous and non-indigenous, in a tailored and universal instrument. In addition, it has generated space for groups who were previously not covered by any understanding of a minority, such as caste groups in South Asia, or Afro-descendants in the Americas. It has absorbed many linguistic groups, and religious groups to a perhaps lesser extent, who were not traditionally considered within its remit. Its work on specific minority groups 69 See unchr Res 2005/79, Rights of persons belonging to national or ethnic, religious and linguistic minorities, 21 April 2005, which establishes the mandate of the Independent Expert on minority issues. 70 Thornberry, ‘Confronting Racial Discrimination: A cerd Perspective’ (2005) 5(2) Human Rights Law Review 239. 71 Organization for Security and Co-operation in Europe, High Commissioner on National Minorities, September 1999, available at: www.osce.org/hcnm/32240.

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such as the Roma, as well as the global range of ethnic groups, is evident in its general comments and reporting practice. Its high number of ratifications and broad state support for the elimination of racial discrimination, albeit one narrowly understood by states parties while widely interpreted by the cerd, has been much more successful than comparable international initiatives around minority protection. It has in effect provided a focal point for minority groups who have in the past drifted between the various mechanisms of the United Nations. Contemporary expressions that regret the absence of a universal minority rights treaty are perhaps no longer current, and the understanding of minority rights today needs a greater acknowledgement of its primary source, which was not, but has arguably become, the icerd. The challenge will be in convincing states parties to the icerd that the Committee’s interpretative ­approach is one which they need to follow.

chapter 10

Children’s Rights under Regional Human Rights Law – A Tale of Harmonisation? Aoife Nolan and Ursula Kilkelly 1 Introduction This chapter focuses on an area where a high level of harmonisation between international and regional human rights protection is evident: the rights of the child.1 All of the major regional human rights systems—the African, the Inter-American and the Council of Europe—accord explicit protection to child rights and the key institutions within those systems have engaged directly with such rights in a range of different contexts. The aim of this chapter is not, however, to provide a comprehensive analysis of how regional judicial and quasijudicial bodies have approached children’s rights. Rather, its focus is on the extent to which the regional systems take into account the key international instrument on children’s rights, the Convention on the Rights of the Child (crc). In doing so, the authors will consider those entities’ use of the work of the body mandated to monitor that instrument, the un Committee on the Rights of the Child (ComRC). The way in which and the extent to which the different regional treaty bodies have addressed children’s rights reflect a range of factors. These include: (a) the human rights protected under those systems; (b) the mandate of the regional human rights bodies with responsibility for children’s rights; and (c) the kinds of cases prioritised by children, child rights advocates2 and others 1 This chapter reflects the law as it was publicly available on 14 May 2015. As such, it does not reflect the African Committee on the Rights and Welfare of the Child’s decisions in Michelo Hunsungule and Others (on behalf of children in Northern Uganda) v Uganda Communication No 1/05, 15–19 April 2013, and in Centre for Human Rights and La Rencontre Africaine pour la Défense des Droits de l’Homme v Senegal Communication No 3/12, 14 April 2014, which were uploaded onto the Committee’s website after that date. 2 Although all cases dealt with by the European Court of Human Rights are taken by personal applicants—notably parents either with or on behalf of their children—in other regional systems child rights litigation has also been taken by ngos. Such bodies can bring cases to the Inter-American and African Commissions directly (see Article 44 achr; and the discussion in Viljoen, International Human Rights Law in Africa, 2nd edn (oup, 2012), respectively) and to the African Court and the European C ­ ommittee of Social Rights in more limited

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004284258_012

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empowered to bring complaints.3 Despite these variables, as made clear below, there are a number of common elements to the Inter-American, African and European human rights systems’ approaches to children’s rights. While regional human rights systems do make use of international human rights law other than the crc in their jurisprudence involving children’s rights, this chapter’s focus on that instrument is appropriate for a number of reasons. First, the crc is the only international human rights instrument to have been ratified by all, bar one, United Nations member states.4 As such, it is the most ‘universal’ of all international human rights instruments dealing with children’s rights. Second, as will become clear below, the crc has been cited by all of the regional human rights protection and promotion bodies under consideration and in many cases has served as a key interpretive influence and source in relation to those institutions’ approach to child-related rights issues. Ultimately, this chapter concludes that the growing reference to, and employment of, the crc by regional human rights bodies has contributed to an increasing harmonisation of regional approaches to children’s rights. This level of harmonisation is a strong testament to the influence of that instrument given both the diverse challenges faced by children in Europe, Africa circumstances: see Article 5(3) Protocol to the African Charter­on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights; and Articles 1(b) and 2 Additional Protocol to the European Social Charter Providing for a System of Collective Complaints. 3 These include states (Articles 45 and 61 achr; Article 5(1)(b)–(d) Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights), the Inter-American Commission (Article 61 achr), the African Commission (Article 5(1)(a) Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights), international and representative trade unions and employers’ organisations (Article 2 Additional Protocol to the European Social Charter Providing for a System of Collective Complaints) and African intergovernmental organisations (Article 5(1)(e) Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights). Other factors affecting the choice of cases may include donor/funder concerns (particularly in the case of ngos) and the concerns of non-child rights-centred groups which seek to use children’s rights to advance particular adult-driven campaigns, for instance in relation to abortion (see, for example, Case 2141, White and Potter (Baby Boy) v United States of America Resolution No 23/81 (1981)). 4 The us has not ratified the crc. However, the us is a member of the Organization of American States and is subject to the obligations contained in the Charter of the Organization of American States and the American Declaration of the Rights and Duties of Man. South Sudan accepted the crc on 23 January 2015. South Sudan is neither a signatory nor a party to the African Charter or the African Charter on the Rights and Welfare of the Child.

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and the Americas, and the variations in approach to children’s rights in the basic instruments of the regional human rights systems under consideration. Although there are many factors that result in the crc playing a different role vis-à-vis the work of the various regional mechanisms, it is increasingly clear that the crc is the tie that binds in child rights protection at regional as well as international level. 2

The African Regional Human Rights System

The African regional system is the one that is most explicit in its embrace of the international child rights regime. The 1981 African Charter on Human and Peoples’ Rights makes multiple references to children and their rights. Article 17(3) outlines states parties’ obligations to ‘ensure the protection of the rights of the woman and the child as stipulated in international declarations and conventions’, while Chapter 2 on duties highlights that everyone (including presumably the child) ‘shall have duties towards his family and society’5 and ‘to preserve the harmonious development of the family’.6 The right to education in Article 17 is also of particular relevance to children.7 Furthermore, children are certainly included within the individuals who may, subject to certain conditions, submit a communication to the African Commission on Human and Peoples’ Rights and the African Court on Human and Peoples’ Rights.8 However, the key children’s rights instrument under the African regional system is the 1990 African Charter on the Rights and Welfare of the Child (‘Children’s Charter’).9 That Charter post-dates the adoption of the crc and shares a number of elements with that international instrument,10 including a wide range of civil, political, economic, social and cultural rights, the 5 6 7

8

9 10

Article 27(2) African Charter. Article 29(1) African Charter. The rights of girl children are also addressed under the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, while the African Youth Charter applies to children between the ages of 15 and 18 years. See respectively Articles 55 and 56 African Charter and Articles 5(3) and 34(6) Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights. 1 July 1990, CAB/LEG/24.9/49 (1990). For a discussion of the history and overview of the operation in practice of the Children’s Charter, see Viljoen, supra n 2 at 391–409. For an overview of the common and divergent elements of the African Charter and the crc, see Chirwa, ‘The Merits and Demerits of the African Charter on the Rights and Welfare of the Child’ (2002) 10(2) International Journal of Children’s Rights 157.

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principles of n ­ on-discrimination and best interests,11 an emphasis on the right to the life, survival and development of the child12 and participation rights.13 After a slow start, the treaty has thus far been ratified by 47 out of 54 African Union (au) states,14 with only four states entering Reservations to provisions of the Charter.15 While many of the same principles are afforded protection in the two instruments, they are, however, frequently specified in a different way, resulting in potentially differing levels of protection for children’s rights. Key examples include the fact that, in contrast to Article 4 of the crc, the African Children’s Charter does not differ in terms of the express obligations imposed on states with regard to civil and political rights and economic, social and cultural ones16 (albeit that in practice, consistent with Article 4 of the crc, those latter rights have been interpreted as being subject to the resources available to the state in question).17 There are also a number of areas in which the Children’s Charter appears to accord a higher level of protection than that set out in the crc. For instance, the best interests principle under the Children’s Charter (which renders such ‘the primary consideration’ in all actions concerning the child) accords greater priority to the child’s best interests than is required by Article 3(1) of the crc. In addition, the Children’s Charter places a heavy emphasis on the rights of the girl child18 and makes explicit provision for the rights of children of imprisoned mothers.19 The juvenile justice provisions are also stronger in some respects than their crc counterparts.20 There are, however, some significant weaknesses in the Children’s Charter relative to the crc. These include the fact that protection of participation rights is much more limited than 11 12 13 14

15 16 17

18 19 20

Articles 3 and 4 Children’s Charter, respectively. Article 5 Children’s Charter. See in particular Article 4(2) Children’s Charter. African Committee of Experts on the Rights and Welfare of the Child (acerwc), ‘Ratifications Table’, available at: acerwc.org/ratification-data/. It has not been ratified by the Central African Republic, the Democratic Republic of Congo, the Sahrawi Arab Democratic Republic, Sao Tome and Principe, Somalia or Tunisia. South Sudan has ratified neither the crc nor the Children’s Charter. For more details, see acerwc, ‘Reservations’, available at: acerwc.org/reservations/. See Article 1 Children’s Charter. acerwc, Institute for Human Rights and Development in Africa (ihrda) and Open Society Justice Initiative on Behalf of Children of Nubian Descent in Kenya v Kenya Communication No 2/09, 22 March 2011, at para 62. See, for example, Article 11(3)(e) Children’s Charter. Article 30 Children’s Charter. See Chirwa, supra n 10 at 166–167.

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under the crc,21 and the Charter appears to permit parental physical punishment.22 Viljoen has highlighted how the instrument fails to include the child’s right to access information, to benefit from social security or to an adequate standard of living.23 In terms of divergence from the crc, there are some elements of the Children’s Charter that have clearly been strongly influenced by the specific historical and political context of the instrument,24 including a provision on protection against apartheid,25 a complete ban on the use of child soldiers,26 the inclusion of ‘Africa-specific’ aims of education27 and a provision dealing expressly with protection against harmful social and cultural practices.28 The Children’s Charter reflects a particular concern with protection of the family that is not explicitly included in the rights provisions of the crc;29 the various elements of the crc dealing with the responsibilities of parents and others responsible for the child are largely distilled into one provision of the Children’s Charter, Article 20 on ‘parental responsibilities’.30 Again, reflective of what Chirwa terms ‘the African concept that the family is the basic unit of society’,31 the Children’s Charter also outlines the duties that the child may have towards their family and society, ‘subject to [their] age and ability and such limitations as may be contained in the present Charter’.32 The Children’s Charter provides for an African Committee of Experts on the Rights and Welfare of the Child,33 an 11 member body mandated to promote, protect and monitor the implementation, and ensure protection, of ­Charter rights.34 In terms of integration of the Committee’s work with that of the 21

There is no equivalent of the general obligation to take the child’s views into account in all matters affecting them set out in Article 12(1) crc. 22 Article 11(5) Children’s Charter. 23 Viljoen, supra n 2 at 395. 24 For a discussion of the ‘African features’ of the Children’s Charter (particularly different issues of concern to African commentators that were not addressed under the crc), see Viljoen, supra n 2 at 392–395. 25 Article 26 Children’s Charter. 26 Article 22(2) Children’s Charter. 27 Article 11(2) Children’s Charter. 28 Article 21 Children’s Charter. 29 See Article 18(1) Children’s Charter on protection of the family. The crc does contain language similar to that of Article 18(1) in its preamble. 30 See, for example, Articles 18, 27 and 5 crc. 31 Chirwa, supra n 10 at 169. 32 Article 31 Children’s Charter. 33 Article 32 Children’s Charter. 34 Article 42(a) and (b) Children’s Charter.

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ComRC, the Committee is required to ‘cooperate with other African, international, and regional institutions and organisations concerned with the promotion and protection of the rights and welfare of the Child’,35 which would include the ComRC. Furthermore, the Committee is to ‘draw inspiration from International Law on Human Rights, particularly from … the International Convention on the Rights of the Child’.36 These provisions create a strong basis for the adoption of an integrated approach on the part of the Committee with regards to the crc. However, while the African regional system accords a wide range of rights protections to children on paper, the lack of capacity and inadequate resourcing of the Committee are at least partly responsible for the disappointingly limited outputs of the Committee since it began its work in 2002.37 Despite the Charter’s communications system and the range of persons and bodies that can bring complaints relating to ‘any matter covered by this Charter’,38 the Committee’s jurisprudence is currently very scant. Indeed, to date only two complaints have been received and one decision on the merits handed down: the Institute for Human Rights and Development in Africa (ihrda)­ and Open Society Justice Initiative on Behalf of Children of Nubian Descent in Kenya v Kenya.39 This decision concerned the obstacles faced by Nubian children in Kenya in having their births registered and in accessing Kenyan nationality and, as a result of their lack of confirmed status as Kenyan nationals, their limited access to health care services and education. The Committee found violations of the right to name and nationality,40 the prohibition on discrimination41 and the rights to education and the highest attainable standard of health.42 While the crc and the work of the ComRC received less attention in the decision than the African Charter and the jurisprudence of the African Commission on Human and Peoples’ Rights, the Committee did make reference to the work of the ComRC as evidence of the ongoing failure of Kenya to address the gap in its birth registration practice and highlighted that the rights 35 36 37

38 39 40 41 42

Article 42(a)(iii) Children’s Charter (emphasis added). Article 46 Children’s Charter. For more on these points, see Mezmur, ‘The African Committee of Experts on the Rights and Welfare of the Child: An Update’ (2006) 6(2) African Human Rights Law Journal 549; and Viljoen, supra n 2 at 398 and 408. Article 44(1) Children’s Charter. Supra n 17. Article 6(2), (3) and (4) Children’s Charter. Article 3 Children’s Charter. Articles 11(3) and 14(2)(b), (c) and (g) Children’s Charter, respectively.

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to birth registration and nationality were provided under both that instrument and the Children’s Charter.43 Nor has the Committee developed its work significantly in terms of investigations, as provided for under Article 45 of the Children’s Charter. Indeed, the sole instance of such an investigation was a ‘fact-finding mission to Northern Uganda in 2005 which was presented by the au Commission to the Executive Council, the Permanent Representatives Committee and the au Assembly’.44 A state-caused obstacle in terms of the Committee’s work is the fact that only just over half of the states that have ratified the Charter have made initial reports in relation to that instrument.45 More positively, and consistently with its mandate ‘to formulate and lay down principles and rules aimed at protecting the rights and welfare of children in Africa’,46 the Committee has authored two general comments on children of incarcerated and imprisoned parents and primary caregivers47 and on Article 6, the right to a name, to acquire nationality and birth registration.48 There is one recent development that is of potential concern in terms of the African regional system’s protection of children’s rights in a crc-compliant way – and indeed the effective protection of children’s rights as part of that system at all. This is the December 2014 advisory opinion of the African Court on Human and Peoples’ Rights on the Standing of the African Committee of Experts on the Rights and Welfare of the Child before the African Court on Human and Peoples’ Rights.49 In this opinion, the Court held that, although the Committee is an organ of the Union and has standing to seek an advisory opinion in terms of Article 4(1) of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights, it is not an ‘African Intergovernmental Organization’ entitled 43 See Institute for Human Rights and Development in Africa (ihrda) and Open Society Justice Initiative on Behalf of Children of Nubian Descent in Kenya v Kenya, supra n 17 at paras 39 and 42 respectively. 44 This mission is mentioned on the acerwc’s website (although the report is not provided): see pages.au.int/acerwc/pages/investigation-missions. For more details on this mission, see Mezmur, supra n 37 at 564–565. 45 acerwc, ‘Initial Reports’, available at: acerwc.org/member-states/state-reports/. 46 Article 42(a)(ii) Children’s Charter. 47 acerwc, General Comment No 1 on Article 30 of the African Charter on the Rights and Welfare of the Child on Children of Incarcerated and Imprisoned Parents and Primary Caregivers, ACERWC/GC/01 (2013). 48 acerwc, General Comment No 2 on Article 6 of the African Charter on the Rights and Welfare of the Child, ACERWC/GC/02 (2014). 49 2/2013, Advisory Opinion, 5 December 2014.

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to submit a case to the Court.50 While the Court’s jurisdiction extends to ‘all cases and disputes submitted to it concerning the interpretation and application of … any other relevant Human Rights instrument ratified by the States concerned’51 and it is required to apply both the African Charter and ‘other relevant human rights instruments ratified by the states concerned’52 (which for the 24 states which have ratified the Protocol would certainly include the crc and for 21 of them would include the Children’s Charter),53 it is of great concern that the child rights-specific monitoring body of the African regional system cannot bring complaints to the Court on its own initiative.54 Indeed, the Court itself emphasised in the advisory opinion that it is ‘highly desirable that the Committee is given direct access to the Court’.55 Despite these drawbacks, the African regional human rights system undoubtedly accords more extensive, express protection to children’s rights than any of the other regional systems. Crucially from the perspective of harmonisation, African regional protection of children’s rights has been strongly influenced by the crc, both in terms of the standards under the Children’s Charter and the way in which these have been interpreted by the African Committee of Experts on the Rights and Welfare of the Child. 3

The Inter-American Regional Human Rights System

While the key documents of the Inter-American human rights system make only limited reference to children and their rights, the institutions of that system – most notably the Inter-American Court of Human Rights (IACtHR) – have 50 51 52 53

54

55

Ibid. at para 100. See also Article 5(1) Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights. Article 3 Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights. Article 7 Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights. See African Commission on Human and Peoples’ Rights, ‘Ratifications Table: Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights’. It should be noted, however, that the Committee will be able to bring complaints to the African Court of Justice and Human Rights in terms of Article 30(c) Protocol on the Statute of the African Court of Justice and Human Rights if and when this instrument comes into force. Standing of the African Committee of Experts on the Rights and Welfare of the Child before the African Court on Human and Peoples’ Rights, supra n 49 at para 100.

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outlined a detailed framework for the protection of the rights of the child strongly based on the crc. Indeed, the Inter-American Commission on Human Rights (iachr) itself has highlighted that the text of the Convention on the Rights of the Child and decisions adopted by the Committee – such as their General and Final Comments on the periodic reports presented by the states parties to the Convention on the Rights of the Child – are incorporated into the [Inter-American] system as reference material for interpretation purposes.56 In terms of textual attention to children’s rights, the American Declaration of the Rights and Duties of Man sets out the right of all children to special protection, care and aid,57 while Chapter 2 of the Declaration delineates ‘the duty of every person to aid, support, educate and protect his minor children, and … the duty of children to honor their parents always and to aid, support and protect them when they need it’.58 Article 17 of the American Convention on Human Rights (achr) on the rights of the family provides that ‘provision shall be made for the necessary protection of any children solely on the basis of their own best interests’,59 while states must also ensure that ‘the law shall recognize equal rights for children born out of wedlock and those born in wedlock’.60 The most significant provision in terms of children’s rights within the InterAmerican­system is Article 19 of the achr on the rights of the child which provides that ‘[e]very minor child has the right to the measures of protection required by his condition as a minor on the part of his family, society, and the state’.61 The rights under Articles 17 and 19 may not be derogated from on any ground.62 56

iachr, ‘The Rights of the Child in the Inter-American Human Rights System’, OEA/ Ser.L/V/II.133, 29 October 2008. 57 Article vii. 58 Article xxx. 59 Article 17(4) achr. 60 Article 17(5) achr. 61 In terms of other express references to children and their rights, Article 12(4) achr provides that parents or guardians, as the case may be, have the right to provide for the religious and moral education of their children or wards that is in accord with their own convictions, while Article 13(4) achr on the right to freedom of thought and expression provides that ‘public entertainments may be subject by law to prior censorship for the sole purpose of regulating access to them for the moral protection of childhood and adolescence’. 62 See Article 27 achr.

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Twenty-three out of the 35 members of the Organization of American States (oas) are currently parties to the Convention, while all members of the oas are bound by the child rights provisions under the Declaration. Where a state has not ratified the Convention, the iachr and the IACtHR will still look at that state’s obligations under the Declaration on the basis that the Declaration contains and defines the fundamental human rights referred to in the Charter of the Organization of American States.63 As such, child rights in one form or another are binding on all members of the oas, although unlike the African (but similar to the Council of Europe) regional human rights system, there is no child rights-specific monitoring body with the mandate to promote and protect children’s rights. Rather, this work is primarily carried out by the iachr and the IACtHR in terms of their functions,64 most importantly and influentially in their quasi-judicial and judicial role in hearing complaints and cases. In 1998 the Commission established the Office of the Rapporteur on the Rights of the Child to ‘examine the status of children’s rights, carry out related activities, and propose effective measures to be taken by the member states’.65 The Rapporteur’s key activities include providing specialised advice to the Commission in the proceedings of petitions to the iachr regarding violations of the rights of children and adolescents; the conduct of special studies on the rights of children and adolescents; state visits; and promotional activities such as seminars, workshops and meetings on child rights.66 Outputs have included both thematic and country-specific reports.67 While the various Rapporteurs have undoubtedly carried out important promotional work around children’s rights, the remainder of this section will focus on the protection of children’s rights through the jurisprudence and other work of the iachr and the IACtHR. The Commission’s earliest statements on children’s rights took place in the 1960s and 1970s in the context of its reporting work on the general human rights situations in the countries subject to its attention.68 It also looked at the 63 OC-10/89, Interpretation of the American Declaration of the Rights and Duties of Man within the Framework of Article 64 of the American Convention on Human Rights IACtHR Series A 10 (1989) at para 43. 64 See respectively Chapters 7 and 8 of the achr. 65 iachr, Press Release No 18/98, 13 October 1998, available at: www.cidh.org/Comunicados/ English/1998/Press15-19.htm#18. 66 iachr, ‘Children: Mandate and Functions’, available at: www.oas.org/en/iachr/children/ mandate/Functions.asp. 67 For more, see the website of the Rapporteur at: www.oas.org/en/iachr/children/. 68 For more, see iachr, ‘The Rights of the Child in the Inter-American Human Rights System’, supra n 56 at paras 58–67.

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children’s rights provisions under the Declaration and the Convention through its consideration of petitions and cases in terms of the American Convention.69 Up until the late 1980s (and the creation of the crc), most of these concerned violations of the right to life, to personal liberty or to humane treatment.70 The Commission has dealt with children’s rights in terms of a wide range of its functions,71 including the production of studies and reports on child rightsrelated issues,72 requests to governments to supply information on the implementation of child rights, its annual reports, addressing petitions in the context of its complaint process and the issuing of statements and press releases73 drawing attention to and expressing concern about existing or potential child rights violations in the Americas. The coming into force of the crc had a transformative impact on the approach of the Inter-American bodies. In particular, the post-crc era resulted in a more substantive development of the content of Article 19 of the achr,74 in light of the standards set out in the crc and developed by the ComRC. The IACtHR has played a key role in this, stating in its first treatment of children’s rights that ‘[b]oth the American Convention and the Convention on the Rights of the Child form part of a very comprehensive international corpus juris for the protection of the child that should help this Court establish the content and scope of the general provision established in Article 19 of the American Convention’.75 The Commission has played an important part in advancing the Court’s jurisprudence in this area, through bringing cases to the IACtHR and requesting advisory opinions in terms of Articles 61 and 64(1) of the achr, respectively.

69 70

See, in particular, Articles 44–50 achr. iachr, ‘The Rights of the Child in the Inter-American Human Rights System’, supra n 56 at para 59. 71 The iachr’s key functions are outlined in Article 41 achr. 72 See, for example, iachr, ‘The Rights of Boys and Girls to a Family: Alternative Care. Ending Institutionalization in the Americas’, 2013, available at: www.oas.org/en/iachr/ children/docs/pdf/Report-Right-to-family.pdf. 73 See, for example, oas, ‘Press Release: iachr expresses concern over the initiative to amend Brazil’s constitution in order to lower the minimum age of criminal responsibility for adolescents’, 23 March 2015, available at: www.oas.org/en/iachr/media_center/ PReleases/2015/036.asp. 74 iachr, ‘The Rights of the Child in the Inter-American Human Rights System’, supra n 56 at para 60. 75 Case of the ‘Street Children’ (Villagrán Morales et al.) v Guatemala IACtHR Series C 63 (1999) at para 194.

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In defining childhood, the IACtHR has primarily relied on the wording of Article 1 of the crc.76 However, the IACtHR has been prepared in at least one case to recognise that, where the national age of majority is higher than 18 years, then a child under that age qualifies as a child for the purposes of Article 19, even if she is over 18.77 The leading decision of the IACtHR on children’s rights—and indeed the most detailed statement of any institution within the Inter-American system in this area—is the advisory opinion on the Juridical Condition of the Child,78 provided at the request of the iachr. The request was motivated by a particular concern about the failures of oas states in terms of ensuring children’s rights to a fair trial and to judicial protection under the Convention.79 In addressing the crc, the Court emphasised that it has been ratified by almost all oas member states and that ‘the large number of ratifications shows a broad international consensus … in favour of the principles and institutions set forth in that instrument’,80 which reflects current development of the protection of children’s rights. In this decision, the Court dealt with a range of the general principles identified by the ComRC including non-discrimination and the best interests of the child, and child participation,81 making it clear that these standards apply in the context of interpreting relevant provisions of the achr in relation to child rights. When considering the concerns raised by the Commission, the Court referred both to a number of un soft law instruments on juvenile justice as well as the travaux préparatoires of the crc.82 Ultimately, with regard to the procedural rights of children in the context of judicial and administrative proceedings, the Court concluded that certain specific measures must be adopted for them to effectively enjoy these rights and guarantees.83 76

See, for example, OC-17/02, Juridical Condition and Human Rights of the Child IACtHR Series A 17 (2002) at para 42; and Case of the ‘Street Children’ (Villagrán Morales et al.) v Guatemala, ibid. at para 188. While the wording of Article 4 achr would appear to indicate that the unborn may have rights under that Convention (‘[the right to life] shall be protected by law and, in general, from the moment of conception’), this will not be discussed in this chapter. Rather, our focus is on the born child. For more on the right to life of the unborn under the achr, see Case of Artavia Murillo et al. (‘In Vitro Fertilization’) v Costa Rica IACtHR Series C 257 (2012) at paras 163–264. 77 Case of the ‘Juvenile Reeducation Institute’ v Paraguay IACtHR Series C 112 (2004). 78 OC-17/02, Juridical Condition and Human Rights of the Child, supra n 76. 79 Articles 8 and 25 achr, respectively. 80 OC-17/02, Juridical Condition and Human Rights of the Child, supra n 76 at para 29. 81 Ibid. at paras 43–55, 56–61 and 137(2); and at para 99, respectively. 82 Ibid. at para 75. 83 Ibid. at para 98.

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The IACtHR has made reference to the crc in a range of different situations in which it has been called on to consider children’s rights. While its primary focus has been on fleshing out the special measures of protection owed to children under Article 19, it has also looked at the crc in terms of other provisions of the achr, as evidenced by its decisions on the rights to name and nationality of child descendants of migrants,84 the rights to life and personal integrity of children detained or wounded by police,85 the right to life of children subject to extrajudicial killings by state agents,86 the rights of detained children,87 the rights of the child to life, protection of the family, a name, privacy and family life, and the right to identity of children subject to forced disappearance.88 Indeed, in this latter context, the crc has been used as the basis for the identification of a right to identity under the achr.89 The crc has also been cited by the IACtHR in highlighting the rights of children in internal armed conflicts,90 while it and its Optional Protocol on the Involvement of Children in Armed Conflict have been cited by the Court in considering rights violations caused by forced recruitment, and subsequent mistreatment and death of children in active military service.91 Another area in which the Court has considered the role of the crc in fleshing out rights under Article 19 and other provisions of the achr is that of indigenous children, in relation to whom states are required to take the particular measures of special protection as ‘indigenous children whose communities are affected by poverty find themselves in a situation of particular vulnerability’.92 In dealing with the cultural rights of indigenous children, the Court has found that Article 30 of the crc ‘establishes an additional and complementary obligation that gives content to Article 19 [of the achr], and that consists of the obligation to promote and protect the right of indigenous children to enjoy their own

84

See, for example, Case of the Girls Yean and Bosico v Dominican Republic IACtHR Series C 156 (2006) at nn 111 and 190, respectively. 85 See, for example, Case of Barrios Family v Venezuela IACtHR Series C 237 (2011) at para 85. 86 See, for example, Case of the Gómez Paquiyauri Brothers v Peru IACtHR Series C 110 (2004) at para 124. 87 For example, Case of the ‘Juvenile Reeducation Institute’ v Paraguay, supra n 77. 88 See, for example, Case of Contreras et al. v El Salvador IACtHR Series C 232 (2011); and Case of Gelman v Uruguay IACtHR Series C 221 (2011). 89 See, for example, Case of Gelman v Uruguay, ibid. at para 122; and Case of Contreras et al. v El Salvador, ibid. at para 112. 90 Case of the Mapiripán Massacre v Colombia IACtHR Series C 134 (2005) at paras 153–156. 91 See Case of Vargas Areco v Paraguay IACtHR Series C 155 (2006). 92 Case of Rosendo Cantú et al. v Mexico IACtHR Series C 216 (2010) at para 201.

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culture, their own religion, and their own language’.93 Reflecting the growing scope of its work, more recently, the IACtHR has also addressed the rights of the children of lesbian parents, focusing in particular on the right of such children to freedom from discrimination, their best interests and their right ‘to be heard and have their views taken into consideration’ in custody decisions.94 Again, the crc was identified by the Court as a key factor for the purposes of the interpretation of the relevant achr provisions. An important point of contrast between the crc and the achr is that the crc contains an extensive range of child-specific economic, social and cultural rights (escr). Whereas in the Inter-American system the Declaration includes a number of escr that are not child-specific but that apply to children as rights-holders under that instrument,95 the only reference to economic, social and cultural rights under the Convention is in Article 26. This provision states that the States Parties undertake to adopt measures, both internally and through international cooperation, especially those of an economic and technical nature, with a view to achieving progressively, by legislation or other appropriate means, the full realisation of the rights implicit in the economic, social, educational, scientific, and cultural standards set forth in the Charter of the Organisation of American States as amended by the Protocol of Buenos Aires. This provision has not, however, received extensive attention from the IACtHR.96 That said, the IACtHR has acknowledged children’s entitlement to a wide range of economic, social and cultural rights through the adoption of a ‘canopy approach’ in terms of which it has subsumed free-standing economic, social and cultural rights into a broadly understood concept of the ‘right to life’ 93

94 95 96

Case of the Xákmok Kásek Indigenous Community v Paraguay IACtHR Series C 214 (2010) at para 261. For more, see Case of Chitay Nech et al. v Guatemala IACtHR Series C 212 (2010) at paras 164–170. Case of Atala Riffo and Daughters v Chile IACtHR Series C 239 (2012) at paras 151–152 and 196–200, respectively. Articles 11–16 American Declaration. Two notable (non-child-specific) exceptions to the IACtHR’s general failure to engage with Article 26 are Case of the ‘Five pensioners’ v Peru IACtHR Series C 98 (2003); and Case of Acevedo Buendía et al. (‘Discharged and Retired Employees of the Office of the Comptroller’) v Peru IACtHR Series C 198 (2009).

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and, more specifically, the ‘right to harbor a project of life’.97 For instance, in the ‘Street Children’ case, which centred on the abduction, torture and murder of street children by policemen, the Court emphasised that the right to life includes not only the right of every human being not to be deprived of her life arbitrarily, but also the right that she will not be prevented from having access to the conditions that guarantee a dignified existence.98 Similarly, in another children’s rights case, the IACtHR emphasised that one of the obligations that the state must undertake as guarantor to protect and ensure the right to life, is that of generating minimum living conditions that are compatible with the dignity of the human person.99 The IACtHR has also made clear that the right to education ‘which contributes to the possibility of enjoying a dignified life and to prevent unfavourable situations for the minor and for society itself, stands out among the special measures of protection for children and among the rights recognised for them in Article 19 of the American Convention’,100 a prioritisation that it regarded as consistent with the approach of the ComRC.101 In addition, although the IACtHR cannot directly consider violations of the San Salvador Protocol to the American Convention on Human Rights in the area of economic, social and cultural rights that are not based on trade union rights or the right to education,102 the Court has repeatedly turned to that instrument and the crc in order to determine the content and scope of Article 19 of the achr in the context of economic, social and cultural rights. With regard to the protection of the socio-economic rights of the child, the Court has declared that the San Salvador provisions allow us to define the scope of the ‘measures of protection’ referred to in Article 19 of the American Convention, from different angles. Among them, we should emphasise those that refer to non-discrimination, special assistance for children deprived of their family environment, the guarantee of survival and development of the child, the right to an 97

Melish, ‘The Inter-American Court of Human Rights: Beyond Progressivity’, in Langford (ed.), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (cup, 2008) 372 at 388. 98 Case of the ‘Street Children’ (Villagrán Morales et al.) v Guatemala, supra n 75 at para 144. 99 See, for example, Case of the ‘Juvenile Reeducation Institute’ v Paraguay, supra n 77 at para 159. 100 OC-17/02, Juridical Condition and Human Rights of the Child, supra n 76 at para 84. 101 Ibid. at para 88. 102 Article 19(c) San Salvador Protocol.

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a­ dequate standard of living and the social rehabilitation of all children who are abandoned and exploited.103 In its decision in the case of the ‘Juvenile Reeducation Institute’ v Paraguay, which focused on the conditions experienced by children in a detention centre, the Court reiterated the linkage between the right to life and other civil rights and the rights to health and education. In particular, it ruled that the obligation to provide children deprived of their liberty with special periodic health care and education programmes flows from a proper interpretation of Article 4 of the Convention, in combination with the pertinent provisions of the crc and Article 13 of the San Salvador Protocol.104 Although the achr and the American Declaration make relatively limited reference to children’s rights, the key institutions of the Inter-American system—the Commission, the Rapporteur and the Court—have used the crc and the work of the ComRC to outline a detailed child rights protection schema in the context of the specific challenges faced by children in the Americas region. This deliberate reliance on and use of the crc to establish the parameters of regional child rights protection in the Americas, as well as to fill gaps in the founding instruments of the Inter-American system, has resulted in a very high level of harmonisation between the crc and Inter-American regimes overall. 4

The Council of Europe Regional Human Rights System

The Council of Europe has adopted many instruments on children’s rights over the years, including instruments that preceded the crc, like the European Convention on the Adoption of Children, adopted in 1967, and the European Convention on the Legal Status of Children Born out of Wedlock, adopted in 1975. Newer instruments that post-date the crc include the 2003 Convention on Contact concerning Children, the 1996 European Convention on the Exercise of Children’s Rights and the 2007 Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse. More recently, a series of unique instruments on matters concerning juvenile justice, child-friendly justice, health care and social services have been adopted by the

103 Case of the ‘Street Children’ (Villagrán Morales et al.) v Guatemala, supra n 75 at para 196. 104 Case of the ‘Juvenile Reeducation Institute’ v Paraguay, supra n 77 at para 172.

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Council of Europe Committee of Ministers105 as part of its strategy to advance children’s rights.106 The Parliamentary Assembly has also actively considered children’s rights issues, adopting resolutions and recommendations on important challenges for children’s rights such as immigration, violence and children without family care.107 With this activity, the Council of Europe has made a unique and increasingly important contribution to standard setting in the area of children’s rights regionally. At the same time, the Council of Europe’s most important human rights treaties remain the European Convention on Human Rights (echr) adopted in 1953, the European Social Charter (esc) adopted in 1961 and the Revised European Social Charter (resc or ‘Revised Charter’) adopted in 1996. Although the echr contains general human rights protections grounded in civil and political rights and with few references to children, the case law has revealed the clear potential of its provisions to advance children’s rights. The esc, by contrast, recognises a range of economic, social and cultural rights, including some explicit references to children and their families. Moreover, the Revised Charter, adopted after the crc came into force, strengthened the Charter’s protections while also expanding its protection of children’s rights.108 The rest of this section will focus on the work of the key enforcement bodies in relation to those instruments, the European Court of Human Rights (ECtHR) and the European Committee of Social Rights (‘the esr Committee’). 105 See, for example, Recommendation of the Committee of Ministers to member states on the European Rules for juvenile offenders subject to sanctions or measures, CM/ Rec(2008)11, 5 November 2008; Guidelines of the Committee of Ministers of the Council of Europe on child-friendly health care, 21 September 2011; Guidelines of the Committee of Ministers of the Council of Europe on child friendly justice, 17 November 2010; and Recommendation of the Committee of Ministers to member states on children’s rights and social services friendly to children and families, CM/Rec(2011)12, 16 November 2011. 106 For the most recent strategy, see Council of Europe Strategy for the Rights of the Child 2012–2015, at 6, available at: www.coe.int/t/dg3/children/StrategySept2012_en.pdf. 107 See, for example, pace Recommendation 1666 (2004), Europe-wide ban on corporal punishment of children, 23 June 2004; pace Resolution 1762 (2010), Children without parental care: Urgent need for action, 7 October 2010; and pace Resolution 1247 (2001), Female genital mutilation, 22 May 2001. 108 As the Revised Charter has a separate ratification process, it does not automatically supersede the 1961 Charter and binds only those countries that have ratified it. As states parties ratified the Revised Charter, their obligations under that instrument supplant those under the original Charter. For this reason, reference will continue to be made both to the European Social Charter and the Revised European Social Carter below. Where reference is made to provision that is contained only in one or other instrument, that will be made clear.

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A European Convention on Human Rights Although the echr contains few references to children’s rights, many echr provisions are relevant and offer protection to the rights of children. Indeed, the true promise of the echr in terms of children’s rights is really only discernible from the case law of the ECtHR.109 Although few cases have been taken directly by children, the case law concerning children’s rights is now extensive and encompasses children’s protection from harm under Article 3, their right to fair trial under Article 6, their right to liberty under Article 5 and a host of procedural and positive duties to respect family life and private life interests under Article 8.110 Despite the merits of its case law on children’s issues, the ECtHR has rarely relied directly on the crc in its judgments.111 One interesting reference to the crc was made in a child abduction case—Bajrami v Albania—where the ECtHR took account of the fact that Albania had ‘not yet implemented’ the crc in finding that efforts to discharge the state’s obligations under Article 8 were inadequate.112 More generally, however, children’s rights principles have had an indirect influence on the reasoning of the Court. One such area of the Court’s case law—where the Court drew on the text of the echr provision (Article 6) but appears to have been inspired by Articles 12 and 40 of the crc—is in relation to the treatment of children accused of a criminal offence. Here, the ECtHR developed the principle of ‘effective participation’113 of children in their criminal trials and, although it did not rely directly on Article 12 of the crc 109 See Kilkelly, ‘The Best of Both Worlds for Children’s Rights? Interpreting the European Convention on Human Rights in the Light of the un Convention on the Rights of the Child’ (2001) 23(2) Human Rights Quarterly 308. 110 See, for example, Olsson v Sweden (No 2) Application No 13441/87, Merits and Just Satisfaction, 27 November 1992; Z and Others v United Kingdom Application No 29392/95, Merits and Just Satisfaction, 10 May 2001; dg v Ireland Application No 39474/98, Merits and Just Satisfaction, 16 May 2002; Hokkanen v Finland Application No 19823/92, Merits and Just Satisfaction, 23 September 1994; and Ignaccolo-Zenide v Romania Application No 31679/96, Merits and Just Satisfaction, 25 January 2000. 111 References to the crc are mainly confined to the preliminary part of its judgments where it sets out the instruments relevant to the substantive issue. See further Kilkelly, ‘The crc in Litigation under the echr’, in Liefaard and Doek (eds), Litigating the Rights of the Child (Springer, 2014) 193. 112 Bajrami v Albania Application No 35853/04, Merits and Just Satisfaction, 12 December 2006, at paras 35–38. 113 T. v United Kingdom Application No 24724/94, Merits and Just Satisfaction, 16 December 1999; V. v United Kingdom Application No 24888/94, Merits and Just Satisfaction, 16 December 1999; S.C. v United Kingdom Application No 60958/00, Merits and Just Satisfaction, 15 June 2004.

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in this context, it is hard to imagine the concept developing in isolation from the crc principle. Procedural obligations developed under Article 8 of the echr have been found to include a duty to ensure that parents are involved in decisions made about their children.114 To date, however, no equivalent obligation to ensure the participation of the child in such decisions has emerged in the case law. Although the ECtHR has considered the child’s participation in private family law decisions, it has not considered this a right of the child, preferring instead to leave the matter to the discretion of national courts.115 In this way, the echr standard falls short of the requirement in Article 12 of the crc. In other areas too, case law can be said to reflect principles and provisions of the crc at least indirectly. For example, in the case of Mikulić v Croatia116 the ECtHR upheld the right of the child applicant to identity as part of respect for her private life. In particular, it held that the failure to put in place an effective mechanism whereby the paternity of the child could be definitively determined breached her rights under Article 8. This builds on previous case law which has emphasised the importance to children of identity,117 the legal recognition of relationships between children and their parents118 and the quest for legal certainty in respect of those relationships.119 This case law coheres with the duty to respect the child’s right to identity set out in Articles 7 and 8 of the crc and indeed goes beyond the crc provision by requiring a mechanism at national level to give proper effect and respect to this right. The Court’s contribution to child protection is also significant and has invariably either drawn on or been directly influenced by Article 19 of the crc. In that context, the ECtHR has developed a general human rights provision in Article 3 of the echr (prohibition of torture and inhuman or degrading treatment or punishment) into a duty to take steps to protect children from the

114 See, for example, McMichael v United Kingdom Application No 16424/90, Merits and Just Satisfaction, 24 February 1995. 115 See, for example, Sahin v Germany Application No 30943/96, Merits and Just Satisfaction, 8 July 2003, at para 77. 116 Application No 53176/99, Merits and Just Satisfaction, 7 February 2002. 117 Gaskin v United Kingdom Application No 10454/83, Merits and Just Satisfaction, 7 July 1989. 118 See Johnston and Others v Ireland Application No 9697/82, Merits and Just Satisfaction, 18 December 1986. 119 Kroon and Others v The Netherlands Application No 18535/91, Merits and Just Satisfaction, 27 October 1994.

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risk of ill-treatment. This began with Tyrer v United Kingdom,120 which established the relevance to children of Article 3’s protection in a case about judicial punishment, and continued with A v United Kingdom121 and Z and Others v United Kingdom,122 concerning the duty on the state to take steps to protect children from harm, including from that emanating in the family. Most recently, in O’Keeffe v Ireland,123 the ECtHR made explicit that there is a positive duty on the state to take steps to protect children in schools from the risk of illtreatment­which should or could have been foreseen. Through this important series of cases, therefore, the ECtHR case law has not only breathed life into Article 3 of the echr, indirectly it has given effect to Article 19(2) of the crc, which sets out the state’s responsibility to take effective protective measures with regard to violence against children, including the prevention, reporting and investigation of child maltreatment. On occasion, the ECtHR has relied on the crc more explicitly. In Maslov v Austria,124 for example, the ECtHR drew on the crc in a case concerning the deportation of the applicant who had been convicted of a number of criminal offences as a child. The Court held that, where expulsion measures against a juvenile offender are concerned, the obligation to take the best interests of the child into account includes an obligation to facilitate the child’s reintegration, which is in line with Article 40 of the crc. In the Court’s view, reintegration would not be achieved by severing the child’s family or social ties through expulsion and in this way, the crc was one of the grounds used to find that the expulsion was a disproportionate interference with the applicant’s rights under Article 8. Although echr case law about children’s rights is now vast, this section provides a representative sample of the areas where the crc’s influence is most apparent. It shows that there is at times a clear coherence between the case law of the echr and the crc. This appears to occur more by accident than design although cause and effect is hard to establish. At the same time, it is equally difficult to envisage that the jurisprudence of the ECtHR would have developed in the way it has without the widely accepted, international legal standards of the crc as a backdrop and indeed a binding treaty on all parties to the echr.

120 121 122 123 124

Application No 5856/72, Merits, 25 April 1978. Application No 25599/94, Merits and Just Satisfaction, 23 September 1998. Application No 29392/95, Merits and Just Satisfaction, 10 May 2001. Application No 35810/09, Merits and Just Satisfaction, 28 January 2014. Application No 1638/03, Merits and Just Satisfaction, 23 June 2008.

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B European Social Charter The 1961 esc sets out protections on economic and social rights and contains general provisions of particular relevance to children including those recognising the right of all workers and their dependents to social security,125 social welfare services126 and social and medical assistance.127 More specific to children are Articles 7 and 17. Article 7 extends a right to special protection from economic exploitation to children and young persons and in doing so compares favourably with Article 32 of the crc, which recognises the right of the child to be protected from work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or development. The concern with the education and vocational training of children and young persons, reflected in Articles 28 and 32(1) of the crc is also present in the Social Charter, Article 7(3) of which provides that those of compulsory school age should not be deprived of the full benefit of their education by virtue of their work. Articles 9 and 10 set out rights to vocational training and guidance, respectively, with the former providing that assistance should be available free of charge to young people, including schoolchildren. The latter requires states parties to provide or promote systems of apprenticeship and other types of training for young boys and girls. Article 17 of the esc recognises the right of mothers and children to appropriate social and economic protection ‘irrespective of marital status and family relations’. Consistent with the crc and other regional systems, it recognises the family as a fundamental unit of society and outlines the family’s rights to social, legal and economic protection, including social and family benefits and housing.128 Article 19 sets out the right to protection and assistance of migrant workers and their families,129 and the obligation it imposes to facilitate family reunion of migrant workers mirrors the protection in Article 10 of the crc, which provides more detailed protections for such children. The esc was revised in 1996 and under the resc, the rights afforded to children were expanded, including through the addition of 12 new provisions extending general protections (for example, the right to housing under Article 31) which are of particular importance for children. The two articles which refer most explicitly to children under the 1961 esc, Articles 7 and 17, were revised 125 126 127 128

Article 12 esc. Article 14 esc. Article 13 esc. See also Article 4(1) esc. These provisions reflect the right to social security and maintenance under Article 26 crc and to an adequate standard of living under Article 27 crc. 129 The Appendix to esc stipulates that the ‘family’ should be understood to mean at a minimum the migrant’s spouse and dependent children under the age of 21 years.

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in a number of ways. The ‘direct’ inspiration of the crc has been explicitly acknowledged by the European Committee of Social Rights in the revision of Article 17.130 Whereas the esc recognised the right of mothers and children to social and economic protection, the resc has been re-conceptualised so that Article 17 now recognises the right of children and young persons to appropriate social, legal and economic protection. A reference to Article 1 of the crc, defining the age of a child, is contained in the resc Appendix. Article 17 of the resc recognises the right of children to grow up in an environment which encourages the full development of their personality and capacities, and requires states parties to ensure that children have ‘the care, the assistance, the education and the training they need’, with regard to the rights of their parents.131 Article 17(1)(b) outlines the need for states parties to protect children from violence, negligence and exploitation, and Article 17(1)(c) requires that special aid and protection be provided for young people deprived of family support. Although many parts of Article 7 were unchanged in the Revised Charter, protections concerning children’s participation in dangerous or unhealthy work were strengthened. Article 27 of the Charter has been expanded by recognising the right of workers with family responsibilities to equal opportunities and equal treatment. Article 30, which provides a right to protection against poverty and social exclusion, requires states to promote the effective access of people in, or at risk of, social exclusion or poverty and their families to ‘employment, housing, training, education, culture and social and medical assistance’. These provisions contain important protections for children and in some respects go beyond the equivalent provisions (most notably, Articles 26 and 27) in the crc, which address neither poverty nor social exclusion directly.132 Article 19 of the esc concerning the rights of migrant workers and their families was also expanded and revised in the Revised Charter,133 including the recognition of the linguistic rights of the families of migrant workers. This provision now goes beyond Article 30 of the crc, which recognises in a most 130 esr Committee, International Federation of Human Rights Leagues (fidh) v France (14/2003) Merits, 8 September 2004, at para 36. 131 Article 17(1)(a) resc. 132 For more on these crc provisions, see the relevant chapters in Tobin and Alston (eds), A Commentary on the United Nations Convention on the Rights of the Child (oup, forthcoming). 133 Under Article 19(6), providing for the possibility of family reunification for workers lawfully in the territory, the ‘family’ was redefined in the resc Appendix as meaning at least the worker’s spouse and unmarried children, as long as the latter are still considered to be minors by the receiving state and are dependent on the migrant worker.

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minimal way the right of a child belonging to a minority not to be denied the right to enjoy her own culture or to use her own language. Most of the collective complaints involving children’s rights brought to the esr Committee, the independent expert committee which considers state reports and collective complaints vis-à-vis the esc and the resc, have invoked either Article 7 (economic exploitation of children) or Article 17 (protection of children from violence and exploitation). Complaints have also concerned the rights of children deprived of family care under Article 17 of the resc, as well as the right to free primary and secondary education of children with disabilities under Article 15 of the resc.134 The crc has been relied upon by those complaining to the esr Committee and the Committee itself has made it clear that it is justified in having regard to the crc on the basis that that instrument has been ratified by all member states of the Council of Europe.135 In particular, in Defence for Children International (dci) v Belgium, the Committee stated that it may have regard to the crc when it rules on ‘an alleged violation of any right conferred on children by the Charter adopting the interpretation given to [the crc] by the United Nations Committee on the Rights of the Child’.136 More specifically, the esr Committee has noted that following the guidance of the ComRC, the personal scope of the Charter (as to whether child migrants unlawfully present in a state party fall within the scope of Article 17 of the Revised Charter) must be determined according to the principle of the child’s best interests, as articulated in General Comment No 5 of the ComRC.137 This practice of explicitly having regard to the crc’s best interests principle has been evident in other decisions also.138 A more subtle example of the influence of the crc is found in one of the first complaints brought to the Committee against Portugal concerning its practices regarding child labour. The complaint concerned Article 7(1) of the 134 For a useful overview of many of the children’s rights collective complaints addressed by the esr Committee, see Council of Europe, Information Document prepared by the Secretariat of the esc, Children’s Rights under the European Social Charter. 135 esr Committee, Defence for Children International (dci) v Belgium (69/2011) Merits, 23 October 2012, at para 31. 136 Ibid. See also esr Committee, World Organisation against Torture v Ireland (18/2003) Merits, 7 December 2004, at para 61. 137 ComRC, General Comment No 5: General measures on the implementation of the Convention on the Rights of the Child (arts. 4, 42 and 44, para. 6), CRC/GC/2003/5, at paras 45–47, cited in dci v Belgium, supra n 135 at para 32. 138 See, for example, esr Committee, Defence for Children International (dci) v The Netherlands (47/2008) Merits, 4 February 2008, at para 29.

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esc, which sets 15 years as the minimum age for admission to employment. In the complaint of International Commission of Jurists (icj) v Portugal,139 the esr Committee recalled that the aim and purpose of the Charter was to protect rights not merely theoretically but also in practice; therefore child labour legislation must not only exist, it must be effectively applied and rigorously supervised. On the evidence, a large number of children were employed illegally in Portugal resulting in a violation of Article 7(1) of the Charter. Article 7(10) (an identical provision in both the esc and resc) also addresses other forms of exploitation and the esr Committee has expressed concern to states during the reporting process about the ineffectiveness of their protections in this area, in particular requiring that all aspects of child prostitution, child pornography and trafficking of children are criminalised. As such it has considered civil and political rights, not just economic and social ones. For instance, Poland and the Czech Republic were criticised for not being in conformity with this provision on the basis that young people between the ages of 15 and 18 years were not adequately protected against sexual exploitation.140 Likewise, the esr Committee has criticised Slovenia for its lack of legislation prohibiting the possession of child pornography and criminalising the trafficking of children for the purposes of sexual exploitation.141 Although there was no cross-reference to the crc rights by the Committee in these instances, the connection with Articles 19 and 34 and the Optional Protocol to the crc on the Sale of Children, Child Prostitution and Child Pornography is clear. The esr Committee has stated that in order to comply with Article 17 of the Charter, states’ domestic law must prohibit and penalise all forms of violence against children, including acts or behaviour likely to affect the child’s physical integrity or well-being.142 The esr Committee has consistently criticised states for failing to prohibit the corporal punishment of children143 and although it does not reference the crc systematically in these Conclusions, the position reached by the esr Committee is reflective of the position adopted 139 (1/1998) Merits, 9 September 1999. 140 See esr Committee, Conclusions concerning Poland, XVII-2 (2005); and Conclusions concerning Czech Republic, XVII-2 (2005). 141 esr Committee, Conclusions concerning Slovenia (2002). 142 esr Committee, Conclusions concerning France (2003); and Conclusions concerning Romania (2003). 143 To date Belgium, the Czech Republic, Estonia, France, Greece, Hungary, Ireland, Lithuania, Malta, Moldova, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Turkey and the United Kingdom have been found not to comply with the Charter as the corporal punishment of children is not effectively prohibited (Conclusions 2005, Conclusions XVII-2).

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by the ComRC against the corporal punishment of children.144 Moreover, the esr Committee found against four countries—Belgium, Greece, Ireland and Portugal—in a complaint taken by the World Organisation against Torture invoking the Article 17 duty to protect children from violence.145 In those cases, the Committee found violations on the grounds that the corporal punishment of children was not effectively prohibited in all circumstances. Follow-up complaints reinforced these conclusions in 2014 and 2015.146 The duty in Article 17(2) of the resc to provide children with free primary and secondary education and to promote regular school attendance has been invoked in the collective complaints process, where the substance of the concerns reflects those raised by Article 28 of the crc.147 According to the esr Committee, where there is a significant number of children failing to successfully complete compulsory education, measures must be taken to improve the situation.148 Equal access to education for especially vulnerable children has also been the concern of the Committee, which has asserted with respect to the terms of the resc that special measures for Roma children cannot involve the establishment of separate or segregated schooling facilities.149 The particular situation faced by migrant children has also been addressed, leading the Committee to assert the crucial nature of access to education for all children, whatever their residency status. As a consequence, in dci v The Netherlands,150 the Committee found that states must ensure that children unlawfully present in their territory have effective access to education. The Committee has also considered the entitlement of foreign nationals to other 144 For more on the ComRC’s position on this, see its General Comment No 8 (2006): The right of the child to protection from corporal punishment and other cruel or degrading forms of punishment (arts. 19; 28, para. 2; and 37, inter alia), CRC/C/GC/8. 145 World Organisation Against Torture (omct) v Greece (17/2003) Merits, 26 January 2005; omct v Ireland (18/2003) Merits, 7 December 2004; omct v Belgium (21/2003) Merits, 26 January 2005; and omct v Portugal (34/2006) Merits, 7 December 2004. 146 See, for example, Association for the Protection of All Children (APPROACH) Ltd. v Ireland (93/2013) Merits, 2 December 2014, which found that Ireland was in violation of Article 17(1) resc. 147 For instance, Article 28(1) crc requires states to make primary education compulsory and free for all, whereas Article 28(1)(e) requires measures to ‘encourage regular attendance at schools and the reduction of drop-out rates’. 148 See, for example, esr Committee, Conclusions concerning Moldova (2005); and Conclusions concerning Romania (2003). 149 See, for example, esr Committee, Conclusions concerning Slovenia (2005). 150 Supra n 138.

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Charter rights. In 2012, it found in dci v Belgium151 that foreign minors unlawfully present or seeking asylum in Belgium were denied their rights under the resc to full social, health, legal and economic protection. Similarly, in a case against France, the Committee found that health care must be available to all children without discrimination, including children of illegal or undocumented migrants.152 In all of these decisions, the Committee made explicit references to the crc. The resc has also been invoked with respect to the right of children with disabilities to access education.153 In a collective complaint brought by Autism Europe against France, it was alleged that there was, inter alia, insufficient education for children with autism in the mainstream and special schools. The esr Committee found a violation of Articles 15(1) and 17(1) of the Revised Charter on the grounds that France had failed to achieve sufficient progress in advancing the provision of education for children with autism.154 It is clear from the above review that the esc and the resc are being used to advance children’s rights at a regional level in Europe. Indeed, the esr Committee has stated that its comprehensive approach, coupled with the effective nature of the rights it embodies, renders the esc ‘the most significant treaty at the European level for children’s human rights’.155 The Committee has made it clear that the crc is a powerful influence, given its widely ratified world status and its universal ratification in Europe. Taking the Council of Europe system as a whole, it is apparent that the relatively modest references to children’s rights in the respective texts of the echr and the esc/resc have not limited their scope to protect children’s rights. This is largely due to the interpretive approaches of their respective treaty bodies, which have seen the instruments’ relevance to children’s rights expanded. While the esr Committee has been explicit in its acceptance of the crc as an interpretive tool, the ECtHR has been more subtle in being guided by the crc’s principles and provisions. In both cases, however, the impact of the crc as a widely ratified international instrument, especially one ratified by all ­members of the Council of Europe, looms large.

151 152 153 154 155

Supra n 135. fidh v France, supra n 130. International Association Autism-Europe v France (13/2002) Merits, 4 November 2003. Ibid. at paras 47–54. dci v The Netherlands, supra n 138 at para 29.

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5 Conclusion It is clear that the crc has played a key and growing role in terms of shaping regional protection of children’s rights. Nor is this cross-fertilisation exclusively one-way. There have been a number of instances in which regional systems’ approaches towards human rights have clearly impacted on (or at least been registered by) the international. This is evidenced by the ComRC’s reference to the work of the ECtHR on ‘effective participation’ in the context of the implementation of Article 12 of the crc in criminal proceedings.156 Similarly, the ComRC has cited the work of the European and Inter-American Courts when fleshing out ‘prevention measures’ in its General Comment No 13 on the right of the child to freedom from all forms of violence.157 There thus appears to be scope for future ‘regional standard-driven’ harmonisation of children’s rights. Reliance upon and reference to the crc has not resulted in perfect harmonisation of protection of children’s rights across the different regional bodies. Indeed, this would seem impossible and undesirable given the clear differences between the child rights (and other) standards under the various systems. Nor have any of the regional systems unwaveringly followed the approach of the crc – a fact that is again attributable to the divergences between the standards enshrined in the crc and the regional instruments. Moreover, just as each regional human rights system’s protection of children’s rights reflects a particular cultural, historical and political context, so too does the crc. However, as stated in the introduction and demonstrated through this chapter, the crc has undoubtedly served as a unifying element to the different regional systems’ approaches to child rights. As we look forward, it seems inevitable that, whether by strategy or otherwise, the crc will have an increasing impact on the African, Inter-American and Council of Europe regional human rights systems’ evolving approaches to child rights protection.

156 ComRC, General Comment No 12 (2009): The right of the child to be heard, CRC/C/GC/12, at para 60. 157 (2011) CRC/C/GC/13.

PART 2 Themes

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chapter 11

Affording States a Margin of Appreciation: Comparing the European Court of Human Rights and the Inter-American Court of Human Rights Dominic McGoldrick 1 Introduction The margin of appreciation (MoA) has become the central conceptual doctrine in the institutional and jurisprudential architecture1 of the European Convention on Human Rights (echr) and has spread to other international human rights decision-making bodies.2 This chapter critiques the existence and operation of the MoA within the echr system. It is submitted that, as each of the central justifications for the MoA under the echr apply equally to the American Convention on Human Rights (achr), the concept should be applied by the Inter-American Court of Human Rights (IACtHR). Following these introductory comments, Section  2 examines the concept and use of the MoA and, in particular, the relationship between the MoA and the standard of review. Section  3 assesses the role of consensus, or the lack thereof, in determining the MoA. Section  4 assesses various critiques of the MoA. Section 5 examines the use and the non-use of the MoA within the achr system. Section 6 analyses a series of similarities and differences between the European Court of Human Rights (ECtHR) under the echr and the IACtHR under the achr—historical, textual, institutional, constitutional and interpretative—and considers whether they justify or explain the non-use of 1 For recent examinations of the MoA, see Spielmann, ‘Allowing the Right Margin: The European Court of Human Rights and the National Margin of Appreciation Doctrine: Waiver or Subsidiarity of European Review?’ (2011–2012) 14 Cambridge Yearbook of European Legal Studies 381; Legg, The Margin of Appreciation in International Human Rights Law: Deference and Proportionality (oup, 2012); and Arai-Takahashi, ‘The Margin of Appreciation Doctrine: A Theoretical Analysis of Strasbourg’s Variable Geometry’, in Føllesdal et al. (eds), Constituting Europe: The European Court of Human Rights in a National, European and Global Context (cup, 2013) 62. 2 See Shany, ‘Towards a General Margin of Appreciation Doctrine in International Law’ (2005) 16(5) European Journal of International Law 907.

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the MoA by the IACtHR. Section 7 critiques a series of other possible explanations for the non-use of the concept of MoA by the IACtHR. Section 8 offers some concluding reflections. 2

The Concept of the Margin of Appreciation in the European Convention System

A The Concept Although the MoA was judicially developed by the ECtHR, it has now received express affirmation and support from the states parties to the echr. The ‘Brighton Declaration’ on the future of the ECtHR3 contained seven references to the ‘margin of appreciation’ and six to ‘subsidiarity’.4 Protocol No 15 to the echr added to the preamble of the Convention a reference to the principle of subsidiarity and the doctrine of the MoA.5 The MoA is not a right of states. It is a doctrine of judicial self-restraint that was developed by the ECtHR.6 In the famous Handyside v United Kingdom case the ECtHR explained: This margin [of appreciation] is given both to the domestic legislator (‘prescribed by law’) and to the bodies, judicial amongst others, that are called upon to interpret and apply the laws in force. … The domestic margin of appreciation … goes hand in hand with a European supervision. Such supervision concerns both the aim of the measure challenged and its ‘necessity’; it covers not only the basic legislation but also the decision applying it, even one given by an independent court.7

3 Brighton Declaration arising from the High Level Conference on the Future of the European Court of Human Rights, 20 April 2012. 4 See Neuman, ‘Subsidiarity’, in Shelton (ed.), The Oxford Handbook of International Human Rights Law (oup, 2013) 360. 5 See Mowbray, ‘European Court of Human Rights: May 2012-April 2013’ (2013) 19(4) European Public Law 643. See also Stella and Others v Italy Applications Nos 49169/09 et al., Admissibility, 16 September 2014; and Rexhepi and Others v Italy Applications Nos 47180/10 et al., Admissibility, 16 September 2014. 6 See Cot, ‘Margin of Appreciation’, in Wolfrum (ed.), (2012) 6 Max Planck Encyclopaedia of Public International Law 1012. 7 Application No 5493/72, Merits, 7 December 1976, at paras 48–49.

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The MoA was originally applied in the context of derogations8 but has now spread to the interpretation of the scope of obligations under all of the substantive Articles, even obligations under non-derogable ones such as Articles 29 and 3,10 and to the accessory protection against discrimination in Article 14.11 The MoA is most commonly applied in the context of limitations on rights.12 It has assumed even more significance as the ECtHR, through its case law, has expanded the scope of echr rights through its interpretation of the echr as a ‘living instrument’13 and thereby developed the scope of procedural14 and positive obligations.15 With respect to positive obligations the states enjoy a wide MoA in determining the steps to be taken to ensure compliance with the echr with due regard to the needs and resources of the community and of individuals.16 8 See A. and Others v United Kingdom Application No 3455/05, Merits and Just Satisfaction, 19 February 2009, at para 173. See also Elliott, ‘United Kingdom: The “war on terror,” U.K.style – The detention and deportation of suspected terrorists’ (2010) 8(1) International Journal of Constitutional Law 131. 9 See Skinner, ‘Deference, Proportionality and the Margin of Appreciation in Lethal Force Cases under Article 2 echr’ [2014] European Human Rights Law Review 32; and Vo v France Application No 53924/00, Merits, 8 July 2004. 10 See Valiulienė v Lithuania Application No 33234/07, Merits and Just Satisfaction, 26 March 2013, at para 85 (the choice of the means to secure compliance with Article 3 in the sphere of the relations of individuals between themselves is in principle a matter that falls within the domestic authorities’ margin of appreciation); and Legg, supra n 1 at 204–210. 11 See Arnardóttir, ‘The Differences that Make a Difference: Recent Developments on the Discrimination Grounds and the Margin of Appreciation under Article 14 of the European Convention on Human Rights’ (2014) 14(4) Human Rights Law Review 647. 12 See Kratochvíl, ‘The Inflation of the Margin of Appreciation by the European Court of Human Rights’ (2011) 29(3) Netherlands Quarterly of Human Rights 324. 13 See Bratza, ‘Living Instrument or Dead Letter – The Future of the European Convention on Human Rights’ [2014] European Human Rights Law Review 116; and Dzehtsiarou, ‘European Consensus and the Evolutive Interpretation of the European Convention on Human Rights’ (2011) 12(10) German Law Journal 1730. 14 Procedural requirements to comply with and ensure the effectiveness of substantive obligations are now highly developed: see Harris et al., Harris, O’Boyle and Warbrick: Law of the European Convention on Human Rights, 3rd edn (oup, 2014) at 214–218, 275–277 and 535–536. 15 See Mowbray, The Development of Positive Obligations Under the European Convention on Human Rights by the European Court of Human Rights (Hart Publishing, 1994); and Gallagher, ‘The European Convention on Human Rights and the Margin of Appreciation’, 10 January 2012, available at: ssrn.com/abstract=1982661. 16 See Abdulaziz, Cabales and Balkandali v United Kingdom Applications Nos 9214/80 et al., Merits and Just Satisfaction, 28 May 1985, at para 67; and Lavrysen, ‘The Scope of Rights

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In assessing whether there exists a pressing social need for the measure in question and, in particular, whether the interference was proportionate17 to the legitimate aim pursued, regard has to be had to the ‘fair balance’ which has to be struck between the relevant competing interests and in respect of which the state enjoys a MoA.18 The breadth of the MoA to be accorded to the state can be crucial to the ECtHR’s conclusion as to whether the impugned prohibition struck a fair balance.19 In delimiting the extent of the MoA in a given case, the ECtHR has regard to what is at stake therein.20 Where a particularly important facet of an individual’s existence or identity is at stake, the MoA allowed to the state will normally be restricted.21 So too where measures, such as deprivation of legal capacity, have such an adverse effect on an individual’s personal autonomy.22 If the process was seriously deficient in some respect, the conclusions of the domestic authorities are more open to criticism.23 In terms of whether the MoA applies and its width, it will be significant if the relevant law or policy is considered to reflect the ‘profound moral views of

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19 20

21 22 23

and the Scope of Obligations’, in Brems and Gerards (eds), Shaping Rights in the echr (cup, 2013) 162. See Spielmann, supra n 1; Tsakyrakis, ‘Proportionality: An Assault on Human Rights?’ (2009) 7(3) International Journal of Constitutional Law 468; and Möller, ‘Constructing the Proportionality Test: An Emerging Global Conversation’, in Lazarus et al. (eds), Reasoning Rights: Comparative Judicial Engagement (Hart Publishing, 2014) 32. See Christoffersen, Fair Balance: Proportionality, Subsidiarity and Primarity in the European Convention on Human Rights (Martinus Nijhoff, 2009); and Mowbray, ‘A Study of the Principle of Fair Balance in the Jurisprudence of the European Court of Human Rights’ (2010) 10(2) Human Rights Law Review 289. A, B and C v Ireland Application No 25579/05, Merits and Just Satisfaction, 16 December 2010, at para 231 (access to abortion). Manoussakis and Others v Greece Application No 18748/91, Merits and Just Satisfaction, 26 September 1996, at para 44 (authorisation of religious establishments); and Leyla Şahin v Turkey Application No 44774/98, Merits and Just Satisfaction, 10 November 2005, at para 110 (wearing of Islamic headscarves in educational institutions). Evans v United Kingdom Application No 6339/05, Merits, 10 April 2007, at para 77 (expartner’s consent for the use of frozen embryos). Ivinović v Croatia Application No 13006/13, Merits and Just Satisfaction, 18 September 2014, at para 37. Ibid. at para 46 (the national courts, in depriving partially the applicant of her legal capacity, did not follow a procedure which could be said to be in conformity with the guarantees under Article 8 echr); and Salontaji-Drobnjak v Serbia Application No 36500/05, Merits and Just Satisfaction, 13 October 2009, at para 143.

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the people of the state’24 or ‘concerns a question about the requirements of morals’.25 There will usually be a wide MoA if the state is required to strike a balance between competing private and public interests or competing rights and interests that are protected under the echr.26 An element to which the ECtHR increasingly directs its attention is whether the national decisionmaking process, seen as a whole, provides for the requisite protection by weighing up the interests at stake in detail and in depth.27 The ECtHR may also afford a wider MoA during a particular historical background, such as during a transition to democracy.28 However, there will come a point where the transition is considered to have been sufficiently consolidated and the MoA will narrow.29 The application of the MoA means that some restrictions on rights may vary from one state to another, or even from one region to another within the same state, especially a state that has opted for a federal type of political organisation.30 In such cases only serious reasons could lead the ECtHR to substitute its own assessment for that of the national and local authorities, which are closer to the realities of their country, for it would thereby lose sight of the subsidiary nature of the echr system.31 If a restriction on fundamental rights applies to a particularly vulnerable group in society, who have suffered considerable discrimination in the past, then the state’s MoA is substantially narrower and it must have very weighty reasons for the restrictions in question. This approach has been applied, for example, in the context of those suffering different treatment on the ground

24 25

A, B and C v Ireland, supra n 19 at para 241. Stübing v Germany Application No 43547/08, Merits and Just Satisfaction, 12 April 2012, at para 61. 26 Evans v United Kingdom, supra n 21 at para 77; and Eweida and Others v United Kingdom Applications Nos 48420/10 et al., Merits and Just Satisfaction, 15 January 2013, at para 109. 27 Fernández-Martínez v Spain Application No 56030/07, Merits and Just Satisfaction, 12 June 2014, at paras 123–153; Couderc and Hachette Filipacchi Associés v France Application Number 41454/07, Merits and Satisfaction, 10 November 2015, at paras 90–153. 28 Rekvényi v Hungary Application No 25390/94, Merits and Just Satisfaction, 20 May 1999, at paras 44–50. 29 See Vajnai v Hungary Application No 33629/06, Merits and Just Satisfaction, 8 July 2008, at paras 48–58. 30 Mouvement Raëlien Suisse v Switzerland Application No 16354/06, Merits and Just Satisfaction, 13 July 2012, at paras 64–65. 31 Ibid.

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of their gender,32 race,33 sexual orientation34 or mental disability.35 The reason for this approach, which questions certain classifications per se, is that such groups were historically subject to prejudice with lasting consequences, resulting in their social exclusion. Such prejudice may entail legislative stereotyping which prohibits the individualised evaluation of their capacities and needs.36 It is critical to emphasise that the MoA afforded to states is an instrument of supervision—European supervision goes ‘hand in hand’ with it. The MoA is not an instrument of surrender or abdication. Even if the applicable MoA is wide, it is not all-embracing.37 European supervision is not limited to ascertaining whether the state exercised its discretion reasonably, carefully and in good faith. These elements are necessary but not sufficient. The ECtHR commonly uses the language of whether the state has remained within, or not overstepped, an ‘acceptable’ MoA.38 The ECtHR looks at the interference complained of in the light of the case as a whole and determines whether it was ‘proportionate to the legitimate aim pursued’ and whether the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’. The ECtHR has to satisfy itself that the standards applied by national authorities were in conformity with the principles embodied in the substantive echr norms and decisions must have been based on an acceptable assessment of the relevant facts.39 It is notable that there are many cases in which the ECtHR affords states a wide MoA but then decides that states have not remained within it, usually due to disproportionality40 or 32 33 34 35 36 37 38

39 40

Abdulaziz, Cabales and Balkandali v United Kingdom, supra n 16 at para 78. D.H. and Others v Czech Republic Application No 57325/00, Merits and Just Satisfaction, 13 November 2007, at para 182. E.B. v France Application No 43546/02, Merits and Just Satisfaction, 22 January 2008, at para 94. Alajos Kiss v Hungary Application No 38832/06, Merits and Just Satisfaction, 20 May 2010, at para 42. Ibid.; and Shtukaturov v Russia Application No 44009/05, Merits, 27 March 2008, at para 95. Hirst v United Kingdom (No 2) Application No 74025/01, Merits and Just Satisfaction, 6 October 2005, at para 82. Alajos Kiss v Hungary, supra n 35; Odièvre v France Application No 42326/98, Merits, 13 February 2003; and S.H. and Others v Austria Application No 57813/00, Merits and Just Satisfaction, 3 November 2011 (in striking the balance the Austrian Parliament stayed within the limits of MoA). Rekvényi v Hungary, supra n 28 at para 44. On the importance of procedural rationalism as part of proportionality, see Popelier and Van de Heyning, ‘Procedural Rationality: Giving Teeth to the Proportionality Analysis’ (2013) 9(2) European Constitutional Law Review 230.

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the lack of a fair balance, and so there is a violation.41 Even where the ECtHR is clear that it is an area where states have a MoA, reasonable judges may disagree on whether a fair balance has been struck in an individual case.42 Where there is a narrow or limited MoA the burden will be on the state to produce compelling and very weighty reasons to justify the interference.43 In such cases there may effectively be a ‘presumption of a violation of the Convention’.44 The Relationship between the Margin of Appreciation and the Standard of Review A critical element to appreciate is that the scope of the MoA afforded directly relates to the strictness of review. Broadly speaking, the wider the margin, the less strict the scrutiny45 and vice versa. However, this is only a generalisation or starting point.46 The MoA is likely to be wide, and consequently the standard of review less strict, where economic or social policy issues are involved.47 So too with respect to environmental issues.48 Where there is a wide MoA the ECtHR sometimes adopts a practice of upholding the state’s conduct unless the national court has misinterpreted or misapplied the relevant Article of the echr or the ECtHR’s jurisprudence or it had reached a conclusion that was ‘manifestly unreasonable’49 or ‘devoid of reasonable foundation’.50

B

41 See Couderc and Hachette Filipacchi Associés v France, supra n 27; and cases cited by Kratochvíl, supra n 12 at 337–340. 42 See Jeunesse v The Netherlands Application No 12738/10, Merits and Just Satisfaction, 3 October 2014, a minority of three sharply dissented. 43 See United Communist Party of Turkey and Others v Turkey Application No 19392/92, Merits and Just Satisfaction, 30 January 1998, at para 46; and Andrejeva v Latvia Application No 55707/00, Merits and Just Satisfaction, 18 February 2009, at para 87. 44 Kratochvíl, supra n 12 at 351. 45 See Obukhova v Russia Application No 34737/03, Merits and Just Satisfaction, 8 January 2009. 46 See, for example, Alajos Kiss v Hungary, supra n 35 at paras 41 and 44. 47 See Stec and Others v United Kingdom Application No 65731/01, Merits, 12 April 2006, at para 66 (differential retirement ages based on gender). This will usually be the case in the context of Article 1 Protocol No 1 echr. 48 See Powell and Rayner v United Kingdom Application No 9310/81, Merits, 21 February 1990. 49 See A. and Others v United Kingdom, supra n 8 at para 174; and Benet Czech, spol. s r. o. v Czech Republic Application No 31555/05, Merits and Just Satisfaction, 21 October 2010, at para 40. However, Judges of the uk Supreme Court have differed on whether a stricter test should be applied in different contexts: see R (Tigere) v Secretary of State for Business, Innovation and Skills [2015] uksc 57. 50 See National and Provincial Building Society and Others v United Kingdom Applications Nos 21319/93 et al., Merits and Just Satisfaction, 23 October 1997, at para 80.

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The issue is not whether the judges of the ECtHR agree with the decision made by the state. Rather, it is whether the state has made a defensible, credible, human rights-based decision that is considered to be within a range of responses which could be deemed to be necessary and proportionate. C Blanket or Indiscriminate Rules As the echr system has matured, states are usually able to comply with requirements that limitations be prescribed by law51 and have a legitimate aim. Thus it is the ECtHR’s analysis of the proportionality of the measures at issue that is often critical.52 In a number of the cases the central problem for the ECtHR was that the particular rule was considered to be of a blanket and indiscriminatory nature. Examples include Hirst v United Kingdom (No 2) (prisoner voting),53 S. and Marper v United Kingdom54 (retention of dna samples and fingerprints in the absence of a criminal charge or conviction) and Alajos Kiss v Hungary55 (absolute bar on voting by any person under partial guardianship). However, in other situations the ECtHR has accepted that a blanket or indiscriminate rule can be consistent with the echr standards.56 Even when violations are found, it can be argued that the MoA continues to have a significant influence because the ECtHR leaves considerable discretion to states to devise proportionate schemes in response.57 Apart from pilot cases58 dealing

51

A rare recent example of the uk failing the ‘prescribed by law’ standard was Gillan and Quinton v United Kingdom Application No 4158/05, Merits and Just Satisfaction, 12 January 2010 (stop and search powers without a requirement of reasonable suspicion). The ECtHR found that the rule operated in practice in an indiscriminate and arbitrary way. 52 See Legg, supra n 1 at 177–199. 53 Supra n 37. 54 Applications Nos 30562/04 and 30566/04, Merits and Just Satisfaction, 4 December 2008. 55 Supra n 35. 56 See S.A.S. v France Application No 43835/11, Merits and Just Satisfaction, 1 July 2014; and Animal Defenders International v United Kingdom Application No 48876/08, Merits and Just Satisfaction, 22 April 2013 (though the majority was only 9:8). See also Lewis, ‘Animal Defenders International v United Kingdom: Sensible Dialogue or a Bad Case of Strasbourg Jitters?’ (2014) 77(3) Modern Law Review 460. 57 See Scoppola v Italy (No 3) Application No 126/05, Merits and Just Satisfaction, 22 May 2012, at paras 93–110 (no violation). 58 See ECtHR, Factsheet, Pilot Jugments, July 2015. As of January 2015 there had been some 25 pilot cases. See also Leach, ‘No longer offering fine mantras to a parched child? The European Court’s developing approach to remedies’, in Føllesdal, Schlütter and Ulfstein (eds), supra n 1. Alternatively, this remedial aspect could be considered as an aspect of the subsidiary nature of the echr system.

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with structural issues, and a small number of cases where it considers there would only be one effective remedy (for example, a retrial), it normally makes no attempt to devise a legislative scheme to remedy the problem.59 3

The Role of Consensus in Determining the Margin of Appreciation

In determining the MoA the ECtHR may, if appropriate, have regard to any consensus and common values emerging from the state practices of the parties to the echr.60 It makes increasing use of the comparative method61 to indicate the degree of any European consensus on a particular issue.62 Normally, a strong consensus will narrow the MoA and vice versa.63 In Schalk and Kopf v Austria64 the ECtHR relied on the idea of the MoA and the absence of c­ onsensus 59

60

61

62 63

64

See Harris, supra n 14 at 162–165; and Leach, ‘No longer offering fine mantras to a parched child? The European Court’s developing approach to remedies’, in Føllesdal, supra n 1 at 142. It has been argued that the ECtHR’s ‘substantial deference to state-defined solutions certainly makes full compliance easier to achieve than for the [IACtHR], which defines remedies for the states’: Hawkins and Jacoby, ‘Partial Compliance: A Comparison of the European and Inter-American Courts for Human Rights’, Annual Meeting of the American Political Science Association (Boston, 2008) at 5. Their research findings were published under the same title in (2011) 6(1) Journal of International Law and International Relations 35. Bayatyan v Armenia Application No 23459/03, Merits and Just Satisfaction, 7 July 2011, at para 122 (conscientious objection to military service); Dzehtsiarou, European Consensus and the Legitimacy of the European Court of Human Rights (cup, 2015); and Legg, supra n 1 at 103–144. On consensus in the us Supreme Court’s jurisprudence, see Dzehtsiarou and O’Mahony, ‘Evolutive Interpretation of Rights Provisions: A Comparison of the European Court of Human Rights and the u.s. Supreme Court’ (2013) 44(2) Columbia Human Rights Law Review 309. See, for example, Stübing v Germany, supra n 25 at paras 28–30 (criminalisation of consensual sexual acts between adult siblings). The ECtHR now has a research department which is designed to undertake comparative analysis following the request of the Judge Rapporteur: see Dzehtsiarou and Lukashevich, ‘Informed Decision-Making: The Comparative Endeavours of the Strasbourg Court’ (2012) 30(3) Netherlands Quarterly of Human Rights 272. See Discussion Paper, ‘The Role of Consensus in the System of the European Convention on Human Rights’, in ECtHR, Dialogue Between Judges, 2008, at 11–18. Stübing v Germany, supra n 25 at paras 58–61; and A, B and C v Ireland, supra n 19 at paras 229–241. See Dzehtsiarou, ‘Does Consensus Matter? Legitimacy of European Consensus in the Case Law of the European Court of Human Rights’ [2011] Public Law 534; and Spielmann, supra n 1 at 18–25. Application No 30141/04, Merits and Just Satisfaction, 24 June 2010.

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to deny the existence of an echr right to same-sex marriage. It considered that there was a complete lack of consensus about same-sex marriage in Europe due to the fact that ‘marriage has deep-rooted social and cultural connotations which may differ largely from one society to another’.65 This was a policy field where national authorities were better placed ‘to assess and respond to the needs of society’.66 A former President of the ECtHR has explained that it looked for consensus before it narrowed the margin. He saw this as a safeguard ‘to prevent any rapid and arbitrary development of the Convention rights’.67 Consensus is significant in terms of weighting but it is not necessarily decisive or determinative.68 Even a strong consensus amongst a substantial majority of states may not decisively narrow the broad MoA of the state if the broader context of the issue remains one where there is no European consensus69 or where ‘special historical or political considerations exist which render a more restrictive practice necessary’.70 Where there is no consensus between states, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raises sensitive social, moral or ethical issues, the MoA will be wider.71 Alongside the absence of consensus, a number of other factors may point to states having a wider MoA in regulating particular issues.72 If an emerging consensus is not based on settled and long-standing principles established in the law of the member states but rather reflects a stage of development within a particularly dynamic field of law, this will not decisively

65 Ibid. at para 62. 66 Ibid. 67 See Oral evidence taken before the Joint Committee on Human Rights, 13 March 2012, Questions 136–165, hc 873-iii, Q 140. 68 Hirst v United Kingdom (No 2), supra n 37 at para 81. 69 This was so in A, B and C v Ireland, supra n 19 at para 237, as there remained no European consensus on the scientific and legal definition of the beginning of life. See also Krishnan, ‘What’s the Consensus: The Grand Chamber’s decision on abortion in A, B and C v Ireland’ [2010] European Human Rights Law Review 200. 70 Republican Party of Russia v Russia Application No 12976/07, Merits and Just Satisfaction, 12 April 2011, at para 126. 71 S.H. and Others v Austria, supra n 38 (use of gametes for in vitro fertilisation); and Hämäläinen v Finland Application No 37359/09, Merits and Just Satisfaction, 16 July 2014 (requirement of change of marital status for a transsexual). 72 See Dubská and Krejzová v Czech Republic Applications Nos 28859/11 and 28473/12, Merits and Just Satisfaction, 11 December 2014.

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narrow the MoA granted to the state.73 An important aspect of looking for the consensus is that the jurisprudence on particular controversial issues may take significant periods of time to be established. That gives states time to reflect on comparative social, economic and scientific developments both within and across states. For example, the ECtHR’s jurisprudence on transsexuals changed significantly but over a 16-year period.74 Generally the working assumption of the ECtHR has been that human rights standards incrementally and progressively increase,75 and so the MoA only tends to narrow over time. Thus consensus is normally relied upon to expand the scope of rights and restrict the scope of limitations. However, legal and social experimentation is possible within limits.76 It is clear that it is open to states to impose new restrictions on rights and these may fall within the MoA even if other states have not imposed them.77 A striking illustration is the ban on the wearing in public places of clothing that is designed to conceal the face (the so-called ‘burqa ban’).78 Of the 47 member states of the Council of Europe, only France and Belgium had actually imposed such bans. Nonetheless, in S.A.S. v France79 in 2014 the ECtHR considered that there was no European consensus as to whether or not there should be a blanket ban on the wearing of the full-face veil in public places. It admitted that, from a strictly normative standpoint, France was very much in a minority position in Europe. However, the question of the wearing of the full-face veil in public was or had 73

S.H. and Others v Austria, supra n 38 at para 96. The minority disagreed with this additional reference step ‘of conferring a new dimension on the European consensus and applying a particularly low threshold to it, thus potentially extending the States’ margin of appreciation beyond limits’ (at Joint Dissenting Opinion of Judges Tulkens, Hirvelä, Lazarova Trajkovska and Tsotsoria, para 8). 74 From Rees v United Kingdom Application No 9532/81, Merits, 17 October 1986; to Christine Goodwin v United Kingdom Application No 28957/95, Merits and Just Satisfaction, 11 July 2002. 75 See Demir and Baykara v Turkey Application No 34503/97, Merits and Just Satisfaction, 12 November 2008, at para 146; and Vereinigung Bildender Künstler v Austria Application No 68354/01, Merits and Just Satisfaction, 25 January 2007. 76 It is notable that in S. and Marper v United Kingdom, supra n 56 at para 112, the ECtHR considered that ‘any State claiming a pioneer role in the development of new technologies bears special responsibility for striking the right balance [between public and private interests] in this regard’. 77 See Mahoney, ‘Marvellous Richness of Diversity or Invidious Cultural Relativism?’ (1998) 19(1) Human Rights Law Journal 1 (on social experimentation). 78 See Ferrari and Pastorellivi, The Burqa Affair Across Europe (Ashgate, 2013). 79 Supra n 58 at paras 106–159.

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been a subject of debate in a number of European states.80 The ECtHR held that having regard in particular to the breadth of the MoA accorded to France, the ban could be regarded as proportionate to the aim pursued, namely the preservation of the conditions of ‘living together’ as an element of the ‘protection of the rights and freedoms of others’.81 There are two further factors in support of a consensus analysis. The first is an instrumental one. The echr is posited on the idea of shared cultural values based on a ‘common heritage of political traditions, ideals, freedom and the rule of law’.82 If the interpretation of the echr by the ECtHR enjoys widespread underlying support in other states across the Council of Europe, this obviously makes ultimate acceptance and implementation of the ECtHR’s evolutive interpretation by national legislatures, executives and judiciaries significantly more likely.83 The search for consensus reflects a judicial philosophy of establishing some basic, if increasingly sophisticated, minimum standards rather than one of unifying or harmonising standards.84 In short, the search for consensus puts a sensible limit on judicial creativity.85 The second is a normative one. Although judgments of the ECtHR are technically binding only on the state party concerned, in effect the jurisprudence has an erga omnes effect. The echr has been incorporated in some manner and form in all 47 states 80 81

Ibid. at para 156. Ibid. at para 157. See Adenitire, ‘Has the European Court of Human Rights recognised a legal right to glance at a smile?’ (2014) 131(1) Law Quarterly Review 43; and Marshall, ‘S.A.S. v France: Burqa Bans and the Control or Empowerment of Identities’ (2015) 15(2) Human Rights Law Review 377. 82 Preamble echr. See del Moral, ‘The Increasingly Marginal Appreciation of the Marginof-Appreciation Doctrine’ (2006) 7(6) German Law Journal 611. 83 See Dzehtsiarou, ‘European Consensus and the Evolutive Interpretation of the European Convention on Human Rights’, supra n 13 at 1745. On implementation difficulties, see Cali and Koch, ‘Foxes Guarding the Foxes? The Peer Review of the Human Rights Judgments by the Committee of Ministers of the Council of Europe’ (2014) 14(2) Human Rights Law Review 301. 84 See Vo v France, supra n 9 at para 22; and Rozakis, ‘Is the Case Law of the European Court of Human Rights a Procrustean Bed?’ (2009) 2 ucl Human Rights Review 51 at 65, who observes that as European states have increasingly been in agreement on common standards of protection of human rights in many areas, the MoA is shrinking for the benefit of more harmonised protection around Europe. 85 See Mahoney, ‘Judicial Activism and Self-Restraint in the European Court of Human Rights: Two Sides of the Same Coin’ (1990) 11(1/2) Human Rights Law Journal 57; De Londras and Dzehtsiarou, ‘Managing Judicial Innovation in the European Court of Human Rights’ (2015) 15(3) Human Rights Law Review 523 (on consensus-based interpretation as a technique of judicial management of tensions between the ECtHR and states parties).

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parties to the echr and they are urged to take account of the echr jurisprudence and to draw the necessary implications with respect to their own laws and practice.86 Much of the comparative success of the echr ultimately depends on the cooperation of the national courts. The Committee of Ministers of the Council of Europe and the ECtHR increasingly stress that implementing ECtHR’s judgments is a shared judicial responsibility.87 A detailed analysis of the ECtHR’s practice with respect to consensus published in 2013 concluded that ‘consensus analysis is a sound and constructive idea’.88 However, even when judges accept the concept of looking for consensus in determining the MoA, there are cases where there have been significant and often very critical dissents on how it should be assessed.89 4

Critiques of the Margin of Appreciation in the echr System

The MoA has its critics inside the ECtHR.90 Judge de Meyer for one famously described references to the MoA as being ‘unnecessary circumlocutions’, 86

See Brighton Declaration, supra n 3; Brussels Declaration arising from the High-Level Conference on the ‘Implementation of the European Convention on Human Rights, our shared responsibility’, 27 March 2015; Kovler and Chernishova, ‘The June 2013 Resolution No. 21 of the Russian Supreme Court: A Move Towards Implementation of the Judgments of the European Court of Human Rights’ (2013) 33(7/12) Human Rights Law Journal 263; Helfer, ‘Redesigning the European Court of Human Rights: Embeddedness as a Deep Structural Principle of the European Human Rights Regime’ (2008) 19(1) European Journal of International Law 125; and Popelier et al. (eds), Human Rights Protection in the European Legal Order: The Interaction Between the European and the National Courts (Intersentia, 2011). 87 See ‘Implementation of the Judgments of the ECtHR: A Shared Judicial Responsibility’, in ECtHR, Dialogue Between Judges 2014. See also Forst, ‘The Execution of Judgments of the European Court of Human Rights: Limits and Ways Ahead’ (2003) 7(3) Vienna Journal on International Constitutional Law, available at: www.icl-journal.com/archive. 88 See Wildhaber et al., ‘No Consensus on Consensus? The Practice of the European Court of Human Rights’ (2013) 33(7/12) Human Rights Law Journal 248 at 262. Similarly, Kratochvíl, supra n 12 at 357. 89 See Evans v United Kingdom, supra n 21 (four-judge dissent); Chapman v United Kingdom Application No 27238/95, Merits, 18 January 2001 (seven-judge dissent); X and Others v Austria Application No 19010/07, Merits and Just Satisfaction, 19 February 2013 (sevenjudge dissent); and Animal Defenders International v United Kingdom, supra n 58 (eightjudge dissent). 90 See MacDonald, ‘The Margin of Appreciation’ in Macdonald et al. (eds), The European System for the Protection of Human Rights (Martinus Nijhoff, 1993) 83; Partly Dissenting

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which ‘implied relativism’ and which were ‘as wrong in principle as [they were] pointless in practice’.91 The MoA also has been the subject of sustained academic criticism.92 There are critics of the concept’s existence and of its use by the ECtHR. The fundamental critique is that the MoA erodes normative standards by encouraging their non-uniform, subjectivist or relativist applications, the consequences of which are inconsistent with the universality of human rights93 and the concept of the rule of law.94 The lack of clarity inherent in the MoA makes for a lack of predictability in judicial decision-making, which is inconsistent with the principle of legal certainty.95 The search for consensus is thus contrary to basic rule of law requirements because it creates vague standards that defeat predictability.96 The search for and identification of consensus risks imposing the majority view on minorities within a state97 and on a minority, even a substantial minority, of states. The wide MoA afforded by the ECtHR during emergencies has been criticised.98 This is partly based on the view that the ECtHR should act as the ultimate protector of human rights.99 Opinion of Judge de Meyer in Z v Finland Application No 22009/93, Merits and Just Satisfaction, 25 February 1997 (concept should be banished); and Concurring Opinion of Judge Rozakis in Egeland and Hanseid v Norway Application No 34438/04, Merits, 16 April 2009 (concept often used automatically and unnecessarily). 91 Ibid. at Partly Dissenting Opinion of Judge de Meyer. 92 See Letsas, A Theory of Interpretation of the European Convention on Human Rights (oup, 2007); Benvenisti, ‘Margin of Appreciation, Consensus, and Universal Standards’ (1999) 31(4) New York University Journal of International Law and Politics 843; Lester, ‘Universality Versus Subsidiarity: A Reply’ (1998) European Human Rights Law Review 73; Arai-­Takahashi, supra n 1; Kratochvíl, supra n 12; Murray, ‘Consensus: Concordance, or ­Hegemony of the Majority?’, in Dialogue Between Judges, supra n 64; Jones, ‘The Devaluation of Human Rights Under the European Convention’ [1995] Public Law 430; and Itzcovich, ‘One, None and One Hundred Thousand Margins of Appreciations: The Lautsi Case’ (2013) 13(2) Human Rights Law Review 287. 93 See Brems, Human Rights: Universality and Diversity (Kluwer, 2001) at 357–421. 94 See Shany, supra n 2 at 912. 95 See Brauch, ‘The Dangerous Search for an Elusive Consensus: What the Supreme Court Should Learn from the European Court of Human Rights’ (2009) 52(2) Howard Law J­ ournal 277. 96 Ibid. 97 See Benvenisti, supra n 92. As noted, the ECtHR is sensitive to the fair and proper treatment of people from minorities and avoiding any abuse of a dominant position: see Şahin v Turkey, supra n 20. 98 See Gross and Ní Aoláin, ‘From Discretion to Scrutiny: Revisiting the Application of the Margin of Appreciation Doctrine in the Context of Article 15 of the European Convention on Human Rights’ (2001) 23(3) Human Rights Quarterly 625. 99 Ibid. at 641.

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There are accompanying methodological criticisms of both the role of consensus in determining the MoA and the widely acknowledged absence of a clear and consistent methodology underlying the search for consensus:100 Which states? How many? What practice: legal or social? For how long? What of the practice of non-parties to the echr?101 And what weight is given to ratified and unratified treaties inside the Council of Europe and outside of it?102 One problematic issue for the future will be whether, once the European Union becomes a party to the echr, eu rules can be regarded as evidence of consensus. If so, would this create a presumption of their compliance with the echr? There has also been criticism of the formulation of the issue or question to which consensus does or does not attach. The answer can vary depending on the formulation. In Şahin v Turkey103 there was no uniform European conception of the significance of religion in society or the wearing of religious symbols in educational institutions, but there was a virtual consensus on whether adult women in universities can wear religious clothing. In Stec and Others v United Kingdom104 the ECtHR applied a wide margin on the basis that the case concerned social policy, rather than a narrow margin on the basis that the case concerned sex discrimination. The different outcomes of the Chamber and the Grand Chamber in Lautsi and Others v Italy,105 concerning the display of crucifixes in classrooms, can also be explained by how the issue was framed.106 Others regard the MoA as acceptable in principle and an appropriate concept in the subsidiary context in which it is used, but criticise its use or the approach to determining consensus in particular cases.107 A final criticism of some uses of the MoA by the ECtHR is that reference to it is a redundant and unnecessary rhetorical justification or conclusory label for an end result.108 This is particularly so where the ECtHR has effectively engaged in its own 100 See Wildhaber, supra n 88; and Dzehtsiarou and O’Mahony, supra n 60. 101 See the wider range of practice considered in Christine Goodwin v United Kingdom, supra n 74. 102 See Demir and Baykara v Turkey, supra n 75. 103 Supra n 20. 104 Supra n 47 at para 66. 105 Application No 30814/06, Merits and Just Satisfaction, 18 March 2011. 106 See McGoldrick, ‘Religion in the European Public Square and in European Public Life: Crucifixes in the Classroom?’ (2011) 11(3) Human Rights Law Review 451; Itzcovich, supra n 92; and Lugato, ‘The “Margin of Appreciation” and Freedom of Religion: Between Treaty Interpretation and Subsidiarity’ (2013) 52(1/2)  Journal of Catholic Legal Studies 49. 107 Lord Hoffman, ‘The Universality of Human Rights’, uk Judicial Studies Board Annual Lecture, 19 March 2009, at paras 27 and 43. 108 See Kratochvíl, supra n 12; and Letsas, supra n 92 at 86–90.

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review of the merits by applying a strict standard of proportionality. If it judges the measures proportionate, it simply adds that the state is within its MoA; if not, it simply adds that it has exceeded its MoA.109 5

The Use and the Non-use of the Margin of Appreciation within the American Convention on Human Rights System

At least one decision of the Inter-American Commission on Human Rights (­ iachr) and two advisory opinions of the IACtHR have made express reference to the MoA or ‘margin of discretion’. In 1993 in José Efraín Ríos Montt v Guatemala,110 the Commission considered that the issue of the constitutional ineligibility of former dictators from being candidates for the presidency should be analysed in light of the circumstances of the individual case and p ­ revailing concepts in the historic period. The Commission reaffirmed ‘the restrictive character that this margin of appreciation should utilize, which should always be conceived with a view to strengthening the system and its objectives’.111 The grounds for ineligibility had emerged from an act of a Constitutional Convention elected by democratic vote in which the Guatemalan people decided through their representatives at that Convention that it was necessary to maintain such grounds, which were already founded in Guatemala’s con­stitutional history, and moreover to make them permanent. Within those conditions any constitutional system of law possessed the right to make its operation more effective, and to defend the integrity of its citizens’ rights. The application was declared inadmissible. It is also interesting to observe that in 2008 in Apitz Barbera et al. (‘First Court of Administrative Disputes’) v Venezuela112 the Commission’s arguments before the IACtHR used the language of the MoA. It was reported as submitting that ‘“in observance of the principle of the margin of appreciation of States,” a temporary disciplinary regime can be admissible provided that a “strict judgment shows that this judicial policy is warranted”’.113 As for the IACtHR, in its advisory opinion on Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica,114 it stated that 109 110 111 112 113

See Arai-Takahashi, supra n 1 at 232–235. Case 10.804, Report No 30/93 (1993). Ibid. at para 31 (emphasis added). IACtHR Series C 182 (2008). Ibid. at para 143. On the facts it then submitted that the jurisdictional checks and balances that were necessary in order for judges who were overseeing disciplinary proceedings against judicial officials to be fully independent were impeded. 114 OC-4/84, IACtHR Series A 4 (1984).

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‘[o]ne is here dealing with values which take on concrete dimensions in the face of those real situations in which they have to be applied and which permit in each case a certain margin of appreciation’.115 Most of the proposed amendments fell within the state’s margin of appreciation; however, one did not. It concerned a provision stipulating preferential treatment in cases of naturalisation applicable to marriage, which favoured only one of the spouses. In the advisory opinion on the Rights and Guarantees of Children in the Context of Migration and/or in Need of International Protection,116 the IACtHR stated that ‘even though States have a margin of discretion when determining their immigration policies, the objectives sought by such policies must respect the human rights of migrants’.117 In terms of contentious cases, in Castañeda Gutman v Mexico118 the IACtHR accepted that Mexico could impose an electoral rule that only political parties were able to nominate presidential candidates. There was no regional consensus on the issue. Therefore, the decision on the choice of system was a ‘political decision’ for the state.119 No express reference was made to the MoA but in substance it was afforded to Mexico. The same could be said of Herrera Ulloa v Costa Rica120 which concerned Herrera Ulloa’s criminal conviction on four counts of publishing insults constituting defamation of a public official. The conviction carried with it criminal and civil consequences. The IACtHR referred to a ‘reduced margin for any restriction on political debates or on debates on matters of public interest’.121 With respect to the right to appeal to a higher court under Article 8(2)(h) of the achr, the IACtHR stated: ‘While States have a margin of discretion in regulating the exercise of that remedy, they may not establish restrictions or requirements inimical to the very essence of the right to appeal a judgment’.122 The term ‘margin of discretion’ is the translation of the expression ‘margen de apreciación’ in the original Spanish text. There have also been individual opinions supportive of the MoA. In his partially dissenting opinion in Atala Riffo and Daughters v Chile,123 Judge Alberto Pérez Pérez cited extensively from judgments of the ECtHR. He agreed with the notion of an evolving interpretation that considers the achr as a living instrument to be understood according to present-day circumstances, but 115 116 117 118 119 120 121 122 123

Ibid. at para 58. OC-21/14, IACtHR Series A 21 (2014). Ibid. at para 39. IACtHR Series C 184 (2008). Ibid. at para 204. IACtHR Series C 107 (2004). Ibid. at para 127. Ibid. at para 161. IACtHR Series C 239 (2012).

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on the understanding that in order to make progress in that area it was ‘necessary to reach a consensus, or common ground or a convergence of standards among the States Party [sic]’.124 This was the case as regards the recognition that discrimination based on sexual orientation should be understood as prohibited. However, the same could not be said with respect to the evolution of the notion of the family and its status as the foundation or basic or natural element of society.125 He considered that the concept of the family was ‘one of the areas in which it is most essential to allow a national margin of appreciation’.126 In his concurring opinion in Cabrera García and Montiel Flores v Mexico,127 ad hoc Judge Mac-Gregor Poisot referred to the ‘national margin of discretion’ enjoyed by states in interpreting the Inter-American corpus juris.128 Despite these isolated instances, it is clear that the Inter-American system differs from the echr system in that it has not developed a ‘coherent theory of deference’129 which openly and systematically affords states a MoA, even in cases involving the lack of regional consensus.130 6

Similarities and Differences between the echr and the achr Systems

This section analyses a series of similarities and differences between the echr and the achr systems—historical, textual, institutional, constitutional and interpretative. It considers whether alone or in combination they justify or explain the non-use of the MoA by the IACtHR. In particular, it is submitted that as each of the central justifications for the MoA under the echr apply equally 124 125 126 127 128 129

Ibid. at Partially Dissenting Opinion of Judge Alberto Pérez Pérez, para 20. Ibid. at para 21. Ibid. at para 23 (emphasis in original). IACtHR Series C 220 (2010). Ibid. at Concurring Opinion of ad hoc Judge Eduardo Ferrer Mac-Gregor Poisot, para 87. See Contreras, ‘National Discretion and International Deference in the Restriction of ­Human Rights: A Comparison Between the Jurisprudence of the European and the InterAmerican Court of Human Rights’ (2012) 11(1) Northwestern Journal of International Human Rights 28 at 70. 130 Candia, ‘Comparing Diverse Approaches to the Margin of Appreciation: The Case of the European and the Inter-American Court of Human Rights’, 9 March 2014, available at: papers.ssrn.com/sol3/papers.cfm?abstract_id=2406705; Barbosa Delgado, ‘The Limits to the Margin of Appreciation Doctrine at the European Court and the Inter-American Court of Human Rights: Judicial? Intervention around some Rights of the Ethnical and Cultural Minorities’ (2011) 26 Revista Derecho Del Estado 107.

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to the achr, the IACtHR (whose jurisprudence the Inter-American Commission would then follow) should afford states a MoA. A Historical Similarities and Differences European states have accepted substantial inroads into their sovereignty via the now compulsory jurisdiction of the ECtHR (and even greater inroads via membership of the European Union). In return, so the argument goes, the ECtHR can afford states parties a MoA because it can trust their national authorities to take ally-based decisions.131 Decisions in many states in Europe are indeed reached on the basis of commendable democratic processes. Their functioning democratic basis is undoubtedly stronger than in other parts of the world. The orthodox historical explanation for rejecting deferential approaches during the early years of the Inter-American system was the existence of military dictatorships on the continent.132 The argument was that the rule of law did not operate; national legislative and executive decisions, in most of the cases, lacked any democratic legitimacy; and many cases concerned the infringement of absolute human rights, non-derogable rights or core elements of qualified rights.133 In such an environment there was no possible room for any MoA doctrine and notions of regional consent were not relevant.134 The issues were mainly complex factual patterns and a MoA would simply have had little

131 Cf. Ní Aoláin, ‘The Emergence of Diversity: Differences in Human Rights Jurisprudence’ (1995) 19(1) Fordham International Law Journal 101 at 114. 132 Candia, supra n 132; Farer, ‘The Rise of the Inter-American Human Rights Regime: No Longer a Unicorn, Not Yet an Ox’ (1997) 19(3) Human Rights Quarterly 510 (focusing on the Commission); Mendez and Mariezcurrena, ‘Human Rights in Latin America and the Caribbean: A Regional Perspective’, Paper for Human Development Report 2000, available at: hdr.undp.org/sites/default/files/mendez2000.pdf; and Goldman, ‘History and Action: The Inter-American Human Rights System and the Role of the Inter-American Commission on Human Rights’ (2009) 31(4) Human Rights Quarterly 856. 133 See, for example, Case of González et al. (‘Cotton Field’) v Mexico IACtHR Series C 205 (2009) (street children); Case of the Saramaka People v Suriname IACtHR Series C 172 (2007) (indigenous peoples); and Case of Landaeta Mejías Brothers et al. v Venezuela IACtHR Series C 281 (2014) (extrajudicial execution). 134 Trindade, ‘Reflexiones sobre el Futuro del Sistema Interamericano de Protección de los Derechos Humanos’, in Méndez and Cox (eds), El Futuro del Sistema Interamericano de Protección de los Derechos Humanos (Instituto Interamericano de Derechos Humanos, 1998; and Neuman, ‘The External Reception of Inter-American Human Rights Law’ (2011) Special Edition Quebec Journal of International Law 99 at 104.

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or no application in any event.135 So one central explanation for the absence of the MoA in the Inter-American system might proceed along supposedly undiplomatic but realpolitik lines—essentially there was simply a lack of trust in decisions made by states parties. However, to only apply the MoA on the precondition of a functioning ­democracy is problematic. It might be viewed as Eurocentric and rather condescending. Democratic standards have varied considerably across Europe particularly after the expansion eastwards.136 The ECtHR has a very substantial (though now rapidly reducing) caseload and continues to find many democratic states to have violated fundamental rights in the echr, including absolute and non-derogable rights. Many findings of violation of the echr are based on a lack of proportionality in the democratically adopted measures.137 ­Classification into democratic and non-democratic states is difficult in the absence of universally accepted indicators.138 A condition of democracy in a state is reached via transition and process. The IACtHR has increasingly had to deal with the situation of states transitioning to democracy. In any event there are now many functioning democracies in the Americas with functioning parliaments, regular elections and increasing evidence of independent judiciaries. The 2014 Freedom House Survey classified 68 per cent of the Americas as free and 28 per cent as partly free, making it the freest region outside of Europe.139 The achr system is thus maturing within the context of longer periods of democratic rule.140 Some diversity in the range of national decisions in states’ interpretation of rights, each carrying degrees of democratic legitimacy, would 135 Most famously perhaps Case of Velásquez Rodríguez v Honduras IACtHR Series C 4 (1988). Gross and systemic cases continue to be referred to the IACtHR: see Case of Osorio Rivera and Family Members v Peru IACtHR Series C 274 (2013); and Case of the Santo Domingo Massacre v Colombia IACtHR Series C 259 (2012). There are also cases where there has been a wholesale failure to recognise and protect rights and to consult the persons concerned, as in Case of the Saramaka People v Suriname, supra n 133; and Case of the Kaliña and Lokono Peoples v Suriname (heard in January 2015). 136 See Sweeney, ‘Margins of Appreciation: Cultural Relativity and the European Court of Human Rights in the Post-Cold War Era’ (2005) 54(2) International and Comparative Law Quarterly 459; and Hammer and Emmert, The European Convention on Human Rights and Fundamental Freedoms in Central and Eastern Europe (Eleven, 2011). 137 See, for example, A. and Others v United Kingdom, supra n 8. 138 See Freedom House, Freedom in the World 2014, Freedom House’s annual country-by -country report on global political rights and civil liberties. 139 Ibid. 140 Dulitzky, ‘The Inter-American Human Rights System Fifty Years Later: Time for Changes’ [2011] Special Edition Quebec Journal of International Law 127.

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be a normal consequence.141 To not afford a degree of deference via the MoA to those decisions because of the undemocratic nature of previous regimes seems indefensible. Moreover, the IACtHR construes achr rights in accordance with the rights that result from representative democracy as a form of government.142 It seems inconsistent with this approach to not give appropriate weight to decisions taken by representative governments. Moreover, nonEuropean states are, arguably, even more fiercely defensive of their sovereignty and their domestic jurisdiction than European states. Basing a MoA on simply trusting the democratic credentials of states would create a real risk of double standards. States have the primary responsibility to protect international human rights.143 Even undemocratic states should be able to have their human rights defences, for example, based on necessity, proportionality, practicability, resources—indeed all of the kinds of issues looked at by the IACtHR and judged on the merits, without any historical preconceptions of lack of trust or lack of democratic credentials. However, even after the return of democracy to the continent, the InterAmerican human rights institutions refused to change their stringent standard of review. This has been so even in cases concerning conflicts between rights in the achr and about matters subject to profound disagreement in the Americas. In 1999 in Andrés Aylwin et al. v Chile144 the Inter-American Commission found that the Chilean Constitution’s senator-for-life provisions infringed on political rights by discriminating in favour of some privileged electors. In a 141 See Benavides Casals, ‘El Consenso y el Margen de Apreciación en la Protección de los Derechos Humanos’ (2009) 15(1) Ius et Praxis 295 at 309. For severe criticism of the antidemocratic tendencies of the IACtHR, see Malarino, ‘Judicial Activism, Punitivism and Supranationalisation: Illiberal and Antidemocratic Tendencies of the Inter-American Court of Human Rights’ (2012) 12(4) International Criminal Law Review 665 at 695, who argues that the IACtHR ‘undermines the importance of legality and legal certainty, takes positions that are in conflict with fundamental liberal principles (and with the achr’s provisions themselves), and underestimates the value of democracy (self-government) and the principle of self-determination of peoples’. 142 Apitz Barbera et al. (‘First Court of Administrative Disputes’) v Venezuela, supra n 114 at para 217. See also the Inter-American Democratic Charter, adopted by the General Assembly of the oas on 11 September 2001. 143 On the MoA being rooted in subsidiarity, see Carozza, ‘Subsidiarity as a Structural Principle of International Human Rights Law’ (2003) 97(1) American Journal of International Law 38. 144 Case 11.863, Report No 137/99 (1999) at para 108. This decision can effectively be read to reverse the decision of the Inter-American Commission in 1993 in José Efraín Ríos Montt v Guatemala, supra n 112.

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remarkable decision in 2011 in Gelman v Uruguay145 the IACtHR decided that amnesty laws that sought to stop the legal prosecution of members of the military after dictatorial regimes always constituted an unjustifiable infraction of the right to pursue truth and justice, which was implicitly recognised in the right to judicial protection in Article 25 of the achr. The IACtHR adopted this standard in spite of the fact that the law concerned did not constitute a selfamnesty and it was supported by the majority of the population in a referendum and a plebiscite.146 The decision appears unrealistic and absolutist. It presents a substantial impediment to efforts to achieve transitional justice.147 The position of the ECtHR is less absolutist than that of the IACtHR. In Marguš v Croatia148 the Applicant was granted amnesty for acts which amounted to grave breaches of fundamental human rights. The ECtHR stated that there was a growing tendency in international law to see such amnesties as unacceptable because they were incompatible with the unanimously recognised obligation of states to prosecute and punish grave breaches of fundamental human rights.149 The ECtHR held that [e]ven if it were to be accepted that amnesties are possible where there are some particular circumstances, such as a reconciliation process and/ or a form of compensation to the victims, the amnesty granted to the applicant in the instant case would still not be acceptable since there is nothing to indicate that there were any such circumstances.150 In a concurring opinion, three judges stated: We cannot rule out the possibility that such an amnesty might in some instances serve as a tool enabling an armed conflict or a political regime 145 IACtHR Series C 221 (2011). In Barrios Altos v Peru IACtHR Series C 75 (2001), the IACtHR had derived a prohibition on granting amnesties for grave violations of human rights from Articles 1(2), 2, 8 and 8 achr. See Davis, ‘Resuscitating Justice: The Inter-American Court Confronts the Entrenched Impunity of National Amnesty Laws’ (2014) 7 Inter-American and European Human Rights Journal 3. 146 See Gargarella, ‘No Place for Popular Sovereignty? Democracy, Rights, and Punishment in Gelman v. Uruguay’, available at: www.law.yale.edu/documents/pdf/sela/SELA13 _Gargarella_CV_Eng_20121130.pdf. Cf Davis, ‘Resuscitating Justice: The Inter-American Court Confronts the Entrenched Immunity of National Amnesty Laws’ (2014) 7 InterAmerican and European Human Rights Journal 3. 147 See Malarino, supra n 141. 148 Application No 4455/10, Merits and Just Satisfaction, 27 May 2014. 149 Ibid. at para 139. 150 Ibid.

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that violates human rights to be brought to an end more swiftly, thereby preventing further violations in the future. In any event, as we see it, the concern to ensure effective protection of human rights points in favour of allowing the States concerned a certain margin of manoeuvre in this sphere, in order to allow the different parties to conflicts engendering grave human rights violations to find the most appropriate solutions.151 B Textual Similarities and Differences The text of the achr is, in substance, the equivalent to the echr.152 The civil and political rights covered153 and the language used are broadly similar though there are some differences of wording and structure. More achr rights are expressly non-derogable and the IACtHR has interpreted others to be nonderogable, such as the right to a judicial remedy for unlawful detention.154 The IACtHR has also classed a range of rights, including the right not to be discriminated against, as jus cogens.155 In the achr there are two general Articles on restrictions regarding interpretation and the scope of restrictions (Articles 29 and 30) rather than limitations being set out in the relevant Articles. Such differences of wording as there are between the achr and the echr may explain the result in particular cases.156 However, the IACtHR did not really engage with the argument of the Chilean domestic courts that the prohibition was justified, and so retrospective liability would have been consistent with 151 Ibid. at Joint Concurring Opinion of Judges Šikuta, Wojtyczek and Vehabović, para 9. See also the severe criticism of Gargarella, supra n 146. The approach of the Human Rights Committee (hrc) under the International Covenant on Civil and Political Rights also seems less absolutist: see O’Neill and Quinn v Ireland (1314/2004) Views, CCPR/ C/87/D/1314/2004 (2006) at para 8.4 (alleged discrimination by the executive with respect to the application of an early release scheme for prisoners). 152 See Harris and Livingstone (eds), The Inter-American System of Human Rights (oup, 1998). 153 Article 26 achr also makes provision for the progressive development of social and economic rights. See also Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights 1988, ratified by 16 states parties as at 1 August 2015. See also Leach et al., chapter 1 supra, which notes that ‘all three regional systems have consistently maintained that amnesty laws and statutes of limitation are incompatible with the respective [human rights] treaties’. 154 OC-8/87, Habeas Corpus in Emergency Situations (Arts. 27(2), 25(1) and 7(6) American Convention on Human Rights) IACtHR Series A 8 (1987). 155 See Bianchi, ‘Human Rights and the Magic of Jus Cogens’ (2008) 19(3) European Journal of International Law 491. 156 For example, protection of freedom of expression is arguably wider under the achr than under the echr, see The Last Temptation of Christ’ (Olmedo Bustos et al.) v Chile IACtHR Series C 73 (2001).

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the achr, because the film deformed and diminished the image of Christ. However, such differences in wording and structure between the two Conventions seem to be inconsequential in relation to the general issue under consideration. With respect to freedom of expression, a range of post-publication restraints, both civil and criminal, exist, and these have to be assessed for compatibility with the achr.157 Analogous cases concerning rights and limitations are now coming before the IACtHR but often the balance is clearly unjustified under the terms of the achr.158 The Inter-American Commission effectively controls the IACtHR’s docket given its power to refer cases.159 The Commission thus acts as gatekeeper to the Court in contentious cases. Individuals have no power to apply to the Court. In recent years, the Commission has adopted a practice of presumptively referring cases in which it has found at least one violation of the achr to the Court, but it retains the option of refusing. Nevertheless, it seems inevitable that more balanced and complex cases will come before the IACtHR at some point.160 Advisory opinions requested by states or Organization of American States (oas) organs will also raise issues of complex balancing.161 Many of the IACtHR cases have concerned situations of public emergencies, the very context in which the MoA first evolved in the echr. However, even the strongest critics of the MoA afforded to states by the ECtHR in cases of emergencies accept that a certain MoA ought to be given to governments to deal with exigencies and acute crises. As noted, their argument was rather that it should be a narrow one, the bare minimum, rather than a wide one.162

157 See Case of Mémoli v Argentina IACtHR Series C 265 (2013) (criminal convictions imposed on the victims based on the offence of libel were a valid and legitimate measure under the American Convention to protect the honour and reputation of private individuals); and Fuentes Torrijo, ‘La Protección de la Libertad de Expresión en el Sistema Interamericano de Derechos Humanos y la Promoción de la Democracia’ (2002) 13 Revista De Derecho 225. 158 Findings of non-violation are rare: see Case of Nogueira de Carvalho et al. v Brazil IACtHR Series C 161 (2006). 159 The Commission’s practice is now to refer every case to the IACtHR once it has reached a decision on the merits. However, even in 2013 it only referred 13 cases. 160 See Case of Marcel Granier et al. v Venezuela Series 293 (2015), filed in 2013 (restrictions on freedom of expression in relation to a television channel). 161 For example, on 28 April 2014 Panama requested an advisory opinion to determine the interpretation and the scope of a range of achr Articles with respect to the scope and the protection of the rights of legal entities or legally recognised non-governmental entities. 162 Gross and Ní Aoláin, supra n 98 at 648.

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C Institutional Similarities and Differences The IACtHR and the ECtHR are equivalent in the sense that both are judicial institutions. The preamble of the achr states that international protection is justified ‘in the form of a convention reinforcing or complementing the pro­ tection provided by the domestic law of the American states’. In terms of institutional competence and legitimacy the IACtHR is, like the ECtHR,163 an international court.164 In institutional terms it is not a regional constitutional or regional supreme court.165 Like the ECtHR, the IACtHR is not a fourth instance appeal court; it has a subsidiary role only.166 The organs of the InterAmerican system of human rights do not operate as an instance of appeal or review of judgments issued in domestic processes.167 The achr system was thus designed for securing minimum fundamental values. It was not directed towards establishing uniform, harmonised rules. D Constitutional Similarities and Differences As noted, in terms of institutional design the IACtHR is not a regional constitutional or supreme court. However, one justification for it not affording states a MoA is precisely that it nonetheless perceives itself as, and purports to act as, a regional constitutional court.168 For Malarino the ‘frequent denial by the [IACtHR] that it is a court of last resort, or a criminal court, rings hollow when it, for example, requires national tribunals to reopen proceedings to re-try a 163 However, see Ajevski, ‘Unstable Identities: The European Court of Human Rights and the Margin of Appreciation’, 9 June 2014, available at: ssrn.com/abstract=2474131, who submits that the identity of the ECtHR is unstable because its identity as a constitutional court or an international court is uncertain and this makes doctrines like the MoA even more elusive. 164 See Malarino, supra n 141 at 685–687; and Verdugo and García, ‘Radiografía al Sistema Interamericano de Derechos Humanos y la Promocion de la Democracia’ [2012] Revista Actualidad Juridica 175. 165 See Malarino, ibid. at 685. Cf. Candia, supra n 130. 166 See Case of Acevedo Jaramillo et al. v Peru IACtHR Series C 157 (2006) at para 66; Case of Zambrano Vélez et al. v Ecuador IACtHR Series C 166 (2007) at para 47; Case of Perozo et al. v Venezuela IACtHR Series C 195 (2009) at para 64; and Abramovich, ‘Autonomía y Subsidiariedad: El Sistema Interamericano de Derechos Humanos frente a los Sistemas de Justicia Nacionales’, in Rodríguez Garavito (ed.), El Derecho en América Latina: Un Mapa Para el Pensamiento Jurídico del siglo xxi (Siglo Veintiuno, 2011) 211. 167 See Case of Mohamed v Argentina IACtHR Series C 255 (2012) at para 81; and Rodríguez Pinzón, ‘The “Victim” Requirement, the Fourth Instance Formula and the Notion of “Person” in the Individual Complaint Procedure of the Inter-American Human Rights System’ (2001) 7(2) ilsa Journal of International and Comparative Law 369 at 376–380. 168 See Candia, supra n 130 at 22–23.

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convicted or acquitted individual, to declare a law void or invalid, or to set aside statutes of limitations’.169 Candia has submitted that the concept of the MoA that international courts develop importantly relies on the conception that they have of themselves.170 In his view, the ECtHR has always looked at itself as a supranational (probably meaning ‘international’ in this context) tribunal with subsidiary jurisdiction. On the contrary, the IACtHR, by adopting a stringent standard of review based on proportionality, ignores the need for judicial deference. On Candia’s thesis this self-perception pushes for ‘an institutional transformation that makes [the IACtHR] a continental constitutional court with powers to standardize the understanding of the Inter-American Convention of Human Rights on the continent’.171 Candia based this claim on three reasons. First, the declarations made by some members of the IACtHR. Second, the extended use of the proportionality review by the IACtHR. Third, the judicial creation of what is termed ‘conventionality control’ (control de convencionalidad).172 Via this mechanism the IACtHR has decided to impose the obligation of following its decisions, even on states that have not been a party to the case in which the judgment was delivered.173 In order to achieve that objective, the IACtHR has sought to empower national courts to disapply domestic legislation when it goes against the text of the achr as construed by the IACtHR.174 169 Malarino, supra n 143 at 691. He is similarly critical of the detailed and specific reparations ordered by the IACtHR for undermining the democratic operation of states’ legislatures, executives and judiciaries (at 684–685). 170 Candia, supra n 132 at 21. 171 Ibid. at 2. See also Dulitsky, ‘An Inter-American Constitutional Court? The Invention of Conventionality Contrtrol by the IACtHR’ (2015) 50 Texas International Law Journal 45. 172 See Pasqualucci, The Practice and Procedure of the Inter-American Court of Human Rights, 2nd edn (cup, 2013) at 300–303; Dulitsky, ibid. 173 Case of Almonacid Arellano et al. v Chile IACtHR Series C 154 (2006) at para 124. For an ­academic critique, see Fuentes Torrijo, ‘International Law and Domestic Law: Definitely an Odd Couple’, available at: www.law.yale.edu/documents/pdf/sela/XimenaFuentes__ English_.pdf. 174 See Fontevecchia and D’Amico v Argentina IACtHR Series 238 (2011) at para 93 (‘the judges and bodies related to the administration of justice shall take into consideration not only the treaty but also the interpretation the Inter-American Court has made of it’). The President of the IACtHR has suggested that ‘[o]wing to the “control of conformity with the Convention” that tends to predominate nowadays, the work of domestic judges is permeated by the judgments of the Inter-American Court. There are no longer only “seven inter-American judges”; there are thousands and thousands of inter-American judges operating in the region’: see IACtHR, Annual Report 2013, at 1. Not all national courts have accepted this concept of conventionality control. A notable dissenter is the Supreme Court of Venezuela:

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In his concurring opinion in Cabrera García and Montiel Flores v Mexico,175 ad hoc Judge Mac-Gregor Poisot highlighted the importance of the conventionality control doctrine which was ‘progressively creating a ius constitutionale commune on the subject of human rights for the American continent or, at least, for Latin America’.176 This ‘nationalisation’ or ‘constitutionalisation’ of international human rights law has become deeper and more intense, as evidenced by the acceptance of this doctrine by the domestic high courts.177 It is also notable that Mac-Gregor Poisot referred to the ‘national margin of discretion’ enjoyed by states in interpreting the Inter-American corpus juris.178 In practice, the ‘conventionality control’ limits the possibility of national institutions to interpret and construe the achr according to their own understanding. All factors considered, in this more constitutional context the use of the MoA within the Inter-American system arguably becomes less relevant.179 The ECtHR can be distinguished in relation to all three reasons given by Candia. Few judges on the ECtHR have described it as being a ‘constitutional court’, and when they have it has been in the much softer constitutional sense of tendencies, characteristics or elements.180 The ECtHR has encouraged national courts to follow its jurisprudence, and in that sense it has an erga omnes effect, but its decisions are formally only binding on the state party concerned.181 However, the ECtHR has never sought to empower national courts to disapply domestic legislation. Of course, the Court of Justice of the European Union (cjeu) has done exactly that within the context of the eu. Its basis for that approach was that the eu had created a new kind of legal order the nature of which was peculiar to the eu, its own constitutional framework and

175 176 177 178 179 180

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see Ruiz-Chiriboga, ‘Conventionality Control: Examples of (Un)Successful Experiences in Latin America’ (2010) 3(1/2) Inter-American and European Human Rights Journal 200. IACtHR Series C 220 (2010). Ibid. at Concurring Opinion of ad hoc Judge Mac-Gregor Poisot, paras 85–88. Ibid. at para 86. Ibid. at para 87. However, on consensus in the us constitutional system, see Dzehtsiarou and O’Mahony, supra n 60. See Wildhaber, ‘A Constitutional Future for the European Court of Human Rights?’ (2002) 23(5/7) Human Rights Law Journal 161; Føllesdal et al., supra n 1; Christoffersen and Madsen (eds), The European Court of Human Rights between Law and Politics (oup, 2011); and Wildhaber and Greer, ‘Revisiting the Debate about “Constitutionalizing” the European Court of Human Rights’ (2012) 12(4) Human Rights Law Review 655. In 1995 the ECtHR described the echr as a ‘constitutional instrument of European public order’: see Loizidou v Turkey Application No 15318/89, Preliminary Objection, 23 March 1995, at para 75. Article 46 echr.

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founding principles.182 It is very difficult to make the same kind of claims for the ECtHR. Finally, the ECtHR also makes extensive use of the proportionality review but usually accompanies this by making frequent reference to the MoA. Candia has acknowledged that the IACtHR was moving the achr system to a model of judicial supremacy that was not expressly contemplated in the achr. That model did not give weight to any perceived or purported democratic deficit of international courts or the lack of regional consensus regarding many issues on which moral disagreement was pervasive. In Candia’s view, this perception of the IACtHR as a continental constitutional court was consistent with the desire of many academics and scholars who sought to transform it into the new constitutional court of the Americas with special powers to standardise domestic human rights legislation.183 Consistent with this constitutionalist perspective the IACtHR also sees the achr system as something more than a regional system. Through the logic of ‘constitutionalisation’ of Inter-American law the IACtHR has attempted to establish conventional Inter-American law as a fundamental norm, superior to national law in the globality and fundamental values which it enshrines.184 It has been argued that Inter-American doctrine disputes the validity of state voluntarism and the positivist legal doctrine to maintain jus naturalism in human rights.185 Thus the IACtHR has sought to lead both regional and universal human rights systems beyond the confines of voluntarism and consensus186 and towards the construction of a new jus gentium based on the interests of humanity and civitas maxima gentium.187 Hennebel has suggested that this Inter-American distinctiveness can be explained, to a large extent, by the IACtHR’s need to respond precisely to a political context characterised by Latin 182 In a striking application of the cjeu’s conception of the eu legal order it has held that the draft agreement on the eu’s accession to the echr was incompatible with eu treaties: see Opinion 2/13 The compatibility with eu law of the Draft Agreement for eu accession to the European Convention on Human Rights, 18 December 2014, eu:C:2014:2454. 183 Candia, supra n 130 at 24. 184 Hennebel, ‘The Inter-American Court of Human Rights: The Ambassador of Universalism’ (2011) Special Edition Quebec Journal of International Law 57 at 75. In this sense it is analogous to the cjeu’s idea of a new legal order: see de Búrca, ‘The European Court of Justice and the International Legal Order after Kadi’ (2010) 51(1) Harvard International Law Journal 1. 185 Hennebel, ibid. at 95. 186 For an assessment of how Inter-American human rights law has been received and employed outside its own sphere, see Neuman (2011), supra n 134. 187 See Trindade, International Law for Humankind: Towards a New Jus Gentium (Martinus Nijhoff, 2005). For strong criticism of this approach, see Malarino, supra n 141.

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American dictatorships and politics of massive and systematic human rights violations. Individualisation and humanisation, which place the human being at the heart of the system and which pave the way for Inter-American j­ustice, call into question, implicitly at least, the state paradigm of international law. Seen in this light, the IACtHR’s role goes far beyond the guarantees of the achr and it becomes ‘constitutional’.188 The key characteristics of this ‘Inter-­ American doctrine’ have been the individualisation, criminalisation, constitutionalisation, humanisation and moralisation of Inter-American law.189 The IACtHR thus contributes to a ‘process of legal homogenization’ in Latin America.190 Such a process is more consistent with establishing uniform, harmonised rules and less consistent with the variable rules produced by affording states a MoA. It is submitted that the significance of not affording a moa is that it does not sit well with the IACtHR’s institutional or constitutional ‘brief’. Moreover, not affording states a MoA could make interferences by the IACtHR with the sovereignty of states intolerable and politically unacceptable.191 In two extreme cases there have been denunciations.192 However, many states within the achr system are now broadly democratic. Irrespective of whether those two denunciations were justified, therefore, democratic and political legitimacy should push the IACtHR towards respecting the decisions of, and the balances struck by, national legislatures, executives and courts, in the same way that the ECtHR does. This is so particularly with respect to the range of procedural, positive and remedial obligations that the IACtHR has interpreted into the achr.193 A ‘democratic critique’ has emerged in the European system even with the MoA. Partly in response, the ECtHR is developing an approach which takes into account the quality of democratic debate and decision-making when

188 Hennebel, supra n 184 at 97. 189 Ibid. 190 Burgorgue-Larsen and Úbeda de Torres, The Inter-American Court of Human Rights: Case Law and Commentary (oup, 2011) at para 21.21. 191 See Malarino, supra n 143. 192 Trinidad and Tobago denounced the achr on 26 May 1998 (effective 26 May 1999) over the death penalty issue and Venezuela whdenounced the achr on 10 September 2012. 193 See, for example, Case of González et al. (‘Cotton Field’) v Mexico, supra n 133. On the range of remedial obligations, see Hennebel, supra n 184 at 83–87; and Antkowiak, ‘Remedial Approaches to Human Rights Violations: The Inter-American Court of Human Rights and Beyond’ (2008) 46(2) Colombia Journal of Transnational Law 351. In one case the specific remedial obligations occasioned public controversy and were modified by the IACtHR: see Case of Miguel Castro Castro Prison v Peru IACtHR Series C 181 (2008) at para 57.

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assessing state conduct for compliance with the echr.194 If that approach has validity in the European system, then why not in the Inter-American one? E Interpretative Similarities and Differences The IACtHR follows many of the interpretative approaches of the ECtHR: the ‘living instrument’ approach,195 purposive interpretation in accordance with object and purpose,196 the autonomous meaning of achr terms,197 reliance upon the oas198 and international standards,199 affording a wide scope to rights and a narrow scope to limitations,200 and complementarity with other international law rules.201 However, it does not then explain or justify its decisions by reference to any MoA afforded to states.202 As Neuman has observed, the notion of ‘regional consensus’ rarely figures in the Inter-American Court’s decisions.203 Instead, the prevalence of systematic human rights violations in the Americas has led the IACtHR to look outward for support that the ECtHR would seek within its own region.204 States parties to the achr have sought to frame their arguments in terms of them being afforded a MoA where there is no regional consensus.205 194 See Animal Defenders International v United Kingdom, supra n 56. 195 See OC-16/99, The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law IACtHR Series A 16 (1999) at paras 114–115. 196 See OC-2/82, The Effect of Reservations on the Entry into Force of the American Convention on Human Rights IACtHR Series A 2 (1982) at paras 29–31. 197 See OC-6/86, The Word ‘Laws’ in Article 30 of the American Convention on Human Rights IACtHR Series A 6 (1986) at paras 19–21. 198 See Case of Maritza Urrutia v Guatemala IACtHR Series C 103 (2003) at para 91. 199 See OC-17/02, Juridical Condition and Human Rights of the Child IACtHR Series A 17 (2002). 200 See Case of Claude Reyes et al. v Chile IACtHR Series C 151 (2009); and hrc, General Comment No 34: Article 19: Freedoms of opinion and expression, CCPR/C/GC/34. 201 See Case of the ‘Street Children’ (Villagrán Morales et al.) v Guatemala IACtHR Series C 63 (1999) at para 194; and OC-18/03, Juridical Condition and Rights of the Undocumented Migrants IACtHR Series A 18 (2003) at paras 82–96. See further Cleveland, ‘Legal Status and Rights of Undocumented Workers: Advisory Opinion OC-18/03’ (2005) 99(2) American Journal of International Law 460. 202 See, for example, Case of Palamara Iribarne v Chile IACtHR Series C 135 (2005); Case of Claude Reyes et al. v Chile, supra n 201; Case of Escher et al. v Brazil IACtHR Series C 200 (2009); Case of Liakat Ali Alibux v Suriname IACtHR Series C 276 (2014) at paras 126–136; and Case of Fontevecchia and D’Amico v Argentina, supra n 176. 203 Neuman (2011), supra n 134 at 104. 204 Ibid. 205 See Case of Artavia Murillo et al. v Costa Rica IACtHR Series C 257 (2012), in which the IACtHR effectively decided that the state did not have a MoA to decide to afford such

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The IACtHR’s judgment in Atala Riffo and Daughters v Chile206 was striking for its disregard of issues concerning consensus. The complaint was that Chilean courts had discriminated against a lesbian mother in giving custody of her three daughters to their father. The final decision, issued by the Chilean Supreme Court, affirmed that the cohabitation of Ms Atala Riffo and her lesbian partner created a situation of risk and vulnerability for the Atala Riffo’s daughters to the extent that first, it negatively impacted the regular growth of the girls; and second, it exposed them to discrimination by their peers. Chile argued that the decision of the national courts had been justified on the grounds of the ‘best interest of the child’ principle. The national courts had decided that the father and his new family offered better conditions for the development of the minors. The sexual orientation of Ms Atala Riffo was simply one of the elements considered by the judgment. Therefore, the decision had not exclusively relied on that element. Moreover, there was no regional consensus concerning child custody laws in the Americas when the Chilean Supreme Court finally decided the case in 2004. The IACtHR held that first, sexual orientation was a category protected by the non-discrimination clause of the achr due to an evolutive interpretation of the rights contained by it. Second, the process of seeking out the best interests of the child had to eliminate all ‘speculations, assumptions, stereotypes, or generalized considerations regarding the parents’ personal characteristics or cultural preferences regarding the family’s traditional concepts’,207 therefore, the child’s best interest could not be used to justify discrimination against the .

protection to the unborn from conception by prohibiting in absolute terms all mechanisms of in vitro fertilisation (ivf) that would threaten the right to life of embryos by allowing their cryopreservation or elimination. It imposed legislative rules on the states in areas where there was no consensus, or even a majority. Indeed, pervasive disagreement still exists: see Dissenting Opinion of Judge Eduardo Vio Grossi in Case of Artavia Murillo et al. v Costa Rica; Chia and Contreras, ‘Analysis of the Case Artavia Murillo v. Costa Rica’ (2014) 12 Estudios Constitucionales 567. Cf Parrillo v Italy Application No 46470/11, Merits and Satisfaction, 27 August 2015, at para 180 (broad margin of discretion concerning restrictive legislation on the destruction of human embryos, having regard, inter alia, to the ethical and moral questions inherent in the concept of the beginning of human life and the plurality of existing views on the subject among the different member States). 206 Supra n 123. See Paúl, ‘Examining Atala-Riffo and Daughters v. Chile, the First Inter-­ American Case on Sexual Orientation, and Some of its Implications’ (2014) 7(1/2) InterAmerican and European Human Rights Journal 54 (IACtHR may have overreached itself and the case may deter potential signatories, including Caribbean states from submitting to its jurisdiction). 207 Ibid. at para 109.

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parents based on their sexual orientation. Third, the arguments given by national courts to deprive Ms Atala Riffo of the custody of her daughters were not adequate. The Chilean Supreme Court had failed by not applying a strict scrutiny test to analyse the case.208 As to the lack of American consensus about the legitimacy of establishing differential treatments based on sexual orientation, the IACtHR stated: [T]he alleged lack of consensus in some countries regarding full respect for the rights of sexual minorities cannot be considered a valid argument to deny or restrict their human rights or to perpetuate and reproduce the historical and structural discrimination that these minorities have suffered. The fact that this is a controversial issue in some sectors and countries, and that it is not necessarily a matter of consensus, cannot lead this Court to abstain from issuing a decision, since in doing so it must refer solely and exclusively to the stipulations of the international obligations arising from a sovereign decision by the States to adhere to the American Convention.209 This is a striking statement. The parallel could be drawn to some extent with the Christine Goodwin case decided by the ECtHR.210 However, that was more narrowly focused on transsexuals and was the end result of a 16-year series of decisions which gradually reduced states’ MoA. The approach of the I­ ACtHR is much more sweeping, dramatic and quasi-legislative. The absence of a regional consensus on the sensitive issue of differential treatments based on sexual orientation, instead of presumptively giving rise to at least a narrow MoA, was effectively accorded no significance. An alternative reading is that the statement could be explained away as being confined to an issue concerning the historical and structural discrimination of minorities, on which the IACtHR may feel it has a strong claim to institutional competence. However, stating that the IACtHR ‘must refer solely and exclusively to the stipulations of the international obligations arising from a sovereign decision by the States to adhere to the American Convention’ appears disingenuous given the evolutive interpretation the IACtHR adopted. It is also question-begging because the real issue is how the ‘stipulations of the international obligations’ are to be interpreted.

208 Ibid. at paras 91–131. 209 Ibid. at para 92 (emphasis added). 210 Supra n 74.

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The IACtHR has also not applied a MoA to cases like Olmedo Bustos et al. v Chile,211 which concerned a conflict between achr rights: freedom of expression and the religious feelings of the population. The Chilean Supreme Court had upheld an order prohibiting the distribution of the film ‘The Last Temptation of Christ’. The ECtHR would have applied a MoA analysis and given significant weight to religious sensibilities, the absence of consensus regarding the form in which attacks on religious beliefs had to be treated among states and the privileged position enjoyed by domestic authorities at the time of resolving the tension between freedom of expression and the defence of religious sensibilities.212 By contrast, the IACtHR directly scrutinised the substance of the Chilean Supreme Court’s decision and condemned the state for violating freedom of expression because the prohibition of the exhibition of the film constituted prior censorship in violation of Article 13 of the achr. The IACtHR demanded a change in the constitutional provision that established a system of prior censorship by an administrative board. Chile followed the judgment and it modified its Constitution as the IACtHR required. We have noted the critical importance of the consensus approach under the echr. Such an approach can be sensitive to special historical or political considerations, the relative importance of the interest at stake, sensitive moral or ethical issues and complex scientific and technical issues.213 The same type of considerations can and should equally apply in the achr system. Alongside the absence of consensus, a number of other factors may point to states having a wider MoA in regulating particular issues.214 In fact the IACtHR’s jurisprudence has on occasions referred to a ‘regional consensus’ within the oas.215 However, if consensus is significant in terms of weighting in Europe, why should it appear to be of no or minimal significance in the achr system? Neuman has argued that there is reason for concern that the IACtHR has become too divorced from the consensual aspect of a regional human rights convention 211 Supra n 156. 212 See, for example, Otto-Preminger-Institut v Austria Application No 13470/87, Merits and Just Satisfaction, 20 September 1994; and İ.A. v Turkey Application No 42571/98, Merits and Just Satisfaction, 13 September 2005. 213 S.H. and Others v Austria, supra n 38 (use of gametes for in vitro fertilisation); and Hämäläinen v Finland, supra n 71 (requirement of change of marital status for a transsexual). 214 See Dubská and Krejzová v Czech Republic, supra n 72. 215 See Case of Claude Reyes et al. v Chile, supra n 201 (on the importance of access to public information and the need to protect it); and Case of Pacheco Tineo Family v Plurinational State of Bolivia IACtHR Series C 272 (2013) at para 158 (growing consensus in the region that the protection of refugees and applicants for this status must be regulated at the domestic level in keeping with the provisions of international refugee law).

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in its interpretive practices, and that this departure is not compensated for by compelling normative analysis or strategic institutional design.216 For Neuman the IACtHR should not bow to the will of individual violators, but it needs to induce, and not merely exhort, the support of the regional community of states.217 For him the IACtHR has undervalued the consent of the relevant community of states as a factor in the interpretation of a human rights treaty. This neglect distorts the Court’s elaboration of human rights norms and risks damage to the effectiveness of the regional human rights system.218 Moreover, if ‘consensus analysis is a sound and constructive idea’ in Europe,219 why is it not in the Americas? If reference to a MoA is important to prevent any rapid and arbitrary development of echr rights,220 why is this not also the case with the achr? If the width of the MoA is relevant to the standard of scrutiny under the echr, does the achr really only apply a single standard of strict scrutiny in all cases and, if so, is that appropriate? If interpretations by the IACtHR do not enjoy widespread underlying support, does this make acceptance and implementation of their judgments much less likely?221 While states generally pay the monetary damages ordered by the IACtHR, there are very few cases of full compliance (even where states have accepted responsibility (allanamientos)), with resistance to compliance with non-financial reparations/remedies being found at both national and local levels.222 216 Neuman, ‘Import, Export, and Regional Consent in the Inter-American Court of Human Rights’ (2008) 19(1) European Journal of International Law 101. 217 Ibid. at 108. 218 Ibid. at 102. 219 Supra n 88. 220 See Bratza, supra n 13. 221 On implementation difficulties, see Huneeus, ‘Courts Resisting Courts: Lessons From the Inter-American Court’s Struggle to Enforce Human Rights’ (2011) 44(3) Cornell International Law Journal 493; and Cavallaro and Brewer, ‘Reevaluating Regional Human Rights Litigation in the Twenty-First Century: The Case of the Inter-American Court’ (2008) 102(4) American Journal of International Law 768 at 785–790. 222 Cavallaro and Brewer, ibid. at 781. On the complexities of assessing compliance, see González-Salzberg, ‘Do States Comply with the Compulsory Judgments of the Inter-­ American Court of Human Rights? An Empirical Study of the Compliance with 330 Measures of Reparation’ (2013) 13 Revista do Instituto Brasileiro de Direitos Humanos 93; Basch et al., ‘The Effectiveness of the Inter-American System of Human Rights Protection: A Quantitative Approach to its Functioning and Compliance with Its Decisions’ (2010) 7(12) sur – International Journal on Human Rights 9 (on high levels of non-compliance); Hillebrecht, Domestic Politics and International Human Rights Tribunals: The Problem of Compliance (cup, 2014); and Vannuccini, ‘Member States’ Compliance with the InterAmerican Court of Human Rights’ Judgments and Orders Requiring Non-Pecuniary Reparations’ (2014) 7 Inter-American and European Human Rights Journal 225. As of 1 August

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Explanations for the Non-use of the Concept of the Margin of Appreciation by the Inter-American Court of Human Rights

There are a range of other possible explanations for the IACtHR not using the moa in its deliberations. A Protecting the Universality of Human Rights The preambles to both the achr and the echr refer to the 1948 Universal Declaration of Human Rights. The logic of regional systems for the protection of human rights is that regions can have higher standards than the universal ones but not lower ones.223 However, the IACtHR has considered that ‘[a] certain tendency to integrate the regional and universal systems for the protection of human rights can be perceived in the Convention’.224 That being so, the simplest explanation for the non-use of the MoA is because it is implicitly viewed as a threat to the universality of human rights.225 As such, the threat should not be supported or encouraged. Rather, the IACtHR has developed its ‘own construction of legal universalism’.226 The risk of expressly acknowledging the existence of a MoA would be that states would inevitably seek support from it to validate a diminishing and variable normative content for international human rights. Admitting a MoA doctrine ‘might prompt some States to rely on arguments of “cultural relativism”, however ill-defined or inappropriate in the circumstances of a given case, or seek to justify serious human rights abuses’.227 Whilst the risk is comprehensible, the explanation depends on a rather simplistic and unreal conception of universality.228 The critical prior question 2015 the IACtHR was monitoring compliance with contentious judgments in 160 cases. It has been suggested that Russia and Italy’s response to the ECtHR judgments has been similar in that they pay compensation but do not undertake the necessary reforms: see Hillebrecht above at 119–125. 223 See generally, Shelton and Carozza, Regional Protection of Human Rights, 2nd edn (oup, 2013). 224 OC-1/82, ‘Other treaties’ subject to the advisory jurisdiction of the Court (Art. 64 American Convention on Human Rights) IACtHR Series A 1 (1982) at para 40. 225 Benvenisti, supra n 92. Cf Arai-Takahashi, supra n 1 at ix, who has suggested that the un Human Rights Council avoids use of MoA because of inconsistency with the very idea of human rights. 226 See Hennebel, supra n 184 at 60; Benavides Casals, supra n 141; and Contreras, supra n 129 at 70. 227 See Schmidt, ‘The Complementarity of the Covenant and the European Convention on Human Rights’, in Harris and Joseph (eds), The International Covenant on Civil and Political Rights and United Kingdom Law (oup, 1995) 629 at 657. 228 See Donnelly, ‘The Relative Universality of Human Rights’ (2007) 29(2) Human Rights Quarterly 281.

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is to determine the scope of the obligations under the substantive achr rights. Although human rights are universal in the sense of imposing some minimum fundamental standards, universalism does not operate by means of uniform, harmonised rules which cannot be varied.229 This is true with respect both to the protection of rights and remedies/reparations. It is only once the scope of the obligations has been established that the requirements under Article 1 to respect and ensure achr rights are unqualified and of immediate effect. In any event, empirically and intuitively, why one regional mechanism (the achr) should afford states significantly less flexibility than another regional one (the echr) at least requires explanation. B Anti-Eurocentrism A second explanation for the non-use of MoA doctrine by the IACtHR could lie in the MoA’s association with the echr system. Neither the African regional system230 nor the international system under the International Covenant on Civil and Political Rights have explicitly adopted a MoA doctrine. Indeed, the latter has expressly rejected it.231 However, an anti-Eurocentrism explanation makes no coherent sense given that, as is well known, the IACtHR relies extensively on the jurisprudence of the ECtHR and always has done.232 Cross-­referencing of jurisprudence between the IACtHR and ECtHR is now ­common.233 A more nuanced explanation could be that the ECtHR should not be followed because, on the MoA issue, it is out of line with the other regional systems and with the universal system. Cavallaro and Brewer have argued that 229 See Contreras, supra n 129. 230 See Rubasha, ‘Accommodating Diversity: Is the Doctrine of Margin of Appreciation as Applied in the European Court of Human Rights Relevant in the African Human Rights System?’, 27 October 2006, available at: repository.up.ac.za/bitstream/handle/2263/1228/ rubasha_h_1.pdf?sequence=1. 231 See Länsman et al. v Finland (511/1992) Views, CCPR/C/52/D/511/1992 (1994) at para 9.4; and hrc, General Comment No 34, supra n 200 at para 16. However, it is arguable that the hrc’s rejection is rhetorical inasmuch as it clearly gives weight to context and national assessments. 232 See, for example, Case of the ‘Five Pensioners’ v Peru IACtHR Series C 98 (2003) at para 103; Case of ‘The Last Temptation of Christ’ (Olmedo Bustos et al.) v Chile, supra n 158 at para 69; and Case of Lori Berenson Mejía v Peru IACtHR Series C 119 (2004) at paras 159–161. The IACtHR also refers to the jurisprudence of the Human Rights Committee under the iccpr. The hrc maintains that it does not afford states a MoA, but see ibid. 233 See, for example, Varnava and Others v Turkey Applications Nos 16064/90 et al., Merits and Just Satisfaction, 18 September 2009, at paras 93–98 (on disappearances). See ECtHR, References to the Inter-American Court of Human Rights in the case-law of the European Court of Human Rights (2012), available at: echr.coe.int/Documents/Research_report _inter_american_court_ENG.pdf.echr.coe.int/Documents/Research_report_inter _american_court_ENG.pdf.

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given the complex and often severe human rights problems that regional tribunals must address today, the model of governmental compliance exemplified by the early echr cases is no longer the primary reference point for how regional courts influence state practice. In fact, it may now be the exception rather than the rule. The experience of the Inter-­ American Court and the challenges now facing the European system confirm our belief that the early European Court is not a representative model of how regional courts influence states’ human rights practices outside the entrenched democracies of Western Europe.234 On this view the better systemic comparison, at least with respect to reparations, would be between the IACtHR’s jurisprudence and that under the ECtHR’s pilot judgments procedure.235 In summary, anti-Eurocentrism may be a sensitive political and comparative explanation but the crucial issue is to determine whether the concept of the MoA is jurisprudentially sound or not. On the basis of the comparisons in Section 6 above it is submitted that it is. C Misunderstanding of the Margin of Appreciation A third possible explanation for non-use of the MoA by the IACtHR is that it may misunderstand the concept of the MoA and how it operates. The MoA should not be understood to be a means by which violations are justified or excused. It is submitted that this is a misunderstanding. That a situation falls within the MoA means there is no violation of the echr. It is not a justified or excused violation. On this analysis the significance of the ECtHR’s use of the MoA is as an explanatory or justificatory device for where that point of violation should be. Assume that there is a case concerning essentially the same right and permissible limitations under both the echr and the achr. Both the ECtHR and the IACtHR determine that there is no violation. The ECtHR says it falls within the state’s MoA so there is no violation, while the IACtHR simply states there is no violation. The end result is the same. The Non-use of the Margin of Appreciation by the Inter-American Court of Human Rights is Rhetorical A fourth possible explanation is that the IACtHR’s opposition to the MoA is merely rhetorical. If essentially the same decision is reached, then whether the ECtHR’s use of the MoA is rhetorical or the IACtHR’s non-use is rhetorical

D

234 Cavallaro and Brewer, supra n 221 at 772 and 774–775. 235 See www.echr.coe.int/Documents/FS_Pilot_judgments_ENG.pdf.

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is academically interesting but ultimately insignificant in terms of substance. It is notable that there have been relatively few instances where the IACtHR and the ECtHR have clearly differed on their assessments with respect to the interpretation of their respective instruments. So it could be that the IACtHR effectively affords states a MoA, but does not use the rhetorical language of the MoA.236 If so, it is offering less guidance and explanatory reasoning to states than the ECtHR in terms of how close the state is or is not to violating the achr. However, given that the ECtHR’s jurisprudence is so heavily relied upon by the IACtHR, it is difficult to accept that the latter’s non-recourse to the MoA is rhetorical. 8

Concluding Comments

Although this chapter has strongly supported the concept of the MoA, it is probably fair to say that there is no consensus amongst the ECtHR’s judges on it. However, the majority of them appear to take the view that if national authorities have fully considered a case by reference to the ECtHR’s jurisprudence and come to clear reasoned decisions, then serious reasons would be needed to overturn such decisions.237 A minority of judges, while accepting the concept of the MoA as such, appear to take a less deferential approach. It is possible that this is partly out of a fear that to do otherwise would be abdicating their judicial responsibilities. They see the ECtHR as having ultimate interpretative responsibility and its role as being to set European human rights standards, not to defer to states’ assessment of them. These judges tend to consider each case afresh and take a stricter approach to assessing the actions of national authorities, particularly in terms of applying the principle of proportionality. The result is a greater tendency towards micromanagement.238 There is also a fear that reliance on the MoA because of the absence of consensus could unintentionally lower national standards.239 This is particularly so with respect to the new states that joined after the end of the Cold War. However, in 236 See Schmidt, supra n 227 at 656–658. 237 See Section 2 above; and Friend and Countryside Alliance and Others v United Kingdom Applications Nos 16072/06 and 27809/08, Admissibility, 24 November 2009, at para 58. 238 See Mahoney, ‘The Relationship between the Strasbourg Court and the National Courts – As Seen From Strasbourg’, in Ziegler et al. (eds), The uk and European Human Rights: A Strained Relationship? (Hart Publishing, 2015) 21. 239 See Paczolay, ‘Consensus and Discretion: Evolution or Erosion of Human Rights Protection?’ in Dialogue between Judges, supra n 62, with respect to the decision in Rekvényi v Hungary, supra n 28.

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principle this should not happen as the echr itself safeguards existing levels of domestic protection of human rights.240 The MoA gives states ‘room for manoeuvre’241 while retaining strong elements of European supervision. It is submitted that the complexity of factors taken account of in the ECtHR’s methodology in applying the MoA, ­including the weight given to consensus, leads to reason-based, justificatory ­arguments.242 Most decisions of the ECtHR concern the internal, domestic application of human rights norms to individuals within the territory of the state concerned. There is a strong argument that the decisions adopted by the different levels of democratic processes within that territory should bear significant, but not necessarily decisive, weight.243 One may disagree with the reasons and the arguments, their factual or evidential basis or epistemic value, but these are different issues. There is thus a process of reasoning, contestation and evaluation which is engaged in by democratic parliaments and courts and, to some extent, the people.244 Giving a significant but not necessarily determinative weight to the existence or non-existence of a consensus is a sensible and credible tool to ensure that the evolution of the ECtHR’s jurisprudence keeps pace with societal changes within Europe but does not move so far ahead of them that it creates significant risk of non-implementation. The MoA can thus be understood as a device which mediates between the idea of universal human rights and leaving space for reasonable disagreement, legitimate differences and national or local cultural diversity.245 240 See Article 53 echr. 241 This expression is used in the ECtHR’s press releases to describe the operation of the MoA: see, for example, ECtHR Press Release, 11 December 2014, echr 370 (2014), concerning the judgment in Dubská and Krejzová v Czech Republic, supra n 72. 242 See also Cohen-Eliya and Porat, ‘Proportionality and the Culture of Justification’ (2011) 59(2) American Journal of Comparative Law 466. 243 The argument is obviously weaker when the case concerns the extraterritorial application of the echr because there is no democratic accountability to the affected persons: see Al-Skeini and Others v United Kingdom Application No 55721/07, Merits and Just Satisfaction, 7 July 2011; and Jaloud v The Netherlands Application No 47708/08, Merits and Just Satisfaction, 20 November 2014. 244 See Petkova, ‘The Notion of Consensus as a Route to Democratic Adjudication?’ (2011–12) 14 Cambridge Yearbook of European Legal Studies 663; Saul, ‘The European Court of Human Rights’ Margin of Appreciation and the Processes of National Parliaments’ (2015) 15(4) Human Rights Law Review. 245 See Donoho, ‘Autonomy, Self-Governance, and the Margin of Appreciation: Developing a Jurisprudence of Diversity Within Universal Human Rights’ (2001) 15(2) Emory International Law Review 391.

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It is submitted that when properly understood the MoA is a complex, sophisticated and defensible intellectual instrument246 for dealing with polycentric rights claims.247 It is like a multi-dimensional chess game in which a lot of pieces are in play along a number of axes. It may not satisfy jurisprudential purists, but it represents a sensible pragmatic legal doctrine for a system applying to 47 states and over 800 million people. The consequence of affording states a MoA is that an acceptable and human rights-compliant overall balance can be achieved in a number of ways. Thus conceived the MoA plays a crucial role in building a complex multilevel community amongst Council of Europe states. In this respect, echr rights form an integral part of the wider democratic order and wider community, rather than merely an external limitation. We have considered various explanations for the lack of use of MoA by the IACtHR.248 Views will differ on their validity and credibility. Some of the explanations appear more political than legal. However, in terms of harmonisation of international human rights law, it remains problematic that the central conceptual doctrine in the institutional and jurisprudential architecture of the echr is essentially ignored by the IACtHR. In doing so, it is submitted that it deprives itself of a credible and defensible intellectual instrument for making human rights determinations. The MoA could assist the IACtHR to mediate between the idea of universal human rights and the possibility of reasonable disagreement, legitimate differences and national or local cultural diversity.249 If the refusal of the IACtHR is rhetorical rather than substantive, it is submitted that it would be better if it openly acknowledged the doctrine. But on the evidence of its consistent practice the IACtHR’s refusal to afford states a MoA is substantive rather than rhetorical. Any difficulty in affording states a MoA which can be affected by the presence or absence of consensus is actually reduced in the achr system as there are only 25 states parties to the achr and 35 member states of the oas, as compared to 47 member states of the Council of Europe, and thus parties to the echr. There seems to be no greater risk or likelihood that the MoA doctrine could be used more to confirm prevailing social norms than to challenge 246 For support for wider use of the MoA, see Legg, supra n 1; and Carozza, supra n 143 at 63–65 and 75 (MoA could be ‘indispensable to grounding rights in local social and political practice and thus to guaranteeing their observance more effectively’). 247 See Webber, ‘Proportionality, Balancing, and the Cult of Constitutional Rights Scholarship’ (2010) 23(1) Canadian Journal of Law and Jurisprudence 179. 248 See Sections 6–7 above. 249 See Legg, supra n 1 at 225, on ‘affording appropriate respect for local values in the states’ implementation of their international human rights obligations’.

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them.250 It remains to note that many of the arguments considered in this chapter would apply with equal force to the African regional human rights system in which the concept of affording states a MoA has also not been embraced.251 250 See Heinze, ‘Sexual Orientation and International Law: A Study in the Manufacture of Cross-Cultural “Sensitivity”’ (2001) 22(2) Michigan Journal of International Law 283 at 289, n 32. 251 See Rubasha, supra n 230.

chapter 12

Human Rights Bodies and International Humanitarian Law: Common but Differentiated Approaches Larissa van den Herik and Helen Duffy 1 Introduction Human rights courts and bodies are increasingly called upon to look outwards, beyond the immediate contours of their constituent instruments and beyond their own jurisprudence.1 A key aspect of this phenomenon is the jurisprudential ‘borrowing’ or trans-judicial ‘dialogue’ between human rights courts, bodies and systems that is explored in detail in other chapters of this book. There is, however, also a growing call for such bodies to have regard to, interpret and in some cases ‘apply’ a range of other norms of international law beyond international human rights law (ihrl). un imposed sanctions,2 the assertion of immunities of the state and state officials3 and issues of state responsibility4 are among the contexts in which human rights courts have recently had to grapple with generic international law-concepts or rules from areas of law other than ihrl, often with controversial results. This chapter considers the approach of human rights courts and bodies to one such issue of interplay that arises with increasing frequency, namely the application of international humanitarian law (ihl) alongside ihrl in

1 See, for example, Forowicz, The Reception of International Law in the European Court of Human Rights (oup, 2010). For an early discussion of the phenomenon of trans-judicial dialogue, which has burgeoned since then, see Slaughter, ‘A Typology of Transjudicial Communication’ (1994) 29 University of Richmond Law Review 99. 2 For example, Al-Dulimi and Montana Management Inc. v Switzerland Application No 5809/08, Merits and Just Satisfaction, 26 November 2013, and Grand Chamber Judgment, 21 June 2016; Nada v Switzerland Application No 10593/08, Merits and Just Satisfaction, 12 September 2012; and Sayadi and Vinck v Belgium (1472/2006) Views, CCPR/C/94/D/1472/2006 (2008). 3 For example, Jones and Others v United Kingdom Applications Nos 34356/06 and 40528/06, Merits and Just Satisfaction, 14 January 2014; and Al-Adsani v United Kingdom Application No 35763/97, Merits, 21 November 2001. 4 For example, Catan and Others v Moldova and Russia Applications Nos 43370/04 et al., Merits and Just Satisfaction, 19 October 2012.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004284258_014

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situations of armed conflict. The opportunities for human rights bodies to engage with and monitor compliance of ihl are rising rapidly, and so are the associated expectations. These expectations stem particularly from the ­conflict-specific realities within which human rights violations occur and they are fostered by the absence of specific IHL-enforcement mechanisms.5 In turn, the opportunities sprout from the synergies between the two bodies of law and their overlap in terms of application in conflict situations. It is not the purpose of this chapter to analyse the range of issues that arise as regards the co-application and interrelationship of ihl and ihrl in conflict situations, to which a considerable amount of academic attention has been directed elsewhere.6 A couple of brief observations are warranted, however, as context for the examination of the developing approaches of human rights bodies. It is worthy of note first that, while at one time the applicability of ihrl in conflict situations was itself questioned, this is now beyond reasonable dispute, having been affirmed by the International Court of Justice (icj) and accepted by nearly all states.7 Likewise, the applicability of ihrl beyond the 5 On traditional enforcement mechanisms in international humanitarian law and their weaknesses, see Byron, ‘A Blurring of the Boundaries: The Application of International Humanitarian Law by Human Rights Bodies’ (2007) 47(4) Virginia Journal of International Law 839 at 842–847. 6 See, for example, Duffy, ‘Harmony or Conflict? The Interplay between Human Rights and Humanitarian Law in the Fight against Terrorism’, in Van den Herik and Schrijver (eds), CounterTerrorism Strategies in a Fragmented International Legal Order (cup, 2013) 482; Milanovic, ‘Norm Conflict, International Humanitarian Law, and Human Rights Law’, in Ben-Naftali (ed.), International Humanitarian Law and International Human Rights Law (oup, 2011) 95; Droege, ‘The Interplay between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflicts’ (2007) 40(2) Israel Law Review 310; Draper, ‘Humanitarian Law and Human Rights’ (1979) Acta Juridica 193; Schindler, ‘Human Rights and Humanitarian Law: Interrelationship of the Laws’ (1981) 31(4) American University Law Review 935; Lubell, ‘Parallel Application of International Humanitarian Law and International Human Rights Law: An Examination of the Debate’ (2007) 40(2) Israel Law Review 648; Prud’homme, ‘Lex specialis: Oversimplifying a More Complex and Multifaceted Relationship?’ (2007) 40(2) Israel Law Review 355 at 385; and Parker, ‘Human Rights and Humanitarian Law’ (1985) 7(3) Whittier Law Review 675. 7 The applicability of human rights in situations of armed conflict was first confirmed by the icj in Legality of the Threat or Use of Nuclear Weapons Advisory Opinion, icj Reports 1996, 226 at para 25. This position has generally been accepted by states with the notable exceptions of the us and Israel: see, for example, Hampson, ‘The Relationship between International Humanitarian Law and Human Rights Law from the Perspective of a Human Rights Treaty Body’ (2008) 90 International Review of the Red Cross 549 at 550. However, the us has

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state’s territory, where many armed conflicts unfold in whole or in part, has also been subject to significant dispute. The position has in turn been clarified through jurisprudence in recent years, though several states continue to contest the extraterritorial applicability of ihrl, and with it the jurisdiction of ihrl bodies, on this basis.8 Questions have also arisen regarding the functioning of the derogation scheme under human rights treaties. While states in practice hardly ever derogate,9 questions have arisen as to whether they can do so in respect of situations, including armed conflicts, arising extraterritorially. On the one hand, an emergency resulting from armed conflict overseas would arguably not ‘threaten the life of the nation’ as such, as required for derogation, while on the other a purposive approach to the derogation regime would have to recently refined its position: contrast the Concluding observations on the second us Report of 2006, in which the Committee against Torture (cat) regretted ‘the State party’s opinion that the Convention is not applicable in times and in the context of armed conflict, on the basis of the argument that the “law of armed conflict” is the exclusive lex specialis applicable, and that the Convention’s application “would result in an overlap of the different treaties which would undermine the objective of eradicating torture”’ (18 May 2006, CAT/C/USA/ CO/2, at para 14); with the third to fifth periodic report to the cat (12 August 2013, CAT/C/ USA/3-5, at para 14), in which the us stated that ‘a time of war does not suspend the operation of the Convention as to matters within its scope of application. Torture is clearly and categorically prohibited under an extensive body of both human rights law and the law of armed conflict’. Equally, in its fourth periodic report to the Human Rights Committee (30 December 2011, CCPR/C/USA/4, at para 507), the us posited that ‘international human rights law and the law of armed conflict are in many respects complementary and mutually self-reinforcing’. It also indicated that ‘determining the international law rule that applies to a particular action taken by a government in the context of an armed conflict is a fact-specific determination, which cannot easily be generalized’. In contrast, Israel, in its fourth periodic report, while recognising the academic and practical debates on the matter, and appreciating the profound connection between the two areas of law as well as their convergence in some respects, still maintained that they remained distinct and applicable in different circumstances: 14 October 2013, CCPR/C/ISR/4, at para 47. 8 The European Court of Human Rights developed a restrictive view in Banković and Others v Belgium and Others Application No 52207/99, Admissibility, 12 December 2001, which appeared to require control of territory abroad for the extraterritorial applicability of the European Convention on Human Rights, while in subsequent cases Al-Skeini and Others v United Kingdom, Al-Saadoon and Mufdhi v United Kingdom and Jaloud v The Netherlands (infra n 115), the acts of state agents abroad have also given rise to states’ human rights obligations. See discussion on comparative approaches to extraterritorial application of ihrl in Chapter 13. The question of derogation is addressed further below. 9 But note France’s derogation from the European Convention on 24 November 2015, in the wake of the Paris attacks and Turkey’s derogation from the European Convention on 22 July 2016 in response to the attempted coup of 15 July 2016.

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allow derogation where the exigencies of the emergency in the particular area strictly so required. While there may be room for some lingering lack of clarity in this respect, and some reluctance to address the issue directly, recent jurisprudence certainly implies that such derogation is possible.10 In any event the failure of states to derogate in practice in armed conflict situations increases the significance of how ihrl is interpreted in these contexts, and the interplay of ihrl and ihl. Turning to the applicability of ihl, the categorisation of a situation as constituting an ‘armed conflict’ as such, and its classification as international or non-international, have long been—and remain—matters of significant controversy.11 Before arriving at questions of interplay of the legal regimes, human rights bodies therefore have to surmount significant opposition to the applicability of each area of law. While co-applicability is generally accepted in principle, a more intricate matter is the interplay between the two bodies of law, which has been conceptualised in a variety of ways.12 The icj’s pronouncements in the Nuclear Weapons and Wall advisory opinions, and its use of the lex specialis principle,

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For example, the uk did not purport to derogate from its detention obligations in respect of detentions in Iraq, and in the domestic courts in the Al-Jedda case, judges questioned whether it could have done so, while the ECtHR’s observation that the uk did not ‘purport to derogate’ may be interpreted as implying that it could have done so had it so chosen: Al-Jedda v United Kingdom Application No 27021/08, Merits and Just Satisfaction, 7 July 2011, at para 100. See also Hassan v United Kingdom Application No 29750/09, Merits, 16 September 2014, discussed in Section 3B below; and Duffy, The ‘War on Terror’ and the Framework of International Law (cup, 2015) Chapter 7B.4.2. Factors that influence the positions of states, parties to litigation and human rights bodies are discussed below. There is a wealth of literature on the matter of interplay. Selecting from this, one may refer to Heintze, who differentiates between the separation theory, the complementarity theory and the integration theory: Heintze, ‘Theories on the relationship between international humanitarian law and human rights law’, in Kolb and Gaggioli (eds), Research Handbook on Human Rights and Humanitarian Law (Elgar, 2013) 53. In defining the relationship in practice, Kolb, in turn, distinguishes between the subsidiary application approach, the renvoi approach and the merger approach. It is important to note that all these conceptualisations are not static. It is generally agreed that the relationship between the two areas has evolved over time and that this relationship currently cannot be captured in generalised terms, but must be conceived in a practical case-by-case manner: Kolb, ‘Human Rights and Humanitarian Law’, in Max Planck Encyclopedia of Public International Law, available at: www.mpepil.com. See more generally, Ben-Naftali (ed.), International Humanitarian Law and International Human Rights Law (oup, 2011).

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are nowadays often taken as a starting point for analysis,13 though these articulations have also been criticised by some as overly general and overall unhelpful.14 Many questions undoubtedly remain. These include whether ihl as opposed to ihrl always provides the ‘special rule’ in times of armed conflict, or whether the determination as to which rule is the most specific must be made on a norm-by-norm and situation-by-situation basis.15 In case of the latter, it is still unsettled which criteria and processes should guide the identification of the most special rule.16 It is equally unclear whether the lex specialis rule should be seen as a rule of interpretation that prioritises specific rules and interpretations or rather as a conflict-solving rule through which a general rule is displaced by a particular one.17 In sum, the precise implications, meaning and application of the lex specialis rule are still subject to debate. Perhaps as a result of this lack of clarity and consensus, the icj refrained from confirming the relevance of the lex specialis rule to questions of interplay between human rights law and international humanitarian law in the drc v Uganda case.18 In this context, the challenge facing courts and human rights bodies is substantial. Growing consensus on co-application makes the immediate relevance of ihl for human rights bodies inexorable, while the uncertainty that continues 13

Legality of Threat or Use of Nuclear Weapons, supra n 7; and Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion, icj Reports 2004, 136 at para 106. 14 See on assumptions and controversies regarding the lex specialis rule, Duffy, supra n 6 at 506–511. For a critique of the usefulness of the lex specialis rule, see also Milanovic, supra n 6 at 95–125. 15 Duffy, ibid. at 507–508. Others arguing in favour of a case-specific approach, and noting that on occasion human rights rules may constitute lex specialis, include Lubell, ‘Challenges in Applying Human Rights Law to Armed Conflict’ (2005) 87 International Review of the Red Cross 737 at 751. Some scholars argue that a case-by-case approach is impractical and at odds with the icj pronouncement: Hampson, supra n 7 at 562. 16 For an attempt to clarify the implication of the rule in concrete instances, see Droege, ‘Elective affinities? Human rights law and humanitarian law’ (2008) 90 International Review of the Red Cross 501. D’Aspremont has argued elsewhere that the lex specialis rule has been conflated with the interpretive principle of systemic integration: D’Aspremont, ‘Articulating International Human Rights and International Humanitarian Law: Conciliatory Interpretation under the Guise of Conflict of Norms-Resolution’, in Fitzmaurice and Merkouris (eds), The Interpretation and Application of the European Convention on Human Rights: Legal and Practical Implications (Martinus Nijhoff, 2013) 3. 17 Koskenniemi, Study on the Function and Scope of the Lex Specialis Rule and the Question of ‘Self-Contained Regimes’, 2004, ILC(LVI)/SG/FIL/CRD.1 and Add.1, at 4. 18 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) Judgment, icj Reports 2005, 168 at para 216.

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to exist regarding the nature and implication of interplay in particular situations makes it a daunting task for human rights bodies to properly engage with ihl. This chapter compares how different human rights bodies regard questions of interplay and more generally how they take up the challenge of reaching out to the adjacent area of ihl. The human rights bodies which are subject to analysis are: (i) the un treaty bodies, and (ii) selected regional human rights courts. The chapter provides a brief survey of the evolution of the approaches of human rights bodies towards ihl and it specifically inquires into the factors, including the institutional setting, mandate and nature of proceedings of respective human rights bodies, that influence their engagement with ihl, if at all. The first part of the chapter surveys the un treaty bodies, of which there are currently nine. These bodies have multifaceted identities.19 Firstly, they have a standard-setting role as interpretive authorities issuing general comments. Secondly, their dialogue with states in the context of the reporting system is to some extent diplomatic in character. Thirdly, their competence to receive individual complaints renders them quasi-judicial. While they also enjoy inquiry powers, these are of a more investigative nature and are largely confidential, as a result of which they are left out of the analysis in this chapter. The chapter thus examines whether and how each of the other three identities—standard-setting, diplomatic and adjudicative—impinges on the respective treaty bodies’ treatment of relevant ihl issues. The second part of the chapter zeroes in on regional human rights courts and bodies and their engagement with ihl. It explores the quite distinct responses of different courts and bodies, tracking their gradual movement towards ihl and towards interjudicial coherence. It examines whether the role and function of these bodies and the judicial nature of their proceedings influence different approaches. This includes an inquiry into how positions and arguments of parties impact on judicial outcomes and equally how the courts’ role as dispute settlers in inter-state cases may shape their treatment of law. 19

The committees under scrutiny are: Human Rights Committee (hrc), Committee on Economic, Social and Cultural Rights (cescr), Committee on the Elimination of Racial Discrimination (cerd), Committee on the Elimination of Discrimination Against Women (‘the cedaw Committee’), Committee against Torture (cat), Committee on the Rights of the Child (ComRC), Committee on the Rights of Persons with Disabilities (‘the crpd Committee’), Committee on Migrant Workers and Committee on Enforced Disappearances. The Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment has been left out of the analysis given its emphasis on inquiry and its distinct character.

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2 The un Treaty Bodies and International Humanitarian Law The potential of un treaty bodies to engage with ihl matters is first and foremost contingent on the substantive legal framework that governs each committee. In this respect it is notable that while no express references to ihl can be found in the early un human rights treaties, the more recent treaties evince a trend towards a certain acknowledgement of the interrelatedness of the two fields of law. Indeed, some of the more contemporary un human rights treaties stipulate direct and general obligations for states to respect ihl, thereby explicitly rendering compliance with ihl a human rights issue.20 The most prominent example is Article 38 of the Convention on the Rights of the Child.21 This provision includes the general undertaking of states to respect and ensure respect for all rules of international humanitarian law which are relevant to the child. As such, it is a tailored translation of common Article 1 of the 1949 Geneva Conventions.22 Subsequently, Article 38 at paragraphs 2 and 3 obliges states more specifically to take all feasible measures to ensure protection and care of children in accordance with obligations under international humanitarian law and, even more concretely, to ensure they do not take direct part in hostilities and to refrain from recruiting children under fifteen years of age. These stipulations directly transpose certain obligations under ihl to a human rights setting and thus make ihl part of the substantive legal framework to be applied by the un Committee on the Rights of the Child. The provisions are further elaborated in the Optional Protocol on the Involvement of Children in Armed Conflict. The Convention on the Rights of Persons with Disabilities also makes direct reference to ihl in its Article 11, which requires states to take all necessary measures to ensure the protection and safety of persons with disabilities in situations of armed conflict, in accordance with their obligations under ihl. 20 21

22

Kälin, ‘Universal human rights bodies and international humanitarian law’, in Kolb and Gaggioli (eds), supra n 12, 441 at 446–447. For more on this remarkable provision which marries human rights law with international humanitarian law, see Heintze, ‘Children Need more Protection under International Humanitarian Law—Recent Developments Concerning Article 38 of the un Child Convention as a Challenge to the Red Cross and Red Crescent Movement’ (1995) 8(3) Humanitäres Völkerrecht 200. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea; Geneva Convention relative to the Treatment of Prisoners of War; and Geneva Convention relative to the Protection of Civilian Persons in Time of War.

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In these cases of explicit reference, the relevant un committees have express and direct competence to monitor compliance with ihl and to engage with this area of law in the capacity of their respective standard-setting, diplomatic and adjudicative identities. A more indirect reference is included in Articles 16 and 43 of the International Convention for the Protection of All Persons from Enforced Disappearance which respectively prohibit refoulement to a state where serious violations of ihl are being committed and which state that the Convention is without prejudice to the provisions of ihl, including the Geneva Conventions. A General Comments and International Humanitarian Law23 It has been accepted that all nine committees have the inherent power to issue general comments.24 There is no straightjacket format for these comments and therefore no immediate bar to engagement with ihl. In general, it can be observed that some comments are overall reflective of common practice and thus have greater authoritative value, while others may be more progressive or even disputed. Each committee has its own strategies in relation to the contents and structure of general comments. In this sense, the Human Rights Committee is perhaps more traditional in that it mostly issues general comments pertaining to a specific provision or right, whereas other committees, such as the Committee on the Rights of the Child, adopt an overall thematic or cross-cutting modus operandi.25 Arguably, the latter lends itself to greater flexibility to reach out to relevant norms beyond the strict human rights paradigm.26 Given the synergies in times of armed conflict, one of the most relevant other areas of law for the committees to reach out to is indeed ihl. On questions of interplay between ihl and ihrl, it is the Human Rights Committee that has offered the most articulate pronouncement. This was in General Comment No 31, which was issued just a few months before the icj’s 23

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For the cedaw Committee and the cerd the general comments are called general recommendations, while the ComRC also issues recommendations which are more generic and possibly also more progressive in character, and more detached from the precise provisions of the Convention. For more on the source of authority to issue general comments and their legal status, see Gerber et al., ‘General Comment 16 on State Obligations Regarding the Impact of the Business Sector on Children’s Rights: What is its Standing, Meaning and Effect?’ (2013) 14(1) Melbourne Journal of International Law 1. Weissbrodt et al., ‘The Role of the Committee on the Rights of the Child in Interpreting and Developing International Humanitarian Law’ (2011) 24(1) Harvard Human Rights Journal 115 at 118–119 and 126. Ibid. at 126.

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Wall opinion.27 Notably, unlike the icj opinion, the Committee did not utilise the lex specialis terminology to cast the relationship between ihrl and ihl. It held that the two spheres of law were not mutually exclusive but complementary, and that norms of international humanitarian law cannot displace human rights norms. Rather, in the conception of the Human Rights Committee, more specific rules of international humanitarian law can be relevant for interpretive purposes of applicable human rights provisions.28 The Committee on Economic, Social and Cultural Rights had addressed the matter of interplay two years earlier in passing, and remarkably cursorily, in its General Comment on the right to water.29 In fact, this Committee only noted the icj dictum on interplay in the Nuclear Weapons opinion in a footnote, without expressly endorsing it or offering an own view on the implications.30 Other committees have not systematically engaged with the matter either. Some occasional references to the fact that human rights standards shall not impair further-reaching rights and benefits under ihl offer only a haphazard insight.31 Nevertheless, there may be some logic in the committees’ reluctance to fully and wholeheartedly embrace the lex specialis terminology. Indeed, an understanding and application of this principle by which ihl displaces relevant ihrl would arguably seriously limit the scope of their mandate in situations of armed conflict since the committees are only expressly mandated to apply ihrl. Another device that could be useful to clarify some aspects of ihl/ihrl interplay concerns derogations. On this matter again, it is the Human Rights Committee that has provided the most concrete guidance. In General Comment No 29 the Committee held that during armed conflict ihl could control the state’s use of emergency powers in addition to human rights law.32 More 27 28 29 30

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hrc, General Comment No 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, 29 March 2004, CCPR/C/21/Rev.1/Add.13. Ibid. at para 11. cescr, General Comment No 15 (2002): The right to water (arts. 11 and 12 of the International Covenant on Economic, Social and Cultural Rights), E/C.12/2002/11, at para 22. Footnote 20 reads: ‘For the interrelationship of human rights law and humanitarian law, the Committee notes the conclusions of the International Court of Justice in Legality of the Threat or Use of Nuclear Weapons (Request by the General Assembly), icj Reports (1996) p. 226, paragraph 25’. For example, ComRC, General Comment No 6 (2005): Treatment of Unaccompanied and Separated Children outside their Country of Origin, CRC/GC/2005/6, at para 4. This is effectively a reformulation of Article 41 crc. hrc, General Comment No 29: States of Emergency (article 4), 24 July 2001, CCPR/C/21/ Rev.1/Add.11, at para 3.

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specifically, the Committee stipulated that ‘no measure derogating from the provisions of the Covenant may be inconsistent with the State party’s other obligations under international law, particularly the rules of international humanitarian law’.33 Consequently, this also gave the Committee the competence to monitor compliance with those other international obligations.34 The Committee expressly added that the possibility to derogate from human rights could in no circumstances justify a violation of ihl such as the taking of hostages, the imposition of collective punishments, arbitrary deprivations of liberty or by deviation from fundamental principles of fair trial, including the presumption of innocence.35 The Committee did not take a clear position on the possibility of extraterritorial derogations by a state involved in military operations in a third state, and what the consequences to ihrl applicability are if states have not formally derogated in such cases.36 In addition to offering guidance on questions of interplay, committees also take on a general compliance-monitoring role. In this regard, they have occasionally called on states to respect ihl,37 to ratify certain ihl conventions,38 or they have emphasised the importance of specific ihl treaty regimes.39 In more concrete terms, the Committee on the Rights of the Child directed states to consider ihl when assessing refugee status.40 On a generic level, the same Committee emphasised the importance of education on ihl in its very first General Comment on the aims of education.41 Quite extravagant in terms of 33 34 35 36

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Ibid. at para 9. Ibid. at para 10. Ibid. at para 11. See specifically on fundamental requirements of fair trial as protected under both human rights law and international humanitarian law, also para 16. It may be questionable whether a military operation which takes place exclusively on the territory of a third state qualifies as a public emergency which threatens the existence of the state undertaking the operations. For a call for more clarity on this matter, see Van den Herik and Schrijver, ‘Leiden Policy Recommendations on Counter-Terrorism and International Law’ (2010) 57(3) Netherlands International Law Review 531 at 545. For example, non-refoulement: ComRC, General Comment No 6, supra n 31 at para 26. ComRC, General Comment No 5 (2003): General measures on the implementation of the Convention on the Rights of the Child (arts. 4, 42 and 44, para. 6), CRC/GC/2003/5, at para 17; and ComRC, General Comment No 6, supra n 31 at para 15. ComRC, General Comment No 9 (2006): The rights of children with disabilities, CRC/C/ GC/9, at para 23, emphasising the importance of international cooperation in accordance with the 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction. ComRC, General Comment No 6, supra n 31 at para 74. ComRC, General Comment No 1 (2001): Article 29(1): The aims of education, CRC/ GC/2001/1, at para 16.

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a broad understanding of its mandate was the call, somewhat earlier, by the Committee for the Elimination of Racial Discrimination for the establishment of an international tribunal to prosecute, inter alia, grave breaches of the Geneva Conventions and the Additional Protocols.42 The committees thus do not shy away in their general comments from emphasising the applicability and importance of ihl and they act, albeit in a limited way, as surrogate-compliance mechanisms calling for respect for the body of law. However, the engagement does not seem to go much beyond these relatively shallow references. Substantive and more detailed treatment of ihl is largely absent from the general comments. On some occasions, the comments have even addressed the application of a certain human right in times of armed conflict without any reference whatsoever to relevant ihl.43 Of course, it is arguable that reference to ihl is only relevant where it offers more specific or deviant standards. This is, for instance, not the case for the prohibition of torture and that may explain why the Committee against Torture does not extensively engage with ihl in its general comments.44 However, the question whether torture violates rights as a matter of international humanitarian law or human rights law would appear to have at least potential implications for the competence of human rights committees to monitor and for the ­applicability of other provisions in the Convention against Torture.45 42 43

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cerd, General Recommendation xviii on the establishment of an international tribunal to prosecute crimes against humanity, CERD/C/365, Annex i. cescr, General Comment No 7: The right to adequate housing (art. 11(1) of the Covenant): Forced evictions, E/1998/22, at paras 5–6; cescr, General Comment No 19: The right to social security (art. 9), 23 November 2007, E/C.12/GC/19, at paras 27 and 50; cescr, General Comment No 12: The right to adequate food (art. 11), E/C.12/1999/5, at para 19; hrc, General Comment No 17: Article 24 (Rights of the Child), 7 April 1989, HRI/GEN/1/Rev.1 (1994) at 23, at para 3; hrc, General Comment No 14: Article 6 (Right to Life) Nuclear Weapons and the Right to Life, 9 November 1984, HRI/GEN/1/Rev.1 (1994) at 18, at para 3; hrc, General Comment No 28: Article 3 (The equality of rights between men and women), 29 March 2000, CCPR/C/21/Rev.1/Add.10, at para 8; and cat, General Comment No 2: Implementation of article 2 by States parties, CAT/C/GC/2, at para 5. As Hampson observed, the Committee against Torture deals with a form of conduct that is prohibited under both international humanitarian law and human rights law: Hampson, supra n 7 at 551. In this context, it is notable that the cat has sought the advice of the un Legal Counsel on the question whether torture applied as a human rights norm to the Occupied Palestinian Territories, which the Legal Counsel confirmed. The Legal Counsel stated that ‘the Convention was binding upon Israel, as the occupying Power in respect of the Occupied Palestinian Territory’: Report of the Committee against Torture, A/57/44, at para 222. The Legal Counsel also noted that the cat already appeared to have proceeded on this presupposition (at para 215).

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In other instances standards of ihl are being referenced, but without offering authoritative guidance on the interpretation or application of these standards.46 Most interesting is the use of ihl to substantiate human rights. Notably, in General Comment No 15 on the right to water, a right not included as such in the International Covenant on Economic, Social and Cultural Rights, the Committee on Economic, Social and Cultural Rights utilised humanitarian regulations on the right to access to water for prisoners and detainees to give normative content to the right to water.47 In sum, the general comments display an increasing acknowledgement of the relevance of ihl, but only sporadically is there a more detailed and technical analysis of the content of ihl rules or their interrelationship with co-applicable human rights law. B Concluding Observations and International Humanitarian Law One of the main objectives of the reporting system is for states to diagnose their own human rights situation48 and to enter into a constructive dialogue with the committee concerned. Overall the system aspires to induce change at the domestic level.49 The goal of the process is thus to ensure compliance, to critique policies and to promote understanding of the human rights standards concerned, rather than to adjudicate. Given the constructive spirit of the process, legal findings tend to be articulated in a less direct and condemnatory manner. They are often expressed in relation to general trends and are not ­concretised to specific occurrences or applied to concrete factual scenarios. In relation to the question of interplay between ihl and ihrl, it is noteworthy that many committees have confirmed their competence to monitor human rights situations during armed conflict by referring to the Wall opinion. They have generally done so without specifically endorsing the a­ pplicability 46

47 48 49

cescr, General Comment No 14 (2000): The right to the highest attainable standard of health (article 12 of the International Covenant on Economic, Social and Cultural Rights), 11 May 2000, E/C.12/2000/4, at para 34, stating that states should refrain from limiting access to health as a punitive measure during armed conflict in violation of international humanitarian law. In para 10 of the same General Comment, some ihl provisions are referenced in a footnote in relation to the definition of health; cerd, General Recommendation xxx on discrimination against non-citizens, CERD/C/64/Misc.11/rev.3, at para 20; and cedaw Committee, General Recommendation No 19: Violence against women, in Compilation of general comments and general recommendations adopted by human rights treaty bodies, HRI/GEN/1/Rev.9 (Vol. ii) at 331, at para 7(c). cescr, General Comment No 15, supra n 29 at para 16(g). cescr, General Comment No 1: Reporting by States Parties, 27 July 1981, E/1989/22, Annex iii at 87, at para 3. Steiner et al., International Human Rights in Context: Law, Politics, Morals (oup, 2008) at 850–873.

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of the lex specialis rule, which, as explained above, may be the result of strategic considerations. Indeed, the committees consistently emphasised that applicability of ihl did not preclude concurrent applicability of the specific treaty that they monitored. However, they did so without offering any further detailed insight into how the interplay would work out in specific cases.50 Notably though, when it addressed Israeli policies of targeted killing in the Occupied Territories, the Human Rights Committee—while noting the Israeli position that only persons taking direct part in the hostilities had been targeted—appeared to still apply the human rights paradigm without reference to ihl. It held that ‘[b]efore resorting to the use of deadly force, all measures to arrest a person suspected of being in the process of committing acts of terror must be exhausted’.51 To some extent, this position is emblematic of an apparent disregard for ihl in concluding observations. Apart from a few generic references,52 the committees generally do not explicitly invoke or refer to concrete rules of ihl in this context. There are, however, expressions that imply engagement with ihl, often couched in terms of concern and expression of alarm rather than concrete findings of violations. For instance, in the 2013 Concluding ­observations

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cescr, Concluding observations regarding Israel, 23 May 2003, E/C.12/1/Add.90, at paras 15 and 31. In its 2011 Concluding observations regarding Israel, the cescr referred to the icj Wall opinion to confirm that the icescr was applicable to the Occupied Palestinian Territory. It added that in those fields where competence had been transferred to the Palestinian authorities, Israel should not raise any obstacles to the exercise of the rights concerned: 2 December 2011, E/C.12/ISR/CO/3, at para 8; ComRC, Concluding observations regarding Israel, 29 January 2010, CRC/C/OPAC/ISR/CO/1, at para 4, also referring to the explicit references to international humanitarian law in the Optional Protocol; hrc, Concluding observations regarding Israel, 5 August 2003, CCPR/CO/78/ISR, at para 11; cedaw Committee, Concluding observations regarding Israel, CEDAW/C/ISR/CO/5, at para 12; cat, Concluding observations regarding Israel, CAT/C/ISR/CO/4, at para 11; and hrc, Concluding observations regarding the United States of America, 27 July 2006, CCPR/C/USA/CO/3/Rev.1, at para 14. hrc, Concluding observations regarding Israel, ibid. at para 15. For a discussion on whether there is a duty to capture rather than kill under the ihl paradigm, see Goodman, ‘The Power to Kill or Capture Enemy Combatants’ (2013) 24(3) European Journal of International Law 819; and the reply by Schmitt, ‘Wound, Capture, or Kill: A Reply to Ryan Goodman’s “The Power to Kill or Capture Enemy Combatants”’ (2013) 24(3) European Journal of International Law 855; and Goodman, ‘The Power to Kill or Capture Enemy Combatants: A Rejoinder to Michael N. Schmitt’ (2013) 24(3) European Journal of International Law 863. For example, cescr, Concluding observations regarding Sri Lanka, 19 November 2010, E/C.12/LKA/CO/2-4, at para 28.

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regarding the usa, the Committee on the Rights of the Child expressed its alarm at ‘reports of the death of hundreds of children as a result of attacks and air strikes by us military forces in Afghanistan due to reported lack of precautionary measures and indiscriminate use of force’.53 In the 2003 Concluding observations to Israel’s report, the Human Rights Committee voiced its concern about the use of human shields during military operations in the Occupied Territories which often resulted in arbitrary deprivation of life,54 whereas the Committee against Torture in its 2009 Concluding observations expressed concern over the use of phosphorus in densely populated areas and the overall insufficiency of measures taken to protect the civilian population of the Gaza Strip.55 Those articulations were not accompanied by any overt reference to specific ihl rules, but clearly the language and concepts used are not only inspired by ihl but directly transposed from concrete ihl provisions.56 Perhaps most explicitly IHL-sensitive are the 2014 Human Rights Committee Concluding observations regarding the usa, where the Committee expressed concern over the use of drones, and in particular over the State party’s very broad approach to the definition and geographical scope of an armed conflict, including the end of hostilities, the unclear interpretation of what constitutes an ‘imminent threat’ and who is a combatant or civilian taking direct part in the hostilities, the unclear position on the nexus that should exist between any particular use of lethal force and any specific theater of hostilities, as well as the precautionary measures taken to avoid civilian casualties in practice (arts. 2, 6, and 14).57 The reference to the Covenant provisions at the end of the quotation ­illustrates that ihl is read into applicable human rights rather than that the Committee purports to apply ihl directly. Most express and detailed references to ihl are made in relation to ­recommendations to states. On several occasions, committees have, with varying ­degrees of compulsion, called on states to investigate serious violations 53 54 55 56

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ComRC, Concluding observations regarding the United States of America, 1 February 2013, CRC/C/OPAC/USA/CO/2, at para 7. hrc, Concluding observations regarding Israel, supra n 50 at para 17. cat, Concluding observations regarding Israel, CAT/C/ISR/CO/4, at para 29. For example, Articles 57 and 58 on precautionary measures, Articles 48, 51(2) and 52(2) on the principle of distinction and Article 51(7) Additional Protocol No 1 on the prohibition of human shields. hrc, Concluding observations regarding the United States of America, 26 March 2014, CCPR/C/USA/CO/4, at para 9.

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of ihl,58 to reconsider the applicability of statutory limitations in reparation proceedings regarding the commission of grave crimes such as war crimes,59 to cooperate with international criminal tribunals,60 to refrain from offering amnesty for those violations61 and to ensure redress and reparations.62 In relation to all these statements, even those which are articulated in more obligatory language, questions arise regarding the precision with which ihl is invoked, in terms of scope and legal grounding. Notably, the committees 58

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For example, hrc, Concluding observations regarding the Central African Republic, 25 July 2006, CCPR/C/CAF/CO/2, at para 8; ComRC, Concluding observations regarding Russia, 31 January 2014, CRC/C/OPAC/RUS/CO/1, at para 16, recommending that Russia investigate cases of alleged involvement of children by non-state armed groups as well as cases where children fell victim of hostilities during conflicts in the Chechen Republic. In an earlier report, the hrc expressed concern about violations committed during military operations in South Ossetia. It was inconsistent in its approach to ihl. As often, the Committee did not clearly establish that an armed conflict existed. It called upon Russia to conduct a thorough and independent investigation into alleged human rights violations by members of Russian forces and other armed groups under their control in South Ossetia in 2008 and did not refer to ihl violations in this context. However, it also indicated that Russia should ensure that victims of serious human rights violations and international humanitarian law are provided with an effective remedy, including the right to compensation and reparations: see hrc, Concluding observations regarding Russia, 28 October 2009, CCPR/C/RUS/CO/6, at para 13. There is also inconsistency among different committees. For instance, the hrc called on Colombia to investigate and punish serious violations of human rights law and international humanitarian law with appropriate penalties: see hrc, Concluding observations regarding Colombia, 28 July 2010, CCPR/C/ COL/CO/6, at para 9. In 2010, the ComRC also expressed its concern to Colombia over the lack of serious investigations and sanctions for the extrajudicial killing by armed forces of civilians, including children, but framed this only in terms of a serious violation of the right to life: see ComRC, Concluding observations regarding Colombia, 11 June 2010, CRC/C/OPAC/COL/CO/1, at para 8. hrc, Concluding observations regarding Serbia, 29 March 2011, CCPR/C/SRB/CO/2, at para 10. Ibid. at para 13. hrc, Concluding observations regarding Colombia, 25 March 2004, CCPR/CO/80/COL, at para 8: ‘The Committee has taken note of the efforts by the State party to encourage members of illegal armed groups to lay down their arms and rejoin civil society. In this context, mention has been made of the so-called “draft act concerning alternative penalties”, which seeks to offer certain legal benefits, such as the suspension of punishments involving imprisonment, to members of illegal armed groups who lay down their arms. The Committee is concerned that such benefits may extend to persons responsible for war crimes or crimes against humanity’. See also the references supra n 58.

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a­ lmost never justify their reference to ihl by first addressing the prerequisite establishment and characterisation of the armed conflict to which this law should apply.63 The reluctance to engage in more precise and technical analyses of ihl has been characterised as potentially epitomising an attitude of ‘nonchalance’.64 It has also been observed that the generic and broad-brush engagement detracts from any potential precedential value.65 For instance, while referring to the duty to investigate under ihl, it remains unclear whether and to what extent the committees believe there is a legal duty to investigate violations of ihl beyond the grave breaches system,66 or what impact the interplay between the two regimes has on applicable human rights law in this respect.67 It is also unclear whether committee encouragements to states to revisit statutory limitations for war crimes should be understood as reflective of the view that the prohibition of statutory limitations to the prosecution of international crimes must be applied mutatis mutandis in settings of reparation proceedings by virtue of an underlying customary norm or whether the committee merely

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As also observed by Weissbrodt et al., supra n 25 at 137. Ibid. at 139. The authors argue that the nonchalant approach may alternatively be perceived as a modern approach which contributes to the further development of international humanitarian law, for instance, by erasing the distinction between international and non-international armed conflict. Weissbrodt, ‘The Role of the Human Rights Committee in Interpreting and Developing Humanitarian Law’ (2010) 31(4) University of Pennsylvania Journal of International Law 1185. International humanitarian law does not spell out such an obligation for all violations. An obligation to examine alleged violations can be read into the general obligation to respect and ensure respect for international humanitarian law of common Article 1 of the 1949 Geneva Conventions, the doctrine of command responsibility as laid down in Article 87 of the 1977 Additional Protocol No 1, and Articles 52, 53, 132 and 149 of the respective four 1949 Geneva Conventions. On the obligation to examine all alleged violations of international humanitarian law and the obligation to investigate war crimes, see The Public Commission to Examine the Maritime Incident of 31 May 2010, The Turkel Commission, Second Report on Israel’s Mechanisms for Examining and Investigating Complaints and Claims of Violations of the Law of Armed Conflict According to International Law, February 2013, at 73–82. See also Schmitt, ‘Investigating Violations of International Law in Armed Conflict’ (2011) 2 Harvard National Security Journal 31. On the question of how human rights standards can be used to give content to the duty to investigate in armed conflict situations, see Cohen and Shany, ‘Beyond the Grave Breaches Regime: The Duty to Investigate Alleged Violations of International Law Governing Armed Conflicts’, in Schmitt and Arimatsu (eds), Yearbook of International Humanitarian Law 2011 – Volume 14 (T.M.C. Asser Press, 2012) 37.

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encourages states to move beyond existing international law.68 In a similar vein, and more generally, the committees have failed to articulate clear views on the legal basis for and contents of the obligation to ensure reparations for violations of ihl. The approach of the committees towards ihl may be qualified as pragmatic and functional. Their recommendations are at times quite policyspecific and context-sensitive, but are not always supported by precise legal argumentation. This practice may well be inspired by the institutional environment and delicate political setting in which the state reporting dialogue takes place. It may be that the committees consider that too overt references to ihl may rebound in the form of distracting allegations that committees have trespassed their mandate, or that they have mischaracterised the conflict. Whatever the reasoning, if any, a certain evolution in the engagement with ihl can be discerned in the reporting process, but it remains rather implicit and ad hoc. It remains to be seen whether, as engagement with ihl in this context increases and becomes the norm, it will also become more substantive. C Individual Complaints and International Humanitarian Law The individual complaints procedure is premised upon explicit acceptance of states. This significantly reduces the potential of the committees to receive complaints regarding human rights violations committed during and as part of an armed conflict, not least as states prone to conflict may be more hesitant to invite and accept external scrutiny in the form of the individual complaints procedures. On a number of occasions, individual petitions regarding

68

The committee’s suggestions would go beyond the prevailing view that distinguishes between the legality of statutory limitations in relation to international crimes in the context of criminal prosecutions and reparation claims: see, for example, Article 16 Reparation for Victims of Armed Conflict, International Law Association (ila), 15–20 August 2010, Res 02/2010. Perhaps the committees do not mean to engage in such progressive understandings of the law and rather adhere to the view expressed in Principle 7 of the Basic Principles and Guidelines on the Right to a Remedy and Reparations for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, which stipulates that ‘[d]omestic statutes of limitations for other types of violations that do not constitute crimes under international law, including those time limitations applicable to civil claims and other procedures, should not be unduly restrictive’. These Principles were adopted by the United Nations General Assembly in Res 60/147, 16 December 2005, and are commonly referred to as the Van Boven/ Bassiouni Principles.

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alleged violations committed in the context of armed conflict have, however, been considered. For instance, the case of Sarma v Sri Lanka before the Human Rights Committee concerned the abduction and disappearance of an alleged Tamil Tiger member.69 The Committee grounded the obligations to offer an effective remedy, including a thorough and effective investigation into the disappearance and adequate compensation, solely on human rights provisions and without any resort to ihl or otherwise engaging in a context-specific interpretation.70 A largely similar case was Bautista v Colombia.71 Considerations that affect the approach of human rights treaty bodies to ihl in individual cases, addressed in the comparative analysis of the human rights courts in the subsequent section, are also relevant here. Arguably, the judicial or quasi-judicial nature of these proceedings calls for more pronounced and technical articulations on matters of interplay and application of substantive law.72 On the other hand, the non-binding nature of views pronounced by committees, a poor record of implementation and the more fluid institutional structure in which these particular committees operate may discourage them from being seen to overreach on their mandates or trespass into other areas of law. An opening up to the relevance of ihl over time would, however, be more in line with overall legal developments and also offer more adequate applications of the law. Developments, ongoing debates and trends towards a greater convergence of the regimes both in terms of the interplay between substantive norms as well as enforcement mechanisms—epitomised by the Third Optional Protocol to the Convention on the Rights of the Child, which will enable children to submit ihl-related complaints—are likely to have a defining influence on the committees’ approach in the future. In light of the more tenuous legal status of their output and a less solidified institutional embedding, these committees may not necessarily be expected to take the lead. They may, however, follow suit where human rights courts—hopefully—show the way.

69 70 71 72

Mr D. Jegatheeswara Sarma v Sri Lanka (950/00) Views, CCPR/C/78/D/950/2000 (2003). This is one of several cases against Sri Lanka in the context of the conflict in that state. Ibid. at para 11. The applicant did not invoke ihl: note observations below under regional courts and bodies. Bautista de Arellana v Colombia (563/93) Views, CCPR/C/55/D/563/1993 (1995). For an analysis on these questions, see Sassòli and Olson, ‘The Relationship between International Humanitarian and Human Rights Law where it Matters: Admissible Killing and Internment of Fighters in Non-International Armed Conflicts’ (2008) 90 International Review of the Red Cross 599.

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Comparative Approaches of Human Rights Courts

A The Inter-American System The Inter-American system was the pioneer among regional and international counterparts in taking ihl into account. In the context of its state monitoring functions, reports on human rights situations, advisory opinions and decisions emerging from individual cases, the Inter-American Commission and Court have frequently had regard to ihl. This openness was evident in state reports as early as the 1970s, where the Commission found, for example, violations of ihl in addressing the right to life as it applied to conflict-related casualties in Nicaragua.73 Likewise, in the Commission’s standard setting role, its 2002 Report on Terrorism and Human Rights emphasises the co-application of ihrl and ihl, with broad references to the relevance of ihl as lex specialis in conflict situations.74 The Inter-American system has also perhaps been boldest amongst regional counterparts in its willingness, at least at times, to directly and explicitly ‘apply’ ihl in the context of individual cases. Notably in the Abella case75 – concerning an attack by a group of individuals on military barracks at La Tablada, Buenos Aires, in 1989 – the Commission reasoned that it was addressing a ‘combat situation’76 which ‘none of the human rights instruments was designed to regulate’.77 It concluded that in considering alleged violations of the right to life it must ‘necessarily look to and apply definitional standards 73

Inter-American Commission on Human Rights (iachr), Report on the Situation of Human Rights in Nicaragua, 17 November 1978, OEA/Ser.L/V/II.45, Doc. 16 rev. 1, Chapter 2. It found that the ‘Nicaraguan National Guard not only used its firepower indiscriminately causing a great number of casualties and tremendous suffering to the civilian population … violating a basic humanitarian norm’ (emphasis added). 74 iachr, Report on Terrorism and Human Rights, 22 October 2002, OEA/Ser.L./V/II.116, Doc. 5 rev. 1, corr. It noted that ihl ‘provide[s] specific standards against which to evaluate whether a deprivation of life occurring during an armed conflict was arbitrary and therefore unlawful. Such standards are used in distinguishing between civilians and combatants’ (at para 112), and that ‘international humanitarian law [should be incorporated] as the applicable lex specialis in interpreting and applying human rights protections in situations of armed conflict’ (at para 2 of Recommendations). 75 Case 11.137, Abella v Argentina Report No 55/97 (1997) at para 1. 76 Ibid. The attack by 42 individuals precipitated a 30-hour armed confrontation with Argentine military personnel resulting in the deaths of 29 of the attackers and several state agents. The Commission found that ‘several military uprisings’ had occurred since the restoration of democracy in 1983. 77 Ibid. at para 158.

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and relevant rules of humanitarian law as sources of authoritative guidance in its resolution of this and other kinds of claims alleging violations of the American Convention in combat situations’.78 The Commission referred to Article 29 of the Convention, which precludes the Convention being applied in a manner that restricts rights protected under other conventions.79 In so doing, it emphasised that the more favourable interpretation of the Convention was by reference to applicable ihl, on the basis that the only alternative was to decline to exercise jurisdiction entirely in conflict situations.80 On this basis in Abella, as in several subsequent cases, the Commission has reached decisions ‘applying’ ihl and deciding on whether the state’s conduct was compatible, or not, with ihl standards.81 The Commission’s approach to ihl in this particular case was controversial on various grounds.82 The existence of an armed conflict in Argentina in the 1980s was questionable to begin with, and whether resort to force by the attackers alone rendered it a ‘combat situation’ to which ihl was applicable, rather than a law enforcement operation in violent circumstances, is highly doubtful. Also surprising perhaps is the Commission’s assumption that ihl would provide ‘greater protection for victims’ in the particular case.83 It is, moreover, controversial as to what extent this should be a relevant consideration. 78

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Ibid. at para 161; the iachr went on: ‘To do otherwise would mean that the Commission would have to decline to exercise its jurisdiction in many cases involving indiscriminate attacks by State agents resulting in a considerable number of civilian casualties. Such a result would be manifestly absurd in light of the underlying object and purposes of both the American Convention and humanitarian law treaties’. The Commission relied on the fact that the American Convention on Human Rights (achr), like certain other human rights treaties, provides that the interpretation of the treaty should not limit any greater protection provided elsewhere in international law: Article 27(1) achr. Abella v Argentina, supra n 75 at paras 164–166. Case 11.142, Arturo Ribón Avilán v Colombia Report No 26/97 (1997) at paras 134 and 135; Case 10.548, Hugo Bustíos Saavedra v Peru Report No 38/97 (1997); Case 10.488, Ignacio Ellacuria, S.J. et al., v El Salvador Report No 136/99 (1999) at para 169; Case 11.481, Monsignor Oscar Amulfo Romero y Galdámez v El Salvador Report No 37/00 (2000) at paras 66 and 72; and Case 11.519, José Alexis Fuentes Guerrero v Colombia Report No 61/99 (1999) at para 43. For a critique of the case from a different perspective, see Zegveld, ‘The Inter-American Commission on Human Rights and International Humanitarian Law: A Comment on the Tablada Case’ (1998) 38 International Review of the Red Cross 505. Abella v Argentina, supra n 75 at paras 158–159: ‘[T]he provisions of conventional and customary humanitarian law generally afford victims of armed conflicts greater or more specific protections than do the more generally phrased guarantees in the American Convention and other human rights instruments’.

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More relevant for present purposes, however, was the finding by the InterAmerican Court that the Commission had overreached jurisdictionally in applying ihl directly. In the case of Las Palmeras v Colombia the Court called for a more cautious approach to the co-application of ihrl and ihl, concluding that the human rights court or body’s role is to say whether or not that norm or that fact is compatible with the American Convention. The latter has only given the Court competence to determine whether the acts or the norms of the States are compatible with the Convention itself, and not with the 1949 Geneva Conventions.84 The Court did not doubt the relevance of consideration of ihl to the interpretation of those Convention obligations, but noted that the purpose of the human rights bodies is to apply and reach findings concerning violation of the relevant human rights instrument, in this case the Convention (or in other cases, the American Declaration of the Rights and Duties of Man), not of ihl per se.85 In numerous subsequent cases arising in armed conflict, the Court and the Commission have continued to have regard to ihl. Generally speaking, ihl is no longer presented as having been ‘applied’, however, nor do reports or judgments condemn states for violations of ihl.86 At the same time, in several cases, both the Commission and the Court have continued to ‘observe’ that states have violated ihl, bringing into question the true extent of this shift.87 The bodies have been consistent in continuing to assert the co-application of the two branches of law, with the emphasis on the relevance of ihl to the interpretation of the Convention.88 The Commission has specifically suggested that in some circumstances the relationship is one of ihl as lex specialis, such as in the decision to grant precautionary measures in relation to Guantanamo, in which the Commission stated that

84 85 86

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IACtHR Series C 67 (2000) at para 33. See Article 44 achr. Note, however, that in Romero y Galdámez v El Salvador, supra n 81 at paras 56 and 61–64, some ambiguity continues to be seen as it ‘should also note that the assassination of Monsignor Romero constitutes a grave infraction of the basic principles of international humanitarian law’ (emphasis added). See also Case 10.247 et al., Extrajudicial Executions and Forced Disappearances v Peru Report No 101/01 (2001). Case of Bámaca Velásquez v Guatemala IACtHR Series C 70 (2000) at para 208. For example, ibid. at para 121; Case 12.132, Sarrano Cruz Sisters v El Salvador Report No 31/01 (2001); and Case of ‘Mapiripán Massacre’ v Colombia IACtHR Series C 134 (2005) at para 115.

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in certain circumstances … the test for evaluating the observance of a particular right, such as the right to liberty, in a situation of armed conflict may be distinct from that applicable in time of peace. In such situations, international law, including the jurisprudence of this Commission, dictates that it may be necessary to deduce the applicable standard by reference to international humanitarian law as the applicable lex specialis.89 A significant case in respect of the handling of the interrelationship was Bámaca Velásquez v Guatemala, as it required the Inter-American Court of Human Rights to consider a petition regarding the capture, disappearance and death of a former guerilla commander during a period when Guatemala was incontrovertibly ‘convulsed by an internal conflict’.90 Reflecting its generally open approach to ihl, the Court found that ‘the relevant provisions of the Geneva Conventions may be taken into consideration as elements for the interpretation of the American Convention’.91 If one looks in slightly more detail at the Court’s approach, however, it brings into question to what extent it really used ihl as a tool of interpretation of the relevant Convention provisions. The Court considered the allegations concerning violations of rights to liberty, life and freedom from torture in turn, in each case by exclusive reference to the Convention and without explicit regard to rules or principles of ihl. It then turned separately to allegations concerning the ‘failure to comply with Article 1(1) … in relation to Article 3 common to the Geneva Conventions’.92 To the extent that the Court was really treating ihl as an element in the interpretation of the Convention, one might have expected it to consider whether ihl norms impact on the interpretation of the particular human right in question. The interrelationship of these norms raises complex questions, in particular regarding the nature of the procedural safeguards applicable in armed conflict, with which the Court did not engage.93 The Court’s approach to ihl as something of an afterthought may be explained by the fact that—as the Court indicated briefly in its separate consideration of ihl—in the context of this particular case the conduct in question would appear to constitute violations of ihrl and ihl, as ihl 89

Precautionary Measure 259/02, Detainees held by the United States in Guantanamo Bay, 12 March 2002. See also Case 10.951, Coard et al., v United States Report No 109/99 (1999) at para 59. 90 Bámaca Velásquez v Guatemala, supra n 87 at para 121. 91 Ibid. at paras 207–208. 92 Ibid. at paras 203–214. 93 Duffy, supra n 6 at 511–516.

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does not provide any justification for killing a rebel commander no longer participating in the conflict, for torture or for arbitrary detention without any legal process.94 In other cases where ihl would lead to substantially different results it may be that the Court would be bound to take a different approach. As regards the positions of the parties in the Bámaca Velásquez case, the state did not dispute the relevance of ihl as a tool of interpretation, but nor was it central to the state’s or the applicant’s case.95 In other pending InterAmerican cases concerning the ongoing conflict in Colombia, including the inter-state case between Colombia and Ecuador, the Colombian state has put the relevance of ihl centre stage by arguing that, as the matter is addressed by ihl, the Inter-American Commission lacks competence ratione materiae.96 The response to this overreaching argument has been predictably dismissive.97 It remains to be seen, however, whether the government’s argument on substance, that only through ihl may it be ‘established whether or not the deprivation of the right to life of an individual resulting from hostilities associated with a military operation which in turn unfolded in the context of an armed conflict was arbitrary’,98 will lead to the sort of in-depth analysis of ihl by human rights bodies that has been lacking to date. The Commission and the Court have shown a keen awareness of the importance of having regard to ihl to ensure the relevance of its role and to give effect to human rights obligations in the context of armed conflict on the continent. This approach is but one dimension of an outward-looking perspective, by virtue of which they commonly have regard to what has been described as the ‘international corpus juris’, seen as essential to ensure there are no gaps in the Inter-American system of human rights protection.99 The Commission has called on states to respect ihl in its state reports. References to ihl in individual cases have increased over time before both the Commission and the Court. While ihl 94

Case of Bámaca Velásquez v Guatemala, supra n 87 at paras 207–209. The Court implicitly found that there were no rules of ihl that created any conflict with those of ihrl in this case. Nor could the torture of the commander have conceivably been justified by reference to ihl. Apparently more significant, however, is the failure to have any regard to ihl in the context of the right to life; the Court did note later that ihl would not permit the killing of the deceased. 95 Ibid. at para 208. 96 Case ip-02, Franklin Guillermo Aisalla Molina (Ecuador v Colombia) Report No 112/10 (2010) at para 115. See similar arguments advanced by the state in Case of Rodríguez Vera et al., (Persons Disappeared from the Palace of Justice) v Colombia IACtHR Series C 287 (2014). 97 Franklin Guillermo Aisalla Molina (Ecuador v Colombia), ibid. at paras 116–126. 98 Ibid. at para 115. 99 Tigroudja, ‘The Inter-American Court of Human Rights and international humanitarian law’, in Kolb and Gaggioli (eds), supra n 12, 466 at 473.

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has been regularly invoked, however, it appears rarely to have been decisive to its determination of the case.100 Neither body has fully grappled in detail with difficult situations of interplay of norms in particular situations, at least as yet. Nor do they appear to have addressed the tension arising from the fact that the impact of the co-applicability of ihl and ihrl will not always be, as the Commission appeared somewhat curiously to assume in the early treatment of interplay, more favourable to the victims.101 The merits determination in the inter-state case between Ecuador and Colombia is one of a number of pending cases that have arisen in the context of conflict in Colombia which may expose challenges for the Court and contribute to shaping the approach to issues of interplay in the future.102 B European Court of Human Rights The European Court of Human Rights (ECtHR) has historically adopted a different approach to addressing human rights cases in conflict situations, though its position is evolving. The ECtHR has been extremely reticent towards ihl, often reluctant to acknowledge explicitly any role for ihl in its interpretation and application of the Convention in conflict situations despite having long had occasion to do so through its handling of violations in armed conflicts from South-East Turkey to Chechnya and beyond.103 However, as noted below, in certain recent cases it has sought to grapple directly with ihl obligations and their impact on the interpretation of Convention rights. What long appeared to be the ECtHR’s aversion to ihl was most apparent in the many cases, addressing a range of issues including detention or the right to life in armed conflict situations, in which the Court has simply refused to even acknowledge the existence of armed ‘conflict’, and where it has done so, 100 For example, Arturo Ribón Avilán v Colombia, supra n 80 at paras 131–142, 159–160, 166–178 and 198–203; iachr, Third Report on the Human Rights Situation in Colombia, Chapter 4 (‘Violence and Violations of International Human Rights Law and International Humanitarian Law’), 26 February 1999, OEA/Ser.L/V/II.102 Doc. 9 rev. 1; and Case 11.710, Prada González y Bolaño Castro v Colombia Report No 63/01 (2001). 101 Note the potential tension between the particular rationale of having regard to ihl in accordance with Article 27 achr and the need to have regard to ihl as applicable law. For a recent example of the Court grappling directly with ihl standards, see Case of Cruz Sánchez y Otros v Peru IACtHR Series C No. 292 (2015) at para 316. 102 See also, for example, Case of Rodríguez Vera et al., v Colombia, supra n 95, where the government maintained the same absolutist approach to the exclusive applicability of ihl. 103 The Court has addressed cases in the context of several armed conflicts, for example, Turkey in Cyprus, Russia in Chechnya and Transnistria, the former Yugoslavia and the uk in Iraq. Differing approaches to different issues, scenarios and types of armed conflict are highlighted below.

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it has refused to address the impact of ihl on human rights standards. Instead, in such cases the Court has emphasised the relevance of derogation as the appropriate legal vehicle to adjust standards where the exigencies so required. The Court has on numerous occasions found that, where the respondent states have not derogated from Convention rights (and they almost never do), the ‘normal legal background’ continues to apply.104 Even in such cases, where the Court has had no explicit regard to ihl, however, nor was it blind to the realities of armed conflict and the need to adjust its approach to the application of human rights in such contexts. In line with its consistent emphasis on rendering rights ‘practical and effective’ and making sure they do not remain ‘theoretical and illusory’,105 the Court often notes the need to have close regard to the practical realities of situations, including in certain situations to the realities of clashes or conflict.106 Thus while the Court has not often referred explicitly to ihl or addressed its relevance, it has been suggested that it has, in fact, had close regard to principles of ihl in reaching its conclusions in situations where such an approach was considered appropriate.107 In respect of the use of force against individuals or small groups of persons allegedly engaged in terrorist activity, the Court has maintained a strict law enforcement approach, requiring for example planning and carrying out operations to avoid the use of force, using weapons that minimise suffering and giving warnings.108 But so far as it has considered higher intensity armed 104 See, for example, Isayeva, Yusupova and Bazayeva v Russia Applications Nos 57947/00 et al., Merits and Just Satisfaction, 24 February 2005; and Isayeva v Russia Application No 57950/00, Merits and Just Satisfaction, 24 February 2005, at para 191. Derogation would affect derogable rights such as the right to liberty under Article 5 echr, on which ihl and ihrl appear to diverge and which is central in many disputes emerging from armed conflict that are brought before the Court. As noted in Section 1 above, in the context of conflicts arising beyond the state’s territory, the issue is somewhat complicated by questions as to whether state can derogate. 105 Airey v Ireland Application No 6289/73, Merits, 9 October 1979, at para 24. 106 See, for example, Palić v Bosnia and Herzegovina Application No 4704/04, Merits and Just Satisfaction, 15 February 2011, as one example among many of the Court placing emphasis on the realities of conflict, without any regard to ihl. 107 See, for example, Abresch, ‘A Human Rights Law of Internal Armed Conflict: The European Court of Human Rights in Chechnya’ (2005) 16(4) European Journal of International Law 741; and Byron, supra n 5 at 853. 108 See, for example, McCann and Others v United Kingdom Application No 18984/91, Merits and Just Satisfaction, 27 September 1995; Oğur v Turkey Application No 21594/93, Merits and Just Satisfaction, 20 May 1999; Gül v Turkey Application No 22676/93, Merits and Just Satisfaction, 14 December 2000; and Hamiyet Kaplan and Others v Turkey Application No 36749/97, Merits and Just Satisfaction, 13 September 2005.

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confrontations in the context of armed conflict, it has reached conclusions that may be more reflective of ihl principles, and that certainly borrow the language of ihl. Examples of this approach are seen in several cases involving Turkey and Russia (Chechnya). The ECtHR held in both Ergi v Turkey and Özkan v Turkey, concerning individuals caught in crossfire, that the right to life requires states to ‘take all feasible precautions in the choice of means and methods of a security operation mounted against an opposing group with a view to avoiding and, in any event, to minimizing, incidental loss of civilian life’.109 This ihl standard110 was reiterated in Isayeva, Yusupova and Bazayeva v Russia, concerning civilian deaths through aerial bombardment, where the Court also found that the respondent state had failed to assess and prevent ‘possible harm to civilians who might have been present … in the vicinity of what the military could have perceived as legitimate targets’.111 The Court’s reference to ‘legitimate targets’ may reflect that it did in fact have regard to ihl albeit not explicitly.112 An alternative reading is that a context-specific analysis of ihrl led to a substantially similar result as an analysis of ihl. The Court’s failure to explain its approach or acknowledge the relationship between ihrl and ihl, however, has made meaningful assessment difficult. In several relatively recent cases against the Russian Federation in the broad context of the Chechen conflict, it has been business as usual for the Court in the application of the Convention without explicit reference or even apparent regard for ihl. There was, for example, no reference to ihl in the case concerning the killing of the former Chechen leader and refusal to return the deceased’s corpse to his family in Maskhadova and Others v Russia.113 The Court borrowed the language of ihl in Finogenov and Others v Russia114 (the Nord Ost Theatre Hostages case) where the Court found the state not to have violated the right to life of the hostages and hostage takers through the use of 109 Ergi v Turkey Application No 23818/94, Merits and Just Satisfaction, 28 July 1998, at para 79 (emphasis added); and Ahmet Özkan and Others v Turkey Application No 21689/93, Merits and Just Satisfaction, 6 April 2004, at para 297 (citing Ergi v Turkey). 110 Byron, supra n 5 at 853, notes that ‘[t]his phrase is taken almost faithfully from Article 57(2)(a)(ii) of Additional Protocol No 1, merely substituting [“a security operation mounted against an opposing group”] for the word “attack” in the Additional Protocol’. See also Abresch, supra n 106. 111 Isayeva, Yusupova and Bazayeva v Russia, supra n 103 at para 175. 112 The Court’s apparent insistence that in the absence of derogation it would apply the ‘normal legal background’ sits uneasily with this: see ibid. at para. 191. 113 Application No 18071/05, Merits and Just Satisfaction, 6 June 2013. 114 Applications Nos 18299/03 and 27311/03, Merits and Just Satisfaction, 20 December 2011.

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poisoned gas. The Court controversially held that the use of gas, even if dangerous or potentially lethal, did not amount to an indiscriminate attack as a high chance of survival remained for the hostages depending on the efficiency of the subsequent rescue operations.115 While the language is resonant of ihl, it is unclear whether the Court actually aimed to implicitly import ihl standards. The reference to survival chances of the hostages does seem to suggest that the Court’s approach differs from the meaning of indiscriminacy under ihl as enshrined in Article 51(4) of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (‘Protocol No 1’). It is the context of a series of cases concerning the conduct of European (and predominantly British) troops in Iraq that the most evolution in the Court’s approach is apparent.116 One approach to emerge from several of the cases concerning Iraq is for ihl to be referred to explicitly in the ‘applicable law’ sections of the judgments, though the impact of those standards on the interpretation of the Convention ultimately remains unclear. For example, in Al-Skeini v United Kingdom117 concerning uk obligations to investigate allegations of unlawful killings and torture in British-occupied Basra, the Court cited ihl in some detail in the record of ‘applicable law’ at the outset of the judgment and in the summary of relevant arguments of the parties and third party interveners. However, references to ihl fell away as the Court moved on to its own assessment of the case, and ihl had no obvious impact on the Court’s deliberations. It is unclear whether, if the case had concerned a merits determination of the lawfulness of the killings in question, rather than the obligation to investigate, the Court would have been forced to adopt a different approach.118 The judgment was nonetheless significant in at least acknowledging, in principle, the potential relevance of ihl to the interpretation of the Convention in conflict situations.

115 Ibid. at para 232. 116 Al-Skeini and Others v United Kingdom Application No 55721/07, Merits and Just Satisfaction, 7 July 2011; Al-Saadoon and Mufdhi v United Kingdom Application No 61498/08, Merits and Just Satisfaction, 2 March 2010; Al-Jedda v United Kingdom Application No 27021/08, Merits and Just Satisfaction, 7 July 2011; Hassan v United Kingdom, supra n 10; and Jaloud v The Netherlands Application No 47708/08, Merits and Just Satisfaction, 21 November 2014. 117 Al-Skeini and Others v United Kingdom, ibid. 118 See also Jaloud v The Netherlands discussed below on the obligation to investigate. See also Chiragov and Others v Armenia Application No 13216/05, Merits, 16 June 2015 and the separate opinion of Judge Ziemele at para 3, in which the Court is criticized for mentioning ihl rules without making clear what legal weight is attached to them.

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The Court again appeared to take a somewhat short-sighted approach to ihl, and was criticised for it, in Al-Jedda v United Kingdom concerning the ­lawfulness of internment, absent the normally applicable procedural safeguards in Iraq.119 The judgment began in the same vein as Al-Skeini, with the Court reciting ihl standards under ‘applicable law’, but failed to take into account ihl in its determination of the lawfulness of the detentions and applicable safeguards in the context of the conflict situation. Notably, in that case, however, the government chose not to justify its conduct as lawful under ihl, but focused on the alternative purported justification that as the Security Council had authorised the detentions, they were not therefore subject to normal human rights protections.120 Suffice for present purposes to say that the Court was unconvinced by these arguments,121 but it did not address the question of whether another legal regime—namely ihl—co-applied and whether it provided an alternative legal basis for detention and procedural rules.122 But then nor had the parties asked it to. Evidence of a more robust approach to ihl, and a decisive shift of approach on the part of the ECtHR, is seen in Hassan v United Kingdom decided on 16 September 2014. For present purposes,123 the case concerns the alleged unlawful detention of the applicant’s brother in uk detention facilities in the context of the international armed conflict in Iraq.124 For the first time, 119 Al-Jedda v United Kingdom, supra n 115. 120 This argument was based on Article 103 of the un Charter and the priority of un Charter law over other international obligations. The Hassan v United Kingdom judgment makes clear reference to government arguments as the basis for the Court’s approach: supra n 10 at para 99. 121 The Court found that as the Council did not oblige but only authorise states to detain, and did not require them to withhold procedural safeguards, there was no conflict between obligations under Council resolutions and the Convention and hence no need to prioritise Chapter 7 obligations. 122 For criticism of this position and the neglect of ihl, see Pejic, ‘The European Court of Human Rights’ Al-Jedda judgment: The oversight of international humanitarian law’ (2011) 93 International Review of the Red Cross 837. 123 The detainee appeared dead in suspicious circumstances shortly after his apparent release and the applicant, his brother, alleged violation of the right to life. The ECtHR found this not to be attributable to the uk for lack of evidence of uk responsibility. Perhaps surprisingly, the Court found it was not established on the facts that he had died in uk custody, despite its assertion that the onus was on the government—as the only party with access to relevant information—to provide plausible explanations. 124 The applicant presented considerable evidence that showed that he was detained because­his brother was considered a high level member of the Baath party. The Court accepted the government’s argument that as he was armed when troops went to his brother’s house, security was the cause of detention.

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the Court’s decision was based explicitly on ihl and after grappling, with some difficulty, with the interrelationship between ihl and the Convention. The Court considered the permissible grounds of detention under ihl applicable in international conflicts, which included imperative reasons of security, and found that the deceased’s detention was justified by reference to them and therefore lawful. This is particularly noteworthy in relation to the European Convention on Human Rights, which (unlike the International Covenant on Civil and Political Rights, for example125) provides exhaustive grounds of permissible detention in Article 5, which notably do not include security detention. The Court thus ‘interpreted’ ihl and the Convention consistently, despite the apparent clash between ihl and the explicit terms of Article 5. The government’s arguments in the case are themselves noteworthy. The first was a broad attempt to invoke ihl to effectively displace the provisions of the European Convention. The Court readily rejected the proposition that the Convention was essentially inapplicable in international armed conflict, which was ‘instead’ governed by ihl.126 It thus reasserted the Convention’s continued applicability, and its co-applicability alongside ihl, in situations of conflict. As already noted, it was the government’s ‘in the alternative’ argument that the provisions of Article 5 could be interpreted in line with ihl that gained greater traction. The Court followed a third party intervener’s invitation to refrain from becoming embroiled in analysis of ‘lex specialis’, and instead adopted an ‘interpretative’ approach, within which it was necessary to ‘accommodate so far as possible’127 the provisions of ihl permitting the detention of prisoners of war or civilians where imperative reasons of security so require. The extent of controversy around the judgment is evident from a strident dissenting opinion of four judges. Contending that the majority judgment’s interpretative approach seeks to ‘reconcile the irreconcilable’, the dissent considers that the judgment in fact provides for the effective displacement of Article 5 protections in armed conflict.128 It also asserts that the judgment renders redundant the Convention’s derogation provisions, which provide the appropriate mechanism that could and should have been invoked by the government.129 125 The iccpr prohibits ‘arbitrary deprivation of liberty’ and ‘arbitrary deprivation of life’ which, as the icj has noted, can readily be interpreted as not being covered by detention or killing that are provided for by ihl: see Legality of the Threat or Use of Nuclear Weapons, supra n 7 at para 25. 126 Hassan v United Kingdom, supra n 10 at paras 86–88. 127 Ibid. at para 104. 128 Partly Dissenting Opinion of Judge Spano joined by Judges Nicolaou, Bianku and Kalaydjieva, ibid. at paras 18–19. 129 Ibid. at paras 8–9.

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The Hassan case is undoubtedly a significant shift for the European Court. Not only does it accept the principle of co-application and where possible harmonious interpretation of the Convention and ihl, it shows willingness to grapple with ihl in a manner that had a decisive impact on legal standards under the Convention and on the outcome in the concrete case. This is a step which, as we saw above, even the more IHL-friendly Inter-American bodies have been reluctant to take. Controversially, it stretched the notion of ‘accommodation’ and ‘interpretation’ by doing so in the context of provisions that on their face are difficult to reconcile. The Court seeks to limit the scope and impact of this shift by noting that it applies only to international armed conflict, and explicitly not to situations of occupation or non-international armed conflict.130 However, the scope and impact of its approach to co-application on future cases—whether the distinction between international and noninternational armed conflict can hold in light of the narrowing of the gap between the bodies of law applicable in each, and what impact ihl standards will ultimately have on rights protection in practice—remain uncertain. The Court’s approach in the subsequent case of Jaloud v The Netherlands131 suggests that, as before, much will depend on the particular scenario within the armed conflict. In that case, concerning the duty to investigate the killing of a civilian by Dutch troops at a checkpoint in Iraq, just as in the earlier AlSkeini and Al-Jedda cases, ihl is cited but the impact of it, if any, is unclear. The Court did not enter into discussion on, for example, whether the nature of the duty to investigate remains the same under ihl or the Convention, perhaps as the impact of the interplay on applicable law in that scenario is questionable.132 The Court finds that in this conflict situation the obligations to conduct an independent, impartial, thorough and effective investigation remain, though it makes explicit that what is required or feasible will depend on all the circumstances. The legal framework governing investigation does not shift but

130 See also Hassan v United Kingdom, supra n 10 at para 104: ‘It can only be in cases of international armed conflict, where the taking of prisoners of war and the detention of civilians who pose a threat to security are accepted features of international humanitarian law, that Article 5 could be interpreted as permitting the exercise of such broad powers’. The sharpness of the Court’s distinction as regards the rules of international and noninternational armed conflict may be open to question and the extent to which ihl will impact on Convention safeguards will undoubtedly be subject to further adjudication in the future. 131 Supra n 115. 132 See Duffy, supra n 9 at Chapter 7.B.3 on duty to investigate under ihl and ihrl. In practice, issues often arise regarding the independence of investigations carried out by military investigators in armed conflict situations.

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the Court recognises the need for some flexibility in the application to particular facts, in accordance with the long-established approach of the Court. In conclusion, the Court’s approach in Hassan was the culmination of developments that in recent years had drawn the Court towards ihl. It is worth underscoring several factors that appear to influence this shift of approach. One must be the growing isolation of the Court’s position, as compared to other bodies explored in this chapter.133 Likewise, the shift to consider ihl may in part be linked to the Court’s broader trend towards emphasising the importance of a coherent approach to the Convention consistent with other areas of international law.134 The recognition and engagement with ihl in certain cases and not in others would also suggest that the shift may correlate in significant part to the nature of the different armed conflicts from which cases have arisen, and the different positions of the states concerned vis-à-vis the existence of an armed conflict. The Turkish or Chechen cases, similar to Northern Ireland-related cases earlier, concerned violations in situations where the state did not accept that an armed conflict existed at all. In these cases, therefore, ihl was not invoked by the state. Depending on the situational context, it may also not benefit the applicants to invoke ihl. In those contexts, the Court could only address the factually and legally complex issue of ihl/ihrl interplay if it had first made, on its own motion, politically controversial assessments concerning the existence of armed conflict. Understandably, perhaps, the Court was reluctant to do so. The Hassan case, and others that have come before the Court recently, by contrast, concerned situations that were, incontrovertibly, armed conflicts, and international in nature. One particular type of case in which the Court has shown willingness to address in some detail issues of ihl involves cases concerning the legitimacy, in light of human rights concerning legality and non-retroactivity, of prosecuting individuals for war crimes during the World War ii. These cases did not involve, directly or indirectly, any assessment of the state’s responsibility under ihl, but only the way in which national courts have applied international law. The Court’s regard to ihl was therefore quite different in nature and purpose. Likewise, a series of cases concerning nato’s action in the former Yugoslavia were deemed inadmissible, and therefore i­ssues of ihl were not addressed.135 133 See, for example, discussion in Moir, ‘The European Court of Human Rights and International Humanitarian Law’, in Kolb and Gaggioli (eds), supra n 12, 480. 134 For example, Jones and Others v United Kingdom, supra n 3; Al-Adsani v United Kingdom, supra n 3; and Catan and Others v Moldova and Russia, supra n 4. 135 For example, the nato bombing in Belgrade (Banković and Others v Belgium and Others, supra n 8), the use of cluster bombs (Behrami and Behrami v France Application No

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Finally, the significance of the parties’ arguments to the Court’s approach and the outcome of the cases is worthy of emphasis. It would seem indisputable in light of the Jedda and Hassan judgments that the shift of approach between the cases and the centrality of ihl to the state’s submissions in the latter case,136 led the Court to finally tackle head-on the interrelationship between ihrl and ihl in its determination of this case. Likewise, the case provides an example of the influence of third party interventions on the Court’s approach to complex issues such as the interplay of legal norms. In conclusion, the ECtHR has been called on increasingly by the parties, and third party interveners, to have regard to ihl to ensure a realistic and coherent approach to the protection of human rights in armed conflict situations. At the same time it faces the challenges of effective co-application, including ensuring that restrictions on rights in armed conflict are no more than strictly necessary, and do not lead to the effective ‘disapplication’ option that the ECtHR has taken ‘off the table’.137 C The African System A number of the African legal standards being applied by human rights courts and bodies in the region reveal, on their face, a greater degree of openness to ihl than found in the instruments of their regional counterparts. The early Charter of the Organization of African Unity (oau), the African Charter on the Rights and Welfare of the Child, like the subsequent African Union (au) Protocol on the Rights of Women in Africa, for example, contain the undertaking of states to ‘respect and ensure respect for rules of [ihl] applicable in armed conflicts which affect the child’.138 Clearer yet is the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa, which refers to the ‘inherent rights of internally displaced persons as provided for and protected in international human rights and humanitarian law’, reiterates the obligation of states parties to ‘[r]espect and ensure respect for [ihl]’139 and enshrines specific ihl-inspired obligations.140 The potential for human rights

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71412/01, Admissibility, 2 May 2007) and detention by French troops during Yugoslavian conflict (Saramati v France Application No 78166/01, Admissibility, 2 May 2007). The Court itself noted: ‘This is the first case in which a respondent State has requested the Court to disapply its obligations under Article 5 or in some other way to interpret them in the light of powers of detention available to it under international humanitarian law’. Partly Dissenting Opinion of Judge Spano joined by Judges Nicolaou, Bianku and Kalaydjieva in Hassan v United Kingdom, supra n 127 at para 18. Article 22(1) African Charter on the Rights and Welfare of the Child. Preamble and Article 3(1)(e) of the Convention. This includes prohibitions on ‘[i]ndividual or mass displacement of civilians … unless the security of the civilians involved or imperative military reasons so demand, in accordance with [ihl]’: Article 4(4)(b) of the Convention. See generally, for example,

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bodies to give effect to provisions of ihl is therefore inevitably heightened by this invitation provided in the documents themselves. The African Commission on Human and Peoples’ Rights is also charged by the Charter itself with being outward-looking in terms of legal sources, of potentially direct relevance to its ability to rely on ihl sources. Article 60 indicates that the Commission will ‘draw inspiration’ from other African and international instruments in the field of human rights, while Article 61 goes further and specifically notes that ‘[t]he Commission shall also take into consideration, as subsidiary measures to determine the principles of law, other general or special [international norms]’.141 The African Commission enjoys the same bifurcated functions of ‘promotional’ and protective mandates as the Inter-American Commission, reflecting broadly the reporting and individual complaints procedures of the un committees described above. Under the former, it has had ample opportunity to consider the protection of human rights in armed conflict in monitoring of human rights protection in several African states in conflict. In doing so, its resolutions have long accepted that the Charter continues to apply in the context of conflicts on the continent, and have on occasion gone so far as to call on states to respect ihl.142

Tehindrazanarivelo, ‘The African Union and international humanitarian law’, in Kolb and Gaggioli (eds), supra n 12, 503 at 505. 141 Article 60 reads: ‘The Commission shall draw inspiration from international law on human and peoples’ rights, particularly from the provisions of various African instruments on Human and Peoples’ Rights, the Charter of the United Nations, the Charter of the Organization of African Unity, the Universal Declaration of Human Rights, other instruments adopted by the United Nations and by African countries in the field of Human and Peoples’ Rights, as well as from the provisions of various instruments adopted within the Specialised Agencies of the United Nations of which the Parties to the present Charter are members’. Article 61 reads: ‘The Commission shall also take into consideration, as subsidiary measures to determine the principles of law, other general or special international conventions, laying down rules expressly recognised by Member States of the Organization of African Unity, African practices consistent with international norms on Human and Peoples’ Rights, customs generally accepted as law, general principles of law recognised by African States as well as legal precedents and doctrine’. 142 See, for example, African Commission, Resolution on the Promotion and Respect of Humanitarian Law and the Charter on Human and Peoples’ Rights, 14th Ordinary Session, 10 December 1993; and Resolution on the Situation in Rwanda, 15th Ordinary Session, 27 April 1994, recognising violations of ihl during the conflicts in Rwanda in 1994. This reflects the frequent references to ihl by au political organs: see, for example, au Peace and Security Council, Decision on the situation in the Republic of South Sudan, 29 January

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There has, however, been relatively scarce regard to ihl in the Commission’s individual decisions under its protective mandate. The Commission is younger and the volume of its decisions limited in comparison to other bodies, but it is perhaps surprising that in a continent plagued by conflict the issue has not arisen with greater frequency. Where it has, the Commission has emphasised that due to the lack of any mechanism for derogation from the Charter, the Charter obligations continue to apply ‘even in civil war’. The Commission has reasserted the relevance in general terms of human rights law in conflict situations, but it has generally not, however, addressed issues closely associated with the conduct of hostilities on which consideration of ihl may have affected the interpretation of the rights in question or the outcome of the case.143 The notable occasion on which the Commission has invoked ihl is the inter-state Democratic Republic of Congo v Burundi, Rwanda and Uganda case concerning violations by armed forces of the respondent states.144 The Commission made specific reference to the outward-looking provisions of the Charter mentioned above and by virtue of these provisions it held that the Four Geneva Conventions and the two Additional Protocols covering armed conflicts constituted part of the general principles of law recognized by African States and could thus be taken into consideration in the determination of the case at hand.145 The Commission went on to reach specific findings of violations. Among other findings were the fact that ‘killings, massacres, rapes, mutilations and other grave human rights abuses committed while the Respondent States’ armed forces were still in effective occupation of the eastern provinces of the Complainant State’ were inconsistent with their obligations under the Fourth Geneva Convention and Additional Protocol No 1;146 that the besiege of the hydroelectric dam in Lower Congo province was contrary to Article 56 of the Additional Protocol No 1 and Article 23 of the Hague Convention (ii) with

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2014, au Res PSC/AHG/Comm.1(cdxvi). For more details on the role of the au, see Tehindrazanarivelo, supra n 140. The Commission has affirmed that ‘[t]he African Charter, unlike other human rights instruments, does not allow for states parties to derogate from their treaty obligations during emergency situations. Thus, even a civil war … cannot be used as an excuse by the State violating or permitting violations of rights in the African Charter’: 74/92, Commission Nationale des Droits de l’Homme et des Libertés v Chad, 11 October 1995, at para 21. 227/99, 29 May 2003. Ibid. at para 70. Ibid. at para 79.

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Respect to the Laws and Customs of War on Land;147 that ‘raping of women and girls’ was inconsistent with Article 76 of the Additional Protocol No 1 and also offended against both the African Charter and the Convention on the Elimination of All Forms of Discrimination Against Women;148 and that the indiscriminate dumping of corpses and the mass burial of victims were contrary to Article 34 of the Additional Protocol No 1.149 Where the states parties called on it to do so, the Commission has thus gone further than most human rights bodies have been willing to go in reaching findings of violations by reference to specific provisions of the Geneva conventions and additional protocols.150 In the nascent African Court of Human and Peoples’ Rights, the first relevant decision – the order for provisional measures against the Libyan State in February 2011 – explicitly noted the situation of ‘ongoing conflict’ and that the Peace and Security Council of the African Union had referred to ‘violations of human rights and international humanitarian law’.151 Notably, however, the Court made no reference to ihl in its decision, finding instead that the state should ‘refrain from any action that would result in loss of life or violation of physical integrity of persons, which could be a breach of this Charter or any other human rights instrument to which it is a party’.152 Given the nature of the armed conflict at the relevant time it is perhaps surprising that the Court did not make any reference to the obligation of state forces engaged in hostilities with rebel forces to observe applicable law, including ihl. The Court remains in its infancy and limited possibilities of access to the Court mean its caseload is still relatively light. It is too early to assess what approach the Court will take to these issues, and how it will contribute to the application of human rights law in armed conflict situations. 4

Common but Differentiated Approaches

The multiple human rights bodies surveyed in this chapter all increasingly encounter and engage with ihl-related matters in one way or another. Their 147 148 149 150

Ibid. at paras 83–84. Ibid. at para 86. Ibid. at para 87. See arguments of the parties set out in the decision, which refer to multiple sources of law, including the un Charter and ihl: ibid. at paras 9 and 29. 151 4/11, African Commission on Human and Peoples’ Rights v Great Socialist People’s Libyan Arab Jamarihiya, Provisional Measures, 25 March 2011, at paras 13 and 21. 152 Ibid. at para 25.

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comparative treatment of ihl may be described as common but differentiated. As a commonality, all bodies insist that human rights law is applicable during times of armed conflict, consolidating the overwhelming weight of international opinion—referred to at the outset of this chapter – that coapplicability is no longer a matter of reasonable dispute. Ipso facto all are therefore confronted with questions concerning the role of the ihl rules that apply alongside ihrl in conflict situations and with the difficult issues of interplay of applicable norms. In response, no human rights body simply discards or ignores this body of law. Rather, there has been a consistent shift towards greater recognition of the relevance of ihl, whether expressly or implicitly. In some cases, human rights bodies’ engagement with ihl has been more robust, while in others they make only passing reference to ihl or appear to pay it little more than lip service. Despite the growing awareness and recognition, another commonality among human rights bodies is the reluctance to engage systematically with ihl in a substantive and technical manner. This is coupled with a failure to address the nature and implications of the interplay of ihl and ihrl norms in particular contexts in a way that would gradually map and clarify the areas of overlap and interplay in a conscientious and methodical fashion. One manifestation of this is the refusal to address issues concerning the identification or classification of ‘armed conflict’. While the existence and nature of armed conflict is clearly crucial to international humanitarian law, the issue is generally either bypassed by human rights bodies or applied in a remarkably expansive fashion in situations in which ihl is considered relevant. Such a liberal approach to conflict determination and classification has direct implications for the subsequent appropriate engagement with ihl as co-applicable law. The approaches of human rights bodies, while diverse, have often been marked by ‘ad hoc-ism’, some neglect and a considerable degree of internal inconsistency. Several broad approaches and possible trends emerge, however. At one extreme, as has been noted, some but not all human rights bodies have at some point reached findings or expressed concern regarding violations of ihl directly. This was epitomised by early Inter-American Commission decisions, or the African Commission decision discussed above, or by the much more recent ECtHR Hassan judgment. Yet for the most part there is a common—and in some cases growing—reluctance on the part of human rights bodies to be seen to ‘apply’ ihl, which is understandable where the mandate of the particular body is to apply particular human rights treaties. Commonly, the relevance of ihl has centered on its role in the interpretation of ihrl norms. However, as noted above, the actual influence of ihl on the interpretation and application of ihrl is rarely apparent. In this interpretative

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process, on a number of occasions bodies have had regard to the lex specialis rule, or have been otherwise guided by the icj’s determinations in this regard, albeit without clarifying their working understanding of that rule or the implications of interplay in practice. In rare instances, such as the Hassan judgment, the ‘interpretative’ process of ‘accommodation’ has effectively led to the ihl provisions determining the outcome of the case. In relation to issues of interplay, where bodies have had regard to ihl explicitly, they have commonly done so in broad terms, placing emphasis on the complementarity of the legal regimes. In this context ihl has at times been invoked as a supplementary argument, apparently bolstering the consistent central findings on respect for ihrl obligations in the context of conflict. On other occasions, including those where ihrl and ihl principles appear to diverge, such as in relation to the right to life in armed conflict or lawful bases for detention, human rights bodies have had no explicit regard to ihl, yet closer analysis may suggest that in at least certain factual scenarios they have adopted context-specific analyses that inevitably drew them, at least implicitly, to the consideration of ihl principles. This arose most notably, but not exclusively, before the ECtHR which initially showed particular reluctance to acknowledge any role for ihl explicitly while still using ihl-reminiscent language. Yet, as discussed, the tide may have turned in Strasbourg. Even if the approaches discussed in this chapter cannot always be fully and rationally explained, some relevant factors can be identified as potentially influential to the evolving commonalities and differences in the approaches of human rights bodies. These include, of course, the underlying legal framework, notably in terms of the scope of the treaty itself (and its provisions, if any, on armed conflict and ihl). One significant trend that has been highlighted is the emergence of newer human rights treaty provisions that embrace ihl explicitly. As provisions such as those in the Convention on the Rights of the Child or the Convention on the Rights of Persons with Disabilities discussed above emerge and are implemented, this is likely to contribute to these bodies shifting to a more overt role in determining compliance with ihl obligations. The relevance of treaty provisions on interpretation and sources of law in the context of the Inter-American or African systems has also been noted, while the evolution of interpretative principles such as the duty to ensure that rights are ‘practical and effective’ may also have an impact on the evolving approach of the ECtHR. Undoubtedly myriad other factors concerning the politics, legal culture and experience of the relevant institutions and expertise of individual judges also play a role, the analysis of which falls beyond these brief concluding remarks. The survey set out in this chapter suggests that the essential role and identity

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of human rights bodies in general as entities protecting human rights, and their diverse mandates in particular, are significant factors that may influence their approach to ihl and issues of interplay. As regards the role and mandate of human rights bodies generally, a degree of tension emerges from several trends. On the one hand, there is growing recognition of the need for a holistic approach to international law, but, on the other, this may not always align with the particular protective purpose of human rights bodies. In the ECtHR, for example, the trend towards an outwardlooking perspective that considers human rights law in light of, and as part of, a broader legal framework is increasingly evident. Yet so too is the robust defence of a ‘purposive’ and sometimes distinct approach to the interpretation of international law in light of the special protective purpose of a human rights convention, and the resolute determination to interpret it so as to avoid ‘vacuums of protection’. In the Inter-American system this protective purpose is coupled with the principle of the application of those norms that most favour the protection of human rights. Human rights bodies do not come to the debate on interplay in an agnostic way, if ever such an attitude were possible. More than the International Court of Justice, human rights bodies have a mandate, in fact a duty, to monitor and protect human rights and it is through this lens that they engage with ihl. This obviously colours their use and interpretation of ihl. It may also to some extent explain their reluctance to more overtly engage with ihl generally, and to embrace the notion of lex specialis specifically. Emphasising a context-specific analysis of human rights law may ultimately be perceived as being more in line with their protective mandates. While the results of a context-sensitive application of ihrl and of ihl will often lead to the same results, in certain circumstances the application of lex specialis would effectively result in standards that may not, from the perspective of the protective human rights role of these bodies, be considered the optimal result.153 It is notable in this respect that in the cases where ihl has been explicitly invoked, in very few was this immediately critical to the outcome of the body’s decisions. The potential of differing approaches to issues of ihl was foreshadowed in a decision of the Court of Justice of the European Union (cjeu).154 In the Diakité preliminary ruling, the cjeu endorsed trends towards a flexible understanding of the notion of ‘armed conflict’, which it effectively held had a 153 For example, as noted, particular provisions in relation to the right to life or the lawfulness of detention are areas where ihl and ihrl provide divergent standards. 154 Case C-285/12 Aboubacar Diakité v Commissaire général aux réfugiés et aux apatrides, 30 January 2014, EU:C:2014:39.

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d­ ifferent meaning if applied in the context of European refugee and asylum law than if applied in the context of ihl.155 It remains to be seen whether international human rights bodies, with their emphasis on the special human rights purpose, will also adopt this notion of ‘legitimate difference’. It is conceivable that the arguments of the cjeu and the Advocate General in the Diakité preliminary ruling that asylum law and international humanitarian law pursue different aims and that therefore the same concept can have a different meaning in both regimes can indeed, on occasion, be transposed to the setting of human rights bodies. While there is some merit in the idea that shared law can be applied differently by different bodies in different contexts and for different purposes,156 disparate interpretations of the concept of ‘armed conflict’ would render the engagement of human rights bodies with international humanitarian law even more precarious. Particular issues also arise from the differing specific roles that human rights bodies play, explored throughout this chapter. For example, the un committees have been most outward-looking in their general comments and their concluding observations. This is understandable since the nature of these processes allows a certain abstract or general engagement with ihl while permitting avoidance of the most tricky and sensitive matters, in contrast to litigation on individual cases. In turn, in their state reporting function, the nature of the process, with its diplomatic dialogue and somewhat more political flavour as well as less conclusive results, may have contributed to the more limited references to ihl. As regards individual petitions and judicial or quasi-judicial proceedings, different considerations may arise. Notably, as indicated above, the arguments brought by the parties are often crucial if not defining as to the focus of the decisions. For a range of different reasons, relating for example to political reluctance to acknowledge armed conflict by states and to litigation strategies on the part of petitioners and advocates, ihl arguments are not always raised even where they are in fact relevant to an understanding of applicable law. Sometimes, as in the Santo Domingo case before the Inter-American Court of

155 Ibid. at para 35. The Advocate General also emphasised that international humanitarian law and asylum law offer different protection mechanisms and therefore there was no need for ‘hermeneutic consistency’: ibid. at Opinion of Advocate General Mengozzi, para 71. 156 See Van den Herik and Harwood, ‘Commissions of Inquiry and the Charm of International Criminal Law: Between Transactional and Authoritative Approaches’, in Alston and Knuckley (eds.), The Transformation of Human Rights Fact-Finding (oup, 2015) at 233–254.

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Human Rights,157 courts will invoke ihl on their own motion even if not engaged by the parties. But in practice this is relatively uncommon. Rather, a key factor in the few cases where ihl has been referred to by courts highlighted above has clearly been the focus on ihl in the arguments of the applicants or of third party interveners. The fact that in an increasing number of cases, ihl issues are being brought to courts’ attention by states, by applicants or by the increasing engagement of third party interveners before human rights fora, is anticipated to constitute a critical factor influencing the engagement of those courts and bodies with ihl and issues of interplay in the future. In addition, it is noteworthy that several recent cases from all three regional systems where human rights bodies have addressed ihl have emerged from inter-state claims, where the existence and nature of the conflict was internationally accepted. These cases have put ihl centre stage on the agendas of human rights bodies and may be defining of the extent to which such courts are forced to grapple with the more difficult issues referred to above. The challenge facing human rights courts and bodies is formidable. Their relevance depends on their ability to interpret applicable law in a contextsensitive manner. At the same time they must meet their protective purpose and ensure no vacuum of protection for victims. While human rights bodies have often rightly been criticised where they fail to have regard to ihl, so too must they avoid an overreaching or ill-informed approach to that body of law. To some extent the challenge can be met by ensuring that such bodies are equipped with sufficient expertise in international law, including ihl. But the complexity and controversy around co-application of norms in particular situations renders it unsurprising that such courts have thus far been more inclined to make general assertions of co-applicability in principle than to grapple with often complex issues of interplay in concrete situations. No amount of caveats and critiques can lead to the conclusion that human rights bodies can or should disengage from ihl. Engagement enables adjudicating bodies to determine rights and obligations in light of the full body of applicable law, consistent with a cohesive approach to the international legal order. It ensures obligations of states can be appropriately and realistically interpreted in the context of armed conflict and in light of their other obligations. It may strengthen ihl so far as it enables victims of violations in armed conflict to pursue remedies, potentially compensating for the absence of ­individual complaints procedures under ihl. 157 Case of the Santo Domingo Massacre v Colombia IACtHR Series C 259 (2012).

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Disengagement is, as judges of the ECtHR recently put it, an option that is simply ‘off the table’.158 It seems inevitable that the stream of cases with a humanitarian law dimension that find their way to international courts and human rights bodies, will only increase in years to come.159 It would appear that the time has come for courts and human rights bodies to confront the legal, practical and political challenges, and to seize the opportunities presented by the co-application of ihl and ihrl in situations of armed conflict. Combining an outward-looking perspective that is cognisant of the full range of applicable law and the importance of coherence and effectiveness in international law and practice, while meeting the internal purpose of the human rights system to provide effective human rights protection, is now a prerequisite of human rights courts and bodies operating under the international rule of law. 158 Partly Dissenting Opinion of Judge Spano joined by Judges Nicolaou, Bianku and Kalaydjieva in Hassan v United Kingdom, supra n 128 at para 18. 159 See also, for example, International Criminal Court, Communication to the Prosecutor by Reprieve, The Situation in Afghanistan: The Use of Drone Strikes in Pakistan, 19 February 2014.

chapter 13

The Use Made by the Organs of the European Convention on Human Rights of Reference to the Views of Other Human Rights Bodies in Addressing the Scope of the Extraterritorial Applicability of the Convention Françoise J. Hampson 1 Introduction This chapter seeks to analyse the extent to which the European Commission of Human Rights (‘the European Commission’) and the European Court of Human Rights (ECtHR) have drawn on the decisions and views of other human rights bodies in determining the scope of the extraterritorial applicability of the European Convention on Human Rights (echr). A range of preliminary points need to be made at the outset. The title refers to the organs of the echr because much of the relevant early case law came from the European Commission and not the Court. The reference to the ‘views’ of other human rights bodies is not confined to binding legal judgments (see E below). This text does not address what can be referred to as the Soering1 line of cases, in other words situations in which the state acts within its territory but may thereby expose an individual to the risk of a violation outside national territory and at the hands of third parties; nor does it address situations occurring within parts of national territory over which the state has lost control.2 By way of background, the following observations are made. A. The question at the heart of this book is not part of the fragmentation debate. In that context, the debate concerns coherence between different fields of international law. B. The issue here is coherence and consistency within one field. This issue assumes that there should be such coherence and might suggest that states should not be free to articulate distinctive obligations in different 1 Soering v United Kingdom Application No 14038/88, Merits and Just Satisfaction, 7 July 1989. 2 For example, Cyprus over northern Cyprus, Moldova over Transdniestria and Georgia over South Ossetia and Abkhazia.

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human rights treaties. Such particularities may arise in at least two ways. The first is an issue which is addressed in a distinctive way in a particular region.3 The second is the provision of more specific obligations in specialist treaties than in more general ones.4 There is, of course, no reason why states should not seek and be free to put different provisions in different treaties. Clearly, effect should be given to such differences. It would be wrong to read all the very specific obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment into the International Covenant on Civil and Political Rights (iccpr), for example. That does not, however, undermine the argument in favour of consistency and coherence when dealing with the same type of provision and/or the same type of treaty. In other words, one would expect similar provisions in general treaties (for example, the African Charter on Human and Peoples’ Rights, the echr, the American Convention on Human Rights (achr) and the iccpr) to be treated in the same way, unless there was a specific reason not to do so. Equally, a similar provision in different types of treaties should be treated in the same way, but with a possibly wider margin for the existence of specific reasons not to do so. The issue of coherence is particularly important given the likelihood that a state will be bound by a range of international and regional human rights treaties, of both a specific and general character.5 C. What does coherence mean in this context? The obligations of a state need to be coherent. That does not mean that they need to be identical. It does mean that they ought not to be conflicting. The mere fact that one body determines that there has been no violation, whereas another, faced with the same facts, decides that there has been a violation is not necessarily a conflicting result. It is only truly conflicting if the first body requires the state to do something which the second body prohibits the state from doing. Whilst the avoidance of conflict is a start, there may be a desire for a more amorphous goal—the achievement of coherence. For 3 For example, the express provision with regard to the start of life in Article 4(1) achr. 4 For example, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against Women and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as compared to the International Covenant on Civil and Political Rights. 5 For example, the problem that arose for Denmark following the conclusions of the Committee on the Elimination of Racial Discrimination (cerd) and the finding of a violation of Article 10 echr by the ECtHR in Jersild v Denmark Application No 15890/89, Merits and Just Satisfaction, 23 September 1994, for a penalty imposed on a journalist for reporting the views of others, which views could be argued to incite racial hatred (as to the cerd decision, see para 21 of Jersild).

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the reasons already given, that cannot mean identical outcomes but it might refer to a similarity of approach – whatever that means. D. Questions of human rights law, international law and both. There are three different types of reasons why the echr organs might have recourse to what other human rights bodies have said. First, some issues in the search for coherence may only concern human rights law, as understood by different human rights bodies. One example of that is ‘enforced disappearances’. Generally, it involves similar issues for various human rights bodies and does not involve any issues under international law (such as, for example, sources, treaty interpretation, state responsibility or immunity). In specific circumstances, there may be an analogy with the missing in war, which raises the question of the relationship between human rights law and the law of armed conflict.6 Second, other issues may involve the relationship between human rights law and international law generally.7 In other cases, the issue may involve a human rights perspective on a question of general international law.8 These last two categories overlap. The scope of extraterritorial applicability of human rights obligations comes into the last two categories. It does not just involve a question of human rights law. It also concerns the extraterritorial scope of legal obligations more generally and an understanding of what is meant by ‘jurisdiction’, where a victim has to have been within, or subject to, the jurisdiction of the state. These represent two significantly different but equally pressing reasons why a human rights body might wish to see what other human rights bodies are doing. The first is to deal with a human rights question in the same way. The second is to take the same approach to a question involving human rights law in the wider context of international law generally. E. The approach of a human rights body to referring to the views of other bodies may vary over time and may vary as between different bodies as follows. 6 For example, Varnava and Others v Turkey Applications Nos 16064/90 et al., Merits and Just Satisfaction, 18 September 2009. 7 For example, state immunity as a bar to access to court: Al-Adsani v United Kingdom Application No 35763/97, Merits, 21 November 2001. See also Sayadi and Vinck v Belgium (1472/2006) Views, CCPR/C/94/D/1472/2006 (2008); Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-6351; and Al-Jedda v United Kingdom Application No 27021/08, Merits and Just Satisfaction, 7 July 2011, on the relationship between a state’s obligations under human rights treaties and under United Nations Security Council resolutions. 8 For example, reservations to human rights treaties.

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i.

As a matter of general impression, over time the echr organs have become more willing to refer to the decisions of other bodies. That applies across the whole spectrum of issues and not just in relation to the scope of the extraterritorial applicability of the echr. One possible conclusion is that this indicates an increasing openness (but that is not the only one). It is necessary to consider what issues other bodies had addressed by the time the Convention organs were dealing with it. By the time the European Commission and Court had to deal with enforced disappearances in individual cases, the organs of the achr had had very considerable experience of dealing with the issue. That is not true of the scope of extraterritorial applicability. When the European Commission first started dealing with the issue, neither the Inter-American Commission on Human Rights (iachr), the Inter-American Court of Human Rights (IACtHR) nor the Human Rights Committee (hrc) had done so. A chronological approach to the Strasbourg case law will therefore be adopted, first to see whether there is any evolution in the approach of the echr organs and to make it easier to see what other expressions of views were available to the Convention organs. ii. Do the echr organs attach varying significance to different types of pronouncements and/or the views of different types of bodies? For example, the Court might be particularly interested in the views of other bodies delivering binding legal judgments. In that case, it would be most interested in the International Court of Justice (icj) exercising its contentious jurisdiction and the IACtHR, but less concerned with the icj exercising its advisory jurisdiction or the hrc delivering its opinions. Or it might be most interested in the decisions in individual cases, rather than in concluding observations and general comments. For present purposes, when considering what the ECtHR could have considered, attention will be paid to concluding observations, general comments and individual cases decided by the hrc, the judgments of the IACtHR and the opinions of the iachr exercising their jurisdiction under the achr, and the opinions and judgments of the icj. Less attention will be paid to the decisions of the iachr exercising its functions under the Charter of the Organization of American States and the American Declaration of the Rights and Duties of Man, since the Declaration does not contain a jurisdictional clause. iii. Where the European Commission or the ECtHR make reference to the views of other bodies, it will be necessary to try to determine

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whether they do so to confirm what they wanted to do anyway, use it to help them to determine what to do, or whether they note the other decision(s) but do something different, with or without reasons. iv. The scope of the extraterritorial applicability of human rights law in practice overlaps but is not coterminous with the question of the relationship between human rights law and international humanitarian law (ihl). The latter question will not be considered at all in this chapter 2

The Case Law on Extraterritorial Applicability

A 1960s to November 2001 In this period, the Commission dealt with the scope of extraterritorial applicability on a significant number of occasions and the Court on only a few.9 In none of the cases was reference made to the views of other human rights bodies or of the icj on the question. Furthermore, the Commission and Court did not refer to other significant legal texts specifically in relation to extraterritoriality.10 There was occasional reference to general propositions (for example, that jurisdiction was normally territorial) but without reference to supporting authority from international law generally or the views of other human rights bodies. There was also reference to international legal texts as part of factual context. 9

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X. v Germany Application No 1611/62, Commission Decision, 25 September 1965; Cyprus v Turkey Applications Nos 6780/74 and 6950/75, Commission Decision, 26 May 1975; Hess v United Kingdom Application No 6231/73, Commission Decision, 28 May 1975; X. and Y. v Switzerland Application No 7289/75, Commission Decision, 14 July 1977; X. v United Kingdom Application No 7547/76, Commission Decision, 15 December 1977; Cyprus v Turkey Application No 8007/77, Commission Decision, 10 July 1978; W. v United Kingdom Application No 9348/81, Commission Decision, 28 February 1983; Bui Van Thanh and Others v United Kingdom Application No 16137/90, Commission Decision, 12 March 1990; Chrysostomos, Papachrysostomou and Loizidou v Turkey Applications Nos 15299/89 et al., Commission Decision, 4 March 1991; Drozd and Janousek v France and Spain Application No 12747/87, Merits and Just Satisfaction, 26 June 1992; M. v Denmark Application No 17392/90, Commission Decision, 14 October 1992; Illich Sánchez Ramirez v France Application No 28780/95, Commission Decision, 24 June 1996; Loizidou v Turkey Application No 15318/89, Just Satisfaction, 28 July 1998; Yonghong v Portugal Application No 50887/99, Commission Decision, 25 November 1999; and Cyprus v Turkey Application No 25781/94, Merits, 10 May 2001. Such as the Vienna Convention on the Law of Treaties 1969.

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The underlying rationale for the view of the echr organs in this period was unclear. They thought the Convention applied in occupied territory but there was no indication whether this referred to occupation as understood under ihl and the extent to which it applied during the course of establishing effective control over the territory in question or to an occupation marked by considerable levels of violence and disturbance.11 The Convention appeared to apply in various other circumstances but the linking features were unclear.12 In part this was because the Commission not infrequently found the applicant to have been within the jurisdiction, but for other reasons found the application inadmissible.13 This may have led the Commission to be less rigorous than it would otherwise have been on the question of jurisdiction. There was some reason to believe that extraterritorial detention might be within the jurisdiction.14 There was also a line of case law on the activities of diplomatic and consular officials outside national territory.15

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The cases in this period all involved the Turkish occupation of northern Cyprus since 1974. 12 The echr organs did not and do not have the practice of issuing general comments, which means that they have not been able to consider a question generally and in the round. They only deal with a question when it is relevant to the particular case before them. In this respect they resemble courts in common law jurisdictions but without the advantage of sufficient cases on each and every issue to be forced to identify the underlying reason for a position in a short period of time. The Court’s advisory opinion jurisdiction is extremely limited and does not include issues which could be raised before it in an individual or inter-state case. Protocol No 16, which has not yet entered into force, would extend the Court’s advisory jurisdiction by enabling the Court to address questions submitted by the highest courts of states parties, specifically in the context of a case pending before the latter. In the Court’s ‘Reflection paper on the proposal to extend the Court’s advisory jurisdiction’, it is stated: ‘Advisory opinions provide an opportunity to develop the underlying principles of law in a manner that will speak to the legal systems of all the Contracting Parties. They may therefore be of comparable significance to the Court’s leading judgments and foster a harmonious interpretation of the minimum standards set by the Convention rights and thus an effective protection of human rights throughout the Contracting States’. (footnote omitted): see ECtHR, ‘Reflection paper on the proposal to extend the Court’s advisory jurisdiction’, Ref No 3853038, at para 5. The Court, however, also wished to avoid an abstract review (at para 29). It seems unlikely that the new procedure will enable the Court to produce something resembling the general comments of un treaty bodies. 13 For example, Hess v United Kingdom, supra n 9. 14 Ibid. 15 For example, X. v Germany, supra n 9; and X. v United Kingdom, supra n 9.

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By November 2001, the icj had issued its advisory opinion on the Legality of the Threat or Use of Nuclear Weapons,16 the Human Rights Committee had articulated its position in two individual cases17 and frequently, albeit in very general terms, in concluding observations, and the Inter-American Commission on Human Rights had delivered its opinion in four cases.18 The most directly relevant decisions were those of the Human Rights Committee, which required the interpretation of a similar phrase to that found in the echr. B December 2001 to November 2004: A Change in the Practice This period started with the admissibility decision of the Grand Chamber of the European Court in the case of Banković and Others v Belgium and Others19 (on the issue of jurisdiction) which has probably attracted more academic comment than any other admissibility decision in the history of the Commission and Court. The Court, in a section on relevant international legal materials, referred to the Treaty of Washington 1949, the Vienna Convention on the Law of Treaties 1969, the travaux préparatoires of the echr, the American Declaration on the Rights and Duties of Man 1948, the four Geneva Conventions of 1949 and the International Covenant on Civil and Political Rights 1966.20 In its reasoning, the Court referred to the Vienna Convention.21 It also referred to

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icj Reports 1996, 226. Sergio Euben Lopez Burgos v Uruguay (R.12/52) Views, A/36/40 at 176 (1981); and Lilian Celiberti de Casariego v Uruguay (56/1979) Views, CCPR/C/OP/1 at 92 (1981). For illustrative examples of Human Rights Committee concluding observations which assume the occupying power has obligations under the iccpr in occupied territory, see areas in Lebanon over which Israel exercised effective control: hrc, Concluding observations regarding Israel, 28 July 1998, CCPR/C/79/Add.93, at para 10 (cf. concluding observations regarding Lebanon, 7 April 1997, CCPR/C/79/Add.78, at paras 4–5, which refer to occupation); alleged violations in Lebanon at the hands of Syrian security forces: Concluding observations regarding Syria, 5 April 2001, CCPR/CO/71/SYR, 24 April 2001, at para 10. The issue of Moroccan control over Western Sahara has been raised principally in the context of the exercise of the right to self-determination: see concluding observations regarding Morocco, 29 October 1999, CCPR/C/79/Add.113, at para 9; and concluding observations regarding Morocco, 3 November 2004, CCPR/CO/82/MAR, at paras 8 and 18. Case 9213, Disabled Peoples’ International et al. v United States Report No 3/96 (1996); Case 10.573, Salas and Others v United States Report No 31/93 (1993); Case 11.589, Armando Alejandre Jr, Carlos Costa, Mario de la Pena y Pablo Morales v Cuba Report No 86/99 (1999); and Case 10.951, Coard et al. v United States Report No 109/99 (1999). Application No 52207/99, Admissibility, 12 December 2001. Ibid. at paras 14–27. Ibid. at paras 55–57.

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the works of academics with regard to the meaning of jurisdiction,22 as well as to the travaux23 and its own case law.24 The references to its own case law included three cases declared admissible but not, at that time, decided on the merits.25 The applicants had specifically referred to the case law of the Human Rights Committee and the Inter-American Commission on Human Rights. The Court stated: [T]he Court does not find it necessary to pronounce on the specific meaning to be attributed in various contexts to the allegedly similar jurisdiction provisions in the international instruments to which the applicants refer because it is not convinced by the applicants’ specific submissions in these respects (see § 48 above). It notes that Article 2 of the American Declaration on the Rights and Duties of Man 1948 referred to in the above-cited Coard Report of the Inter-American Commission of Human Rights (§ 23 above), contains no explicit limitation of jurisdiction. In addition, and as to Article 2 § 1 the ccpr 1966 (§ 26 above), as early as 1950 the drafters had definitively and specifically confined its territorial scope and it is difficult to suggest that exceptional recognition by the Human Rights Committee of certain instances of extra-territorial jurisdiction (and the applicants give one example only) displaces in any way the territorial jurisdiction expressly conferred by that Article of the ccpr 1966 or explains the precise meaning of ‘jurisdiction’ in Article 1 of its Optional Protocol 1966 (§ 27 above). While the text of Article 1 of the American Convention on Human Rights 1978 (§ 24 above) contains a jurisdiction condition similar to Article 1 of the European Convention, no relevant case-law on the former provision was cited before this Court by the applicants.26 The express exclusion of the views of other human rights bodies is particularly striking given the willingness of the Court to rely on other types of international legal authority. The exclusion of the iachr’s case law could be understood

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Ibid. at paras 59–60. Ibid. at para 63. Ibid. at paras 64 and 68–73. Issa and Others v Turkey Application No 31821/96, Admissibility, 30 May 2000; Öcalan v Turkey Application No 46221/99, Admissibility, 14 December 2000; and Ilaşcu and Others v Moldova and Russia Application No 48787/99, Admissibility, 4 July 2001. Banković and Others v Belgium and Others, supra n 19 at para 78.

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on the basis that the text they were interpreting did not include a jurisdiction clause. It is less easy to understand in the case of the Human Rights Committee. The main discussion of extraterritoriality in the case of Öcalan occurred at the merits stage. In the admissibility decision, the Court indicated that the government had raised the issue of jurisdiction in relation to the complaint under Article 5(1) of the echr with regard to Öcalan’s detention by Turkish security personnel in Kenya. Neither the applicant nor, more surprisingly, the Court referred to that question. The Court only considered the separate claim of non-exhaustion.27 In the decision on the merits, the applicant, the government and the Court addressed the issue in the same context.28 Reference was made to its own case law in relation both to extraterritorial applicability and also judicial cooperation and extradition.29 No reference was made to other sources of international law but the applicant did refer to the domestic law of various jurisdictions, including non-European ones.30 The next case in which the extraterritorial scope of the Convention was addressed was Ilaşcu and Others v Moldova and Russia.31 Whilst the Court in Banković had referred to the admissibility decision in the Ilaşcu case, in fact the scope of the extraterritorial applicability of the Convention had been determined to be closely linked to the merits and was only addressed at that stage. The Court dealt with both jurisdiction and state responsibility. With regard to the former, it referred only to its own previous case law. With regard to the latter, it referred, in general terms, to the work of the International Law Commission (ilc).32 Following the reliance the applicants in the Banković case had placed on the admissibility decision in Issa,33 the Court invited the parties to the latter case to address the issue of jurisdiction in that case. The Court subsequently determined that the applicants had not made out their claims on the facts.34 In that decision, the Court had to address again the scope of extraterritorial applicability of the Convention. It quoted the Court’s case law, including recent 27 28 29 30 31 32 33 34

Öcalan v Turkey, supra n 25. Öcalan v Turkey Application No 46221/99, Merits and Just Satisfaction, 12 March 2003. Ibid. at paras 86–93. Ibid. at para 83. Application No 48787/99, Merits and Just Satisfaction, 8 July 2004. Ibid. at paras 310–321. Issa and Others v Turkey, supra n 25. This author was both one of the applicants’ legal representatives in the case of Banković and the original representative in the case of Issa. Issa and Others v Turkey Application No 31821/96, Merits, 16 November 2004. This was a surprising decision in view of the material submitted with the application.

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cases such as Banković and Gentilhomme, Schaff-Benhadji and Zerouki v France.35 The Court stated that a State may also be held accountable for violation of the Convention rights and freedoms of persons who are in the territory of another State but who are found to be under the former State’s authority and control through its agents operating—whether lawfully or unlawfully—in the latter State (see, mutatis mutandis, M. v. Denmark, application no. 17392/90, Commission decision of 14 October 1992, dr 73, p. 193; Illich Sanchez Ramirez v. France, application no. 28780/95, Commission decision of 24 June 1996, dr 86, p. 155; Coard et al., v. the United States, the Inter-­American Commission of Human Rights decision of 29 September 1999, Report No. 109/99, case No. 10.951, §§ 37, 39, 41 and 43; and the views adopted by the Human Rights Committee on 29 July 1981 in the cases of Lopez Burgos v. Uruguay and Celiberti de Casariego v. Uruguay, nos. 52/1979 and 56/1979, at §§ 12.3 and 10.3 respectively). Accountability in such situations stems from the fact that Article 1 of the Convention cannot be interpreted so as to allow a State party to perpetrate violations of the Convention on the territory of another State, which it could not perpetrate on its own territory (ibid.).36 The Court provided no explanation as to why the case law of other human rights bodies was relevant to this case, when it had been so peremptorily dismissed in the Banković case. By November 2004, the icj had delivered its advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory.37 In that opinion, the icj found both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights to be applicable in Occupied Palestinian Territory. There had been no further individual case law from other human rights bodies but the Human Rights Committee had continued to maintain the applicability of human rights law in occupied territory in concluding observations to state reports. It had also adopted General Comment No 31 on 29 March 2004,38 in which it stated: 35 36 37 38

Applications Nos 48205/99 et al., Merits and Just Satisfaction, 14 May 2002. Issa and Others v Turkey, supra n 34 at para 71. icj Reports 2004, 136. General Comment No 31: The nature of the general legal obligation imposed on States parties to the Covenant, 29 March 2004, CCPR/C/21/Rev.1/Add.13.

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States Parties are required by article 2, paragraph 1, to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction. This means that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party. … This principle also applies to those within the power or effective control of the forces of a State Party acting outside its territory, regardless of the circumstances in which such power or effective control was obtained, such as forces constituting a national contingent of a State Party assigned to an international peace-keeping or peace-enforcement operation.39 C November 2004 to Present The decision of the Grand Chamber in the case of Öcalan40 was delivered in 2005. In its indication of relevant international law, the Court only cited provisions relating to the death penalty, both Council of Europe and general international developments. The applicant and the government repeated their arguments before the Chamber, including reference to the Court’s case law but to no other international material regarding extraterritorial applicability.41 The Grand Chamber referred to its own case law but only that concerning judicial co-operation and extradition.42 In 2007, the Court delivered its admissibility decision in two joined cases which, at first sight, involved extraterritorial applicability. Indeed, the respondent governments initially pleaded the case in those terms, until it occurred to them that they might be able to ‘pass the buck’ more reliably and comprehensively to the United Nations. Behrami and Behrami v France and Saramati v France, Germany and Norway concerned, respectively, kfor and unmik activities in Kosovo.43 Attribution has to be considered before jurisdiction. Once the ECtHR had determined (wrongly, it is submitted) that the acts and omissions were attributable solely to the un, it was no longer necessary for it to consider 39 40 41 42

43

Ibid. at para 10. Öcalan v Turkey Application No 46221/99, Merits and Just Satisfaction, 12 May 2005. Ibid. at paras 74–82. Ibid. at paras 85–91. There was a reference to Stocké v Germany Application No 11755/85, Merits, 19 March 1991, which involved alleged extraterritorial acts in the context of judicial co-operation. Applications Nos 71412/01 and 78166/01, Admissibility, 2 May 2007, or initial pleadings by respondent governments, see paras 68–69.

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whether the applicants were within the jurisdiction of France and Norway respectively. It is only where the Court concludes that the acts or omissions are attributable to a Council of Europe member state that it becomes necessary to consider whether the victims were within the jurisdiction of the state.44 One case on the scope of extraterritorial applicability to which reference is not often made is that of Isaak v Turkey, where the incident at issue occurred in the un buffer zone in Cyprus.45 The applicant, the respondent government and the intervening government did not raise the issue of jurisdiction. More strikingly, the Court did not raise it proprio motu. Another case, again dealing with killings, is Pad and Others v Turkey.46 The circumstances of that case, including the place where the applicants’ relatives were killed, were disputed between the parties. The case was declared inadmissible on account of nonexhaustion of domestic remedies. The facts therefore did not need to be established by the Court. Nevertheless, given the claim by the applicants that the initial events took place in Iran, it is striking that Turkey did not dispute the jurisdiction of the Court. The Court stated that ‘it is not required to determine the exact location of the impugned events, given that the Government had already admitted that the fire discharged from the helicopters had caused the killing of the applicants’ relatives, who had been suspected of being terrorists’.47 It is unclear whether the Court was saying that the issue of jurisdiction did not arise because the government had conceded it or whether it disregarded the issue of jurisdiction, where the government conceded that its own actions had brought about the violation. It may well be that the Court was less than clear in its reasoning on this issue because it knew it was going to find the case inadmissible on other grounds. There followed a series of three cases involving British operations in southern Iraq after 2003. In Al-Saadoon and Mufdhi v United Kingdom, the applicants were initially interned by British armed forces before being transferred to criminal detention, in the expectation that they would be tried by the Iraqi 44 45

46 47

This was an important issue in Jaloud v The Netherlands Application No 47708/08, Merits and Just Satisfaction, 20 November 2014 (see discussion below). Application No 44587/98, Merits and Just Satisfaction, 24 June 2008. For example, it was not referred to in the comprehensive review of the Strasbourg case law in the hearing before the English High Court in Al-Skeini and Others v Secretary of State for Defence [2004] ewhc 2911. For other cases on alleged violations occurring in the ‘buffer zone’, see Andreou v Turkey Application No 45653/99, Admissibility, 3 June 2008. Application No 60167/00, Admissibility, 28 June 2007. Ibid. at para 54. The Court did not refer to any international legal materials as being relevant and, in its reasoning, only referred to its own case law.

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High Tribunal.48 The uk did not transfer them, owing to a fear that they could potentially be subject to the death penalty. There was also concern regarding the risk of torture, inhuman or degrading treatment. At the domestic level, the issue of jurisdiction and the possibly conflicting obligations of the uk were examined in detail by the Court of Appeal. In the section on relevant national and international legal material, the European Court included provisions of the Fourth Geneva Convention of 1949, an Article in the Vienna Convention on Diplomatic Relations and domestic legal provisions.49 It also referred to various Council of Europe materials.50 Interestingly, in examining the obligation of a sending state to make representations against the death penalty, the Court referred to two Human Rights Committee decisions and one of the Human Rights Chamber of Bosnia–Herzegovina.51 The Court only considered the scope of the obligation of a state in relation to the imposition of the death penalty by a third party and the issue of conflicting legal obligations. It did not consider whether the applicants were within the jurisdiction of the uk. In considering conflicting legal obligations and in rejecting an analogy with diplomatic asylum, the Court cited its own case law but no other international authority. Two other cases arising out of British involvement in Iraq were decided on the same day. Al-Jedda dealt with detention52 and Al-Skeini with the obligation to carry out an effective investigation into possibly unlawful deaths.53 In the former, the Court identified provisions of international humanitarian law, the un Charter, the Vienna Convention on the Law of Treaties, case law of the icj, the Court of Justice of the European Union and the us Supreme Court as being relevant.54 In addition, it referred to materials of the ilc and the Copenhagen Process on the ‘Handling of Detainees in International Military Operations’.55 The Court in Al-Jedda addressed the issue of attribution but did not deal ­specifically with the question of jurisdiction. It is unclear why it did not 48 49 50 51

52 53 54 55

Application No 61498/08, Merits and Just Satisfaction, 2 March 2010. Ibid. at paras 90–93. Ibid. at paras 95–96. Ibid. at paras 97–99, which referred to Chitat Ng v Canada (469/1991) Views, CCPR/ C/49/D/469/1991 (1993); Roger Judge v Canada (829/1998) Views, CCPR/C/78/D/829/1998 (2002); and Boumediene and Others, Human Rights Chamber, 11 October 2002. Al-Jedda v United Kingdom Application No 27021/08, Merits and Just Satisfaction, 7 July 2011. Al-Skeini and Others v United Kingdom Application No 55721/07, Merits and Just Satisfaction, 7 July 2011. Al-Jedda v United Kingdom, supra n 52 at paras 42–54. Ibid. at paras 55–58.

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do so once it had determined that the acts in question were attributable to the uk. It may be that, after the decision in Öcalan, the Court regarded the question of the applicability of the Convention to extraterritorial detention as being settled. In Al-Skeini, the Court did consider the issue of jurisdiction. It identified provisions of the Geneva Conventions on belligerent occupation and the case law of the icj on the relationship between ihl and human rights law and the extraterritorial applicability of human rights law as being relevant.56 It also referred to a report by the un Special Rapporteur on extrajudicial, summary or arbitrary executions and a decision of the Inter-American Court of Human Rights.57 Having addressed attribution, the Court went on to consider whether the applicants were within the jurisdiction.58 The issue was addressed by the government, the applicants and the interveners. The Court analysed the various situations in which the applicants might come within the jurisdiction of a state outside national territory. In doing so, it referred only to its own case law. The basis on which the Court found the applicants to be within the jurisdiction of the uk was very specifically the nature of the authority exercised by the us and the uk in Iraq after 16 May 2003. That was based on Coalition Provisional Authority (cpa) Regulation No 1 of that date59 and Security Council Resolutions 1483 and 1511, adopted on 22 May 2003 and 16 October 2003 respectively, which confirmed the nature of that authority, until Security Council Resolution 1546, adopted on 8 June 2004, announced the end of the authority of the cpa on 28 June 2004. The Court made no reference in its reasoning to the international legal materials which it had identified as being relevant. It is therefore not possible to determine the role played by those materials in its decision.

56

57

58 59

Al-Skeini and Others v United Kingdom, supra n 53 at paras 89–94. With regard to ihl, the Court referred to the Regulations annexed to Hague Convention iv of 1907, the Fourth Geneva Convention of 1949 and Additional Protocol i of 1977 and to the Third Geneva Convention of 1949 in relation to the obligation to investigate the deaths of prisoners of war. With regard to icj case law, the Court referred to the advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, supra n 37, and its judgment in Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) Merits, Judgment, icj Reports 2005, 168. Ibid. at paras 93–94. The report was a ‘regular’ report, E/CN.4/2006/53. The decision of the Inter-American Court of Human Rights concerned specifically the obligation to investigate a massacre carried out by a paramilitary group: Case of the ‘Mapiripán Massacre’ v Colombia IACtHR Series C 134 (2005). Ibid. at paras 130–149. See: www.iraqcoalition.org/regulations/.

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The next two cases concerned whether persons on board naval vessels on the high seas are within jurisdiction. In the first, Hirsi Jamaa and Others v Italy,60 the respondent government challenged whether the applicants were within its jurisdiction. A range of international legal materials was referred to, including Articles 92 and 94 of the un Convention on the Law of the Sea 1982, which address the exercise of jurisdiction over naval vessels. In its judgment, the Court referred to its own case law, including the admissibility decision in Medvedyev and Others v France, in which judgment was delivered shortly afterwards.61 It also expressly observed that, by virtue of the relevant provisions of the law of the sea, a vessel sailing on the high seas is subject to the exclusive jurisdiction of the State of the flag it is flying. This principle of international law has led the Court to recognise, in cases concerning acts carried out on board vessels flying a State’s flag, in the same way as registered aircraft, cases of extraterritorial exercise of the jurisdiction of that State … Where there is control over another, this is de jure control exercised by the State in question over the individuals concerned.62 The facts in the second case, Medvedyev and Others v France, were unusual in that the applicants were detained on a vessel flying the flag of a third State but whose crew had been placed under the control of French military personnel.63 The Court identified the Convention on the Law of the Sea and various texts on the suppression of the narcotics trade as being relevant.64 The government did not dispute that the applicants were within the jurisdiction but said that the Court needed to take account of the maritime environment.65 The Court examined proprio motu whether the applicants were within the jurisdiction of France. In doing so, it referred only to its own case law. It then stated:

60

61 62 63 64 65

Application No 27765/09, Merits and Just Satisfaction, 23 February 2012. The cases are discussed together owing to the similarity of the issue involved. In fact judgment was delivered in the Italian case before any of the British cases arising out of involvement in Iraq. Judgment in the French cases was delivered after Al-Saadoon and before Al-Jedda and Al-Skeini. Application No 3394/03, Merits and Just Satisfaction, 29 March 2010. Hirsi Jamaa and Others v Italy, supra n 60 at para 77. Medvedyev and Others v France, supra n 61. Ibid. at paras 27–37. Ibid. at para 49.

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[T]he Court notes that other recognised instances of the extraterritorial exercise of jurisdiction by a State include cases involving the activities of its diplomatic or consular agents abroad and on board aircraft and ships registered in, or flying the flag of, that State. In these specific situations, customary international law and treaty provisions have clearly recognised and defined the extraterritorial exercise of jurisdiction by the relevant State…66 There was nothing remotely controversial in the Court finding that the applicants were within the jurisdiction of France in these circumstances, as best evidenced by the fact that France never suggested that they were not. Given, however, that in some circumstances the Court does not address the issue of jurisdiction where it does appear to be potentially relevant on the facts, it is striking that it chose to do so in this case.67 Subsequent cases dealing with the situation in Transdniestria followed the analysis in Ilaşcu and Others.68 One of those cases requires separate mention. Catan and Others v Moldova and Russia dealt with the issue of education in the break-away region.69 It arguably raised three interlocking issues which have arisen in a number of subsequent cases. The questions of attribution and jurisdiction are separate but can be confused in the pleadings, as demonstrated by Behrami and Saramati.70 Where the respondent government is being held responsible for acts and omissions in foreign territory outside the context of an active armed conflict, the issue of occupation may arise and with it the relationship between the law of armed conflict and human rights law. In Catan the Court identified a range of international materials as relevant. They included the ilc Draft Articles on the Responsibility of States for Internationally Wrongful Acts and documents on the right to education.71 The Court also referred to two icj decisions, including the Genocide Case with specific reference to attribution.72 The Court relied on its own case law and indicated that it was up to Russia to demonstrate that the applicants in this particular case were not 66 67 68 69 70 71 72

Ibid. at para 65. For example, Isaak v Turkey, supra n 45; and Al-Jedda v United Kingdom, supra n 52. Supra n 31. Applications Nos 43370/04 et al., Merits and Just Satisfaction, 19 October 2012. Supra n 43. Catan and Others v Moldova and Russia, supra n 69 at paras 74 and 77–81. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) Merits, Judgment, icj Reports 2007, 43.

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within its jurisdiction.73 The Court clearly distinguished between attribution and jurisdiction. The Government of the Russian Federation contend that the Court could only find that Russia was in effective control if it found that the ‘Government’ of the ‘mrt’ could be regarded as an organ of the Russian State in accordance with the approach of the International Court of Justice in the Case Concerning the Application of the Convention on the Prevention and Punishment of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro …). The Court recalls that in the judgment relied upon by the Government of the Russian Federation, the International Court of Justice was concerned with determining when the conduct of a person or group of persons could be attributed to a State, so that the State could be held responsible under international law in respect of that conduct. In the instant case, however, the Court is concerned with a different question, namely whether facts complained of by an applicant fell within the jurisdiction of a respondent State within the meaning of Article 1 of the Convention. As the summary of the Court’s case-law set out above demonstrates, the test for establishing the existence of ‘jurisdiction’ under Article 1 of the Convention has never been equated with the test for establishing a State’s responsibility for an internationally wrongful act under international law.74 Given that the test for attribution, jurisdiction and occupation appears to be ‘effective control’, possibly with slightly different nuances in the different contexts, it is perhaps not surprising that there is some confusion in the case law. One case to which passing reference needs to be made is Al-Dulimi and Montana Management Inc. v Switzerland.75 In the light of the number of cases in which the jurisdictional issue has arisen out of acts and omissions outside national territory, it might be thought that that was the only source of jurisdictional disputes. This case shows that not to be the case. It concerned the responsibility of a Convention state when giving effect to a un Security Council resolution. It will not be further discussed here since it does not deal with the extraterritorial applicability of the Convention.

73 74 75

Catan and Others v Moldova and Russia, supra n 69 at paras 119–120. Ibid. at para 115. Application No 5809/08, Merits and Just Satisfaction, 26 November 2013, currently pending before the Grand Chamber.

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Hassan v United Kingdom involved the now common issue of detention outside national territory but in a novel context.76 The detention occurred during the period of hostilities in Iraq, rather than occupation. The Court identified the third and fourth Geneva Convention of 1949, the Vienna Convention on the Law of Treaties 1969, three icj cases on the relationship between human rights law and international humanitarian law, and the report of the Study Group of the ilc on Fragmentation of International Law as relevant international materials.77 The Court also examined materials on whether derogation was necessary in order to enable the Court to take account of ihl. The respondent government used the applicability of ihl to deny jurisdiction, as opposed to ‘simple’ extraterritoriality: The Government acknowledged that the Court had held that one situation where there might be jurisdiction under Article 1 was where the Contracting State’s agents operating outside its territory exercised ‘total and exclusive control’ or ‘full and exclusive control’ over an individual, for example where an individual was in the custody of the Contracting State’s agents abroad. However, they submitted that this basis of jurisdiction did not apply in the active hostilities phase of an international armed conflict, where the agents of the Contracting State in question were operating in territory of which they were not the occupying power. In such a case, the conduct of the Contracting State would, instead, be subject to all the requirements of international humanitarian law.78 The Court relied on its reasoning in Al-Skeini.79 It pointed out that ihl was also applicable in that case. In other words, it did not distinguish between active hostilities and occupation. It continued: Moreover, to accept the Government’s argument on this point would be inconsistent with the case – law of the International Court of Justice, which has held that international human rights law and international humanitarian law may apply concurrently … As the Court has observed on many occasions, the Convention cannot be interpreted in a vacuum and should so far as possible be interpreted in harmony with other rules of international law of which it forms part (see, for example, Al-Adsani 76 77 78 79

Application No 29750/09, Merits, 16 September 2014. Ibid. at paras 33–38. Ibid. at para 71. Supra n 53.

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v. the United Kingdom [gc]…). This applies equally to Article 1 as to the other articles of the Convention.80 The Court also rejected, on the facts, an alternative ground for rejecting jurisdiction, namely that the applicant’s brother had been transferred to us custody. There is a risk that respondent governments that put all their energy into denying jurisdiction fail to address some of the issues of substance raised or address them in a distorted way. Nothing prevents the use of alternative pleading. The next case, again arising out of the conflict in and subsequent occupation of Iraq, but this time involving a shooting was Jaloud v The Netherlands.81 The Court identified as being relevant the Hague Regulations of 1907, the fourth Geneva Convention of 1949, un Security Council Resolutions 1483 and 1511 (2003), three icj cases and the ilc’s Articles on State Responsibility.82 Documents relevant to the occupation of Iraq were also set out. The incident at issue occurred during the occupation phase of the situation in Iraq. In its reasoning, the Court made express reference to the icj advisory opinion in the case of the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory.83 The Court identified the applicable principles on the basis of its own case law. A certain measure of confusion was created by a section entitled ‘State agent authority and control’, in which all the examples given involved detention.84 Those cases might have been thought to be an example of complete control over the person of the victim. In applying the principles to the facts, issues of attribution overlap with questions of jurisdiction. The respondent government sought to argue that the British were in charge of the general area and that Iraqi forces were in charge of the checkpoint. The Court 80 81 82

83 84

Hassan v United Kingdom, supra n 76 at para 77. Application No 47708/08, Merits and Just Satisfaction, 20 November 2014. Ibid. at paras 90–98. The three icj cases referred to in Hassan, supra n 76, were Legality of the Threat or Use of Nuclear Weapons, supra n 16; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, supra n 37; and Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), supra n 56. The paragraphs cited all concerned the relationship between human rights law and ihl. In the case of Jaloud, the Court referred to the last two cases and to Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), supra n 72. In the case of Jaloud, the paragraphs cited addressed the extraterritorial applicability of the International Covenant on Civil and Political Rights, when a state is in occupation of territory and attribution. Jaloud v The Netherlands, supra n 81 at para 139. Ibid. at paras 133–136.

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first examined the status of an occupying power under international law and decided that that was not determinative of jurisdiction.85 It also determined that accepting operational control of another state (in this case, the uk) was also not decisive.86 The Court relied on the Security Council resolutions to establish that all parties present in Iraq were required to respect the Hague Regulations and Geneva Conventions.87 The Court concluded that the Dutch forces were present in the area to the exclusion of other forces and the Netherlands retained full command over its contingent.88 The test that the Court was seeking to apply derived from Article 6 of the ilc Articles on State Responsibility and that of the icj in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide case.89 The Court concluded that the applicant was within the jurisdiction of the Netherlands and that it did not need to investigate whether there was concurrent British jurisdiction.90 There then follows a brief section on attribution. The Court emphasises the distinction between jurisdiction and attribution: ‘[T]he test for establishing the existence of “jurisdiction” under Article 1 of the Convention has never been equated with the test for establishing a State’s responsibility for an internationally wrongful act under general international law’.91 It is not clear why it did not deal with attribution first. Many of the issues addressed under the rubric ‘jurisdiction’ in fact appear to have related to attribution. The last case to which reference must be made is the admissibility decision in Georgia v Russia (ii).92 This case has everything of which an international lawyer could dream: issues of possible Russian decisive influence in South Ossetia before the armed conflict,93 possible Russian attribution for the acts of the South Ossetian militia, the relationship between ihl and human rights law and the scope of the extraterritorial applicability of the Convention in the context of military operations. The only international legal material to which the Court made reference in its admissibility decision was the icj decision in the case brought by Georgia regarding obligations under the International

85 86 87 88 89 90 91 92 93

Ibid. at para 142, relying on its case law regarding Transdniestria. Ibid. at para 143. Ibid. at para 144. Ibid. at para 149. Ibid. at para 151. See also supra n 83. Ibid. at para 153; the uk was a third party intervener in the case. Ibid. at para 154. Application No 38263/08, Admissibility, 13 December 2011. That is analogous with Ilaşcu and Others v Moldova and Russia, supra n 31.

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Convention on the Elimination of All Forms of Racial Discrimination.94 The Court decided that the questions as to the respondent Government’s ‘jurisdiction’ in South Ossetia, Abkhazia and in the neighbouring regions and their responsibility for the acts complained of ‘are in principle to be determined at the merits stage of the proceedings’.95 It continued: Furthermore, bearing in mind the object and purpose of the Convention, the responsibility of a Contracting Party may also arise when as a consequence of military action—whether lawful or unlawful—it exercises effective control of an area outside its national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention, derives from the fact of such control whether it be exercised directly, through its armed forces, or through a subordinate local administration … Where the fact of such domination over the territory is established, it is not necessary to determine whether the Contracting State exercises detailed control over the policies and actions of the subordinate local administration…96 Given the evidence before it, the Court considered that it does not have sufficient elements enabling it to decide these questions. Moreover, as it has stated above, these matters are so closely connected to the merits of the case that they should not be decided at the present stage of the procedure.97 The Court concluded that ‘the question of the interplay of the provisions of the Convention with the rules of international humanitarian law in the context of an armed conflict belongs in principle to the merits stage of the procedure’.98 94

95 96 97 98

Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation) Preliminary Objections, Judgment, icj Reports 2011, 70. In its summary of the facts, the Court relied considerably on the Independent International Fact-Finding Mission on the Conflict in Georgia (‘the Tagliavini Report’), available at: news.bbc.co.uk/2/shared/bsp/hi/pdfs/30_09_09_iiffmgc_report.pdf, and the reports of ngos. The material cited in the annex also includes the Concluding observations of the Human Rights Committee regarding Russian Federation, 28 October 2009, CCPR/C/RUS/CO/6. Georgia v Russia (ii), supra n 92 at para 63. Ibid. at para 66. Ibid. at para 67. Ibid. at para 71.

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In analysing these issues, the Court refers only to its own case law in the body of the text. The decision does, however, contain a significant number of footnotes referencing the three icj decisions referred to in this chapter on the relationship between ihl and human rights law, the four Geneva Conventions of 1949 and two Additional Protocols of 1977, together with some of the material referred to in the annex to the Court’s decision, including the concluding observations of the Human Rights Committee regarding the Russian Federation adopted on 28 October 2009. 3

Whether the Relevant Decisions of the International Court of Justice and the Human Rights Committee Refer to the Opinions and Judgments of the European Commission and Court of Human Rights

Only in the Legal Consequences case99 and the Armed Activities case100 was the icj required to address the scope of extraterritorial applicability of human rights law.101 In the former, the icj adopted a teleological approach.102 The Court referred to the constant practice of the Human Rights Committee and to three of its decisions in individual cases. It also referred to the travaux préparatoires of the iccpr.103 The Court considered the Israeli position in its dialogue with the Human Rights Committee in the context of the submission of a state report and the concluding observations of the Committee.104 Somewhat baldly, and without giving any other explanation, the Court stated: ‘In conclusion, the Court considers that the International Covenant on Civil and Political Rights is applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory’.105 There was no qualification limiting applicability to situations of occupation and/or extraterritorial detention. Even more strikingly, the icj went on to consider the applicability of the International Covenant on Economic, Social and 99 Supra n 37. 100 Supra n 56. 101 In the Legality of the Threat or Use of Nuclear Weapons case, supra n 16, the icj had to consider the relationship between ihl and human rights law but not the question of jurisdiction. 102 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, supra n 37 at para 109. 103 Ibid. 104 Ibid. at para 110. 105 Ibid. at para 111.

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Cultural Rights in occupied territory. As the Court pointed out, that treaty contains no jurisdictional clause. The Court quoted from the expression of views by Israel and the Committee on Economic, Social and Cultural Rights, again in the context of a state report and concluding observations. It said that its reasoning was based on what it had said at paragraph 106 of the advisory opinion, which dealt exclusively with the relationship between ihl and human rights law. The Court concluded: It would also observe that the territories occupied by Israel have for over 37 years been subject to its territorial jurisdiction as the occupying Power. In the exercise of the powers available to it on this basis, Israel is bound by the provisions of the International Covenant on Economic, Social and Cultural Rights.106 The icj’s treatment of the applicability of the Convention on the Rights of the Child is even more stark: [T]hat instrument contains an Article 2 according to which ‘States Parties shall respect and ensure the rights set forth in the … Convention to each child within their jurisdiction ….’ That Convention is therefore applicable within the Occupied Palestinian Territory.107 In the Armed Activities case, the icj had to determine in a contentious case whether Uganda had obligations under the Covenant in those places in the drc where its armed forces were active. That included both territory which the Court regarded as occupied (Ituri)108 and areas in which the Ugandan forces were present but not in occupation. The Court relied, inter alia, on reports of the Special Rapporteur on extrajudicial, summary or arbitrary executions to establish the existence of massacres rather than for an analysis of the law.109 The Court referred to its own decision in the Legal Consequences case, both with regard to the relationship between ihl and human rights law and the extraterritorial applicability of human rights law.110 The Court concluded that

106 Ibid. at para 112. 107 Ibid. at para 113. 108 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), supra n 56 at para 178. 109 Ibid. at para 206. 110 Ibid. at para 216.

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Uganda violated, inter alia, Articles 6(1) and 7 of the iccpr.111 That necessarily implies that the iccpr is applicable extraterritorially but the finding is not explained, beyond the Court’s reliance on the Legal Consequences case. The Human Rights Committee adopted its views in the two cases referred to above before the icj adopted its own opinions and judgment.112 In the Lopez Burgos case, the Committee made no reference to any source of international law. It simply stated: 12.1 The Human Rights Committee further observes that although the arrest and initial detention and mistreatment of Lopez Burgos allegedly took place on foreign territory, the Committee is not barred either by virtue of article 1 of the Optional Protocol (‘… individuals subject to its jurisdiction …’) or by virtue of article 2 (1) of the Covenant (‘… individuals within its territory and subject to its jurisdiction …’) from considering these allegations, together with the claim of subsequent abduction into Uruguayan territory, inasmuch as these acts were perpetrated by Uruguayan agents acting on foreign soil. 12.2 The reference in article 1 of the Optional Protocol to ‘individuals subject to its jurisdiction’ does not affect the above conclusion because the reference in that article is not to the place where the violation occurred, but rather to the relationship between the individual and the State in relation to a violation of any of the rights set forth in the Covenant, wherever they occurred. 12.3 Article 2(1) of the Covenant places an obligation upon a State party to respect and to ensure rights ‘to all individuals within its territory and subject to its jurisdiction,’ but does not imply that the State party concerned cannot be held accountable for violations of rights under the Covenant which its agents commit upon the territory of another State, whether with the acquiescence of the Government of that State or in opposition to it. According to article 5(1) of the Covenant: ‘1. Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms

111 Ibid. at para 219. 112 Sergio Euben Lopez Burgos v Uruguay, supra n 17; and Lilian Celiberti de Casariego v Uruguay, supra n 17.

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recognized heroin [sic] or at their limitation to a greater extent than is provided for in the present Covenant.’ In line with this, it would be unconscionable to so interpret the responsibility under article 2 of the Covenant as to permit a State party to perpetrate violations of the Covenant on the territory of another State, which violations it could not perpetrate on its own territory.113 Professor Christian Tomuschat gave an individual opinion but he did not provide any sources for his view either: [T]he arguments set out in paragraph 12 for affirming the applicability of the Covenant also with regard to those events which have taken place outside Uruguay need to be clarified and expanded. Indeed, the first sentence in paragraph 12.3, according to which article 2(1) of the Covenant does not imply that a State party ‘cannot be held accountable for violations of rights under the Covenant which its agents commit upon the territory of another State,’ is too broadly framed and might therefore give rise to misleading conclusions. … To construe the words ‘within its territory’ pursuant to their strict literal meaning as excluding any responsibility for conduct occurring beyond the national boundaries would, however, lead to utterly absurd results. The formula was intended to take care of objective difficulties which might impede the implementation of the Covenant in specific situations. Thus, a State party is normally unable to ensure the effective enjoyment of the rights under the Covenant to its citizens abroad, having at its disposal only the tools of diplomatic protection with their limited potential. Instances of occupation of foreign territory offer another example of situations which the drafters of the Covenant had in mind when they confined the obligation of States parties to their own territory. All these factual patterns have in common, however, that they provide plausible grounds for denying the protection of the Covenant. It may be concluded, therefore, that it was the intention of the drafters, whose sovereign decision cannot be challenged, to restrict the territorial scope of the Covenant in view of such situations where enforcing the Covenant would be likely to encounter exceptional obstacles. Never was it envisaged, however, to grant States parties unfettered discretionary power to carry out wilful and deliberate attacks against the freedom and personal integrity against their citizens living abroad. Consequently, despite the wording of 113 Sergio Euben Lopez Burgos v Uruguay, ibid. at paras 12.1–12.3.

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article 2(1), the events which took place outside Uruguay come within the purview of the Covenant.114 In the Casariego case, the Human Rights Committee repeated its formula in the Lopez Burgos case.115 Professor Tomuschat made the same observation as in Lopez Burgos, in identical terms. 4 Conclusion As between the organs of the echr and the Human Rights Committee, what is most striking is the lack of reference to the decisions of the other dealing with extraterritorial applicability. The icj does refer to the views of the Committee but only in the specific context of Israel and the Occupied Territories. It does not refer to the opinions and judgments of the European Convention organs. Neither the hrc nor the icj gives a reasoned explanation, with sources, for their views on extraterritorial applicability. They seem to focus principally on the object and purpose of the human rights treaty text and an allegedly common sense claim of unconscionability. It is more difficult to draw conclusions about the practice of the European Court of Human Rights. This is in part because the section on relevant law may include reference to the views and decisions of other bodies but, in analysing the scope of extraterritorial applicability, the Court does not refer to those materials. It is impossible to determine what influence, if any, the materials had on the reasoning or the decision. Just because no express reference is made to the materials, it cannot however be assumed that they were not considered or influential. Certain things are clear. Before Banković, the European Commission and Court did not refer to other views and decisions about jurisdiction.116 In that case, the Court was willing to use primary and secondary materials from nonhuman rights sources but expressly rejected using the views of other human rights bodies.117 By the time of the Court’s judgment in Issa, it was prepared to refer to those decisions.118 Since then, the Court’s handling of Article 1 has been erratic in four important respects. First, there are cases where the issue 114 115 116 117 118

Ibid. at appendix. Lilian Celiberti de Casariego v Uruguay, supra n 17 at para 10. See Section 2A above. Supra nn 19–36 and accompanying text. Supra n 36.

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appeared to be relevant on the facts but the question of Article 1 was not raised.119 It is not sufficient explanation to suggest that the applicants and ­respondent governments did not raise it; the Court would be expected to do so proprio motu.120 It may be that, at least in the case of detention, both the parties and the Court regarded the issue as sufficiently settled not to be worthy of comment. Second, in some cases where the Court was going to find the case inadmissible on other grounds, it may have been superficial in its treatment of the issue of jurisdiction.121 This issue arises in many contexts, not merely those relating to extraterritorial applicability of the Convention.122 Third, outside the areas of arguably occupied territory and extraterritorial detention where the case law appears to be relatively settled, it is well-nigh impossible to predict the outcome of the case. It is challenging to attempt to reconcile Banković and Al-Skeini if one pays any attention to the facts of the latter as opposed to merely the reasoning of the Court.123 Finally, the Court has been erratic in the reference it has made to the decisions of other human rights bodies and one cannot know what influence those decisions may have had, if any. If ever a question before a human rights body called for a harmonised response, it is surely the question of the scope of extraterritorial applicability. It involves not just a question of human rights law but of the relationship between human rights law and international law generally and also, possibly, a human rights approach to general international law. The lack of a harmonised approach is likely to lead to different results, which is unfair to governments 119 For example, the admissibility decision in Öcalan v Turkey, supra n 25 and accompanying text; Isaak v Turkey, supra n 45; and Al-Saadoon and Mufdhi v United Kingdom, supra n 48. 120 Issa and Others v Turkey, supra n 25. 121 Pad and Others v Turkey, supra n 46. 122 A related problem arises where the Court decides that it does not need to address a question raised by the applicants on account of a previous finding. For example, where the applicants have been found to have been tortured, the Court will not go on to consider whether their conditions of detention were inhuman: for example, Aksoy v Turkey Application No 21987/93, Merits and Just Satisfaction, 18 December 1996. Where the applicants have been found to have been subject to inhuman treatment in the manner in which they were expelled from their homes, the Court will not go on to consider whether they were being subject to collective, and therefore inhuman, punishment: for example, Ayder and Others v Turkey Application No 23656/94, Merits and Just Satisfaction, 8 January 2004. 123 Supra nn 19 and 53. ‘[I]n so far as the Court [in Banković] held that people killed by bombing, if carried out by agents of a contracting state on the territory of another state, are not capable of coming within the jurisdiction of the contracting state, I am unable to see how that conclusion can stand with the principle of jurisdiction based on physical power and control recognised in Al-Skeini’: per Leggatt J in Al-Saadoon and Others v Secretary of State for Defence [2015] ewhc 715 (Admin) at para 103.

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and very damaging to applicants. One only has to consider how the European Court of Human Rights would have handled the issue confronting the icj in the Armed Activities case, particularly with regard to areas that were not regarded as occupied.124 The icj, Human Rights Committee and Inter-American Commission on Human Rights already appear to be relatively harmonised. It is the ECtHR that may be out on a limb. It is specifically the decision in Banković that appears to be out of line.125 More recent decisions reflect a move towards the position taken by other bodies but the reasoning is problematic. In Jaloud, if the Court was saying that jurisdiction was established as a result of the Dutch control over the checkpoint, rather than on account of their control over their armed forces, this represents an unreasonable and artificial extension of the principle of territorial control.126 It may have been the result of a reluctance to admit that the reasoning in Banković was wrong, as a result of having been too sweeping.127 The executive arm of the state exercises jurisdiction by doing things (or not doing them). Where state agents engage in deliberate acts (and, in some circumstances, omissions) and it is foreseeable that given individuals will be affected by those acts or omissions, the individuals in question are within the jurisdiction of the state. That is consistent with the opinion and judgment of the icj, the decisions of the Human Rights Committee, the views of the Inter-American Commission on Human Rights and the decisions of the European Court of Human Rights in Isaak and Al-Skeini.128 It is not consistent with Banković.129 In Georgia v Russia (ii),130 the European Court of Human Rights will have the opportunity to sort out once and for all a coherent approach to Article 1, one that takes account of the views and judgments of other human rights bodies.

124 125 126 127 128 129 130

Supra n 56. Supra n 19. Supra n 82. Supra n 19. Supra nn 45 and 53. Supra n 19. Supra n 92.

chapter 14

State Obligations with Regard to the Extraterritorial Activities of Companies Domiciled on Their Territories Nadia Bernaz* 1 Introduction Human rights treaties, whether international or regional, place obligations on states to refrain from violating human rights, but also impose positive obligations to take steps to prevent violations. For example, human rights treaty provisions recognising the right not to be tortured place on states parties the obligation not to torture (negative obligation) and the obligation to have systems in place, such as regular police training courses or monitoring mechanisms, to ensure that people in custody are not subjected to proscribed illtreatments (positive obligation). Positive obligations include the obligation to provide victims of human rights abuse with remedies.1 Positive obligations may include the obligation to regulate the activities of non-state actors, such as private companies. This is a well-established area of international human rights law. In López Ostra v Spain,2 the European Court of Human Rights found that Spain had violated the applicant’s right to respect for her home and her private and family life because it had failed to control environmental hazards generated by a privately owned company. In Social and Economic Rights Action Center (serac) and Center for Economic and Social Rights (cesr) v Nigeria,3 the African Commission on Human and Peoples’ Rights held that Nigeria had violated a wide range of rights guaranteed by the African Charter on Human and Peoples’ Rights when it failed to provide or permit studies of potential or actual environmental and health risks caused by the oil operations undertaken by a privately owned company which was a subsidiary of the multinational * An earlier version of this chapter was presented at the Norwegian Centre for Human Rights (University of Oslo) in November 2013. The author wishes to thank the participants for their feedback. 1 For a key articulation of this principle, see Case of Velásquez Rodríguez v Honduras IACtHR Series C 7 (1988) at para 174. 2 Application No 16798/90, Merits and Just Satisfaction, 9 December 1994. 3 155/96, 27 October 2001.

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corporation Royal Dutch Shell, acting in consortium with the state-owned oil company.4 Similarly, in Mayagna (Sumo) Awas Tingni Community v Nicaragua, the Inter-American Court of Human Rights held, inter alia, that Nicaragua must abstain from acts which might lead … third parties [in that case two logging companies] acting with its acquiescence or its tolerance to affect the existence, value, use or enjoyment of the property located in the geographic area where the members of the Awas Tingni Community live and carry out their activities.5 In short, the idea that states must protect human rights against violations committed by the private sector within their territory is well entrenched in the various human rights systems. The question this chapter focuses on is whether this obligation extends to the extraterritorial activities of the private sector, that is, the activities of private companies in countries outside the country where they are registered. It is a relevant question because it is well documented that the majority of human rights violations transnational companies might commit take place in the developing world (their host states), while the majority of these companies remain headquartered in Europe or North America (their home states).6 In that context, imposing an obligation particularly on European and North American states to prevent their corporate nationals, and potentially also their subsidiaries, from engaging in human rights violations could have far-reaching consequences. In particular, it would be one way to address the corporate impunity gap, albeit imperfectly.7 The corporate impunity gap has developed due to the combination of three factors. First, transnational corporations and their subsidiaries often become

4 In this case the Commission also found Nigeria directly responsible for a number of other violations. Following what has now become common practice, the terms ‘multinational corporations’ and ‘transnational corporations’ are used interchangeably in this chapter. On this, see, for example, Aggarwal et al., ‘What is a multinational corporation? Classifying the degree of firm-level multinationality’ (2011) 20(5) International Business Review 557 at 557. 5 IACtHR Series C 79 (2001) at para 164. 6 See, for example, Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, ‘Corporations and human rights: A survey of the scope and patterns of alleged corporate-related human rights abuse’, A/HRC/8/5/Add.2, at 10. 7 See Ratner, ‘Corporations and Human Rights: A Theory of Legal Responsibility’ (2001) 111(3) Yale Law Journal 443 at 461–473.

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involved in human rights violations as accomplices of the host state.8 As the host state itself is the main perpetrator of abuse, the courts of the host state are generally not in a position to provide victims with genuine remedies. Moreover, even when governments are not at fault as such, many developing countries have unreliable judicial systems coupled with weak enforcement mechanisms.9 Secondly, it is extremely difficult for victims to get access to remedies in the countries of registration of the parent company.10 Thirdly, there is currently no international mechanism by which corporations can be held accountable for human rights violations.11 These factors when taken together operate to deny victims of corporate human rights violations access to meaningful remedies. Thus the prospect that home states could be held liable for some of these human rights violations, or at least could have an obligation to prevent or punish them, is attractive. In their compelling contribution to this area of law, McCorquodale and Simons argued for the existence of state responsibility with regard to some of the extraterritorial violations of human rights by their corporate nationals.12 This chapter builds on McCorquodale’s and Simons’ arguments and focuses 8 9

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See, for example, Social and Economic Rights Action Center (serac) and the Center for Economic and Social Rights (cesr) v Nigeria, supra n 3. See, for example, Ruggie, ‘Opening Remarks at Consultation on operationalizing the framework for business and human rights presented by the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises’, 5 October 2009, at 3, available at: business-humanrights.org/sites/ default/files/media/bhr/files/Ruggie-speech-to-Geneva-consultation-Oct-2009.pdf. Skinner et al., ‘The Third Pillar: Access to Judicial Remedies for Human Rights Violations by Transnational Business’, December 2013, available at: icar.ngo/wp-content/uploads/ 2013/02/The-Third-Pillar-Access-to-Judicial-Remedies-for-Human-Rights-Violation-by -Transnational-Business.pdf. The implementation of the oecd Guidelines for Multinational Enterprises (oecd Publishing, 2011), which contain a human rights chapter (Chapter 4 at 31), is monitored by National Contact Points in each oecd country. Although National Contact Points apply an international text (the Guidelines), may receive complaints against multinational corporations, and follow a similar procedure, each of them works separately from the others, and is administered at the domestic level. In other words, they do not constitute an international mechanism as such. McCorquodale and Simons, ‘Responsibility Beyond Borders: State Responsibility for Extraterritorial Violations by Corporations of International Human Rights Law’ (2007) 70(4) Modern Law Review 598 at 600. By contrast, Grear and Weston bluntly argue that international law does not ‘explicitly impose obligations on home states to regulate the extraterritorial conduct of [transnational corporations] headquartered within their territory’: Grear and Weston, ‘The Betrayal of Human Rights and the Urgency of Universal Corporate

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on the various ways in which international bodies and courts have dealt with the question of state obligations with regard to the extraterritorial activities of their corporate nationals, exploring mutual influence, similarities and differences in their approaches, as well as possible reasons for divergence. Section 2 defines the contours of these obligations, giving examples of what they might entail in practice. The idea of a form of state responsibility for the overseas activities of their corporate nationals is slowly emerging under the cautious leadership of certain un human rights mechanisms, as discussed in Section 3. While these developments are occurring at the un level, regional systems remain behind, as shown in Section  4. On the whole, it seems as though it is outside human rights systems as such that the most important developments on this question have occurred. Indeed, as the field of business and human rights is growing, international bodies whose mandate is not specifically human rights-oriented have adopted soft law and policy instruments dealing with the question of state ‘obligations’ with regard to the overseas activities of their corporate nationals. Section 5 explores these developments and assesses their contribution to the area. 2

Emerging State Obligations with Regard to the Overseas Activities of Corporate Nationals

As a general rule, a state party to a human rights treaty only has obligations with regard to acts committed within its jurisdiction.13 For some human rights treaties, the principle according to which the state has obligations towards individuals subject to its jurisdiction is included in specific jurisdiction clauses.14 For example, Article 2(1) of the International Covenant on Civil and Political Rights (iccpr) states that ‘each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant’. This entails Accountability: Reflections on a Post-Kiobel Lawscape’ (2015) 15(1) Human Rights Law Review 21 at 26. 13 See Banković and Others v Belgium and Others Application No 52207/99, Admissibility, 12 December 2001. See also Human Rights Committee, General Comment No 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, 29 March 2004, CCPR/C/21/Rev.1/Add. 13, at para 10; and Case 11.589, Alejandre v Cuba Report No 86/99 (1999) at para 23. 14 Article 2(1) iccpr; Article 3 icerd; Article 2 uncat; Article 2 crc; Article 7 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families; Article 1 echr; and Article 1 achr.

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that unless an individual is within its territory and subject to its jurisdiction, a state party has no negative or positive obligations vis-à-vis that individual. By contrast, other treaties do not have jurisdiction clauses.15 For example, Article 2(1) of the International Covenant on Economic, Social and Cultural Rights (icescr) instead provides that each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means. There is no indication that this obligation is limited to a state’s territory. Quite the contrary, the reference to ‘international assistance and cooperation’ implies that states have a duty to act extraterritorially to advance the realisation of economic, social and cultural rights.16 Building on the icescr, academics have developed the Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights (‘Maastricht Principles’).17 These Principles have not been endorsed by states and therefore are not legally binding. Nevertheless, they and their detailed commentary are an invaluable tool to grasp the range of consequences that the recognition of extraterritorial state obligations in the area could bring. In theory, treaties without jurisdiction clauses should more obviously fit into the category of treaties that place obligations on states to regulate the activities of their corporate nationals outside their borders. Indeed, recognising that states have obligations with regard to the extraterritorial activities of their corporate nationals implies recognising that states have some obligations visà-vis individuals outside their territories and not subject to their jurisdiction as 15

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There is no such clause in the African Charter on Human and Peoples’ Rights; the International Convention for the Protection of All Persons from Enforced Disappearance; the icescr; and the cedaw. See Coomans, ‘The Extraterritorial Scope of the International Covenant on Economic, Social and Cultural Rights in the Work of the United Nations Committee on Economic, Social and Cultural Rights’ (2011) 11(1) Human Rights Law Review 1; and Sepúlveda, ‘Obligations of “International Assistance and Cooperation” in an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights’ (2006) 24(2) Netherlands Quarterly of Human Rights 271. De Schutter et al., ‘Commentary to the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights’ (2012) 34(4) Human Rights Quarterly 1084.

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such. In practice however, and as discussed below, un treaty bodies monitoring treaties that have jurisdiction clauses have also entertained the idea that states parties have some obligations to regulate the overseas conduct of their corporate nationals. In sum, in some cases it may seem as if some treaty bodies have at least partially disregarded the obligations imposed by jurisdiction clauses. The scope of state obligations with regard to the overseas activities of their corporate nationals deserves closer attention. A distinction needs to be drawn between, on the one hand, state responsibility for acts of companies that can be attributed to the state and, on the other hand, state responsibility for failure to exercise due diligence in relation to the overseas activities of their corporate nationals (parent companies) and possibly also their corporate nationals’ ­subsidiaries, registered in a different state. Following the typology of the International Law Commission Draft Articles on State Responsibility, the former type of responsibility would arise when the company is exercising elements of governmental authority or when the company is acting under state control.18 McCorquodale and Simons mention another possibility, that of state complicity for the acts of the private company; for example, when a state engages in funding a project through its export credit agency despite its foreseeable negative human rights impact.19 This latter form of responsibility does not see a state being held responsible for the acts of a third party or for complicity. Rather, it is a form of responsibility deriving from the well entrenched customary obligation of due diligence owed by every state towards all other states and their nationals.20 The International Law Commission has not focused its attention on this form of state responsibility in the Draft Articles and its definition and scope are unclear.21 One case, however, provides an interesting example of its practical implications. In the classic Trail Smelter dispute, an arbitral tribunal held that no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the 18 19 20 21

Articles 5 and 8 International Law Commission Draft Articles on State Responsibility, A/56/10. McCorquodale and Simons, supra n 12 at 621, n 152. See, for example, Barnidge, ‘The Due Diligence Principle under International Law’ (2006) 8(1) International Community Law Review 81. For a discussion, see Hessbruegge, ‘Historical Development of the Doctrines of Attribution and Due Diligence in International Law’ (2004) 36(2/3) New York University Journal of International Law and Politics 265 at 275.

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properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.22 Applying this reasoning to a typical business and human rights scenario would lead to the conclusion that no state has the right to permit the use of its territory (such as where a private company makes decisions at its headquarters) in a manner so as to cause injury to persons in another state at least where the consequences are serious and demonstrable. Responsibility based on a failure to exercise due diligence is far-reaching. It provides a way to hold states accountable for the extraterritorial activity not only of their corporate nationals, but also of the subsidiaries of those corporate nationals, provided that states have ‘some means to control’ such activity.23 It rests on the idea that when a state knows or should know that the activities of its corporate nationals and/ or of their subsidiaries will result in human rights violations abroad, then they have an obligation to act to prevent them. For example, it would lead to the recognition of a (home) state obligation to prohibit their corporate nationals from signing investment contracts (with host states) containing strict stabilisation clauses, since it is well documented that these clauses, by freezing the law and restricting the policy space of host states, hinder the capacity of host states to adopt human rights-oriented measures.24 In turn, these clauses may lead to corporate human rights violations, especially in the area of economic, social and cultural rights.25 This form of responsibility is envisaged in the Maastricht Principles, through the combination of Principles 13, 24 and 26. Principle 13, entitled ‘Obligation to avoid causing harm’, sets out a due diligence form of state responsibility. It reads as follows: States must desist from acts and omissions that create a real risk of nullifying or impairing the enjoyment of economic, social and cultural rights extraterritorially. The responsibility of States is engaged where such nullification or impairment is a foreseeable result of their conduct.

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Trail Smelter (United States v Canada) 3 riaa 1905 at 1965 (1941). McCorquodale and Simons, supra n 12 at 619. On the notion of due diligence, see also Corfu Channel (United Kingdom v Albania) Merits, Judgment, icj Reports 1949, 4. Wouters and Hachez, ‘When Rules and Values Collide: How can a Balanced Application of Investor Protection Provisions and Human Rights be Ensured?’ (2009) 3(2) Human Rights and International Legal Discourse 301 at 325–331. McCorquodale and Simons, supra n 12 at 622.

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Uncertainty about potential impacts does not constitute justification for such conduct. The commentary to this Principle explains: Principle 13 sets out a standard of liability that is distinct from strict liability, and constitutes a strong incentive for states to assess the impact of their choices on the enjoyment of economic, social, and cultural rights abroad, because their international responsibility will be assessed on the basis of what their authorities knew or should have known. Foreseeability serves an important limiting function by ensuring that a state shall not be surprised with claims of responsibility for unforeseeable risks that are only remotely connected to its conduct.26 Additionally, Principle 24 sets out an obligation to regulate the extraterritorial activities of private companies registered or domiciled in a state territory, and Principle 26 sets out an obligation for states to exercise their influence to shape the conduct of non-state actors, when they indeed are in a position to influence. Beyond the Maastricht Principles, which is an academic-led initiative, the idea of a due diligence form of state responsibility for the overseas activities of their corporate nationals is emerging, at least within some un human rights mechanisms. 3

Cautious Leadership of Some un Human Rights Mechanisms

So far four treaty bodies have ventured into the field of extraterritorial obligations of states with regard to the activities of their corporate nationals. The first to do so was the Committee on Economic, Social and Cultural Rights. The Committee on the Elimination of Racial Discrimination has since adopted a similar path. The Human Rights Committee has only timidly done so, while the Committee on the Rights of the Child is the un treaty body that has gone the furthest. The first treaty body to mention the possible obligations of states with regard to the extraterritorial activities of their corporate nationals was the Committee on Economic, Social and Cultural Rights, which monitors the International Covenant on Economic, Social and Cultural Rights, a treaty that, 26

De Schutter et al., supra n 17 at 1113.

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as noted above, does not have a jurisdiction clause. In a series of general comments the Committee suggested that states parties to the Covenant must prevent human rights violations committed abroad by third parties falling under their jurisdiction, such as companies registered on their territories. In 2000, in General Comment No 14 on the right to the highest attainable standard of health, the Committee stated: To comply with their international obligations …, States parties have to respect the enjoyment of the right to health in other countries, and to prevent third parties from violating the right in other countries, if they are able to influence these third parties by way of legal or political means, in accordance with the Charter of the United Nations and applicable international law.27 In 2003, in General Comment No 15 on the right to water, the Committee stated that ‘[s]teps should be taken by States parties to prevent their own citizens and companies from violating the right to water of individuals and communities in other countries’.28 Similarly, in 2005 in General Comment No 17 with respect to intellectual property the Committee ‘urged [states parties] to consider regulating the responsibility resting on the private business sector, private research institutions and other non-State actors’.29 Finally, in 2008 the Committee affirmed in General Comment No 19 on the right to social security that ‘[s]tates parties should extraterritorially protect the right to social security by preventing their own citizens and national entities from violating this right in other countries’.30 The general comments show an evolution of the Committee’s discourse on the contours of state obligations with regard to the extraterritorial activities of their corporate nationals, in relation to a growing number of rights. In 2000 states parties were told they had ‘to prevent third parties from violating the 27

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Committee on Economic, Social and Cultural Rights, General Comment No 14 (2000): The right to the highest attainable standard of health (article 12 of the International Covenant on Economic, Social and Cultural Rights), 11 May 2000, E/C.12/2000/4, at para 39. cescr, General Comment No 15 (2002): The right to water (arts. 11 and 12 of the International Covenant on Economic, Social and Cultural Rights), E/C.12/2002/11, at para 33. cescr, General Comment No 17 (2005): The right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he or she is the author (article 15, paragraph 1 (c), of the Covenant), E/C.12/GC/17, at para 55. cescr, General Comment No 19: The right to social security (art. 9), 23 November 2007, E/C.12/GC/19, at para 54.

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right in other countries, if they … [were] able to influence these third parties by way of legal or political means’. In 2003, the term ‘third parties’ is omitted and the corporate sector is clearly mentioned. In 2005, the Committee urges states to consider regulating the private sector’s activities outside their territories. In 2008, this becomes a recommendation for states to prevent violations of the right to social security committed outside their territories by their corporate nationals. Hence, in successive general comments the Committee has strengthened and refined its position on the question. Other un treaty bodies have also started to consider the idea of state obligations with regard to the extraterritorial activities of their corporate nationals. In 2007, following the examination of Canada’s periodic report under the International Convention on the Elimination of All Forms of Racial Discrimination (icerd), the Committee on the Elimination of Racial Discrimination (cerd) declared: [T]he Committee encourages the State party to take appropriate legislative or administrative measures to prevent acts of transnational corporations registered in Canada which negatively impact on the enjoyment of rights of indigenous peoples in territories outside Canada. In particular, the Committee recommends that the State party explore ways to hold transnational corporations registered in Canada accountable.31 In 2011, while examining the United Kingdom’s periodic report, the cerd made a broader and more detailed pronouncement, not linked to indigenous peoples or other groups, but with regard to the icerd as a whole and in words that are worth citing in full: [T]he Committee encourages the State party to take appropriate legislative and administrative measures to ensure that acts of transnational corporations registered in the State party comply with the provisions of the Convention. In this regard, the Committee recommends that the State party should ensure that no obstacles are introduced in the law that prevent the holding of such transnational corporations accountable in the State party’s courts when such violations are committed outside the State party. The Committee reminds the State party to sensitize corporations 31

cerd, Concluding observations regarding Canada, 5 March 2007, CERD/C/CAN/CO/18, at para 17. In 2012, following the examination of Canada’s periodic report, the cerd made a similar recommendation: see cerd, Concluding observations regarding Canada, 8 March 2012, CERD/C/CAN/CO/19-20, at para 14.

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registered in its territory to their social responsibilities in the places where they operate.32 The Human Rights Committee (hrc), the treaty body monitoring the application of the iccpr, has also made statements on the issue, albeit timid ones. First, in 2012 it declared in its Concluding observations regarding Germany that [w]hile welcoming measures taken by the State party to provide remedies against German companies acting abroad allegedly in contravention of relevant human rights standards, the Committee is concerned that such remedies may not be sufficient in all cases (art. 2, para. 2). The State party is encouraged to set out clearly the expectation that all business enterprises domiciled in its territory and/or its jurisdiction respect human rights standards in accordance with the Covenant throughout their operations. It is also encouraged to take appropriate measures to strengthen the remedies provided to protect people who have been victims of activities of such business enterprises operating abroad.33 A year later, the hrc issued a list of issues with regard to Ireland in preparation of the examination of that country’s report in 2014. The hrc asked the Irish Government to ‘provide information on how [it] addresses concerns regarding the activities of private businesses based in the State party that may lead to violations of the Covenant outside the territory of the State party’.34 Perhaps the un human rights treaty body that has gone the furthest in its handling of the question of state obligations with regard to the overseas activities of their corporate nationals is the un Committee on the Rights of the Child (ComRC). In March 2013, the ComRC adopted General Comment No 16 on state obligations regarding the impact of the business sector on children’s rights, which aims to provide States with guidance on how they should … create an enabling and supportive environment for business enterprises to respect children’s rights including across any business relationships linked to their operations, products or services and across their global operations.35 32 33 34 35

Concluding observations regarding United Kingdom, 14 September 2011, CERD/C/GBR/ CO/18-20, at para 29. hrc, Concluding observations regarding Germany, 31 October 2012, CCPR/C/DEU/CO/6, at para 16. hrc, List of issues in relation to the fourth periodic report of Ireland, CCPR/C/IRL/Q/4 at 2. ComRC, General Comment No 16 (2013) on State obligations regarding the impact of the business sector on children’s rights, 7 February 2013, CRC/C/GC/16, at para 5.

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In the General Comment, the ComRC explains that there are state obligations to respect, protect and fulfil children’s rights in the context of businesses’ extra-territorial activities and operations provided that there is a reasonable link between the State and the conduct concerned. A reasonable link exists when a business enterprise has its centre of activity, is registered or domiciled or has its main place of business or substantial business activities in the State concerned.36 This survey of un treaty monitoring body pronouncements on state obligations with regard to the extraterritorial activities of their corporate nationals has shown that the question is increasingly being considered. It is hard to imagine that it is by chance that these various treaty monitoring bodies have all made statements on the question of the existence and scope of such state obligations. Although they have not explicitly cited each other’s general comments and concluding observations, and while some have gone further than others, there is an established trend among them towards the full recognition of such state obligations. General Comment No 16 of the ComRC explicitly refers to the newest un standard on business and human rights, the 2011 un Guiding Principles on Business and Human Rights (‘un Guiding Principles’).37 The un Guiding Principles were elaborated through one of the un special procedures, the un Secretary-General Special Representative on the issue of human rights and transnational corporations and other business enterprises. The influence on the treaty bodies of Professor John Ruggie’s six-year mandate as Special Representative is clear. For example, in addition to the reference in the ComRC’s General Comment No 16, the wording of the above-mentioned hrc’s Concluding observations regarding Germany38 is copied almost word for word from un Guiding Principle 2 on the state duty to protect human rights.39 As business and human rights has gained ground as an area of special interest and focus within the un system, un treaty bodies, at least some of them, have 36 37 38

39

Ibid. at para 43. Ibid. at para 7. See Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework, A/HRC/17/31. Supra n 33 (‘The State party is encouraged to set out clearly the expectation that all business enterprises domiciled in its territory and/or its jurisdiction respect human rights standards in accordance with the Covenant throughout their operations’.). Guiding Principle 2 reads as follows: ‘States should set out clearly the expectation that all business enterprises domiciled in their territory and/or jurisdiction respect human rights throughout their operations’.

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been refining their positions on its implications. The hrc has so far followed the un Guiding Principles’ vague and relatively conservative wording, calling states to ‘set out clearly the expectation that’ companies should respect human rights throughout their operations. Other treaty bodies, such as the cerd, have gone further and have called on states to legislate to prevent extraterritorial human rights violations by their corporate nationals.40 This is still a developing area of the law, and some treaty bodies have remained silent on the issue, including, perhaps surprisingly, the Committee on the Elimination of Discrimination against Women, which monitors the implementation of a treaty in an area where the extraterritorial conduct of their corporate nationals might be an issue. For example, it is well documented that women form the majority of the workforce within South Asia’s controversial apparel industry.41 Therefore, it would not be surprising if the Committee was to mention in concluding observations on home countries of multinational corporations operating in the apparel sector, that those countries should regulate such corporations so as to avoid violations of human rights in host countries. So far, it has not done so. Moreover, to date there has been no communication by an individual to a un treaty body that alleges human rights violations by a private corporation operating outside a state party’s territory. Therefore, there is no treaty body jurisprudence on the issue. Nor has the Universal Periodic Review produced anything substantial on business and human rights, let alone anything on the specific question of state obligations with regard to the overseas activities of their corporate nationals. 4

Little Activity within Regional Systems

Similarly, in the European human rights system the question of state obligations with regard to the extraterritorial activities of their corporate nationals has not attracted much attention. In 2010 the Parliamentary Assembly of the Council of Europe highlighted in a report entitled ‘Human Rights and Business’ that, although there were no cases involving that issue before the European Court of Human Rights yet,

40 See supra nn 31 and 32. 41 See, for example, Ruwanpura, ‘Global Governance Initiatives and Garment Sector Workers in Sri Lanka: Tracing its Gender and Development Politics’, in Fernandes (ed.), Routledge Handbook of Gender in South Asia (Routledge, 2014) 207 at n 4.

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in cases where there is an allegation that a multinational corporation has been involved in human rights abuses abroad, recourse to a remedy under the Convention against a government that has underwritten the multinational corporation’s activities through its export credit guarantee agency might well be possible, in certain circumstances.42 The idea that states parties to the European Convention on Human Rights may have obligations with regard to the activities of their corporate nationals outside their territories seems to be gaining ground. A 2014 Declaration of the Committee of Ministers of the Council of Europe on the un Guiding Principles on Business and Human Rights, calls on member states to (a) take appropriate steps to protect against human rights abuses by business enterprises; (b) formulate and implement policies and measures to promote that all business enterprises respect human rights throughout their operations, within and beyond their national jurisdictions; (c) take appropriate steps to ensure that when such abuses occur within their territory and/or jurisdiction those affected have access to effective remedy; (d) develop national action plans on the implementation of the un Guiding Principles.43 Hence, the Committee of Ministers, just like four of the un treaty bodies, has acknowledged the important development on business and human rights that the adoption of the un Guiding Principles on Business and Human Rights constitutes. For the Committee of Ministers, obligations of member states include the obligation to promote corporate respect for human rights both within and outside their territories. However, they do not expressly include the obligation to prosecute and punish corporate perpetrators of human rights violations committed abroad since national courts must only provide remedies to victims of abuses that have occurred ‘within their territory and/or jurisdiction’, and not outside their territories. Unsurprisingly, the question of the obligations of states with regard to the overseas activities of their corporate nationals has not been discussed within 42 43

pace, Committee on Legal Affairs and Human Rights, ‘Human Rights and Business’, 27 September 2010, Doc 12361, at para 91. Declaration of the Committee of Ministers on the un Guiding Principles on business and human rights, 16 April 2014, at para 10 (emphasis added).

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the African system. This is probably due to the fact that African multinational companies engage in much less foreign investment than European ones, and that as far as foreign direct investment is concerned African countries are more often host states than home states. The African Commission on Human and Peoples’ Rights has not issued any statement on this question. The Working Group on Extractive Industries, Environment and Human Rights Violations, which is one of the special mechanisms of the African Commission, recalled in the preamble to one of its resolutions: ‘[T]he unconditional responsibility of States Parties to prevent all forms of violations of human and peoples’ rights including the violations of human and peoples’ rights by Non-State Actors’.44 However, the Working Group did not make any statement about the overseas activities of non-state actors. The lack of attention given to these questions within the Inter-American system of human rights, and specifically by the Inter-American Commission on Human Rights, is more unexpected. The Inter-American Commission monitors the human rights records of the United States and Canada, whose corporate nationals have a strong presence all over the world, including in conflict areas where they may be associated with grave human rights violations.45 In this context, the question of these countries’ obligations with regard to the activities of their corporate nationals may become an area of focus in the future. 5

Developments outside Human Rights Systems

The idea that states have an obligation in relation to the adverse human rights impact of the extraterritorial activities of their corporate nationals is not new. Nor has it appeared for the first time in documents issued by human rights bodies. In 1972, in the context of the South African occupation of Namibia, the un Security Council adopted a resolution in which it called upon all States whose nationals and corporations … [were] operating in Namibia … to use all available means to ensure that such nationals and corporations conform in their policies of hiring Namibian workers to the basic provisions of the Universal Declaration of Human Rights.46 44 45 46

Resolution on the Establishment of a Working Group on Extractive Industries, Environment and Human Rights Violations in Africa, Res 148(xlvi)09, 25 November 2009. The United States tops the foreign direct investment outflow ranking, while Canada is ranked 7th: see unctad, World Investment Report (2015) at 8. sc Res 310, 4 February 1972, at para 5.

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By asking states to ensure that their corporate nationals complied with the Universal Declaration of Human Rights when operating abroad, the Security Council was embracing the idea that states do indeed have some form of obligation with regard to such activity. This early example illustrates how developments regarding this area of human rights law may occur outside human rights  systems, without consideration for legalistic questions of jurisdiction. This was a political decision, resting not on un member states’ obligations under a given human rights treaty, but rather on the view that a government has the means to exercise some degree of control or influence over its corporate nationals and that therefore it ought to do it for the sake of human rights protection. Since the 1970s, ‘business and human rights’ has gained ground as an area of international focus. In 1999, former un Secretary-General Kofi Annan initiated the Global Compact between the United Nations and the private sector, especially multinational corporations.47 The Compact rests on ten principles that willing companies pledge to respect, two of which are human rightsoriented.48 Principle one states that ‘[b]usinesses should support and respect the protection of internationally proclaimed human rights’. Principle two states that businesses should ‘make sure that they are not complicit in human rights abuses’. Although it rests on ‘principles’, the Global Compact is a learning forum rather than a regulatory instrument.49 The official launch of the Global Compact in 2000 is one of the key developments that have made ‘business and human rights’ an area of international focus. To an extent this area has developed in parallel with human rights systems. At the World Bank, for example, the practice of requiring borrowers to conduct social and environmental impact assessments of their projects, although encroaching on the area of human rights, has developed largely without the formal input of un human rights mechanisms.50 47

48 49 50

Press Release of Secretary-General, ‘Secretary-General Proposes Global Compact on Human Rights, Labour, Environment, in Address to World Economic Forum in Davos’, 1 February 1999, SG/SM/6881. The Ten Principles of the un Global Compact are available at: www.unglobalcompact .org/what-is-gc/mission/principles [last accessed 4 August 2015]. Ruggie, ‘The Global Compact as a Learning Network’ (2001) 7(4) Global Governance 371 at 372. See World Bank Safeguard Policies, available at: web.worldbank.org/WBSITE/EXTERNAL/ PROJECTS/EXTPOLICIES/EXTSAFEPOL/0,,menuPK:584441~pagePK:64168427~piPK:641 68435~theSitePK:584435,00.html.

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As business and human rights is developing, so are opportunities to demand that states exercise some form of control over their corporate nationals, including with regard to their overseas activity. For example, in 2012, the Organisation for Economic Co-operation and Development (oecd) Council adopted a Recommendation on environmental and social due diligence which refers to the un Guiding Principles on Business and Human Rights and encourages states to take ‘social impact’ into consideration when assessing applications for government-backed export credits.51 The ‘social impact’ to which reference is made in the Recommendation is extraterritorial in nature since it refers to impact in the host state. Hence in the area of export credit, oecd states, which remain the main capital-exporting countries, are encouraged to prevent human rights violations by their corporate nationals by not lending them funds when it is likely to lead to an adverse social impact. This is a policy recommendation which does not stem from human rights treaties. It is limited in scope but its practical impact may be of great importance. This pragmatic route may lead to positive results when it comes to preventing human rights violations. One example illustrates this possibility. In 2013 the uk prided itself on having negotiated and agreed to the oecd Council Recommendation.52 It was thereby showing that it agreed in principle with the idea of home state responsibility, at least a political or moral one if not one grounded in law, with regard to the overseas activity of its corporate nationals. However, at the time of the adoption of the un Guiding Principles, the uk stated that, while it ‘embrace[d] the Principles from a policy perspective’, it was co-sponsoring the resolution ‘subject to … [its] understanding that the Principles do not all necessarily reflect the current state of international law’, specifically with regard to a duty to protect human rights against violations committed by the private sector.53 Hence, on the one hand the United Kingdom accepted the idea that it must act to influence the extraterritorial conduct of its corporate nationals, but on the other hand it rejected the idea that it might have international obligations in the area. One might legitimately wonder whether such policy developments in the area of business and human rights, especially when it comes to extraterritorial 51

52 53

oecd, Recommendation of the Council on Common Approaches for Officially Supported Export Credits and Environmental and Social Due Diligence, 28 June 2012, TAD/ ECG(2012)5; and oecd Council, Recommendation on Bribery and Officially Supported Export Credits, 14 December 2006. hm Government, Good Business: Implementing the un Guiding Principles on Business and Human Rights, September 2013, Foreign and Commonwealth Office, cm 8695. uk General Comment on draft resolution, 16 June 2011, L.17 Rev.1.

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corporate activity, exert an influence upon treaty bodies. Upon seeing that prominent capital-exporting states, such as the uk, are voluntarily taking an active role in this area of human rights protection, it would be hardly surprising if human rights bodies felt emboldened to demand more protection for human rights and to establish such protection in international human rights law rather than mere policy choices susceptible to change. In that sense, work done outside human rights bodies may in turn prompt the adoption of more stringent standards and lead to better protection. In the area of business and human rights in general, and state obligations with regard to the overseas activity of their corporate nationals in particular, human rights bodies may not only influence each other, but also be subjected to wider influences, such as policy developments at the oecd. 6 Conclusion The existence and contours of state human rights obligations with regard to the extraterritorial activities of their corporate nationals is an unsettled and rapidly evolving area of international law. The positions of un treaty bodies are not identical and regional human rights bodies and associated institutions have not yet developed sophisticated positions on the question. Faced with such uncertainty, the un Secretary-General Special Representative on Business and Human Rights adopted a cautious position, as illustrated in Guiding Principle 2 on Business and Human Rights. Principle 2 merely states that ‘states should clearly set out the expectation that businesses domiciled in their territory or jurisdiction respect human rights throughout their operations’. It does not speak of an obligation to regulate activities, let alone an obligation to prosecute and punish violations. It remains to be seen whether this issue will be included in the proposed business and human rights treaty.54 The adoption of the Guiding Principles, and before that the Special Representative’s mandate, have drawn attention to corporate human rights violations and to state responsibilities when it comes to preventing them. Within this area of the law, the question of state obligations with regard to the extraterritorial activities of their corporate nationals is central. While the law remains undeveloped, governments have already started to act in the

54

See the dedicated page on this on the Business and Human Rights Resource Centre’s website: business-humanrights.org/en/binding-treaty.

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area.55 As state practice develops, un treaty bodies and regional human rights bodies may feel more comfortable moving the agenda forward, leading to further cross-fertilisation in the future. 55

See the dedicated page on this on the un Working Group on Business and Human Rights’ website: www.ohchr.org/EN/Issues/Business/Pages/WGHRandtransnationalcorporationsandotherbusiness.aspx.

chapter 15

Inherent and Implied Powers of Regional Human Rights Tribunals Dinah Shelton 1 Introduction At the end of the nineteenth century, the international community began creating its first tribunals with the establishment of the Permanent Court of Arbitration and the short-lived Central American Court of Justice (from 1907 to 1918), followed later by the Permanent Court of International Justice (pcij), predecessor to the current International Court of Justice (icj). Debates swiftly emerged about the powers of these new institutions1 and have continued with the creation of additional international tribunals, including human rights bodies.2 Scholars have critiqued or supported judicial activism and the

1 James Brown Scott’s early critique of the Permanent Court of Arbitration noted its misnomer, observing that it is difficult to call a court ‘permanent’, which does not exist, and which only comes into being when it is created for the trial of a particular case, and goes out of existence as soon as the case is tried. It is difficult to consider as a court, a temporary tribunal, which is not composed of judges … The Conference did not call the creature of their hands a court of justice. It was to be one of arbitration … [T]he decision is to be on the basis of respect for law, which does not mean necessarily that the decision is to be reached by the impartial and passionless application of principles of law, … but the decision is to be reached ‘on the basis of respect for law’, which may be a very different matter. Brown Scott, The Hague Court Reports (oup, 1916) at xvii–xviii. See also Bederman, ‘The Hague Peace Conferences of 1899 and 1907’, in Janis (ed.), International Courts for the TwentyFirst Century (Martinus Nijhoff, 1992) 9. 2 For general discussions of international tribunals, see Bilder, International Dispute Settlement and the Role of Adjudication (Inst Legal Studies, 1986) at 47–95; and Noyes, ‘The Third-Party Dispute Settlement Provisions of the 1982 United Nations Convention on the Law of the Sea: Implications for States Parties and for Nonparties’, in Nordquist and Moore (eds), Entry into Force of the Law of the Sea Convention (Martinus Nijhoff, 1995) 213. On the nature of the international judicial function, see Amerasinghe, ‘Reflections on the Judicial Function in International Law’, in Ndiaye and Wolfrum (eds), Law of the Sea, Environmental Law and Settlement of Disputes (Martinus Nijhoff, 2007) 121.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004284258_017

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independence of international courts,3 and discussed questions of inherent and implied judicial powers,4 but there has been little effort to consider these topics in relation to the various specific functions served by different international adjudicative bodies.5 This chapter first considers the functions or attributes of any institution that carries the name ‘court’ or ‘tribunal’ and suggests that there are powers inherent in such an institution, necessary to allow it to fulfil the judicial function, irrespective of limitations placed on the court’s jurisdiction or the type of proceedings it conducts.6 Those inherent powers include the competence 3 See generally Martinez, ‘Towards an International Judicial System’ (2003) 56(2) Stanford Law Review 429; Posner and Yoo, ‘Judicial Independence in International Tribunals’ (2005) 93(1) California Law Review 1; Helfer and Slaughter, ‘Toward a Theory of Effective Supranational Adjudication’ (1997) 107(2) Yale Law Journal 273; and Shelton, ‘The Independence of International Tribunals’, in Cançado Trindade (ed.), The Modern World of Human Rights: Essays in Honor of Thomas Buergenthal (Inter-American Institute of Human Rights, 1996) 299. 4 See generally Gaeta, ‘The Inherent Powers of International Courts and Tribunals’, in Vohrah et al., (eds), Man’s Inhumanity to Man: Essays on International Law in Honor of Antonio Cassese (Kluwer Law International, 2003) 353; Orakhelashvili, ‘Judicial Competence and Judicial Remedies in the Avena Case’ (2005) 18(1) Leiden Journal of International Law 31; and Brown, ‘The Inherent Powers of International Courts and Tribunals’ (2005) 76(1) British Yearbook of International Law 195. 5 Chester Brown is one of the few to have linked the inherent powers of international tribunals to their functions, which he divides into ‘private’ (that is, dispute settlement) and ‘public’ functions, the latter including the administration of justice and progressive development of international law: see generally Brown, ibid. David Caron similarly describes an international court as ‘a particular form of international institution’ with ‘a wider range of functions’ than is usually presented: Caron, ‘Towards a Political Theory of International Courts and Tribunals’ (2006) 24(2) Berkeley Journal of International Law 401 at 402. He contrasts (at 403) institutions that are community-originated and prospective from those that are party-originated and retrospective. A party-oriented tribunal is ad hoc and retrospective, an outgrowth of a particular dispute and the choice of parties after negotiations on how to address it, an example being the Iran–US Claims Tribunal. A court is an institution that is community-oriented and prospective, shifting control away from the parties. This chapter takes a slightly different approach, seeing some of the functions and powers described by Brown and Caron as inherent to all courts and others as specific to particular kinds of tribunals. It is thus closer to the analysis of Martin Shapiro, who sees three functions served by courts generally: conflict resolution, regime enforcement and lawmaking: see Shapiro, Courts: A Comparative and Political Analysis (University of Chicago Press, 1981) at 63. 6 Inherent power is ‘[a] power that necessarily derives from an office, position or status’: Black’s Law Dictionary, 8th edn (Thomson West, 2004) at 1208. Inherent ‘[exists] in something as a permanent attribute or quality; forming an element, esp[ecially] a characteristic or essential

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to decide matters of jurisdiction and evidence, as well as to decide the merits of matters submitted to the court. The chapter posits that these attributes extend to human rights commissions and committees when they are hearing and deciding cases, but that such tribunals also have functions conferred on them that have led to the development of implied powers, such as indicating interim measures and establishing interpretive methodology specific to human rights treaties. States delegate to international adjudicative bodies one or more specific functions: dispute settlement and redress,7 compliance assessment,8 enforcement9 and legal advice (advisory opinions).10 These functions in turn give rise to various inherent or implied powers. A court whose primary purpose is dispute settlement may exercise powers not appropriate to an enforcement body (international criminal court), and vice versa. Controversy over a court’s 7

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element of something; belonging to the intrinsic nature of that which is spoken of’: Oxford English Dictionary, 2nd edn (Clarendon Press, 1989) at 969. The function of the icj, as the principal judicial organ of the un, ‘is to decide in accordance with international law such disputes as are submitted to it’: Article 38(1) Statute of the International Court of Justice. The panels and Appellate Body of the World Trade Organization are also dispute settlement bodies, although the states parties declined to establish a court to decide trade disputes: Understanding on Rules and Procedures Governing the Settlement of Disputes, Marrakesh Agreement Establishing the World Trade Organization, Annex 2 (dsu). The functions of the International Tribunal for the Law of the Sea include dispute settlement, but also include compliance monitoring: United Nations Convention on the Law of the Sea, Annex vi (‘itlos Statute’). While international human rights courts have jurisdiction to redress violations of human rights, they are created ‘[t]o ensure the observance of the engagements undertaken by the High Contracting Parties’: Article 19 echr. Or, similarly, these courts ‘have competence with respect to matters relating to the fulfillment of the commitments made by the States Parties’ to the human rights treaty: Article 33 achr. The Rome Statute of the International Criminal Court grants the court ‘the power to exercise its jurisdiction over persons for the most serious crimes of international concern’ in order to ensure that they do not go unpunished and that their effective prosecution may put an end to impunity: Article 1 Rome Statute of the International Criminal Court and its preamble at paras 4–5. See, for example, Article 63(1) achr, which gives the Inter-American Court of Human Rights broad advisory jurisdiction in contrast to Article 47 echr, which provides more limited ability for the European Court of Human Rights to render advice. The African Court on Human and Peoples’ Rights ‘may give an advisory opinion on any legal question’ at the request of various organs of the African Union, provided the request does not concern a pending application before the African Commission on Human and Peoples’ Rights: Protocol on the Statute of the African Court on Human and Peoples’ Rights, July 21, 2008 (entry into force Feb. 11, 2009), Art. 4(1).

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utilisation of implied and inherent powers arises because complex and varied reasons lead states to create international courts and tribunals,11 often giving rise to different views about the institution’s primary purpose or function. Current debates over further reform of the European Court of Human Rights and the Inter-American Commission on Human Rights (iachr) in part reflect these disagreements. In addition, the development of implied powers sometimes produces backlash by states against whom the powers described in Section 3 of this chapter are exercised. 2

Form, Function and Inherent Powers

A court is both an independent body that answers legal questions according to principles and rules of law, and the physical place where judicial proceedings occur. The common design of courtrooms and rituals associated with proceedings reflect the specific nature and importance of the administration of justice. Judges wearing robes sit above and apart from those participating in and observing the proceedings, while the disputing parties are placed in a position of physical equality before the panel. All rise when the judges enter and leave the courtroom. The inherent attributes of courts, like the design of courtrooms, may derive from the judicial function or the very definition of a court as an independent body giving binding decisions according to law on the questions presented to it. Philip Allott has identified characteristics shared by the social institutions that are identified by the word ‘court’ and its equivalents in other languages.12 First, the court is a self-contained social phenomenon, physically isolated13 and systematically distinct from other institutions. In addition, there are fixed roles played by judge, litigant and witness, resulting in a proceeding that produces a decision on the rights and duties of the parties. Independent courts

11 12 13

On the multiple motivations behind the establishment of international criminal courts, see Caron, supra n 5. Allott, ‘The International Court and the Voice of Justice’, in Lowe and Fitzmaurice (eds), Fifty Years of the International Court of Justice (cup, 1996) 17 at 23. Among international courts, only the ECtHR is headquartered in the same city as the political bodies of its parent organisation, the Council of Europe. The IACtHR is in San Jose, Costa Rica, while most other institutions of the Organization of American States are located in Washington, dc. The African Court on Human and Peoples’ Rights is in Arusha, Tanzania, while the parent African Union is based in Addis Ababa, Ethiopia.

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also monitor the principle of the rule of law that all conduct, including that of governments and their agents, is subject to the law.14 The three regional human rights courts have been given the name, formal char­acteristics and symbolic attributes of a court. They are similar in their functions and in having guarantees of their independence15 and control over their procedures. The courts decide the cases presented to them, in the process determining whether the respondent state has breached its human rights obligations and, if so, what redress is due to victims of the violations.16 The courts also serve as compliance bodies, monitoring implementation of the relevant treaties. The Inter-American and African Commissions fulfil these functions as well when they determine the admissibility and merits of petitions submitted to them. Human rights tribunals in general are created by and have jurisdiction in respect to a specific treaty or treaties, wherein the rights and obligations are set forth and indications given of the norms that the tribunal may apply.17 Unlike the icj, the functions of human rights tribunals are not limited to or even primarily about dispute settlement. International human rights bodies are created expressly ‘[t]o ensure the observance of the engagements undertaken by the High Contracting Parties’18 or they ‘have competence with respect to matters relating to the fulfillment of the commitments made by the States Parties’

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Cogan, ‘Competition and Control in International Adjudication’ (2008) 48(2) Virginia Journal of International Law 411 at 416. Article 21 echr requires judges to sit ‘in their individual capacity’, adding that ‘during their term of office they shall not hold any position which is incompatible with their independence and impartiality as members of the Court or the demands of this office’. The redress powers of the three courts are formulated in somewhat different terms in the basic instruments and have given rise to divergent jurisprudence among the bodies: see Shelton, Remedies in International Human Rights Law, 3rd edn (oup, 2015). In some instances, human rights treaties give the commission or court an expansive list of normative sources they may apply in interpreting the guaranteed human rights: see, for example, Articles 60 and 61 African Charter on Human and Peoples’ Rights. More generally, the rules of treaty interpretation found in Article 31 of the Vienna Convention on the Law of Treaties (especially Article 31(3)(c)) call for taking into account ‘any relevant rules of international law applicable in the relations between the parties’. Human rights tribunals are increasingly utilising this provision to place specific treaties in a broader legal context to interpret their guarantees or to reconcile conflicting international obligations: see, for example, Al-Adsani v United Kingdom Application No 35763/97, Merits, 21 November 2001. Article 19 echr.

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to the agreement.19 The language of these mandates indicates that states parties intend the tribunals to undertake compliance monitoring. Whatever the primary focus, international adjudicative bodies have been deemed to possess inherent judicial functions. The icj, in determining that the United Nations Administrative Tribunal was established ‘as an independent and truly judicial body pronouncing final judgments without appeal within the limited field of its functions’,20 enumerated some of the characteristics of judicial bodies as distinguished from political organs: [T]he General Assembly itself, in view of its composition and functions, could hardly act as a judicial organ – considering the arguments of the parties, appraising the evidence produced by them, establishing the facts and declaring the law applicable to them – all the more so as one party to the dispute is the United Nations Organization itself.21 States freely decide whether to create a court or tribunal. They may expressly limit the court’s jurisdiction, decide the body of substantive law the court may apply, and restrict or deny implied powers. Nevertheless, the control that states exercise cannot exceed certain limits if they intend to maintain the judicial nature of the institution. It has been objected that there are no attributes inherent to any institution created by a legal instrument, including international courts created by treaty; the resulting institution is a mere agent of the states who create it and who have plenary control over its functions and powers.22 However, other legal persons and institutions have attributes defined in part by the legal system in which they and their creators operate and which limit creative control. Investors may found a corporation, for example, and define its powers in the corporate charter, but the attributes of a corporation are also

19 20 21

22

Article 33 achr. Effect of Awards of Compensation Made by the United Nations Administrative Tribunal Advisory Opinion, icj Reports 1954, 47 at 53 and 76 (Dissenting Opinion of Judge Hackworth). Ibid. at 56. See also Gomula, ‘The International Court of Justice and Administrative Tribunals of International Organizations’ (1991) 13(1) Michigan Journal of International Law 83 at 86–87. Advocate General Warner expressed this view in a case before the European Court of Justice, although he was referring to the powers of the European Commission, not the Court itself: ‘A body that is created by a legal instrument does not have “inherent” powers. It has only the powers that are conferred on it by that instrument, either expressly or by necessary implication’. Opinion of Advocate General Warner in Case 792/79 R Camera Care v Commission [1980] ecr 119 at 135.

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partly determined by public law.23 Judicial independence and other inherent attributes of courts may similarly qualify as general principles of law.24 States certainly have the power to mandate that only one side to a dispute be heard and to require that a ‘court’ decide on the basis of the evidence and arguments of that party alone, but most observers would not consider such an institution a court of justice operating under the rule of law.25 In general, courts must have the powers necessary to make independent decisions: ‘The essence of the judicial power or function requires independence of every judicial organ in every sense’.26 Judicial independence is critical because it is in principle a guarantee of justice, or at least a safeguard against injustice, reflecting a basic principle of the rule of law derived in part from the maxim nemo iudex in causa sua (‘no one should be a judge in his or her own cause’). Judges in turn have a duty to conduct a fair hearing and decide impartially the matters before them. Judicial independence and impartial decision-making are not only just, but 23

In fact, the icj has recognised that at least one attribute of a corporation – its legal personality separate from its shareholders – is a general principle of law: Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) Second Phase, Judgment, icj Reports 1970, 3 at para 38 (noting that ‘international law has had to recognise the corporate entity as an institution created by States in a domain essentially within their domestic jurisdiction’). The Court observed (at para 41) that ‘[t]he concept and structure of the company are founded on and determined by a firm distinction between the separate entity of the company and that of the shareholder, each with a distinct set of rights’. 24 The International Criminal Tribunal for the Former Yugoslavia (icty) Appeals Chamber in Prosecutor v Tadić Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction, IT-94-1-AR72 (1995) at para 15, has expressly rejected the notion that the intent of its creator determines the full scope of its judicial powers: To assume that the jurisdiction of the International Tribunal is absolutely limited to what the Security Council ‘intended’ to entrust it with, is to envisage the International Tribunal exclusively as a ‘subsidiary organ’ of the Security Council …, a ‘creation’ totally fashioned to the smallest detail by its ‘creator’ and remaining totally in its power at its mercy. Thus, the Appeals Chamber determined (at paras 4–6) that it had the power of interlocutory review in order to avoid ‘lengthy, emotional and expensive trials’ because the Security Council ‘surely expect[ed] that [the Statute] would be supplemented where advisable, by the rules which the Judges were mandated to adopt’. 25 Thirlway has noted that ‘[i]f states setting up an international body classify it as a court or tribunal, then there is no need for them to spell out in its constitutive document that it is under an obligation to hear both sides before deciding; by calling it a court they are already implicitly giving it that instruction’: see Thirlway, ‘Dilemma or Chimera? Admissibility of Illegally Obtained Evidence in International Adjudication’ (1984) 78(3) American Journal of International Law 622 at 626. See also Blackman, ‘There is There There: Defending the Defenseless with Procedural Natural Law’ (1995) 37(1) Arizona Law Review 285. 26 Amerasinghe, supra n 2 at 123.

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also further the interest of society in seeing disputes settled by peaceful means. Parties are more likely to submit their differences to judicial resolution and comply with decisions if they expect and are afforded procedural fairness and a judgment based on the facts presented and the applicable law. Observers have identified four inherent powers flowing from the judicial function: the powers to (1) interpret the submissions of the parties to isolate the issue(s) in the case and identify the object(s) of the claim; (2) determine whether the court is competent to hear a particular matter; (3) determine whether the court should refrain from exercising jurisdiction that it has; and (4) decide all issues concerning the exercise of its jurisdiction, including ruling on questions about evidence, burden of proof, due process and questions of law relevant to the merits of the dispute.27 The icj supports this bundle of inherent powers and its basis in the judicial function: [I]t should be emphasized that the Court possesses an inherent jurisdiction enabling it to take such action as may be required, on the one hand, to ensure that the exercise of its jurisdiction over the merits, if and when established, shall not be frustrated, and on the other, to provide for the orderly settlement of all matters in dispute, to ensure the observance of the ‘inherent limitations on the exercise of the judicial function’ of the Court, and to ‘maintain its judicial character.’ … Such inherent jurisdiction, on the basis of which the Court is fully empowered to make whatever findings may be necessary for the purposes just indicated, derives from the mere existence of the Court as a judicial organ established by the consent of States, and is conferred upon it in order that its basic judicial functions may be safeguarded.28 International courts sometimes refer to their inherent powers as deriving from the needs of the proper administration of justice,29 which thereby predominantly concern procedural rules. The statutes of most international

27

28 29

See Pauwelyn, ‘The Role of Public International Law in the wto: How Far Can We Go?’ (2001) 95(3) American Journal of International Law 535 at 555; and Pauwelyn, Conflict of Norms in Public International Law: How wto Law Relates to Other Rules of International Law (cup, 2003) at 447–448. Nuclear Tests (Australia v France) Judgment, icj Reports 1974, 253 at 259–260. See, for example, Legality of Use of Force (Serbia and Montenegro v Belgium) Preliminary Objections, Judgment, icj Reports 2004, 279, especially the separate opinions of Judge Higgins (at para 10) and Judge Kooijmans (at para 22).

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courts30 expressly allow the tribunal to make procedural orders for the conduct of proceedings. Judge Fitzmaurice has commented that such procedural or incidental jurisdiction need not be expressly mentioned because it is ‘really an inherent jurisdiction, the power to exercise which is a necessary condition of the Court – or any court of law – being able to function at all’.31 Thus the express powers set forth are merely declarative of inherent judicial powers. A Compétence de la Compétence If a court has jurisdiction over legal disputes, it must have the power to decide whether there is a dispute and, if so, whether the dispute is a legal one. This compétence de la compétence or power to decide on the limits of jurisdiction is an inherent power,32 although most treaties now expressly provide for it33 because if there is a dispute over jurisdiction, that dispute needs to be decided before the court can address the merits. A court lacking the power to resolve this issue would either have to accept all applications filed, rejecting any challenges to its jurisdiction, or uphold all challenges and dismiss each case in which jurisdiction is questioned. Rather than place complete control in the hands of one disputing party or the other, the court itself decides on the scope of its jurisdiction. The principle jura novit curia is also applied by international tribunals. The maxim signifies in general the judicial power to address a case based on a law or legal theory not presented by the parties.34 To some, its application represents­ 30

See, for example, Article 16 itlos Statute; Article 25(d) echr; Article 60 achr; and Article 15 Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991. 31 Separate Opinion of Judge Fitzmaurice in Northern Cameroons (Cameroon v United Kingdom) Preliminary Objections, Judgment, icj Reports 1963, 15. 32 Both the pcij and the icj consider the compétence de la compétence to be inherent in any judicial body: see Interpretation of the Greco-Turkish Agreement of December 1st, 1926 Advisory Opinion, pcij Reports 1928, Series B 16 at 20 (‘any body possessing jurisdictional powers has the right in the first place itself to determine the extent of its jurisdiction’); and Nottebohm Case (Liechtenstein v Guatemala) Preliminary Objection, Judgment, icj Reports 1953, 111 at 119–120: ‘[A]n international tribunal has the right to decide as to its own jurisdiction … [and t]he judicial character of the Court and the rule of general international law referred to above are sufficient to establish that the court is competent to adjudicate on its own jurisdiction in the present case’. 33 See, for example, Article 32(2) echr. 34 Damaška, The Faces of Justice and State Authority (Yale University Press, 1986) at 116. Another author calls the adage a ‘presumption’ that the court knows the law: see Fox,

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the legal aspect of justice because it ensures that a party will not lose a case simply because of a failure to invoke the correct legal ground.35 Other authors link the concept to notions of equity whereby the court can recognise rights that an applicant or petitioner may not have invoked and may not even be aware pertain to the issues before the court.36 The decision-maker may not modify the claim, but, based on the submissions and being presumed to know the law, applies the relevant norms to the proved facts to decide the claim. This litigation structure may avoid difficulties when the parties themselves disagree over the applicable norms—as is often the case with international law—or fail to state the legal basis of the case clearly and completely. The practice of human rights tribunals in applying jura novit curia varies widely. The more a human rights tribunal emphasises its compliancemonitoring­function, the more likely it may be to apply jura novit curia and to insist on including all possible rights linked to the alleged acts or omissions, in order to advise the respondent state on the full range of potential deficiencies in its comportment. Dictionary of International and Comparative Law (Oceana Publishing, 1992): ‘This maxim controls the manner in which the International Court handles questions of international law. As a consequence, the court is not restricted to the law presented by the parties, but is free to undertake its own research’. Fox does not mention another general principle of law: that all subjects of a legal system are presumed to know the law and ignorance of the law is no defence. How this general knowledge differs from the presumed knowledge of the judge is unexamined. 35 Geeroms, Foreign Law in Civil Litigation: A Comparative and Functional Analysis (oup, 2004). See also Miller, ‘Sua Sponte Appellate Rulings: When Courts Deprive Litigants of an Opportunity to be Heard’ (2002) 39(4) San Diego Law Review 1253 at 1256 (describing the practices of appellate courts in the United States when they find a point of law has been wrongly stated or omitted by the parties, practices that range from ignoring the issue or deeming it waived to noting the issue and remanding the case for consideration of it, requesting supplemental briefing or deciding the issue without briefing). 36 Black’s Law Dictionary, 6th edn (West Publishing, 1991) at 852, translates the principle as ‘the court knows the law; the court recognizes rights’. Douglas Brooker notes that the second part of this definition may support the creation of equitable remedies: ‘The translation the “court recognises rights” and its association with the maxim “no wrong without a remedy” … invalidates a defence based on the absence of law by legitimising a decision based on a judge-created rule imposed ex post facto to remedy a wrong, notwithstanding no law was breached. The factual wrong alleged in this application of jura novit curia is found by a court nonetheless as sufficiently egregious to justify “recognising” protection from the wrong as a “right” leading to the provision of a remedy in equity’: Brooker, ‘Va Savoir! – The Adage “Jura Novit Curia” in Contemporary France’, bepress Legal Series 845, 30 October 2005, at 47, available at: law.bepress.com/expresso/eps/845.

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The European Court of Human Rights (ECtHR) has rarely applied jura novit curia, although it accepts that it can, in principle, do so. A Grand Chamber ruling summed up the theory: [T]he Court is master of the characterisation to be given in law to the facts of the case, [and] it does not consider itself bound by the characterisation given by the applicant or the Government. By virtue of the jura novit curia principle, it has, for example, considered of its own motion complaints under Articles … not relied on by the parties and even under a provision in respect of which the [European] Commission had declared the complaint to be inadmissible while declaring it admissible under a different one.37 In practice, the European Court rarely makes use of this power. A handful of references to jura novit curia can be found in Grand Chamber judgments analysing a case differently from the Chamber that first heard the matter. Notably, the Grand Chamber usually exercises jurisdiction when the matter is one of first impression or when the Chamber has declined to follow prior case law. Grand Chamber decisions have consistently held that its scope of jurisdiction in a case is limited by the Chamber’s decision on admissibility,38 but within that limit it can examine all the issues raised by the record. In fewer than two dozen reported cases has the European Court recharacterised the legal issues before it and assessed the complaint for violation of a 37

Scoppola v Italy (No 2) Application No 10249/03, Merits and Just Satisfaction, 17 September 2009, at para 54. See also Powell and Rayner v United Kingdom Application No 9310/81, Merits, 21 February 1990, at para 29: ‘[T]he Court is the master of the characterisation to be given in law to the facts submitted to its examination’. 38 See Perna v Italy Application No 48898/99, Merits and Just Satisfaction, 6 May 2003, at para 23; and Azinas v Cyprus Application No 56679/00, Merits, 28 April 2004, at para 32. The case of Contrada v Italy Application No 27143/95, Merits and Just Satisfaction, 24 August 1998, provides an example of the refusal to apply jura novit curia to bring in a new complaint. In his memorial to the Court and at the hearing, the applicant challenged, as he had previously done before the Commission, the lawfulness of his arrest and detention, saying that they had been in breach of Article 5(1)(c) echr. Relying for the first time on Article 3, he also submitted that the conditions of his detention (solitary confinement in military prisons) amounted to ill-treatment in breach of that provision. The Court observed, firstly, that on 14 January 1997 the Commission declared the complaint under Article 5(1)(c) inadmissible. It further noted that although Mr Contrada complained from the outset that he had been detained for an unreasonable period (Article 5(3)), the complaint under Article 3 concerns the actual conditions of detention, not its length. The Court held it had no jurisdiction ratione materiae to hear the Article 3 claim.

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right not cited by the applicant. The right most often added has been Article 8 (the right to respect for private and family life),39 which has been given a broad reading by the Court, one unlikely to be obvious to litigants unfamiliar with the European Court’s case law.40 In some instances, the recharacterisation may be motivated by a desire to maintain consistency in the Court’s jurisprudence. In the Guerra case, for example, by considering the matter as one concerned with privacy and home life and the right to life, the Court avoided having to reconsider its precedents on the limited scope of freedom of information under Article 10, while finding that the applicants had a right to the specific information sought, pursuant to a procedural dimension under Article 8.41 The ECtHR has insisted on the right of the parties to have notice and be heard on the alleged violations. In Scoppola v Italy, the Grand Chamber pointed out that a factual basis for considering an additional violation under the principle jura novit curia had appeared in the original complaint. In its view, the Court’s Second Section ‘did no more than use its right to characterise the applicant’s complaint and to examine it under more than one Convention provision. Such a reclassification, which took into account, among other considerations, the applicant’s new arguments, cannot be considered arbitrary’.42 The Grand Chamber also noted that the applicant’s observations and the final decision on admissibility were communicated to the respondent 39

40

41 42

In addition to the cases cited in the text, see Sławomir Musiał v Poland Application No 28300/06, Merits and Just Satisfaction, 20 January 2009; Mocny v Poland Application No 47672/09, Admissibility, 30 November 2010; and Dolenec v Croatia Application No 25282/06, Merits and Just Satisfaction, 26 November 2009. See, for example, Guerra and Others v Italy Application No 14967/89, Merits and Just Satisfaction, 19 February 1998, at para 44 (recharacterising a case as one falling under Article 8 rather than under Article 10). See also Philis v Greece (No 1) Applications Nos 12750/87 et al., Merits and Just Satisfaction, 27 August 1991, at para 56; Berktay v Turkey Application No 22493/93, Merits and Just Satisfaction, 1 March 2001, at para 167; and Eugenia Lazăr v Romania Application No 32146/05, Merits and Just Satisfaction, 16 February 2010, at para 60. Guerra and Others v Italy, ibid. at para 60. Scoppola v Italy (No 2), supra n 37 at para 55. The applicant had originally invoked Article 6, but no ruling was made on its admissibility. See also Castravet v Moldova Application No 23393/05, Merits and Just Satisfaction, 13 March 2007, at para 23; Marchenko v Ukraine Application No 4063/04, Merits and Just Satisfaction, 19 February 2009, at para 34; Berhani v Albania Application No 847/05, Merits and Just Satisfaction, 27 May 2010, at para 46; and Anusca v Moldova Application No 24034/07, Merits and Just Satisfaction, 18 May 2010, at para 26. In the case of Gatt v Malta Application No 28221/08, Merits, 27 July 2010, the Court decided to examine the issue raised by the applicant not only under Article 3 as alleged, but also under Article 5 echr and Article 1 Protocol No 4 to echr.

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government which therefore had the opportunity before the Grand Chamber to submit any argument to the effect that the complaint was inadmissible or ill-founded.43 The ECtHR on occasion has applied jura novit curia subsequent to developing new jurisprudence on an issue, in order to treat in a similar manner subsequent cases raising the same issue. Thus, after the Court held that the Convention’s guarantee of the right to life under Article 2 has a procedural dimension requiring good faith investigation of disappearances and suspicious deaths, it added consideration of this Article to such cases if the applicant failed to cite it.44 In Çelikbilek v Turkey,45 the Court similarly applied jura novit curia to accept the addition of a claimed violation of Article 13 (right to a remedy), because it had examined similar factual assertions under this provision and it was thus deemed to be the pertinent Article. Indeed, in almost every case in which the ECtHR has applied jura novit curia, it has referred to prior jurisprudence on the appropriate Articles for the type of claim being brought.46 In general, however, the Court maintains a focus on the main issue(s) raised by the facts, often deciding that it is unnecessary to examine other possible violations, even when raised by the applicant.47 43

Scoppola v Italy (No 2), ibid. at para 56. Similarly, once the case of Şerife Yiğit v Turkey was submitted to the Grand Chamber, it invited the parties, in their observations and pleadings before it, to address the issue of compliance with Article 14 echr taken in conjunction with Article 1 Protocol No 1 to echr: Şerife Yiğit v Turkey Application No 3976/05, Merits and Just Satisfaction, 2 November 2010. See also Göç v Turkey Application No 36590/97, Merits and Just Satisfaction, 11 July 2002, at para 36. 44 In Akdeniz v Turkey Application No 25165/94, Merits and Just Satisfaction, 31 May 2005, the Court observed that the applicant did not initially invoke Article 2 echr in her application form, but later included it in observations to the Court. The Court reiterated (at para 88) that since it is master of the characterisation to be given in law to the facts of the case, it is not bound by the characterisation given by an applicant, a government or the Commission and by virtue of the jura novit curia principle it could and had ‘considered of its own motion complaints under Articles or paragraphs not relied on by those appearing before it and even under a provision in respect of which the Commission had declared the complaint to be inadmissible while declaring it admissible under a different one’. The Court also stated (at para 89) that within the compass of the admissibility decision, ‘the Court may deal with any issue of fact or law that arises during the proceedings’. See also Timurtaş v Turkey Application No 23531/94, Merits and Just Satisfaction, 13 June 2000; Bilgin v Turkey Application No 23819/94, Merits and Just Satisfaction, 16 November 2000; and Baysayeva v Russia Application No 74237/01, Merits and Just Satisfaction, 5 April 2007. 45 Application No 27693/95, Merits and Just Satisfaction, 31 May 2005. 46 See, for example, Brosset Triboulet and Other v France Application No 34078/02, Admissibility, 29 April 2008 (adding Article 8). 47 Thus, if the European Court finds a right violated, such as freedom from inhuman or degrading treatment or freedom of expression, it rarely examines the issue of discrimination­

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In contrast to the ECtHR, the iachr and the Inter-American Court of Human Rights (IACtHR) have invoked jura novit curia with some frequency to reframe petitions and include rights not invoked by the petitioners as well as to add victims to the case. In Hilaire, the Inter-American Court invoked the icj precedents in stating that it had not only the right but also the obligation to find a violation of any provision of the American Convention on Human Rights found to be applicable.48 Many reasons might explain such an extensive use of the principle. First, petitioners unfamiliar with the system and not represented by legal counsel might not refer to any specific right in the American Declaration or an applicable treaty, or may refer to non-applicable instruments.49 As neither the Convention50 nor the Commission’s Rules of Procedure51 require reference to specific rights, it becomes the task of the iachr to determine admissibility in

48 49

50 51

in addition to that of the specific violation. The Court seems to do so only when the applicant introduces sufficent evidence that the violation was specifically motivated by discrimination. Compare, for example, Arslan v Turkey Application No 23462/94, Merits and Just Satisfaction, 8 July 1999; and Nachova and Others v Bulgaria Applications Nos 43577/98 and 43579/98, Merits and Just Satisfaction, 6 July 2005. Case of Hilaire, Constantine and Benjamin et al., v Trinidad and Tobago IACtHR Series C 94 (2002) at paras 107 and 187. Case 92–04, Jesús Tranquilino Vélez Loor v Panama Report No 95/06 (2006). The petition alleged violation by the Panamanian State of Articles 5, 7, 8, 10, 21 and 25 achr in conjunction with Article 1(1) achr; and Articles 1, 2, 3, 7, 8, 9, 10 and 11 Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Commission declared the case admissible under Articles 1(1), 2, 5, 8, 21 and 25 achr, but substituted for the Torture Declaration Articles 1, 6 and 8 Inter-American Convention to Prevent and Punish Torture. See also Case 1109–04, Jorge, José and Dante Peirano Basso v Uruguay Report No 35/06 (2006), in which petitioners invoked Articles 5(1) and (2), 7(1) and (3), 8(1), 9, 24, 25 and 29 achr in conjunction with Article 1(1) achr. The petitioners further alleged violations of Articles 2, 18, 25 and 26 American Declaration of the Rights and Duties of Man; Articles 1, 2, 6 and 8 Inter-American Convention to Prevent and Punish Torture; Articles 9, 14 and 26 International Covenant on Civil and Political Rights; Article 26 Vienna Convention on the Law of Treaties; and the United Nations Standard Minimum Rules for the Treatment of Prisoners (adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by ecosoc Res 663 C (xxiv), 31 July 1957; and Res 2076 (lxii), 13 May 1977). The Commission admitted the case only on alleged violations of Articles 7, 8, 9 and 25 achr. Articles 46 and 47 achr set forth the admissibility requirements. Rules of Procedure of the Inter-American Commission on Human Rights, approved by the Commission at its 137th regular period of sessions, held from 28 October to 13 November 2009, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, 30 June 2010, OAS/Ser.L/V/I.4 rev.13.

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reference to guaranteed rights.52 Yet, revisions occur even when the petitioner has legal representation, including when the representative is an experienced and knowledgeable litigant before the Inter-American bodies and can be expected to frame allegations to present the petitioner’s best case. Second, the use of jura novit curia could reflect a broad view of the Commission’s function to monitor and promote compliance with the full range of human rights through the case system. Unlike in the United Nations human rights treaty system, the Inter-American system does not require periodic reporting by states; the case system is one of the main avenues through which the Commission becomes aware of violations occurring in members of the Organization of American States and can recommend not only redress, but also measures to ensure non-repetition of violations. A third factor promoting extensive use of jura novit curia may be a negative view by the Commission and the Court of the judicial systems of many countries in the hemisphere. The Commission most frequently adds Articles 8 (due process)53 and 25 (access to justice)54 of the Convention through the use of 52

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See, for example, Case 668–05, Carlos Alberto Valbuena and Luis Alfonso Hamburger Diazgranados v Colombia Report No 87/06 (2006); and Case 1306–05, Nueva Venecia Massacre v Colombia Report No 88/06 (2006): ‘The Commission considers that the facts the petitioner is reporting regarding the alleged violation of the right to life, the right to humane treatment, the right to a fair trial and the right to judicial guarantees could tend to establish violations of the rights protected under articles 4, 5, 8.1 and 25 of the American Convention, in combination with Article 1.1 thereof’. See also Case 618–01, María Emilia González, Paula Micaela González, and María Verónica Villar v Argentina Report No 15/06 (2006); and Case 12.174, Israel Gerardo Paredes Costa v Dominican Republic Report No 48/06 (2006). For petitions in which Article 8 was added, see, for example, Case 1068–03, Neusa Dos Santos Nascimento and Gisele Ana Ferreira v Brazil Report No 84/06 (2006); Case 71–03, Union of Ministry of Education Workers (Atramec) v El Salvador Report No 23/06 (2006); and Case 569–99, Jacobo Arbenz Guzman v Guatemala Report No 27/06 (2006). For cases adding Article 25, often in connection with Article 8, see, for example, Case 997–03, Alicia Barbani Duarte, Maria Del Huerto Breccia, et al., (Depositors of the Banco de Montevideo) v Uruguay Report No 123/06 (2006) (adding Articles 8 and 25 in case concerning bank fraud); Case 4348–02, Jesús Mohamad Capote, Andrés Trujillo et al., v Venezuela Report No 96/06 (2006) (‘Although the petitioners did not make any express allegations to that effect, in application of the principle of jura novit curia the Commission finds that the facts recounted in connection with the alleged delay and lack of due diligence may tend to establish a violation of the rights to a fair trial and to judicial protection, recognized in articles 8, 25 and 1.1 of the American Convention, to the detriment of the alleged victims and their next of kin’.); Case 469–05, Victoria Jimenez Morgan and Sergio Jimenez v Costa Rica Report No 178/10 (2010); Case 1011–03, Fredy Marcelo Núñez Naranjo et al., v Ecuador Report No 2/10 (2010); and Case 147–98, Oscar Muelle Flores v Peru Report No 106/10 (2010).

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jura novit curia.55 Unlike the European Court, the iachr seems more willing to find a deprivation of due process and/or access to justice when the petitioner did not receive a remedy in the domestic courts. Fourthly, as in Europe, one may also infer concern to ensure that like situations result in similar decisions, providing equality of treatment to petitioners and governments. Thus, forced disappearance and torture cases are usually deemed to involve the same set of rights under the Convention(s), irrespective of the rights invoked by the petitioner.56 In cases of forced disappearances, for example, the Commission normally adds Article 3 of the Convention (right to juridical personality),57 based on the Court’s jurisprudence,58 as well as other rights and other conventions.59

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See, for example, Case 1454–06, Thalita Carvalho de Mello and Others v Brazil Report No 127/10 (2010) (adding by jura novit curia possible violations of Articles 5(1) and 8 achr with respect to the family members of the alleged victims); Case 1325–05, Estadero ‘El Aracatazzo’ Massacre v Colombia Report No 47/10 (2010); and Case 11.990, Oscar Orlando Bueno Bonnet et al., v Colombia Report No 124/10 (2010). With respect to disappearances, the Commission has followed a general practice of finding violations of Articles 3, 4, 5, 7, 8 and 25, in relation to Articles 1(1) and 2, as well as Articles 1 and 3 Inter-American Convention on Forced Disappearance of Persons: see, for example, Case 11.845, Jeremías Osorio Rivera et al., v Peru Report No 76/10 (2010). See, for example, Case 11.144, Gerson Jairzinho González Arroyo and Others v Colombia Report No 123/10 (2010); Case 11.587, César Gustavo Garzón Guzmán v Ecuador Report No 70/10 (2010) (adding Articles 3, 5 and 7 as well as Article 1 of the Forced Disappearances Convention); Case 247–07, Luis Eduardo Guachalá Chimbó v Ecuador Report No 141/10 (2010); Case 1138–04, Patricia Emilie Cuellar Sandoval and Others v El Salvador Report No 107/10 (2010); and Case 497–03, Jesús Ángel Gutierrez Olvera v Mexico Report No 147/10 (2010). In the seminal judgment in Case of Velásquez Rodríguez v Honduras IACtHR Series C 4 (1988) at paras 150 and 155, the Inter-American Court signalled a broad approach to the phenomenon of forced disappearances, stating: ‘The phenomenon of disappearances is a complex form of human rights violation that must be understood and confronted in an integral fashion. … 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’. See, for example, Case 1448–06 et al., Roberto Carlos Pereira de Souza et al., v Brazil Report No 126/10 (2010) at para 3: ‘In accordance with the principle of jura novit curia, the iachr also rules these petitions admissible with respect to possible violations of Articles 3 (for the allegedly disappeared victims), 7 (for all alleged victims), 19 (for the alleged victims who were children at the time of the facts) and 24 (for all alleged victims) of the American Convention, to the detriment of the respective alleged victims; Articles 5.1 and 8 of the American Convention, to the detriment of the family members of the alleged victims and the surviving alleged victim. … Moreover, also by virtue of the principle of jura novit

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Finally, the Court has substantially influenced the Commission’s use of jura novit curia, for example, in routinely adding Articles 1 and 2 of the Convention, which contain the general obligations of states parties.60 The Commission may substitute one of these generic obligations61 for another62 or add to the obligations invoked by the petitioner.63 The Inter-American tribunals often add rights and obligations from other relevant Inter-American treaties if the petitioner fails to refer to them.64 In the case of Heliodoro Portugal v Panama65 neither the iachr nor the victim’s representatives alleged a failure to comply with the provisions of the InterAmerican Convention on Forced Disappearance of Persons, which Panama had ratified on 28 February 1996, instead basing the case exclusively on the American Convention. Citing the jura novit curia principle, the IACtHR decided to rule not only with regard to Article 7 of the American Convention, but also with regard to the provisions of the Forced Disappearance Convention.66 Following the Court’s initiative, in cases involving disappearances, torture or violence against women, the iachr began adding the specific specialised treaty on those topics as well.67 The practice has amounted thus far to a mere formality because neither the iachr nor the Court has analysed the provisions

60

61 62

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65 66 67

curia,­the Inter-American Commission declares these petitions admissible with regard to Articles 1, 6, 7 and 8 of the Inter-American Convention to Prevent and Punish Torture’. Sometimes only these Articles are added. See, for example, Case 691–04, Omar Francisco Canales Ciliezar v Honduras Report No 71/10 (2010) (admitting the case on Articles 8 and 25, adding Articles 1(1) and 2 pursuant to jura novit curia). Case 62–02, Members of the Indigenous Community of Ananas et al., v Brazil Report No 80/06 (2006). Case 2570–02, Nasry Javier Ictech Guifarro v Honduras Report No 30/06 (2006); and Case 1175–03, Paloma Angélica Escobar Ledezma et al., v Mexico Report No 32/06 (2006) at para 39: ‘[U]nder the principle of jura novit curia, the Inter-American Commission will analyze claims addressing Article 2 of the American Convention’. Case 799–04, Alejandro Fiallos Navarro v Nicaragua Report No 59/06 (2006) at para 51: ‘The Commission, invoking the principle of jura novit curia, will analyze the possible violations in conjunction with the general obligations set out in Articles 1 and 2 of the American Convention’. Unlike the un system, the Inter-American system continues to have a single monitoring commission for all of its treaties, rather than creating a separate treaty body for each major agreement. IACtHR Series C 186 (2008). Ibid. at paras 105–113. See Case 245–05, Juan Carlos Jaguaco Asimbaya v Ecuador Report No 64/10 (2010) (adding Articles 1, 6 and 8 Inter-American Convention to Prevent and Punish Torture); and Case 161–01, Irineo Martínez Torres and Candelario Martínez Damián v Mexico Report No 72/10

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of the additional treaty or indicated why the facts demonstrate that it has been violated. It seems to be taken for granted that the provisions mean exactly the same as the Articles of the American Convention. The Inter-American Court excludes the presentation of new facts once a case has been submitted to it by the iachr,68 but holds that the petitioners may invoke new rights because ‘[t]hey are the holders of all the rights embodied in the American Convention and, if [the newly invoked rights] were not admissible, it would be an undue restriction of their condition of subjects of international human rights law’.69 Judge Cançado Trindade argued at great length in favour of liberal recourse to jura novit curia to accept new arguments and issues presented by petitioners late in the litigation, characterising the matter as an issue of access to justice.70 Thus, for about a decade the Court repeatedly permitted petitioners to raise new issues and claims,71 including for new victims.72 The Court has never indicated why petitioners should not be stopped from raising additional rights violations if they fail to litigate them before the iachr, giving both the state and the Commission the opportunity to assess the merits of the claim and provide a full record to the Court. In many legal systems, procedural default attaches at the end of first instance proceedings and litigants are then deemed to have waived any rights they have failed to invoke. International courts apply the doctrine of waiver to state defences (2010) (adding Article 24 achr and Articles 1, 6 and 8 Inter-American Convention to Prevent and Punish Torture). 68 Case of the ‘Five Pensioners’ v Peru IACtHR Series C 98 (2003) at paras 153–154. 69 Ibid. at para 155. 70 Ibid. at Concurring Opinion of Judge Cançado Trindade, para 21: ‘The criterion adopted by the Court in the present Judgment in the case of the Five Pensioners versus Peru correctly considers that one cannot hinder the right of the petitioners of access to justice at international level, which finds expression in their faculty to indicate the rights which they deem violated. The respect for the exercise of that right is required from the States Parties to the Convention, at the level of their respective domestic legal orders, and it would not make any sense if it were denied in the international procedure under the Convention itself. The new criterion of the Court clearly confirms the understanding whereby the process is not an end in itself, but rather a means of realization of Law, and, ultimately, of justice’. 71 Case of the Moiwana Community v Suriname IACtHR Series C 124 (2005) at para 91. 72 In Case of Myrna Mack Chang v Guatemala IACtHR Series C 101 (2003) at paras 223–225, the representatives of the next of kin of the victim asked the Court to find a violation of Article 5 achr to the detriment of the next of kin. The Inter-American Commission did not allege such a violation. See also Case of Ximenes Lopes v Brazil IACtHR Series C 149 (2006) at para 156 (pointing out that the next of kin of the victims of violations of human rights may be victims themselves and adding additional victims to the proceeding).

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like exhaustion of remedies and there appears to be no compelling reason to justify a different rule for petitioners. The Court has indeed held that some late claims are time-barred—but in the same sentence agreed it would consider them under jura novit curia, a practice that could be seen as inconsistent with the Court’s rules of procedure.73 The Court’s approach also seems to be an inefficient use of limited judicial resources because it means that the Court often faces new allegations late in the proceedings without a solid body of evidence or legal arguments from the parties.74 Having issues fully litigated before the iachr should provide the Court with a better record; moreover, requiring the full presentation of a case before the Commission could induce more friendly settlements and compliance, lessening the burden on the Court. Given the length of time required for petitions to proceed through the Commission from initial filing to a merits determination, petitioners would be hard-pressed to argue they would be disadvantaged by a rule requiring that they present all their allegations and legal arguments first to the Commission. A different situation arises if the petitioners raise an issue and the Commission decides against admissibility or finds no violation on the merits.75 No doubt the Court can review such decisions, but it does not need jura novit curia

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Case of Maritza Urrutia v Guatemala IACtHR Series C 103 (2003) at para 140, adding Article 19 (rights of the child) on behalf of the son and nephew of the victim based on a request by the representatives of the victims in their brief with final arguments. The Court called this allegation time-barred, but then decided to examine it, based on the jura novit curia principle. The Court took the same approach in Case of the Girls Yean and Bosico v Dominican Republic IACtHR Series C 130 (2005); and Case of Ximenes Lopes v Brazil, ibid. at para 155. Case of García Asto and Ramírez Rojas v Peru IACtHR Series C 137 (2005). In written arguments, the Commission pointed out (at para 68) that the victim’s representatives referred for the first time in the proceedings before the Court to a new issue: the ‘bodily and psychological harassment and coercion’ inflicted on the petitioners. The representatives responded (at para 71) that ‘the particulars detailed by the [alleged victims] in the brief of requests, arguments, and evidence, refer[red] to the facts mentioned in a general way in the application filed by the Commission’. The Court recalled its own ability to apply the jura novit curia principle but stressed that, with regard to rights claimed for the first time by the representatives of the alleged victims and/or their next of kin, the legal arguments must be based upon the facts set out in the application. In fact, in Case of the ‘Five Pensioners’ v Peru, supra n 68, petitioners had raised an alleged violation of Article 25 in the original petition, but the Commission did not determine the existence of the alleged violation. Thus, the Commission agreed (at para 102) that the Court could examine the matter.

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for this purpose.76 The Court could apply jura novit curia correctly in the rare instance that it determines that the petitioners, the Commission and the state have all missed a relevant legal issue; this will normally arise if the case presents an issue of first impression or the Court aims to extend its jurisprudence.77 Granting the utility if not the necessity of the principle, there are basic guidelines that the regional human rights tribunals should consider. First, any use of jura novit curia should be supported by a reasoned decision, explaining why rights or treaties have been added or substituted for those invoked by the petitioners. Any perceived additional victims should be informed of the right to bring their own petition and should not be added to the one under consideration thereby diluting attention to claims of the primary victim. The decision to modify cases through jura novit curia should be taken as early as possible in the proceedings, normally at the admissibility stage, giving both parties an opportunity to present legal arguments and facts relevant to the newly included rights. New claims should not be asserted by any parties late in the litigation. Finally, tribunals must give attention to the legitimacy of their process. Legitimacy may be questioned when the decision-maker introduces a point of law that permits one party to succeed on the basis of a claim that, absent the tribunal’s intervention, would not have been part of the case. The losing side may well perceive bias in the outcome. B Admissibility and Appreciation of the Evidence The free assessment of evidence is meant to enable the adjudicative body to decide a legal dispute or deliver an advisory opinion in accordance with all relevant facts. It is thus an essential and inherent element of the judicial function. The question of whether an issue is a matter of fact or law is for the court to decide as part of the judicial function, as is the question whether a fact is so evident that the court may take judicial notice of it. Good fact-finding is important to the credibility and legitimacy of the court. As Helfer and Slaughter point out, ‘[a] guaranteed capacity to generate facts that have been 76

Case of the Moiwana Community v Suriname, supra n 71 at para 63: ‘[T]he Commission’s assessment with respect to alleged violations of the American Convention is not binding upon the Court’. 77 In Case of Sawhoyamaxa Indigenous Community v Paraguay IACtHR Series C 146 (2006), the Court made use of jura novit curia to announce a new doctrine on the right to juridical personality (Article 3 achr). This method of developing the jurisprudence is not entirely misplaced since litigants will often focus on litigating established standards rather than arguing for a new principle. This approach was also followed in Case of the Ituango Massacres v Colombia IACtHR Series C 148 (2006) (expanding the interpretation of Article 11(2) on the right to a home). See also Case of Kimel v Argentina IACtHR Series C 177 (2008).

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independently­evaluated, either through a third-party fact-finding process or through the public contestation inherent in the adversary system, helps counter the perception of self-serving or “political” judgments’.78 In order to evaluate evidence, a court must first determine what evidence is admissible and probative. Fairness in proceedings also dictates that parties know in advance the rules of evidence that will govern the proceedings. In most instances, states have expressly conferred on international courts the power to write their own rules of procedure, though they have normally been silent on the rules of evidence, allowing courts to imply this power as a necessary element to deciding a dispute. In general, human rights tribunals have not adopted written rules of evidence, but have instead chosen to admit and evaluate submissions liberally from the parties, utilising inferences and presumptions as they deem appropriate. Courts have also begun to articulate a standard of proof, which varies according to the function of the court.79 In taking evidence and hearing relevant arguments, some international courts have asserted a power to accept submissions from amici curiae. The IACtHR has accepted amicus participation in nearly all of its contentious and advisory proceedings.80 The ECtHR also has developed a procedure and standards for accepting briefs of amicus curiae.81 C Deciding the Merits The judicial function means that even if parties do not raise relevant questions of law, the court has the duty to examine them proprio motu, or of its own 78 79

80 81

Helfer and Slaughter, supra n 3 at 303. See generally Franck, The Power of Legitimacy Among Nations (oup, 1990). See, for example, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) Judgment, icj Reports 2007, 43 at paras 202–230; Ireland v United Kingdom Application No 5310/71, Merits and Just Satisfaction, 18 January 1978; and Case of Velásquez Rodríguez v Honduras, supra n 58 at paras 127–129. International criminal courts require a showing of proof beyond a reasonable doubt, as does the European Court of Human Rights, although the latter court claims that proof beyond a reasonable doubt does not mean the same in human rights proceedings as it does in criminal law. The IACtHR has referred to ‘convincing’ evidence being required to prove more serious human rights violations, such as disappearances. Article 44 Rules of Procedure of the Inter-American Court of Human Rights, approved by the Court during its lxxxv Regular Period of Sessions, held from 16 to 28 November 2009. Article 36(2) echr provides that ‘[t]he President of the Court may … invite … any person concerned who is not the applicant to submit written comments or take part in hearings’. Rule 44 of the Rules of Court governs the procedure for requesting leave to file as a third party intervener.

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accord. In addition, the parties’ agreement on the applicable law is not binding on an international court unless the statute of the court so provides.82 More generally, the judicial function is to apply existing, recognised rules or principles of law to the questions before it, but these rules and principles have to be developed, adapted, modified and interpreted in the context of specific cases because all systems of law are incomplete. In the drafting of international agreements, states sometimes decide to reduce the negotiation costs and risk of defection by allowing deliberate ambiguities to remain in the text. States also may leave gaps because they believe that issues can be better clarified in the context of actual cases. On other occasions, they may leave obligations vague to avoid domestic ratification problems or because they may be unsure which side of an issue will be advantageous in the future. In other instances, there may be no written agreement at all, but the matter may be governed by broad norms of customary international law. The incompleteness of international law means it is unrealistic to expect a precise pre-existing rule to exist for every dispute that arises.83 Once a decision on the merits is reached, the courts generally must turn to reparations. The icj has held that the power to afford reparations is implicit in its jurisdiction as a necessary concomitant to its function to decide disputes:84 If … the Court should limit itself to saying that there is a duty to pay compensation without deciding what amount of compensation is due, the dispute would not be finally decided. An important part of it would 82

Free Zones of Upper Savoy and the District of Gex (France v Switzerland) Judgment, pcij Reports 1932, Series A/B 46; Asylum Case (Colombia v Peru) Judgment, icj Reports 1950, 266 at 278; Fisheries Jurisdiction (United Kingdom v Iceland) Merits, Judgment, icj Reports 1974, 3 at 9; Fisheries Jurisdiction (Germany v Iceland) Merits, Judgment, icj Reports 1974, 175 at 181; and Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) Merits, Judgment, icj Reports 1986, 14 at 24. 83 Merrills, International Dispute Settlement, 3rd edn (cup, 1998) at 153. Tom Ginsburg similarly argues that judicial lawmaking is inevitable and serves the interests of the international community by providing predictable expectations of behaviour which can lead to coordination. Lawmaking is the product of the interaction of various political institutions. States can overrule and discipline international tribunals and exercise constraints on all international courts, although this may produce tension with judicial independence: Ginsburg, ‘Bounded Discretion in International Judicial Lawmaking’ (2005) 45(3) Virginia Journal of International Law 631 at 635–641 and 661. 84 In Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), supra n 82 at para 283, the icj was clear: ‘In general, jurisdiction to determine the merits of a dispute entails jurisdiction to determine reparation’.

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remain unsettled. … It would not give full effect to the Resolutions but would leave open the possibility of a further dispute.85 Other courts engaged in dispute settlement and compliance have also assumed that they may award reparations and make related orders, but in the case of human rights courts, specific provisions govern the award of reparations.86 Nonetheless, the IACtHR has held that the Chorzów Factory87 statement­of the power and duty to afford reparations is now customary international law applicable to the Court itself as well as to states: ‘Article 63(1) reflects a customary­ norm that constitutes one of the basic principles of contemporary international law on State responsibility’.88 Whenever possible, reparation requires full restitution. If that is not possible, the international tribunal hearing the case must indicate the measures required to guarantee the violated rights and repair the injurious consequences, affording monetary and non-monetary reparations that are proportionate to the violations declared. The Inter-American Court does not overlook the need for guarantees of non-repetition: ‘It is necessary to add the measures of a positive nature that the State must adopt to ensure that the harmful facts such as those that occurred in the instant case are not repeated’.89 3

The Specific Functions and Consequent Powers of Human Rights Courts and Tribunals

Human rights bodies often focus on the public, even constitutional aim of the regime in which they operate.90 The ECtHR has referred to the public order of Europe and expressed its role as being one to provide advice for states on compliance with their human rights obligations under the European Convention on Human Rights (echr). That convention itself has a ‘special character’ as a treaty for the collective enforcement of human rights, as it comprises a 85 86 87 88 89 90

Corfu Channel Case (United Kingdom v Albania) Merits, Judgment, icj Reports 1949, 4 at 26. The remedial powers of human rights courts vary according to the express provisions of the relevant treaties: see generally Shelton, supra n 16. Factory at Chorzów (Germany v Poland) Merits, Judgment, pcij Reports 1928, Series A 17 at 47. Case of the Moiwana Community v Suriname, supra n 71 at para 150. Ibid. at para 151. On courts as compliance bodies, see Moremen, ‘Private Rights of Action to Enforce Rules of International Regimes’ (2006) 79(4) Temple Law Review 1127 at 1147–1148.

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network of mutual, bilateral undertakings rather than reciprocal engagements between contracting states. The role of the ECtHR in light of the object and purpose of the Convention is to interpret and apply the agreement ‘so as to make its safeguards practical and effective’.91 A compliance body may look beyond the particular facts or parties before it to guide other states bound by the same substantive obligations. The ECtHR has held that its functions are ‘not only to decide those cases brought before it, but more generally, to elucidate, safeguard and develop the rules instituted by the Convention’.92 The public-interest function of human rights bodies means they may keep a case even if the applicant dies during the proceedings and no heir is found to continue the matter. The ECtHR explained that it is normally indispensable for an individual to be personally affected by an alleged violation to put the protection mechanism in motion—in contrast to the ‘general interest attaching to the observance of the Convention’ that renders admissible an inter-state application without requiring an interest.93 Yet the object and purpose of the treaty mean that ‘human rights cases before the Court generally also have a moral dimension, which must be taken into account when considering whether the examination of an application should continue’ after an applicant’s death:94 The Court has repeatedly stated that its ‘judgments in fact serve not only to decide those cases brought before the Court but, more generally, to elucidate, safeguard and develop the rules instituted by the Convention, thereby contributing to the observance by the States of the engagements undertaken by them as Contracting Parties.’95 While the ECtHR claims that its primary purpose is to provide individual relief, it sees its second function as being ‘to determine issues on public policy grounds in the common interest, thereby raising the general standards of 91 92 93

94 95

Mamatkulov and Askarov v Turkey Applications Nos 46827/99 and 46951/99, Merits and Just Satisfaction, 4 February 2005, at para 101. Ireland v United Kingdom, supra n 79 at para 154. Karner v Austria Application No 40016/98, Merits and Just Satisfaction, 24 July 2003, at para 24. In Centre for Legal Resources on behalf of Valentin Câmpeanu v Romania Application No 47848/08, Merits and Just Satisfaction, 17 July 2014, the Grand Chamber adapted its admissibility criteria so as to allow ngos exceptionally to bring cases on behalf of direct victims, even in the absence of specific authorisation. In the particular case, Mr Câmpeanu had no known next of kin and had died before the application was lodged with the European Court. Karner v Austria, ibid. at para 25. Ibid. at para 26.

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protection of human rights and extending human rights jurisprudence throughout the community of Convention States’.96 Given this broader function, it should not be surprising that individuals appearing before the ECtHR normally cannot represent themselves, as they can as defendants in international criminal courts;97 rather they must have legal representation from an early stage in the case.98 The institutional structure of some organisations reinforces the compliance function. The Inter-American system, following the pre-1998 European human rights system, allows individuals to appear before the Court to seek redress for the specific harm caused to them by violations of their rights. However, the Inter-American Commission, like the former European Commission of Human Rights, brings the cases to the Court and acts as a ministerio publico, or public prosecutor, often seeking forward-looking reparations designed to prevent future violations rather than redress past ones. The Inter-American Court has been particularly open to the Commission’s requests for guarantees by the state that the breach will not be repeated, usually demanded in the form of legislative changes and other reforms of domestic law and practice. In contrast, dispute-settlement bodies like the icj have shown reluctance to specify guarantees of non-repetition among the reparations granted the prevailing party.99 The distinctive character of adjudication in dispute settlement means that the parties can discontinue the litigation whenever they agree to do so and the court must respect their decision. This is not the case in human rights tribunals, where upholding the obligations of the parties is deemed a sufficient interest to maintain the case even against the wish of the parties. Thus human rights courts must approve any friendly settlements negotiated between the parties to ensure that they are consistent with respect for the rights guaranteed, which is particularly important given the disparity of power between individual applicants and respondent states. Courts engaged in dispute settlement­can also 96 97

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Ibid. at para 26. On the right of defendants to self-representation before international criminal tribunals and the power of courts to ensure that this right is not abused to obstruct a fair trial, see generally Jorgensen, ‘The Right of the Accused to Self-Representation before International Criminal Tribunals’ (2004) 98(4) American Journal of International Law 711. Rule 36 of the Rules of Court requires applicants to have legal representation once the application has been notified to the respondent state, although the requirement may be waived in exceptional circumstances. See, for example, the LaGrand and Avena cases where Germany and Mexico, respectively, unsuccessfully sought such measures: LaGrand (Germany v United States of America) Judgment, icj Reports 2001, 466; and Avena and Other Mexican Nationals (Mexico v United States of America) Judgment, icj Reports 2004, 12.

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decide that the object of the case has been obtained and dismiss the matter as moot, as the icj did with the Nuclear Test Cases.100 In addition to the possibility of declaring a matter moot, the icj applies the ne ultra petita rule and does not decide claims or award more compensation or other remedies than those requested. In contrast, the human rights compliance courts assess the nature and scope of the claim and decide on the appropriate norm to be applied, whether or not it is invoked by the parties. One rationale for international courts to monitor human rights compliance through the mechanism of individual complaints is that inter-state disputes are unlikely to arise when treaty obligations run vertically from government to those governed; other states are unlikely to suffer direct and immediate harm from a breach and thus other states rarely take enforcement measures. To be effective, such ‘unilateral’ treaty undertakings must be monitored by allowing those who are affected to seek redress for injury. The function of the courts is broader, however, in providing guidance to all states in the human rights system on the scope of their obligations. A Interim Measures In human rights litigation, the object of the proceeding may be defeated by actions taken by one side or the other during the pendency of the matter, for example, if the respondent state executes or deports the petitioner. Even without a pending case, it may appear that individuals within the jurisdiction of a state party are threatened with imminent, irreparable injury. The power of international tribunals to take urgent action aimed at preventing such harm is contested, although it is exercised by all human rights bodies that hear petitions. It could be argued that such power is inherent to the administration of justice and within judicial powers, even without express authority, as a means of ensuring the effectiveness of the ultimate decision, but the regional tribunals treat it as a power implied from two needs: administration of justice and protection of individuals and groups within the jurisdiction of member states from the threat of imminent irreparable harm.101 Some recent treaties, like the 100 Nuclear Tests (Australia v France), supra n 28 at para 23; and Nuclear Tests (New Zeland v France) Judgment, icj Reports 1974, 457 at para 22. 101 In the Fisheries Jurisdiction case, for example, the icj indicated a provisional measure to prevent Iceland from immediately implementing its proposed regulations because application of the regulations would ‘prejudice the rights claimed by the United Kingdom and affect the possibility of their full restoration in the event of a judgment in its favour’: Fisheries Jurisdiction (United Kingdom v Iceland) Interim Protection, Order, icj Reports 1972, 12 at para 22. Compare the Fisheries Jurisdiction case with Aegean Sea Continental Shelf (Greece v Turkey) Interim Protection, Order, icj Reports 1976, 3 at paras 17 and 33

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Inter-American Convention on Forced Disappearance of Persons, expressly confer the power to issue requests for interim or precautionary measures, but most tribunals have implied the power to do so in the absence of express language on point. Precautionary or interim measures have proved controversial in some instances because the power to request them is implied rather than expressly mentioned by the treaties. Their scope is therefore developed by the treaty bodies in practice, and the procedures for expanding, limiting or revoking them are often not clear. Such measures have sometimes extended to large groups of people, especially in the context of internal armed conflict, raising difficult issues of compliance when the exact beneficiaries are not known. In other instances, the beneficiaries of the measures may object to actions taken by the state from whom such protection is sought, especially when the agents assigned to protect are suspected of being the source of the threat. In receiving and reviewing petitions, or upon the filing of a separate request, the iachr, pursuant to Article 25 of its Rules of Procedure, may, at its own initiative or at the request of a party, request that a state adopt precautionary measures concerning serious and urgent situations presenting a risk of irreparable harm to persons or to the subject matter of a pending petition or a case before the organs of the Inter-American system. As the number of petitions submitted to the iachr has grown each year, so has the number of requests for precautionary measures: from 265 in 2005 to 375 in 2010 and 400 in 2013.102 During several years the iachr has issued more requests than any other international human rights body. The iachr granted 54 precautionary measures in 1998, 52 in 1999, 52 during 2000 and 50 in 2001, making a total of 208 measures in just four years.103 In the period from the beginning of 2007 to the end of 2010, the iachr received 1250 requests for interim measures and granted 170 requests, including 68 in 2010.104 In contrast, the iachr granted only 26 requests in 2013, the lowest number in 15 years, despite having the third highest number of requests.105 It is speculative, but quite likely that the fewer favourable responses reflect the ‘chilling effect’ of

(refusing to exercise its ‘extraordinary power’ to indicate provisional measures because reparation by ‘appropriate means’ could be made following any judgment in favour of the applicant). 102 iachr, Annual Report 2013, Chapter 2, at 56. 103 Ibid. at 57. 104 Ibid. at 56–57. 105 Ibid.

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Brazil’s campaign from 2011 to 2013 against the iachr’s use of precautionary measures following the Belo Monte matter.106 The number of precautionary measures granted is well below the number of individuals protected because the measures can protect either one person or a group of persons, often covering entire populations or communities.107 The total number of persons protected by precautionary measures is in fact impossible to determine because sometimes a community is identified without specifying the number of individuals it contains.108 This has been one of the 106 On 1 April 2011, the iachr granted precautionary measures for the members of the indigenous communities of the Xingu River Basin in Pará, Brazil (pm 382/10). The request was based on allegations that the life and physical integrity of the beneficiaries was at risk due to the impact of the construction of the Belo Monte hydroelectric power plant. The Inter-American Commission requested that the State of Brazil immediately suspend the licensing process for the Belo Monte Hydroelectric Plant project and stop any construction work from moving forward until the state (1) conducted free, informed consultations, in good faith, culturally appropriate, and with the aim of reaching an agreement; (2) guaranteed that the indigenous communities have access beforehand to the project’s Social and Environmental Impact Study, in an accessible format, including translation into the respective indigenous languages; (3) adopted measures to protect the life and physical integrity of the members of the indigenous peoples in voluntary isolation of the Xingu Basin, and to prevent the spread of diseases and epidemics among the indigenous. This included any diseases derived from the massive influx of people into the region as well as the exacerbation of transmission vectors of water-related diseases such as malaria. The request was modified on 29 July 2011 after information was received from the state and the petitioners. As a consequence of receiving the request, the state withdrew its oas ambassador and nominee for the iachr, and halted its financial contributions. It also joined other critics of the iachr in launching the ‘strengthening’ process to reform the Commission, a process that the critics hoped would result in curtailing the powers of the iachr. For a description of the process and results, see www.oas.org/en/iachr/mandate/ strengthening.asp. 107 In a single request involving Paraguay, for example, on 8 August 2001 ‘the Commission requested that precautionary measures be adopted on behalf of the 255 minors who were previously being held at the Panchito López Reeducation Center for Minors (petition 11.666)’: iachr, Annual Report 2001, Chapter 3, at para 48. 108 For example, on 4 June 2001, ‘the iachr granted precautionary measures on behalf of Kimi Domicó, Uldarico Domicó, Argel Domicó, Honorio Domicó, Adolfo Domicó, Teofan Domicó, Mariano Majore, Delio Domicó, Fredy Domicó, and other [unnamed] members of the Embera Katio indigenous community of Alto Sinú who had been abducted from the community’s main town and neighboring areas. The State was asked, as a matter of urgency, to take the steps necessary to clarify the whereabouts of these persons and to protect their lives and persons; to take the steps needed to protect the other members of the Embera Katio indigenous community of Alto Sinú, working in collaboration with the

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objections of states to the requests issued: they claim it is impossible to protect a group that is neither identified nor easily identifiable. The 2013 revision to the Rules specifies now that ‘precautionary measures may protect persons or groups of persons, as long as the beneficiary or beneficiaries may be determined or determinable through their geographic location or membership in or association with a group, people, community or organisation’.109 In addition to spelling out more clearly the criteria for precautionary measures, the 2013 Rules changes further ‘judicialise’ the procedure by insisting on a reasoned decision with a published vote of the Commissioners, and set forth the procedure for lifting, prolonging or amending the request. The new Rule also indicates that a decision by the Court not to grant provisional measures will have the effect of terminating any iachr measures previously granted. The European Court of Human Rights also issues interim measures without an express provision in the Convention.110 As in the Inter-American system, the measures are intended to prevent irreparable damage to the enjoyment of human rights and safeguard the effectiveness of any decision by preventing particularly harmful violations that would not be reparable by a decision on the merits.111 Although a request for interim measures may precede an application being filed, it must disclose enough elements to suggest that an arguable case exists.112 In both systems, most precautionary or interim measures concern matters of personal integrity. In the Inter-American system, requests often concern application of the death penalty or other threats to life. Given the abolition of the death penalty in Europe, requests for interim measures concern other issues, in particular staying removals or deportations of aliens who allege that their expulsion would violate the principle of non-refoulement. As was the case in petitioners; and to investigate, judge, and punish those responsible for the attacks perpetrated against the community. After the State replied, the parties continued to submit information and comments in connection with these precautionary measures’: iachr, Annual Report 2001, Chapter 3, at para 17. 109 Article 25(3) Rules of Procedure of the Inter-American Commission on Human Rights, supra n 51. 110 Interim measures are issued pursuant to Rule 39(1) of the Rules of Court, amended by the Plenary Court on 14 April and 23 June 2014. On the European Court’s practice, see Keller and Marti, ‘Interim Relief Compared: Use of Interim Measures by the un Human Rights Committee and the European Court of Human Rights’ (2013) 73(3) Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 325. 111 Rieter, Preventing Irreparable Harm: Provisional Measures in Internaitonal Human Rights Adjudication (Intersentia, 2010) at 1088. 112 Keller and Marti, supra n 110 at 331.

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the iachr before the 2013 amendment to the Rules, the European Court communicates its decision to grant or deny interim relief to the parties only without giving reasons for the decision.113 Although discussions have been held about giving reasoned decisions, the Registry argued that for practical reasons, this should be done only on an ad hoc and exceptional basis.114 A state can ask for the lifting of an interim measure at any time. A special unit within the Registry created in 2011 deals with requests for interim measures. It was created after states parties expressed a desire for ‘a significant reduction in the number of interim measures granted’.115 The Court and Registry responded accordingly and the number of requests granted declined significantly after the creation of the Registry unit, from 40 per cent in 2010 to 5 per cent in 2012.116 Despite this, the 2012 Brighton Declaration ‘invited the Committee of Ministers to consider further the question of interim measures’ and ‘propose any necessary action’ in this respect.117 Beyond exercising their implied power to issue interim measures, human rights tribunals have held that such measures are legally binding. The IACtHR has stated on several occasions that compliance with provisional measures is necessary to ensure the effectiveness of its decisions on the merits.118 The ECtHR initially decided that it could not imply from the Convention or from 113 Council of Europe, Steering Committee for Human Rights (cddh), Report on Interim Measures under Rule 39 of the Rules of Court, 22 March 2013, cddh(2013)R77, Addendum iii, at para 33. 114 Drafting Group C on the Reform of the Court (GT-GDR-C), Article 39 of the Rules of Court: Modalities of Application and Procedure, Information document by the Registry of the Court, 7 December 2012, GT-GDR-C(2012)009, at para 31. 115 High Level Conference on the Future of the European Court of Human Rights, Izmir Declaration, 27 April 2011, Follow-up Plan, at para 4 (implementation), available at: www.echr .coe.int/Documents/2011_Izmir_FinalDeclaration_ENG.pdf. 116 Keller and Marti, supra n 110 at 336. The official statistics reports on the percentage of decisions taken, not on the percentage of requests submitted, are available at: www.echr .coe.int. 117 High Level Conference on the Future of the European Court of Human Rights, Brighton Declaration, 20 April 2012, at para 12(e), available at: www.echr.coe.int/Documents/2012 _Brighton_FinalDeclaration_ENG.pdf. 118 See, for example, interim orders in Case of Chunimá v Guatemala (1 August 1991); Loayza Tamayo v Peru (2 July 1996; 13 September 1996; 11 November 1997; 13 December 2000; 3 February 2001; 28 August 2001); Case of James et al., v Trinidad and Tobago (16 August 2000; 24 November 2000; 3 September 2002); Case of Haitians and Dominican Nations of Haitian Origin in the Dominical Republic v Dominican Republic (7 August 2000; 18 August 2000; 26 May 2001); and Case of Álvarez et al., v Colombia (10 August 2000; 12 November 2000; 30 May 2001). These interim orders are all available at: www.corteidh.or.cr/index.php/en/

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other sources the power to order interim measures that were binding,119 but later reversed itself and concluded that ‘in the light of the general principles of international law, the law of treaties and international case-law’ such measures are binding on states parties.120 The ECtHR noted the importance of interim measures in preserving the rights of the parties in the face of the risk of irreparable damage and concluded that it should be considered ‘an inherent Convention requirement in international proceedings before the Court’.121 B Articulating Principles of Interpretation In many respects the decisions and judgments of regional tribunals involve the use of methodology, principles and norms specific to human rights law, commonly applied by global as well as regional bodies, but the tribunals also sometimes approach issues and reach conclusions that seem more reflective of each region’s unique history, culture and institutional concerns. Some divergence occurs as well because the plain language setting forth the rights guaranteed by regional human rights instruments varies unmistakably in several instances.122 Through widespread cross-referencing of each other’s decisions, however, the commonalities in jurisprudence far outnumber the differences. Regional human rights instruments begin by setting forth the obligations of states parties, before enumerating the rights guaranteed. Based on this structure and the relevant treaty language, regional tribunals insist that it is primarily the responsibility of the states to secure human rights; the role of the regional institutions is subsidiary.123 Regional tribunals refer to the principle provisional-measures. See also Case of Hilaire, Constantine and Benjamin et al., v Trinidad and Tobago, supra n 48. 119 Cruz Varas and Others v Sweden Application No 15576/89, Merits, 20 March 1991; and Čonka v Belgium Application No 51564/99, Merits and Just Satisfaction, 5 February 2002. 120 Mamatkulov and Askarov v Turkey, supra n 91 at paras 123–129. 121 Ibid. at para 124. See Pasqualucci, ‘Interim Measures in International Human Rights: Evolution and Harmonization’ (2005) 38(1) Vanderbilt Journal of Transnational Law 1 at 13–14. Pasqualucci argues that judicial organs have the inherent authority to order interim measures. See also Buergenthal, ‘Interim Measures in the Inter-American Court of Human Rights’, in Bernhardt (ed.), Interim Measures Indicated by International Courts (Springer, 1994) 69. 122 For example, Article 13(2) American Convention on Human Rights prohibits prior censorship of speech, a provision not found in other regional instruments, and provisions differ governing the scope of remedies the tribunals may order in response to findings of violations. 123 See Vlad and Others v Romania Applications Nos 40756/06 et al., Merits and Just Satisfaction, 26 November 2013, at para 109: ‘The Court reiterates, firstly, that by virtue of Article 1, which provides that “The High Contracting Parties shall secure to everyone within their

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of subsidiarity, or in some instances complementarity, in defining the scope of their powers and the degree of deference they afford state decision-making.124 In the European system, the principle of subsidiarity has led to the doctrine of ‘margin of appreciation’ that establishes a variable degree of discretion accorded states in implementing the echr rights. As first discussed in the Handyside case,125 the margin of appreciation doctrine reduces the scrutiny the ECtHR applies to matters, such as the protection of public morals, on which the Court finds no common ground within the region.126 The ECtHR deems that ‘[b]y reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements as well as on the “necessity” of a “restriction” or “penalty” intended to meet them’.127 Nonetheless, the margin of appreciation goes hand in hand with European judicial supervision.128

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jurisdiction the rights and freedoms defined in Section i of [the] Convention”, the primary responsibility for implementing and enforcing those guaranteed rights and freedoms rests with the national authorities. The machinery of complaint to the Court is thus subsidiary to national systems safeguarding human rights. This subsidiary character is reflected in Articles 13 and 35 § 1 of the Convention’. In the American system, see Case of the Santo Domingo Massacre v Colombia IACtHR Series C 259 (2012) at paras 142–143; and Case of Acevedo Jaramillo et al., v Peru IACtHR Series C 157 (2006) at para 66. For Africa, see 255/02, Garreth Anver Prince v South Africa, 7 December 2004. Handyside v United Kingdom Application No 5493/72, Merits, 7 December 1976. In this early judgment, the ECtHR gave a deferential review to derogations proclaimed during a period of emergency (Article 15 echr): Lawless v Ireland (No 3) Application No 332/57, Merits, 1 July 1961, at para 28. However, the Court did not specifically mention the margin of appreciation. X, Y and Z v United Kingdom Application No 21830/93, Merits and Just Satisfaction, 22 April 1997, at para 44; Fretté v France Application No 36515/97, Merits and Just Satisfaction, 26 February 2002, at para 41; and Christine Goodwin v United Kingdom Application No 28957/95, Merits and Just Satisfaction, 11 July 2002, at para 85. Handyside v United Kingdom, supra n 125 at para 48. See Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the echr (Intersentia, 2002); Letsas, ‘Two Concepts of the Margin of Appreciation’ (2006) 26(4) Oxford Journal of Legal Studies 705; and Kratochvíl, ‘The Inflation of the Margin of Appreciation by the European Court of Human Rights’ (2011) 29(3) Netherlands Quarterly of Human Rights 324.

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The doctrine applies most often in deciding cases that involve rights with limitations clauses attached to them,129 but the ECtHR has also afforded a wide margin of appreciation in some cases concerning national security or public emergencies, as well as those challenging social and economic policies.130 In contrast, when an individual’s existence or a particularly important facet of identity is at stake, the margin allowed to the state is restricted.131 The scope of the margin of appreciation can determine the outcome of cases, as indicated by the two conflicting judgments of the Chamber132 and Grand Chamber133 in the Lautsi case, on whether or not the presence of crucifixes in Italian public schools conflicts with the echr. In general international law, restrictions on state sovereignty are not presumed and treaty obligations are read narrowly to preserve state sovereignty.134 Regional tribunals, however, take a different approach, expressing far greater concern with achieving effectiveness in the enjoyment of the guaranteed rights than with preserving state freedom of action. The ECtHR, for example, has held that it is necessary ‘to seek the interpretation that is most appropriate to realise the aim and objective of the treaty, not which would restrict to the greatest possible degree the obligation undertaken by the Parties’.135 The European Court of Human Rights has long held that ‘[s]ince the Convention is first and foremost a system for the protection of human rights, the 129 These are mainly rights that have a public or social dimension, such as freedom of religion, expression, association and assembly, contained in Articles 8–11 echr. 130 Hatton and Others v United Kingdom Application No 36022/97, Merits and Just Satisfaction, 8 July 2003, at para 97, citing James and Others v United Kingdom Application No 8793/79, Merits, 21 February 1986. 131 See, for example, X and Y v The Netherlands Application No 8978/80, Merits and Just Satisfaction, 26 March 1985, at paras 24 and 27; Dudgeon v United Kingdom Application No 7525/76, Merits, 22 October 1981; and Christine Goodwin v United Kingdom, supra n 126 at para 90. See also Pretty v United Kingdom Application No 2346/02, Merits, 29 April 2002, at para 71; and Odièvre v France Application No 42326/98, Merits, 13 February 2003. 132 Lautsi v Italy Application No 30814/06, Merits and Just Satisfaction, 3 November 2009. 133 Lautsi and Others v Italy Application No 30814/06, Merits and Just Satisfaction, 18 March 2011. Note that ten contracting parties intervened in support of overturning the Chamber judgment. 134 The Case of the S.S. Lotus (France v Turkey) Judgment, pcij Reports 1927, Series A 10, Part iii. 135 Wemhoff v Germany Application No 2122/64, Merits, 27 June 1968, at para 8 (law). See also Loizidou v Turkey Application No 15318/89, Preliminary Objections, 23 March 1995, at para 72: ‘[T]he object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions be interpreted and applied so as to make its safeguards practical and effective’.

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Court must interpret and apply it in a manner which renders its rights practical and effective, not theoretical and illusory. The Convention must also be read as a whole, and interpreted in such a way as to promote internal consistency and harmony between its various provisions’.136 Second, the Court has stated that it ‘has never’ considered the provisions of the Convention as the sole framework of reference for the interpretation of the rights and freedoms enshrined therein; instead, it must also take into account any relevant rules and principles of international law applicable in relations between the contracting parties.137 When common ground among the norms is found, the Court will not distinguish between sources of law according to whether or not they have been signed or ratified by the respondent state, or even whether they are capable of ratification.138 It is sufficient for the Court that the relevant international instruments denote a continuous evolution in the norms and principles applied in international law or in the domestic law of the majority of member states of the Council of Europe. The methodology and the results indicate that human rights treaties are viewed as different in nature from other agreements, having a ‘public order’ dimension to their interpretation and application. The ECtHR will thus insist on elevating to the regional consensus found or ‘common ground’ those few holdout states that fail to keep step with the development of human rights law in Europe.139 The Court finds support for applying general principles of international law in the drafting history of the Convention, noting that ‘[t]he Legal Committee of the Consultative Assembly of the Council of Europe foresaw in August 1950 that “the Commission and the Court [would] necessarily [have to] apply such principles” in the execution of their duties and thus considered it to be “unnecessary” to insert a specific clause to this effect in the Convention’.140 Third, as a ‘living’ instrument, the Convention must be interpreted in the light of present-day conditions, taking into account evolving norms of national and international law. 136 Demir and Baykara v Turkey Application No 34503/97, Merits and Just Satisfaction, 12 November 2008, at para 66. 137 Ibid. at para 67. 138 Ibid. at para 78. 139 See, for example, Bayatyan v Armenia Application No 23459/03, Merits and Just Satisfaction, 7 July 2011 (right of conscientious objection to military service); Demir and Baykara v Turkey, supra n 136 (trade union freedoms); and Dudgeon v United Kingdom, supra n 131 (criminalisation of homosexual conduct). 140 Demir and Baykara v Turkey, supra n 136 at para 71, citing Documents of the Consultative Assembly, working papers of the 1950 session, Vol iii, No 93, at 982, para 5.

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The European Court is also clear about the limits of applying these principles: ‘It is true that the Convention and its Protocols must be interpreted in the light of present-day conditions … However, the Court cannot, by means of an evolutive interpretation, derive from these instruments a right that was not included therein at the outset. This is particularly so here, where the omission was deliberate’.141 Other regional tribunals have similarly emphasised the general purpose of the instruments to further human rights.142 The IACtHR in its first decision declared that ‘[t]he object of international human rights protection is to guarantee the individual’s basic human dignity by means of the system established in the Convention’.143 It has also emphasised the ‘public order’ or non-reciprocal­ nature of human rights treaties and on occasion has asserted that human rights law is lex specialis, that is, a body of law with some rules that may differ from and override those of general international law.144 The IACtHR frequently refers to a pro homine approach to interpretation, an approach that calls for reading guarantees and limitations in favour of the individual. The iachr agrees that ‘[t]he American Convention enshrines a system that constitutes a genuine regional public order the preservation of which is in the interests of each and every state party’.145 In its advisory opinion on Interpretation of the American Declaration of the Rights and Duties of Man within the Framework of Article 64 of the American Convention on Human Rights,146 the IACtHR affirmed that human rights law cannot be made static through reliance on the original intent of the drafters. When they interpret particular words or phrases in their treaties, regional tribunals have insisted that treaty terms have their own meaning that is independent of national law, applying the principle of autonomous interpretation.147 In

141 Johnston and Others v Ireland Application No 9697/82, Merits and Just Satisfaction, 18 December 1986, at para 53. 142 Weiler, Prolegomena in a Meso-theory of Treaty Interpretation at the Turn of the Century, draft unpublished presentation, International Legal Theory Colloquium, 2008, New York University School of Law, at 5–6, available at: iilj.org/courses/documents/2008Colloquium .Session5.Weiler.pdf. 143 Viviana Gallardo et al., IACtHR Series A 101 (1981) at para 15. 144 Case of the ‘Mapiripán Massacre’ v. Colombia, Merits, Reparations, and Costs, Judgment of 15 Sept. 2005, Series C No. 134, at paras 107 and 186. 145 Case 1/06 Nicaragua v Costa Rica Report No 11/07 (2007) at para 197. 146 OC-10/89, IACtHR Series A 10 (1989). 147 See, for example, Engel and Others v The Netherlands Applications Nos 5100/71 et al., Merits, 8 June 1976.

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Mayagna (Sumo) Awas Tingni Community v Nicaragua148 the IACtHR explained that the terms of an international human rights treaty are autonomous and must have effet utile (principle of effectiveness).149 Nicaragua’s interpretation of the right to property would have excluded protection for the ancestral lands of indigenous peoples but the Court gave the right a scope that ensured its enjoyment to ‘everyone’, concluding that the right to property is not limited to individually titled ownership, but includes indigenous communal property.150 Within Africa, the African Commission on Human and Peoples’ Rights has similarly given autonomous meaning to the term ‘peoples’ as used in the African Charter.151 4 Conclusion It is a mistake to evaluate the exercise of powers by all international courts in the same manner because each court is created for a specific purpose or function and that function shapes its powers. While all courts, by virtue of being courts, have inherent powers derived from their judicial functions—including the need for independence and control over the administration of justice— each court’s specific functions are coupled with express and implied powers that are particularly important to fulfilling that function. An understanding of the different functions and the implications of them for the type and scope of implied powers is necessary to properly evaluate the work of the international judiciary. This chapter has suggested that the functions of regional human rights tribunals are compliance assessment and redress of victims, necessitating specific functions and powers and leading to unique doctrines of treaty interpretation. This chapter outlined some of those differences, including the use of interim measures in contentious cases, recourse to jura novit curia, and the continuation of cases by compliance courts despite the death of the applicant or, in some instances, the agreement of the parties. As the tribunals have indicated, these inherent and implied powers enable the courts to assist in fulfillment of the object and purpose of the regional human rights treaties, which is to ensure the effective exercise of human rights by all.

148 IACtHR Series C 79 (2001). 149 Ibid. at para 146. 150 Ibid. at para 148. 151 266/03, Kevin Mgwanga Gunme et al., v Cameroon, 27 May 2009.

part 3 Systems

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chapter 16

International Human Rights Law: Towards Pluralism or Harmony? The Opportunities and Challenges of Coexistence: The View from the un Treaty Bodies Simon Walker*,** 1 Introduction Since the adoption of the Universal Declaration of Human Rights, governments have developed an impressive machinery of human rights protection, including avenues for individuals to petition regional courts and quasi-judicial United Nations bodies. The development of this vast regional and un system gives rise to great hope for strengthened protection of human rights and greater accountability in cases of abuse, and provides an opportunity for mutually reinforcing cross-fertilisation of jurisprudence and experience.1 When viewed from the un, the coexistence of different bodies offers specific opportunities: regional systems can adapt universal norms to regional situations, feed regional experience into the global system and strengthen rights’ protection through courts with the power to issue binding decisions. Yet the coexistence of un and regional systems also brings challenges. The risk of duplication of efforts is present, as is the potential for contradiction. Beyond simply creating confusion for states and rights-holders, duplication and contradiction might challenge the credibility of the system. These challenges

* The author is a Senior Human Rights Officer of the Office of the United Nations High Commissioner for Human Rights. The views expressed in this article are his own and do not represent a position of the United Nations. ** I would like to thank Carla Edelenbos and Magdalena Forowicz for their valuable comments on an earlier draft. 1 As Helfer and Slaughter suggest, ‘[b]y citing to other supranational decisions as authoritative and worthy of consideration, the citing court acknowledges its engagement in a common enterprise with the cited court, an acknowledgement that implies the possibility of an objectively “better” legal solution to a common legal problem and of some degree of cultural cross-communication’: Helfer and Slaughter, ‘Toward a Theory of Effective Supranational Adjudication’ (1997) 107(2) Yale Law Journal 273 at 326.

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are particularly relevant when examined from the un perspective due to its overlapping membership with regional systems and, consequently, the greater likelihood of interaction. However, while contradiction and disagreement that threaten the credibility of the overall system should be avoided, un and regional bodies need not copy each other slavishly and there should be allowance for some level of pluralism, taking into account factors such as regional and normative differences across treaties. The extent to which these opportunities and challenges play out in reality is difficult to calculate as an overall comprehensive assessment of the relationship between un and regional bodies is yet to appear.2 At the outset, it is relevant to note that un bodies tend to avoid referring explicitly to other sources, even from within the un system, which potentially hides the level of real interaction between bodies. Nonetheless, there are still many examples of interaction between un and regional bodies which are instructive. The objective of this chapter is to discuss some existing examples of interaction with a view to deepening understanding of the opportunities and challenges of coexistence. The focus is specifically on the treaty bodies created under nine core United Nations human rights treaties and the three regional treaties, in particular the petitions procedures related to these bodies.3 Other aspects of the 2 Studies have analysed the relationship between selected treaty bodies, including un bodies and regional courts, which tend to suggest an overall harmonious and complementary albeit complex relationship with some specific examples of contradiction. For example, the relationship between the Human Rights Committee and the European Court of Human Rights has changed over time although recently it appears to have settled into a more balanced and harmonious interaction: Forowicz, The Reception of International Law in the European Court of Human Rights (oup, 2010) at 186–189. Forowicz describes the responsiveness of the ECtHR to the jurisprudence of the Human Rights Committee as situated between a moderate and high level of reception. See also Bossuyt and Lins, ‘La Prise en Considération de la jurisprudence de Strasbourg par le Comité des Droits de l’Homme des Nations Unies’, in Cohen-­Jonathan and Flauss (eds), Le rayonnement international de la jurisprudence de la Cour européenne des droits de l’homme (Bruylant/Nemesis, 2005) 87 at 99, who describe the jurisprudence of the hrc and the ECtHR as having much in common; and Neuman, ‘The External Reception of Inter-American Human Rights Law’ (2011) Special Edition Quebec Journal of International Law 99 at 100 and 104–105. See also Chapters 2, 3, 4, 5, 6, 13, 17 and 19 in this volume for a­ nalyses of the relationship between universal and regional systems from various perspectives. 3 The nine core treaties and their respective treaty bodies considered in this chapter are as follows: International Covenant on Civil and Political Rights (Human Rights Committee); International Covenant on Economic, Social and Cultural Rights (Committee on Economic, Social and Cultural Rights); International Convention on the Elimination of All Forms of Racial Discrimination (Committee on the Elimination of Racial Discrimination); Convention on the Elimination of All Forms of Discrimination against Women (Committee on the Elimination

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United Nations system, such as the International Labour Organization treaties and mechanisms or the Universal Periodic Review mechanism of the United Nations Human Rights Council are therefore beyond the scope of this chapter, although worthy of further study. The next section sets out some of the opportunities arising from coexistence. From wholesale uploading of concepts and approaches from other bodies to adding a throwaway reference, un and regional bodies have relied on each other’s jurisprudence to strengthen and deepen human rights protection in various ways. This section sets out some of the opportunities arising from these interactions with reference to specific cases. Section 3 sets out challenges. While uncommon, there have been some specific examples where un and regional bodies have contradicted each other in relation to identical or closely similar cases. Bodies have also differed in their analysis of similar human rights problems and the position of the European Court of Human Rights (ECtHR) and the un Human Rights Committee (hrc) towards death row cases is discussed. As norms become more specialised and states create more bodies with judicial and quasi-judicial functions, challenges of coexistence might increase. The final section makes some concluding remarks on the opportunities and challenges of coexistence when viewed from the un. 2

Opportunities of Coexistence

As noted, coexistence of un and regional bodies provides many opportunities for the sharing of experience and approaches that can be mutually reinforcing. of Discrimination against Women); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Committee against Torture); Convention on the Rights of the Child (Committee on the Rights of the Child); International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (Committee on the Protection of the Rights of All Migrant Workers and Members of their Families); Convention on the Rights of Persons with Disabilities (Committee on the Rights of Persons with Disabilities); and International Convention for the Protection of All Persons from Enforced Disappearance (Committee on Enforced Disappearances). See Chapter 17 of this volume for consideration of the Optional Protocol to the Convention against Torture and its monitoring body, the Subcommittee for the Prevention of Torture. The regional treaties and bodies referred to are: European Convention on Human Rights (European Court of Human Rights and the former European Commission of Human Rights); American Convention on Human Rights (Inter-American Court of Human Rights and Inter-American Commission on Human Rights); and African Charter on Human and Peoples’ Rights (African Court on Human and Peoples’ Rights and African Commission on Human and Peoples’ Rights).

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The following section provides four examples of these opportunities: marshalling support to depart from previous positions, elaborating unclear provisions, deepening interpretation and supporting conclusions in particular cases. The examples are illustrative only and are not intended to be exhaustive or indicative of any common practice. A Marshalling Support to Depart from Previous Positions First of all, coexistence allows a body to marshal support for an interpretation of a provision that might be controversial or might depart from a previously held position. While judicial and quasi-judicial bodies try to avoid departing from previous positions in the interests of legal certainty and foreseeability, they also seek to interpret human rights treaties in their current context so as to render rights practical and effective. At times, this favours the departure from previous interpretations. When doing so, the jurisprudence of other bodies can provide evidence of a change in context warranting departure from a previous interpretation. In Mamatkulov and Askarov v Turkey, the ECtHR relied on jurisprudence from the hrc, the Committee against Torture (cat) and regional bodies to depart from a previous decision of the former European Commission of Human Rights that interim measures did not have binding force.4 The Court concluded that the proper administration of justice required that no irreparable damage to the rights of parties to a dispute can be undertaken while proceedings were pending and so interim measures were binding.5 In reaching this conclusion, it marshalled support from other bodies for a position that was not without controversy, as demonstrated by the partly dissenting opinion that the compulsory nature of interim measures could not be derived from the European Convention on Human Rights (echr) or from general international law.6 In Scoppola v Italy (No 2),7 the ECtHR used the weight of regional and un norms to support its departure from a 1978 case of the European Commission in X. v Germany,8 where the Commission had held that Article 7 of the echr did not guarantee the right to a more lenient penalty provided for in a law subsequent to the offence. Some 30 years later, the Court relied on Article 15 of the International Covenant on Civil and Political Rights (iccpr) as well as subsequent developments, such as the entry into force of the American 4 5 6 7 8

Applications Nos 46827/99 and 46951/99, Merits and Just Satisfaction, 4 February 2005. Ibid. at para 124. Ibid. at Joint Partly Dissenting Opinion of Judges Caflisch, Türmen and Kovler, para 163. Application No 10249/03, Merits and Just Satisfaction, 17 September 2009. Application No 7900/77, Commission Decision, 6 March 1978.

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Convention on Human Rights and the European Union’s Charter of Fundamental Rights, to demonstrate a gradually emerging view in Europe and internationally around the application of the principle of retrospectiveness of the more lenient criminal law.9 Similarly, the recent case of Bayatyan v Armenia10 demonstrates the extent to which the ECtHR is conscious of looking to developments in international law as a reason to adapt previous positions to current ways of thinking, particularly where provisions in other instruments mirror very closely the relevant provisions of the echr. The case considered whether the imprisonment of a man for his refusal to perform military service on account of being a Jehovah’s Witness constituted a violation of his freedom of thought, conscience and religion under Article 9 of the echr. The Grand Chamber, departing from the previous restrictive position of the European Commission and the Court, found that opposition to military service where such opposition is motivated by a serious conflict between serving in the military and deeply held beliefs was sufficient to attract the guarantees of freedom of thought, conscience and religion.11 To arrive at its conclusion, the Grand Chamber relied on jurisprudence from other systems, including that of the hrc. The Grand Chamber stated that ‘in defining the meaning of terms and notions in the text of the Convention, the Court can and must take into account elements of international law other than the Convention and the interpretation of such elements by competent organs’.12 Such a clear statement demonstrates the extent to which the Court appears willing to turn to other human rights bodies to support its interpretation of the echr. The fact that the hrc had also recently departed from its own previous position in relation to very similarly worded provisions in the iccpr was considered particularly important by the Grand Chamber to support its approach.13 Bearing in mind the risk that departure from a previous 9 10 11 12 13

Scoppola v Italy (No 2), supra n 7 at paras 105–106. Application No 23459/03, Merits and Just Satisfaction, 7 July 2011. Ibid. at para 110. Ibid. at para 102 (emphasis added). The ECtHR states (ibid. at para 105) that ‘most notable is the interpretation by the [hrc] of the provisions of the iccpr (Articles 8 and 18), which are similar to those of the Convention (Articles 4 and 9). Initially, the [hrc] adopted the same approach as the European Commission … However, … it modified its initial approach and considered that a right to conscientious objection could be derived from Article 18 of the iccpr in as much as the obligation to use lethal force might seriously conflict with the freedom of conscience and the right to manifest one’s religion or belief. In 2006, the [hrc] explicitly refused to apply Article 8 of the iccpr in two cases against South Korea concerning conscientious

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position might have on legal certainty, foreseeability and equality before the law, the Grand Chamber also took into account the fact that such a change was foreseeable to Armenia given that it was also a state party to the iccpr.14 B Elaborating Unclear or Vague Concepts Another manifestation of coexistence arises when one body uses jurisprudence from another body as a means of clarifying unclear or vague concepts. This is particularly relevant in areas of human rights law where human rights bodies are yet to establish clear understandings of particular standards, such as in the field of economic, social and cultural rights. An example is the case of Social and Economic Rights Action Center (serac) and Center for Economic and Social Rights (cesr) v Nigeria, where the African Commission on Human and Peoples’ Rights relied on the general comments of the un Committee on Economic, Social and Cultural Rights (cescr) to interpret provisions of the African Charter.15 The African Commission found multiple violations of the African Charter as a result of the involvement of the military government of Nigeria and the state-owned oil company, in partnership with Shell Petroleum Development Corporation, in causing the displacement, insecurity, homelessness, malnutrition and starvation, contamination of water, soil and air and environmental degradation suffered by the Ogoni people. In coming to its decision, the Commission incorporated several broad concepts related to economic, social and cultural rights developed by the cescr and international legal experts. The Commission adopted the typology of human rights obligations previously adopted by the cescr, namely that states parties have obligations to respect, protect, promote and fulfil these rights.16 To support this, the Commission referred to Article 2(1) of the International Covenant on Economic, Social and Cultural rights (icescr) which requires states to ‘take steps … by all appropriate means’ as evidence of the all-embracing nature of obligations related to economic, social and cultural rights that might demand concerted action by the state.17 In addition, the Commission recognised a right to adequate housing as implicit in the Charter and turned to cescr General Comment No 4 and its definition of ‘forced evictions’ as a means of explaining the content of objectors and examined their complaints solely under Article 18 of the iccpr, finding a violation of that provision’. 14 Ibid. at para 108. 15 155/96, 27 October 2001. 16 Ibid. at para 44. 17 Ibid. at para 48.

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this right.18 The Commission also referred to the notion of a ‘minimum core content’ of economic, social and cultural rights, indicating its awareness of the work of the cescr and academics in this area, without citing that work.19 The decision was groundbreaking, particularly for its finding of violations of economic, social and cultural rights at a time when many still viewed these rights as not justiciable rights but rather policy-related principles not imposing any enforceable obligations on states parties.20 The African Commission, aided by the requirement in Articles 60 and 61 of the African Charter that the Commission should examine communications in the light of relevant international and regional human rights instruments and principles, relied on the jurisprudence of the cescr to support its interpretation, giving meaning to provisions which had lacked clear definition in the past. Not only did the jurisprudence of the cescr provide material for the African Commission to develop its own jurisprudence in this nascent field, it is likely that the Ogoni case in turn helped build the case for justiciability of these rights and support the adoption of an individual communications procedure under the icescr in 2008.21 C Deepening Interpretation of Particular Provisions or Issues At times, one body might turn to the jurisprudence of another body to help deepen understandings of a provision or issue. This is particularly relevant where the interpreting body has the possibility of relying on the decisions of other bodies with more specialised norms and experience in a particular field. In the area of torture, while the standards in the echr and the more specific Convention against Torture differ, the findings of the ECtHR and the Committee against Torture converge, particularly in the area of refugee protection, and the Court has implicitly tended to follow the Committee.22 Similarly, the spearheading work of the Inter-American Court of Human Rights in the area of the non-derogability of rights appears to have influenced the Human Rights Committee’s inclusion in its General Comment No 29 of ‘judicial guarantees’ 18

Ibid. at para 63 (cescr, General Comment No 4: The right to adequate housing (art. 11 (1) of the Covenant), E/1992/23, Annex iii at 114 (1991)). 19 Coomans, ‘The Ogoni Case before the African Commission on Human and Peoples’ Rights’ (2003) 52(3) International and Comparative Law Quarterly 749 at 757–758. 20 Ibid. at 757. 21 See United Nations, Note by the Secretariat, Open-Ended Working Group on an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, First Session, E/CN.4/2004/WG.23/CRP.1, which includes a summary of the Ogoni case as background information for the discussion on whether to draft an optional protocol to the Covenant. 22 Forowicz, supra n 2 at 213.

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among provisions it considers as non-derogable in spite of there being no such reference in the iccpr’s derogation provision.23 In the case of Opuz v Turkey,24 the ECtHR turned to the jurisprudence of the Committee on the Elimination of Discrimination against Women (‘the cedaw Committee’) as well as other regional and un bodies to broaden its approach in relation to domestic violence, recognising such violence not only as a violation of substantive rights – such as the right to life and freedom from torture and other cruel, inhuman or degrading treatment or punishment – but also as a manifestation of gender discrimination.25 In Opuz, which involved domestic violence against a mother and daughter, the Court held that laws to protect women from domestic violence faced serious implementation problems, where domestic violence was often treated as ‘a family matter’ in which the authorities should not interfere.26 Even when the authorities did take action, there were serious delays not in keeping with the gravity of the offence and perpetrators did not receive appropriate punishments.27 The Court held that not only was domestic violence a phenomenon that disproportionately affected women, the passive reaction of the judiciary as well as of the domestic authorities more generally created a climate that was conducive to domestic violence.28 The acknowledgement in Opuz that violence against women was also a question of inequality was an important step.29 The Court used the specialised jurisprudence of the cedaw Committee, specifically its General Recommendation No 19 on violence against women,30 as well as jurisprudence of regional systems to support the development of its jurisprudence.31 This underlines an important role for the coexistence of un and regional bodies, whereby one body can learn from another’s specialisation and rely on its jurisprudence to advance its understanding of its own treaty. 23 Neuman, supra n 2 at 111 (General Comment No 29: States of Emergency (article 4), 24 July 2001, CCPR/C/21/Rev.1/Add.11). See also Article 4(2) iccpr. 24 Application No 33401/02, Merits and Just Satisfaction, 9 June 2009. 25 Londono, ‘Developing Human Rights Principles in Cases of Gender-based Violence: Opuz v Turkey in the European Court of Human Rights’ (2009) 9(4) Human Rights Law Review 657 at 658. 26 Opuz v Turkey, supra n 24 at para 143. 27 Ibid. at para 169. 28 Ibid. at para 198. 29 Londono, supra n 25 at 667. 30 General Recommendation No 19: Violence against women, in Compilation of general comments and general recommendations adopted by human rights treaty bodies, HRI/ GEN/1/Rev.9 (Vol. ii) at 331. 31 Opuz v Turkey, supra n 24 at paras 184–191.

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D Supporting Conclusions in a Particular Case A body can also turn to the jurisprudence of another body as a means to assist its analysis of particular cases and to support conclusions. In Bartik v Russia32 the ECtHR relied on the jurisprudence of the hrc to help identify what restrictions on freedom of movement might be ‘necessary in a democratic society’. The state party had placed a five-year travel ban on the applicant due to his prior access to state secrets, which the applicant claimed was a violation of his freedom of movement. In determining whether the travel ban might be considered a restriction on the freedom of movement that was ‘necessary in a democratic society’, the Court referred to the iccpr and General Comment No 27. It recalled the hrc’s statement that restrictive measures must be necessary to protect the Covenant’s permissible purposes such as national security; namely, they ‘must conform to the principle of proportionality; be appropriate to achieve their protective functions; be the least intrusive instrument amongst those which might achieve the desired result; and be proportionate to the interest to be protected’.33 The Court found that it was exactly the link between the restrictive measures and the purported protective function that was missing. It concluded that in a contemporary democratic society without censorship and bans on personal contacts with foreigners, the necessity of a travel ban on persons failed to achieve its intended protective function. In so concluding, the Court also relied on the General Comment for support, noting that ‘the test of necessity and the requirements of proportionality … would not be met, for example, if an individual were prevented from leaving a country merely on the ground that he or she is the holder of “state secrets”’.34 In the same vein, the ECtHR has relied on views of the hrc as a parallel to guide its own analysis and conclusions in similar cases. For example, in 2002 the hrc published its views in the case of Marie-Hélène Gillot v France,35 finding that residence conditions imposed on the author’s right to vote in referenda and in elections for the New Caledonian Congress did not violate the iccpr as the conditions were based on objective grounds for differentiation that were reasonable and compatible with the Covenant, namely requirements of sufficiently strong ties to the territory the future of which was being decided.36 32 33 34 35 36

Application No 55565/00, Merits and Just Satisfaction, 21 December 2006. Ibid. at para 30, citing Human Rights Committee, General Comment No 27: Freedom of movement (article 12), 18 October 1999, CCPR/C/21/Rev.1/Add.9, at para 14. Ibid. at para 49, citing General Comment No 27, ibid. at para 16. (932/2000) Views, CCPR/C/75/D/932/2000 (2002). Ibid. at para 14.7.

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Subsequently, the ECtHR came to a similar conclusion in the case of Py v France37 noting that the restrictions amounted to ‘local requirements’ that were appropriate in the context of the referendum and elections in the territory. Forowicz concludes that ‘the Court was guided to a large extent by the hrc’s reasoning in a similar case’,38 demonstrating how one body considering a very similar issue already determined by another body can learn and benefit from previous analysis. 3

Challenges of Coexistence

The main challenge resulting from the coexistence of un and regional bodies is the risk that different bodies will arrive at contradictory conclusions in relation to similar human rights problems, or contradictory interpretations of similar norms, leading to confusion for states and rights-holders alike. Such situations potentially threaten the very credibility of the human rights protection system. There are of course some built-in checks to avoid this happening. Complaints mechanisms generally include structural guarantees to ensure that the same matter is not being considered under another international procedure.39 Some treaties include substantive provisions that require bodies to have regard to the jurisprudence of other mechanisms. The broadest example is the African Charter on Human and Peoples’ Rights which, as noted, requires the African Commission to draw inspiration from international law on human and peoples’ rights including un instruments.40 The parties to disputes sometimes raise jurisprudence of other systems in their submissions which ensures that judges and treaty body members are made aware of other jurisprudence. In addition, treaty body experts and secretariats are often knowledgeable of the jurisprudence of other bodies, aided by modern technology, the occasional movement of members between regional and un bodies,41 and the 37 Application No 66289/01, Merits, 11 January 2005. 38 Forowicz, supra n 2 at 165. 39 See, for example, Article 5(2)(a) Optional Protocol to iccpr; Article 22(5)(a) Convention against Torture; and Article 35(2)(b) echr. 40 Article 60 African Charter on Human and Peoples’ Rights. 41 See Neuman, supra n 2 at 102, who identifies the following movement from the InterAmerican system to the hrc: Andrés Aguilar Mawdsley and Marco Tullio Bruni Celli who moved from the Inter-American Commission to the hrc and Thomas Buergenthal who served on the Inter-American Court and moved to the hrc. Julia Motoc and Helen Keller have moved from the Human Rights Committee to the European Court of Human Rights.

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professionalisation of human rights education that today generally covers un and regional systems. Informal exchanges between secretariats and meetings of members of bodies also help the exchange of knowledge.42 Importantly, member states are increasingly encouraging cooperation between regional and un bodies.43 In spite of these checks, challenges nonetheless arise. This section explores four challenging situations: first, where two bodies deal with the same matter; second, where two bodies deal with the same factual situation but where different litigants have sought relief from different bodies; third, where two bodies have to decide on parallel human rights situations, even though the factual situations and the litigants are completely separate; and finally, where a decision of a body dealing with newer more specialised norms in one system goes beyond the jurisprudence of another body. A Dealing with the Same Matter While relatively rare, a regional and un body might deal with the same matter—here understood as matters concerning the same facts and the same litigants. This raises the risk of two bodies arriving at opposite conclusions. While treaties include structural guarantees that prevent the same matter coming before two international procedures of investigation or settlement, the following two cases demonstrate situations where these safeguards have been insufficient, leading to quite different conclusions or outcomes.

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Torkel Opsahl and Elisabeth Palm were on both the European Court of Human Rights and the Human Rights Committee. See, for example, Cançado Trindade, ‘The Merits of Coordination of International Courts on Human Rights’ (2004) 2(2) Journal of International Criminal Justice 309. The Human Rights Committee and the European Court of Human Rights began having face-to-face meetings of selected members in 2012 and members of each of the secretariats had work exchanges in 2012, although this practice has been suspended due to budgetary cuts. In 2011, the Human Rights Council adopted Resolution 18/14, Regional arrangements for the promotion and protection of human rights, 29 September 2011, A/HRC/18/L.29/Rev.1. The Resolution’s preamble reaffirms ‘the fact that regional arrangements play an important role in promoting and protecting human rights and should reinforce universal human rights standards, as contained in international human rights instruments’. It also requested (at para 4) the Office of the United Nations High Commissioner for Human Rights (ohchr) to hold a workshop on regional arrangements for the promotion and protection of human rights … in order to share best practices, lessons learned and new possible forms of cooperation’. See also Human Rights Council, Resolution 24/19, Regional arrangements for the promotion and protection of human rights, 27 September 2013, A/HRC/24/L.35, in which the Human Rights Council requested (at para 8) the ohchr to hold a further workshop, with a specific focus on economic, social and cultural rights.

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Both cases concern claims brought under the echr and the first Optional Protocol to the iccpr (‘the Optional Protocol’). Procedurally, both treaties require their respective treaty bodies to relate to other bodies when considering the admissibility of particular complaints. The echr states that the Strasbourg treaty bodies ‘shall not deal with any petition submitted under article 34 which … is substantially the same as a matter that has already been examined by the Court or has already been submitted to another procedure of international investigation or settlement and contains no relevant new information’.44 The Optional Protocol states that the Human Rights Committee ‘shall not consider any communication from an individual unless it has ascertained that … the same matter is not being examined under another procedure of international investigation or settlement’.45 The more restricted wording in the Optional Protocol potentially allows the hrc to consider communications that have been—but are no longer being—examined by another procedure. Most ­parties to the echr and the Optional Protocol—although not all—have introduced a reservation to the Optional Protocol excluding the competence of the hrc in situations where cases have been examined under another procedure. In Correia de Matos v Portugal, the claimant brought a claim of a violation of his right to defend himself without a lawyer before the ECtHR.46 The Court found the case inadmissible but in doing so it considered the merits of the case to conclude that it was manifestly unfounded. The author then brought a complaint before the Human Rights Committee alleging a violation of his right to defend himself in person.47 As Portugal did not enter the reservation to the Optional Protocol referred to above, the hrc was able to consider the communication and found a violation. While the ECtHR allowed a margin of appreciation to the state party and domestic courts to determine whether the appointment of a defence lawyer was in the interests of justice, the hrc found otherwise. The Committee held that the state party’s legislation and case law was inflexible and did not take into account the seriousness of the charges or behaviour of the accused.48 Noting that the case before the Portuguese courts was relatively simple, the hrc concluded that the state party had not provided 44 45 46 47 48

Article 35(2)(b) echr (emphasis added). Article 5(2) Optional Protocol to iccpr (emphasis added). Application No 48188/99, Admissibility, 15 November 2001. The claim concerned an alleged violation of Article 6(3)(c) echr. Carlos Correia de Matos v Portgual (1123/2002) Views, CCPR/C/86/D/1123/2002 (2006); and Article 14(3)(d) iccpr. Ibid. at para 7.5.

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objective and serious reasons to explain why the absence of an appointed lawyer would have jeopardised the interests of justice.49 However, a minority of members disagreed and noted that there was nothing before the Committee suggesting that the national courts’ decisions were arbitrary or that the author was prevented from presenting his versions of the facts to the courts concerned: [W]e note that the European Court of Human Rights has, in the decision Correia de Matos v. Portugal, 15 November 2001, declared inadmissible an application from the same author on the same facts. We are deeply concerned that two international instances—instead of trying to reconcile their jurisprudence with one another—come to different conclusions when applying exactly the same provisions to the same facts.50 One member, Nigel Rodley, referred to the Committee’s approach as ‘cavalier’.51 This level of disagreement between bodies is undesirable. Importantly, there is no hierarchy between un and regional bodies, yet the hrc, a quasijudicial body, effectively became an instance of appeal from a regional judicial body. This works against the horizontal relationship between un and regional bodies that was never intended to be hierarchical in nature. Moreover, it creates the somewhat odd situation of a quasi-judicial body without authority to issue binding decisions revising the decision of a judicial body. For the states parties involved, the open disagreement between two international bodies on identical matters must lead to a level of exasperation and does not present an image of a coherent system of human rights protection. And at a practical level, the possibility of authors or applicants bringing identical cases before different bodies naturally adds to the caseload before different bodies that are already suffering significant backlogs.52 A recent decision of the hrc raises similar questions with the additional complexity that the prior decision from a committee of judges of the ECtHR came in the form of a letter without detailed reasoning. The case of María Cruz Achabal Puertas v Spain concerned a woman who was taken into custody in 1996 and allegedly tortured. After unsuccessfully bringing claims before 49 Ibid. 50 Ibid. at Dissenting Opinion of Members Elizabeth Palm, Nisuke Ando and Michael O’Flaherty. 51 Ibid. at Dissenting Opinion of Member Nigel Rodley. 52 O’Boyle, ‘Ne bis in idem for the Benefit of States?’ in Caflisch et al., (eds), Liber Amicorum Luzius Wildhaber: Human Rights: Strasbourg Views (N.P. Engel, 2007) 329.

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national tribunals, the author lodged an application with the ECtHR claiming a breach of the prohibition of torture under Article 3 of the echr in combination with Article 1 of the echr.53 In 2008, a committee of three judges found the case inadmissible as there was not ‘any appearance of a violation of the rights and freedoms guaranteed by the Convention and its Protocols’.54 The author then submitted a communication to the hrc alleging a violation of the right to be treated with humanity and respect when deprived of liberty.55 Unlike in Correia de Matos, here the state party had introduced the reservation excluding the competence of the hrc in relation to cases that had been or were being examined under another procedure of international investigation or settlement. Nonetheless, the Committee found the communication admissible. While a conclusion that a complaint was manifestly unfounded usually includes an examination of the merits, the Committee held that the limited reasoning in the Court’s letter dismissing the application ‘does not allow the Committee to assume that the examination included sufficient consideration of the merits’ to hold it inadmissible.56 Effectively ‘correcting’ the previous assessment of the merits, the Committee went on to disagree with the Court and found that the investigation undertaken domestically was insufficient to guarantee the author her right to a remedy and concluded that the facts constituted a violation of the prohibition of torture.57 A minority of the Committee disagreed with the decision on admissibility.58 The minority referred to the Committee’s jurisprudence on Article 5(2) (a) of the Optional Protocol in relation to countries such as Spain that have entered the reservation referred to above. While the Committee could hold admissible a matter that had been dismissed by another procedure only on procedural grounds, the Committee should hold inadmissible (within the meaning of Article 5(2)(a)) a matter where the previous procedure had based a declaration of inadmissibility not solely on procedural grounds but also for reasons that included ‘a certain consideration of the merits of the case’. As the Court had based its decision on admissibility on the argument that it did not find ‘any appearance of violation of the rights and freedoms guaranteed by 53 54 55 56 57 58

Article 1 echr states: ‘The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention’. María Cruz Achabal Puertas v Spain (1945/2010) Views, CCPR/C/107/D/1945/2010 (2013) at para 2.14. Ibid.; and Article 10(1) iccpr. Ibid. at para 7.3. Ibid. at paras 8.6 and 9. Ibid. at Dissenting Opinion of Members Anja Seibert-Fohr, Yuji Iwasawa, Iulia Antoanella Motoc, Gerald L. Neuman, Yuval Shany and Konstantine Vardzelashvili.

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the Convention and its Protocols’, the minority failed to see how this could be interpreted other than as a consideration of the merits, albeit a limited one.59 The same criticisms of Correia de Matos also apply to this case. However, the Achabal case raises the further question of whether a body should necessarily keep with the prior decision of another body going to the merits of the same matter if, for example, it believes the prior decision was wrong or in some way lacking. The hrc was confronted with an unreasoned decision which a majority clearly believed was wrong. In the interests of doing justice to the victim, it might well make sense for that body to make its own decision on a particular case, even if this leads to disharmony in relations between regional and un bodies. However, this leads to the consequences already highlighted, including the possibility of the hrc becoming a court of appeal to regional courts, with consequent confusion for litigants. Given that single judges of the ECtHR may declare applications inadmissible with only limited reasoning, such situations could continue to arise.60 B Dealing with the Same Cases but Different Litigants Cases concerning the same facts but different applicants also raise the risk of contradiction. The cases of Unn and Ben Leirvåg and Others v Norway61 before the hrc and Folgerø and Others v Norway62 before the ECtHR provide interesting illustrations in this regard. The authors of the complaints before the two bodies were parents of primary school children. A change in the curriculum meant that all children had to follow a subject focusing on Christianity, religion and philosophy with a possibility of requesting an exemption from part of the curriculum. The authors sought to have their children exempted from the entire subject but were refused. The claims before both the hrc and the ECtHR included allegations of breaches of freedom of religion, private and family life, equality and non-discrimination.63 59

60

61 62 63

Ibid. The minority concludes by stating: ‘It is not for the Human Rights Committee to assess whether the examination of a case has been sufficiently careful under a procedure which enforces a norm affording an equivalent level of protection to that provided by article 7 of the Covenant, and which was invoked unsuccessfully by the author of a communication before the matter was brought to the Committee’. See Article 27 echr; and discussion in Gerards, ‘Inadmissibility Decisions of the European Court of Human Rights: A Critique of the Lack of Reasoning’ (2014) 14(1) Human Rights Law Review 148. (1155/2003) Views, CCPR/C/82/D/1155/2003 (2004). Application No 15472/02, Merits and Just Satisfaction, 29 June 2007. In relation to Folgerø, the claims alleged breaches of Articles 8 and 9 echr and Article 14 echr together with Article 2 Protocol No 1 to echr. In Leirvåg, the claims alleged

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In 2004, prior to consideration by the ECtHR of Folgerø, the hrc decided the case in favour of the parents. Subsequently, the ECtHR held the case admissible given that the litigants were not the same and the matter could not be considered the same as that decided by the hrc.64 In 2007, the Court delivered its judgment, quoting substantially from the hrc’s views65 and finding in favour of the parents.66 On the face of it, the decisions suggest that the ECtHR and hrc managed to coexist harmoniously. Both bodies were aware of the complaint before the other body, the hrc uncharacteristically citing jurisprudence of the ECtHR and the Court quoting the hrc decision. Nonetheless, while in the Folgerø judgment, a majority of nine judges decided in favour of the parents, eight judges dissented in two separate opinions. The dissenting opinions raise at least two aspects of these cases that highlight the challenges of coexistence. First, Judges Zupančič and Borrego Borrego argued that the applicants were in fact a group of individuals, some of which had submitted a petition to the hrc while the others had made an application to the Court. They concluded that the parties were essentially identical and that the matter was the same as the matter before the hrc and therefore should have been rejected as inadmissible. The judges warned against a narrow interpretation of what constitutes a matter that is substantially the same as one already submitted to another procedure67 as even where different applicants submitted the same factual situation before two international procedures, the risk of contradictory decisions remained, which was what the procedural safeguards sought to avoid.68 Second, the question arises as to whether the ECtHR actively tried to avoid open disagreement but in doing so, departed from its previous approach to similar cases. Lixinski notes that the ECtHR generally awards a wider margin of appreciation to states with a constitutionally recognised principle in matters related to freedom of religion and that this might have normally been the position of the Court in relation to Norway and the Folgerø case.69 However, he argues that the hrc decision had an influential role in the majority decision, 64 65 66 67 68 69

breaches of Articles 17, 18 and 26 iccpr. Folgerø and Others v Norway Application No 15472/02, Admissibility, 14 February 2006. Folgerø and Others v Norway, supra n 62 at para 45. Ibid. at para 100. Article 35(2)(b) echr. Separate Opinion of Judges Zupančič and Borrego Borrego in Folgerø and Others v Norway, supra n 62. Lixinski, ‘Choice of Forum in International Human Rights Adjudication and the Unity/ Fragmentation Debate: Is Plurality the Way Ahead?’ (2009) 9(1) University College Dublin Law Review 23 at 38.

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which opted to follow the hrc for reasons of coherence even if the minority opinion was more in line with the Court’s jurisprudence.70 Lixinski suggests that this cross-fertilisation has led to greater unity in international human rights law and has raised the level of protection given to freedom of religion where previously the ECtHR was willing to award the state a broad margin of appreciation in the area.71 An alternative reading is that the Court felt obliged to leave aside its own jurisprudence in the interests of not contradicting the hrc. Coherence in the particular case could arguably have led to incoherence in the Court’s own jurisprudence rather than any clear revision of its preference for awarding a broad margin of appreciation for states in such cases. The result might nonetheless be confusion, albeit less visible than if the Court had found against the parents. C Dealing with Similar Issues but Different Cases and Litigants The situation of two bodies dealing with identical or very similar cases as in the previous examples is relatively rare. However, regional and un bodies do quite often consider similar human rights problems, and this leaves open the possibility for diverging approaches. The death row phenomenon is one such problem.72 In Soering v United Kingdom, the ECtHR examined the case of a German citizen who was in prison in the uk awaiting extradition to the us to stand trial for the murder of two people in the State of Virginia where the death penalty was applied for such crimes.73 The Court concluded that the extradition of Soering would have exposed the applicant to a real risk of treatment surpassing the threshold of severity under Article 3 of the Convention.74 In so deciding, the Court took into account the long period of time an accused would pass on death row, even if the delay was attributable to the actions of convicted individual, and the constant fear experienced by an individual risking the death penalty, as well as the age and psychological situation of the applicant at the moment of the crime. The Court also acknowledged the fact that there was the possibility of extraditing the applicant to another state party to the Convention, Germany, which would not have resulted in such intense and exceptionally long suffering as the death penalty was not a sentencing option in that country.75 70 Ibid. 71 Ibid. at 44. 72 See Chapter 2 in this volume. 73 Application No 14038/88, Merits and Just Satisfaction, 7 July 1989. 74 Supra n 69 at 111. 75 Ibid. at 110.

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In Kindler v Canada, the author submitted a complaint to the hrc that a decision to extradite him from Canada to the us was a violation of various Articles of the iccpr including the right to life and freedom from torture.76 He claimed that the death penalty per se as well as the conditions on death row amounted to cruel, inhuman and degrading treatment or punishment.77 In its views, the Committee referred to the Soering judgment of the ECtHR and ultimately distinguished Soering. The Committee took into account the specific circumstances of the individual, the circumstances of his stay on death row and the method of execution and underlined important differences to Soering, including differences in age, the mental state of the individual as well as the conditions of detention in the two respective prisons. At the same time, the Committee recalled that a long wait on death row under a severe custodial regime ‘cannot generally be considered to constitute cruel, inhuman or degrading treatment if the convicted person is merely availing himself of appellate remedies’, thus departing from the ECtHR’s judgment.78 Later, in Francis v Jamaica, the Committee indicated that delay due to the state would be a relevant factor in determining cruel, inhuman or degrading treatment.79 While the hrc has been careful to distinguish Soering as much as possible, it nonetheless takes a different position to the ECtHR in relation to the death row phenomenon, particularly in relation to the relevance of delays attributable to the convicted individual. Are these positions evidence of disharmony or a healthy pluralism conducive to the harmonious existence of un and regional mechanisms? The question is important, given the overlapping state membership of the iccpr and the echr. Certainly, the two positions are not contradictory overall in the sense that both the ECtHR and the hrc embrace the possibility that the death row phenomenon might constitute cruel, inhuman and degrading treatment, even if the hrc has set a higher standard in this regard. The Committee has gone to some length to justify its position on delays.80 Perhaps the Committee’s position reflects practical concerns as much as the complex analysis of who is responsible for delays. As the entire membership of the Council of Europe has either banned or has a moratorium on 76 77 78 79 80

(470/1991) Views, CCPR/C/48/D/470/1991 (1993); and Articles 6 and 7 iccpr. Ibid. at para 3. Ibid. at para 15.2. (606/1994) Views, CCPR/C/54/D/606/1994 (1995). For example, the hrc has pointed out that it does not want to convey a message that states should execute prisoners as quickly as possible: see Johnson v Jamaica (588/1994) Views, CCPR/C/56/D/588/1994 (1996) at para 8.4, discussed in Hudson, ‘Does the Death Row Phenomenon Violate a Prisoner’s Human Rights under International Law?’ (2000) 11(4) European Journal of International Law 833 at 846.

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the death penalty, it is perhaps understandable that the ECtHR has a strong antipathy to capital punishment.81 In view of the fact that some parties to the iccpr, including from developed countries, still practise the death penalty, the hrc might have to take a more careful stance in the way it addresses issues such as the death row phenomenon, finding the delicate balance between protecting the rights of victims on death row and not alienating the Covenant’s membership. D Dealing with Newer Specialised Norms Recently, states have drafted more detailed treaties in relation to specific individuals such as persons with disabilities, which challenge previously held positions in human rights law in complex ways. The 2006 Convention on the Rights of Persons with Disabilities (crpd) raises standards in areas such as legal capacity for persons with mental and intellectual disabilities with farreaching effects in areas such as participation in elections, choice of medical treatment and deprivation of liberty. An interesting challenge—and potential opportunity—of coexistence has arisen in the case of Zsolt Bujdosó and Others v Hungary.82 In this case, the Committee on the Rights of Persons with Disabilities (‘the crpd Committee’) had to consider a constitutional exclusion of persons with mental and intellectual disabilities under partial and total guardianship from the right to vote.83 The authors claimed violations of their right to vote84 as well as their right to equal recognition before the law and enjoyment of legal capacity on an equal basis with others.85 Previously, the ECtHR had considered an earlier version of the constitutional provision in Alajos Kiss v Hungary, finding Hungary in breach of the Convention.86 The ECtHR, aware of the relevant provisions of the Convention on the Rights of Persons with Disabilities, found that the restriction on the right to vote had a legitimate aim, namely ‘to ensure that only citizens capable of assessing the consequences of their decisions, capable of making conscious and judicious decisions and vested with other rights linked to the age of majority, should participate in public affairs’.87 However, the ECtHR found that the restriction was not proportionate to this aim and concluded 81 82 83 84 85 86 87

Hudson, ibid. at 843. (4/2011) Views, CRPD/C/10/D/4/2011 (2013). Ibid. at para 2. Article 29 crpd. Article 12 crpd. Application No 38832/06, Merits and Just Satisfaction, 20 May 2010. Ibid. at para 25.

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that ‘an indiscriminate removal of voting rights, without an individualized judicial evaluation and solely based on a mental disability necessitating partial guardianship, cannot be considered compatible with the legitimate grounds for restricting the right to vote’.88 Subsequently, Hungary changed the constitutional provision. The new provision required judges to make decisions on suffrage taking into account the individual’s circumstances in each case. The state party argued before the crpd Committee that the revised constitutional provision was in conformity with the ECtHR’s decision. Nonetheless, the authors claimed that the new provision did not comply with the relevant provisions of the crpd. The crpd Committee found that Article 29 of the Convention did not foresee any reasonable restriction on the right to vote nor allow any exception for any group of persons with disabilities. Consequently, any restriction on the right to vote based on disability, even one pursuant to an individualised assessment, constituted discrimination on the basis of disability and a failure to comply with obligations related to the right to vote, read alone or in conjunction with Article 12.89 Both the ECtHR and the crpd Committee found violations of the relevant instruments. However, the crpd Committee decision goes further. While the ECtHR decision appears to suggest that a provision requiring an individualised judicial evaluation of a person under partial or full guardianship might meet the standards required under the echr, the crpd Committee has stated clearly that this would not suffice. The question arises how the ECtHR might decide a similar case in the future. A third party intervention in Zsolt Bujdosó provides an interesting interpretation of the ECtHR decision which could help harmonise the two decisions.90 The intervention argues that the ECtHR ruling focused on the previous constitutional provision and its blanket exclusion of persons under partial or total guardianship, leaving open the question whether a restriction that required ‘an individualised judicial evaluation’ might have been proportionate and therefore compatible with the Convention. Accepting this argument, the Court could take into account the crpd Committee decision when next considering whether a restriction with individualised assessment might be proportional. The Court was certainly willing to refer to the crpd standards in the Alajos Kiss judgment, suggesting an openness to consider state-of-the-art standards in the field. At the same time, the particularly strong provisions of the crpd in areas such as legal capacity, which few states parties to the crpd yet meet, might present the ECtHR and other regional courts with 88 89 90

Ibid. at para 44. Zsolt Bujdosó and Others v Hungary, supra n 81 at paras 9.4–9.5. Ibid. at para 5.4. The third party intervention was prepared by the Harvard Law School Project on Disability.

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cases that could be challenging in terms of ensuring harmonious coexistence with the decisions of the crpd Committee. 4

Conclusion: Opportunities and Challenges from a un Perspective

While many of the opportunities identified above relate to the relationship between any bodies – at the un, regional and even national level – there are some which have specific relevance to un and regional bodies. From a un perspective, coexistence raises the possibility of regional courts, with authority to make binding decisions, adopting or adapting un jurisprudence to the regional context and ideally bringing it closer to the national level. The ECtHR’s references to the cat or the cedaw Committee are good examples of this interaction. Opportunities also work in the other direction: regional bodies can inform and develop universal standards in light of particular regional contexts as appears to have been the case with the jurisprudence of the Inter-­American Court on non-derogability and its influence on the hrc. More generally, coexistence allows the cross-fertilisation of experience and can be mutually reinforcing, as demonstrated by the examples of the ECtHR’s use of the jurisprudence of the hrc and the cedaw Committee or the African Commission’s use of general comments of the cescr. The challenges identified above are of particular relevance from a un perspective given the overlapping state membership of regional and un bodies. Contradictory judgments emanating from two regional bodies might be undesirable but do not have the same impact as contradictory statements of regional and un bodies which confront states parties with opposing analyses of identical situations, such as in the Correia de Matos case. While such a level of disharmony is undesirable, slavish imitation is not necessarily more desirable, particularly where a previous decision is poorly analysed or where a global body might have to take a more cautious approach than a regional body in response to its more diverse membership. The Achabal case demonstrates the uncomfortable situation in which the hrc disagreed with the ECtHR’s conclusion on an identical case but without having access to the Court’s reasoning for its decision. The death row phenomenon cases illustrate distinct but not necessarily contradictory approaches to a human rights problem which might simply reflect the differing contexts of the un and Council of Europe with regard to the death penalty. The extent to which these opportunities and challenges play out in practice is difficult to indicate in the absence of any comprehensive study. It would appear that the challenges posed by the Correia de Matos and Achabal cases have not arisen frequently in the jurisprudence of the hrc, and most of the

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other individual communications procedures of the un bodies include tighter admissibility criteria that avoid this situation arising. However, it is relevant to note that the recently adopted individual communications procedure in the International Convention for the Protection of All Persons from Enforced Disappearance includes admissibility criteria in similar terms to the Optional Protocol to the iccpr. This could lead to contradictions arising in decisions of regional bodies and the Committee on Enforced Disappearances. The type of challenge more likely to arise relates to the situation where two bodies are dealing with similar issues across different cases. Beyond the death row phenomenon cases, it is possible to imagine other areas where different approaches can arise, such as the balance between combating hate speech and protecting freedom of expression or the ‘margin of appreciation’ that is awarded to states in dealing with national security in the context of protecting the right to privacy in the digital age. In the un system, the avenues for complaint have significantly expanded in recent years to cover not only civil and political rights, but also economic, social and cultural rights and rights of specific individuals such as children and persons with disabilities. As a result, more treaty bodies are examining individual communications and in relation to a range of provisions about which there is much less clarity and much greater scope for divergent interpretations. In addition, the membership of treaty bodies with authority to receive individual communications is considerably more diverse now, comprising fewer lawyers and more members who are potentially less concerned about lawyerly interests of harmonising international law. All this could lead to an increasing likelihood of diverging and even contradictory jurisprudence between the un and regional bodies. Harmonious coexistence should be the goal. However, the notion of harmonious coexistence should embrace a measure of pluralism, particularly in light of differences in the drafting of treaty provisions; political, economic, social and cultural differences between the regional and global contexts; and the differing state membership of regional and un treaties. Open contradiction should be avoided but varying approaches that are not necessarily contradictory might nonetheless be conducive to ‘healthy debate’ on human rights issues and harmonious coexistence. The litmus test should be whether differences are thoroughly reasoned, taking into account other positions on similar issues, with a view to achieving justice in the particular case and avoiding open contradiction and any likelihood of confusion among states and rights-holders. In this regard, it might be relevant for bodies to examine their approaches to referring to other sources of law with a view to citing jurisprudence from other bodies more regularly. This is particularly relevant for un bodies that tend to avoid such citations.

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It will be important to continue the discussion on harmonisation. The judges of regional courts and members of treaty bodies should lead and be at the heart of this discussion. Dialogue should take place between specific bodies and focus on particular issues, such as identifying relevant procedural safeguards to ensure harmonious coexistence, discussing approaches to citing legal sources from other systems, avoiding fragmentation of international human rights law and defining areas where pluralistic approaches in interpretation might be permissible or desirable. Technology should play a significant role in this regard, not only as an aid to research and awareness-raising, but also as a means of establishing and maintaining networks of judges and treaty body members. The recent resolution of the un General Assembly to strengthen the un treaty body system has clearly reinforced the notion of the un treaty bodies being a system and not ten disparate bodies.91 This is important to promote harmonisation at the un level and hopefully provides a positive impetus to the broader human rights system beyond the un to act as one system. It will be important to make every effort to connect human rights systems and practitioners within these systems to create a community that is guided by the aim of strengthening human rights protections within a pluralistic system of international human rights law. 91

ga Res 68/268, Strengthening and enhancing the effective functioning of the United Nations human rights treaty body system, 9 April 2014.

chapter 17

Co-existence and Confidentiality: The Experience of the Optional Protocol to the Convention against Torture Harmony and Human Rights: The Music of the Spheres Sir Malcolm D. Evans 1 Introduction The international system for the protection of human rights is not characterised by its coherence. That system—if, indeed, it is correctly described as a ‘system’—has grown up in a piecemeal fashion over a nearly seventy-year period, if one takes the 1948 Universal Declaration of Human Rights as a starting point.1 The focus of development has oscillated over the years between the international (that is, the un) and the regional; first in the Americas and Europe, then Africa and Asia. A further phase now seems to be under way, with the emergence of non-geographic groupings such as the Organisation of Islamic Cooperation developing their own institutional mechanisms for engaging with human rights issues.2 Each has spawned its own progeny and, as a result, the range of international instruments, procedures and processes is now of mind-boggling complexity. The ‘system’ does not only include legal instruments and the machinery which they establish—such as the courts and treaty bodies which are so often the focus of attention—but also the political divisions of international organisations which themselves engage in human rights-focused work. This not only embraces processes such as Universal 1 There is no one obvious starting point: see, for example, the panoramic approach in Ishay, The History of Human Rights: From Ancient Times to the Globalization Era (University of California Press, 2008). Others focus upon the impact of the enlightenment, such as Hunt, Inventing Human Rights: A History (Norton and Co, 2007). For many international lawyers, one looks back only to the mid twentieth century: see Lauterpacht, An International Bill of Rights of Man (1945) (reprint by Sands, oup, 2013). For an enriching collection of writing taking this as its historical baseline, see Hoffman (ed.), Human Rights in the Twentieth Century (cup, 2011). 2 See the various chapters in Sheeran and Rodley (eds), Routledge Handbook on International Human Rights Law (Routledge, 2013) part iv, mapping the European (Leach, at 407), InterAmerican (Sandoval, at 427), African (Viljoen, at 25), asean (Muntarbhorn, at 467) and League of Arab States (Rishmawi, at 483) systems.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004284258_019

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Periodic Review (upr) before the un Human Rights Council3 and the work of its special procedures, but it also includes the work of the Office of the un High Commissioner for Human Rights, the Council of Europe’s Commissioner for Human Rights, and the work of the Office for Democratic Institutions and Human Rights under the Organisation for Security and C ­ o-operation in Europe (osce), all of which service their own ‘political’ engagement with protection issues. A final tier—closely interwoven with the latter—concerns the work of the many bodies and agencies tasked with the delivery of technical advice and capacity-building within states, and those engaged in rule of law programmes, post-conflict reconstruction and so on. To this might be added the work of relief agencies, humanitarian organisations and national and international civil society. In fact, even the quickest and most superficial mapping of human rights work, such as this, immediately points to an enormous range of entities and actors exercising competences and undertaking functions related to human rights protection at local, national, sub-regional, regional and international levels. It is against this background that the quest for systemic ‘harmony’ must be considered. At the risk of grossly overgeneralising, this question tends to be approached from a substantive perspective focusing on the problems posed by normative variance between the provisions found either in the various international legal instruments themselves or in the ‘jurisprudence’ which they have generated. This, indeed, provides the starting point for many of the contributions to this volume, which probe the extent to which the outputs of, for example, the European Court of Human Rights, have influenced or have been influenced by the work of other regional and un bodies.4 The underlying premise is that greater reflexivity between regional and international bodies will generate, over time, a more ‘harmonious’ jurisprudence which will have a universal resonance, and which will drown out the dissonance of variation which threatens the integrity of the human rights system. The starting point is seen to be a willingness to own the debt each owes to the other through mutual citation and acknowledgement, the end point (for some) being the establishment of a ‘World Court’

3 See Bernaz, ‘Reforming the un Human Rights Protection Procedures: A Legal Perspective on the Establishment of the Universal Periodic Review Mechanism’, in Boyle (ed.), New Institutions for Human Rights Protection (oup, 2009) 75. On the Human Rights Council more generally, see Abebe, ‘The Role and future of the Human Rights Council’, in Sheeran and Rodley, supra n 2, 743. 4 On this more generally, see McGregor, ‘The relationship of the un treaty bodies and regional systems’, in Sheeran and Rodley, supra n 2, 505.

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of human rights which would bring harmony through unity.5 Or something like that. The question which is rarely asked of this thesis is whether, like many utopias,6 it is even desirable, let alone achievable. There is an argument that, whilst the Universal Declaration may indeed be a universal declaration7 and, in the words of its preamble, ‘a common standard of achievement’, the various instruments, mechanisms and procedures which have been put in place in order to realise that achievement are so much the product of the bodies which have created them that they cannot truly be expected to function in ‘glorious detachment’ from the organisations of which they form a part. In other words, the European Court of Human Rights, for example, cannot avoid being a European court of human rights working in the European political space within the framework of the Council of Europe, any more than the Inter-American Court can avoid being an inter-American court operating in an inter-American political space within the framework of the Organization of American States.8 Whilst this should not affect their respective understandings of the rights which inhere to all human beings, it is naive to think that this cannot have any impact upon the manner in which they are able to go about doing their work. Indeed, this reality is already reflected in the nuances of the various regional declarations and treaties which the various systems have generated. Moreover, the nature and shape of the political and institutional structures in which a given piece of human rights work takes place inevitably finds some

5 See, for example, Clapham, ‘Overseeing Human Right Compliance’, in Cassese (ed.), Realizing Utopia (oup, 2012) 318 at 323–4 (a section headed: ‘Arriving in Utopia: A World Court for Human Rights’). For recent initiatives in this direction, see Kozma et al., A World Court of Human Rights – Consolidated Draft Statute and Commentary (Neuer Wissenschaftlicher, 2010). See also Novak, ‘The Need for a World Court of Human Rights’ (2007) 7(1) Human Rights Law Review 251. 6 For human rights as utopian programme, see Moyn, The Last Utopia: Human Rights in History (Harvard University Press, 2012). 7 The nature of the universalism which it represents remains, however, highly contentious. For a general overview of the debate, see Donnelly, Universal Human Rights in Theory and Practice, 3rd edn (Cornell University Press, 2013) part ii. 8 On regional courts as a part of regional systems, see Evans, ‘The Future(s) of Regional Courts of Human Rights’, in Cassese, supra n 5, 261. For an interesting discussion of the European Court’s evolving relationship to the other organs of the Council of Europe, see Lambert-­ Abdelgawad, ‘The Court as a Part of the Council of Europe’, in Føllesdal et al., Constituting Europe: The European Court of Human Rights in a National, European and Global Context (cup, 2013) 263.

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reflection in the processes and procedures through which that work is undertaken. Though this may seem to some to be a rather shocking statement, it is in fact merely a reflection of day-to-day reality. For example, a Russian-only speaker is likely to find proceedings within the Inter-American system more burdensome than would be the case within the un system as a result of different policies on interpretation and translation. At a different level, whilst it may be entirely appropriate for a given regional body to articulate standards in respect of the member states of that regional body, it may be less appropriate to use those statements as sources of standards in the context of other organisations, whose membership might be different. This has certainly been an issue within the osce, some of whose North American and Central Asian participating states have sometimes taken exception to the interpretation of osce human rights commitments being based on the jurisprudence of the European Court of Human Rights.9 Such dynamics produce real barriers to achieving harmony through such ‘top down’ approaches. The point is not that such approaches are not useful, but that there are likely to be real limits to what they can achieve. Drawing inspiration from each other’s work is one thing, but following each other merely to maintain a common approach is quite another and may not have the effect that was intended. It ought not to be forgotten that, at the end of the day, compliance with the rulings and findings of human rights courts and bodies is precarious in many parts of the world and it may be wise to trust those bodies themselves to know how best to articulate their views in order to maximise the likelihood of their being complied with. Encouraging them to say that the approach they are adopting is that adopted in other parts of the world might not be as helpful as might be assumed. Moreover, in the final analysis, it is achieving compliance with human rights commitments rather than unifying international jurisprudence which is the point of the exercise. If this is the case as between those organisations which have established human rights procedures and mechanisms, it is also the case as between the various procedures and mechanisms which have been established by a single organisation. To take the un as a paradigmatic example, it has adopted ten 9 Belarus, Canada, the Holy See, Kyrgyzstan, Kazakhstan, Mongolia, Tajikistan, Turkmenistan, the usa and Uzbekistan are all osce participating states but not members of the Council of Europe and party to the European Convention on Human Rights. echr jurisprudence continues, however, to be used in osce reviews of proposed legislation in these states, to the extent that it clarifies the meaning of more generally applicable provisions: see, for example, the express acknowledgement of this in osce Office for Democratic Institutions and Human Rights, Comments on ‘The Concept Paper on State Policy in the Sphere of Religion of the Kyrgyz Republic’, 27 March 2014, FOR-KYR/245/2014 [RJU], at para 13.

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‘core’ human rights treaties, each with its own independent supervisory body whose work is serviced by the un Office of the High Commissioner for Human Rights in Geneva (ohchr) and which operates only in respect of the states parties to the particular treaty in question. The un has also set up the Human Rights Council (hr Council), a political organ which is also serviced by the ohchr in Geneva and which conducts its own review of state compliance with human rights commitments. The hr Council also establishes independent mechanisms—as of March 2015, some 14 country10 and 41 thematic procedures11 which are likewise serviced by the ohchr. In addition, the ohchr supports the autonomous work of the un High Commissioner for Human Rights, including its many field presences and operations. This clearly places the ohchr at the centre of a diversified web of processes and—in theory— means that it should be ideally placed to achieve a harmonised approach to the delivery of human rights engagement across the organisation. Yet in truth, the opposite is the case. Each treaty body, each special procedure and each upr outcome and field operation is the product of a particular dynamic which has to be respected if its integrity—and efficacy—is to be preserved. To take the example of the treaty bodies, it is well known that the ohchr’s attempt to embark on a process of harmonising their work by unifying them under the auspices of a single body proved completely unworkable.12 Each has its own treaty basis, its own history and its own trajectory. As a result, they have developed different focuses of work, reflecting the specific treaty obligations and the competencies of their membership. Over time, each has developed its own set of relationships with its respective states parties and it is notable that some states have chosen to engage more freely and fully with some treaty bodies than with others.13 The same can also be said of the special procedures. 10 See http://spinternet.ohchr.org/_Layouts/SpecialProceduresInternet/ViewAllCountry Mandates.aspx. 11 See http://spinternet.ohchr.org/_Layouts/SpecialProceduresInternet/ViewAllCountry Mandates.aspx?Type=TM. 12 The attempt by the then un High Commissioner for Human Rights to establish a single unified un treaty body in 2006 was swiftly abandoned and has not been returned to in the latest round of discussions within the un concerning institutional development within the human rights system. For the proposal, see un Secretariat, Concept Paper on the High Commissioner’s Proposal for a Unified Standing Treaty Body, HRI/MC/2006/CRP.1; and for comment, see O’Flaherty and O’Brien, ‘Reform of the un Human Rights Treaty Monitoring Bodies: A Critique of the Concept Paper of the High Commissioner’s proposal for a Unified Standing Treaty Body’ (2007) 7(1) Human Rights Law Review 141. 13 Thus some states have submitted multiple reports to some of the un human rights treaty bodies but have not submitted any reports to others. To take one example at random, Cape Verde’s initial report to the Committee Against Torture, which monitors

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As a result of the failure of what might be termed a classic ‘top down’ approach to addressing the diversity of practice, a completely different ‘bottom up’ approach was inaugurated. Rather than seeking to impose harmony from above, a new initiative was launched which sought to promote harmonisation through a process of learning from each other and sharing of best practice. The ‘Dublin Process’, launched in 2009, was designed to facilitate the coming together of the treaty bodies, whilst respecting their diversity.14 Harmony was no longer to be seen as the treaty bodies uniting, or even in their doing the same thing in the same way—it was about the treaty bodies doing what they did in the knowledge of what others were doing, and reflecting on whether there were advantages for them in doing as others did. It remained an essentially atomised approach. This ultimately found reflection in the emergence of the word ‘alignment’ as a favoured way of describing the process, although in the latest General Assembly discussions on the future of the treaty bodies the term ‘harmonisation’ has made a rather unwelcome return.15 The point of this excursus is to highlight that even within the same political organisation the process of achieving a degree of ‘harmony’ across the workings of complex human rights mechanisms is extremely difficult. How much more so will it be, then, to achieve such harmony between those working within the framework of different political organisational structures? This may well come in time, but if it does it is likely to come from a similar ‘bottom up’ approach as that embarked on by the un human rights treaty bodies. At an institutional level, there is already evidence of this. One has only to look at implementation of the un Convention against Torture, was due in July 1993 but is yet to be submitted. It has, however, reported to the Committee on the Rights of the Child (in 2001) and the Committee on the Elimination of Racial Discrimination (in 2003) and twice to the Committee on the Elimination of Discrimination against Women (in 2005 and most recently in 2013). 14 On the background to the Dublin process, see O’Flaherty, ‘Reform of the un Human Rights Treaty Body System: Locating the Dublin Statement’ (2010) 10(2) Human Rights Law Review 319. The Dublin Process then fed into the 2012 Report by the un High Commissioner for Human Rights, Navanethem Pillay, Strengthening the United Nations Human Rights Treaty Body System, A/66/860. For an analysis of this report, see Egan, ‘Strengthening the Human Rights Treaty body system’ (2013) 13(2) Human Rights Law Review 209. The report called for the establishment of a ‘Master Calendar’ within the framework of which all states parties’ reports would be submitted and considered by the relevant treaty body over a five-year cycle but disappeared without trace in the discussions leading up to the adoption of United Nations General Assembly Resolution in April 2014 by which the strengthening process was concluded: see ga Res 68/268, 9 April 2014. 15 See ga Res 68/268, ibid. at paras 9 and 38, both of which encourage ‘harmonisation’ of working methods. For an overview of the process and all relevant documentation, see www.ohchr.org/EN/HRBodies/HRTD/Pages/TBStrengthening.aspx.

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the way in which, over time, there has been a slow but steady move towards commonality in the nature of the human rights processes themselves. Most obvious has been the move within regional systems towards establishing and enhancing the jurisdiction of courts capable of making legally binding decisions to supplement commissions on human rights whose findings lacked legal force. This trend may well continue. Similarly, within the family of un human rights treaties there has been a steady expansion in the number able to receive individual communications, to the point where in 2014 all nine of the un treaties involved in the examination of state reports had acquired this capacity.16 It may well be that, modelled on the regional systems, a un ‘court of human rights’ might yet emerge as a further stage in the development of the treaty system.17 Equally, other innovations which have proved their worth have also undergone transposition. Within the un, the innovative ‘inquiry procedure’ first provided for in Article 20 of the un Convention against Torture (uncat) has been replicated in more recently adopted instruments.18 Inevitably, its operational practice under Article 20 stands as a point of reference for the operative practice of the others—sparse though that practice may yet be.19 It is itself, however, reflective of the work of the special procedures—and it is through such procedural borrowing that common practice emerges.20 But it is not only a borrowing of process. Common processes have a way of fostering 16 17 18

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This milestone was reached with the entry into force in April 2014 of the Optional Protocol to the Convention on the Rights of the Child on a communications procedure. For previous moves in this direction, see supra n 5. Such procedures have been provided for in Article 8 Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women 1999 (in force December 2000); Article 6 Optional Protocol to the Convention on the Rights of Persons with Disabilities 2006 (in force May 2008); Article 11 Optional Protocol to the Covenant on Economic, Social and Cultural Rights 2008 (in force May 2013); and Article 13 Optional Protocol to the Convention on the Rights of the Child on a communications procedure 2011 (in force April 2014). A very similar process is provided for in Article 33 International Convention for the Protection of All Persons from Enforced Disappearance. This means that only three of the nine traditional instruments do not have a formal visiting mandate associated with them, these being the International Convention on the Elimination of All Forms of Racial Discrimination, the International Covenant on Civil and Political Rights (both of which predate the uncat) and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. The Committee against Torture has published seven reports arising from the consideration of a country under Article 20 uncat. In accordance with the provisions of Article 20, details of any other situations which may be under consideration remain confidential. For an insightful account, see Bernaz, ‘Continuing evolution of the United Nations treaty body system’, in Sheeran and Rodley, supra n 2, 707.

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a commonality of approach substantively—normatively—too. If you know ‘how’ another process works, one tends also to know ‘what it did’ or ‘what it said’. Here—in the interstices of procedure—lies a complementary means of achieving aligned jurisprudence, but in a way which respects the underlying dynamics of the mechanisms themselves. The remainder of this chapter will offer a case study of such a dynamic in action, looking at its failures as well as its successes in order to allow some conclusions to be drawn which may be of value to others pursuing a similar path. 2

The European Committee for the Prevention of Torture and the Subcommittee for Prevention of Torture: Same—but Different21

The Optional Protocol to the Convention against Torture (opcat) was adopted by the un General Assembly and opened for signature in December 2002. It entered into force in 2006 and the body which it establishes, the Subcommittee for Prevention of Torture (spt or ‘the opcat Committee’), commenced its work in February 2007.22 It had been a long time in the making: its origins lay in ideas put forward during the mid 1970s, and first drafts were tabled during the negotiations which led to the adoption of the Convention against Torture in the early 1980s.23 As it was evident that the idea was not going to make progress at that time within the un, the proposals were shelved. However, in 1983 they were taken up within the Council of Europe, leading to the adoption of the European Convention for the Prevention of Torture (ecpt) in 1987, which entered into force in 1989. The body which it established, the European Committee for the Prevention of Torture (cpt) commenced work in 1990.24 21

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For a general comparison, see de Beco, ‘The Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the opcat) in Europe: Duplication or Reinforcement?’ (2011) 18(3) Maastricht Journal of European and Comparative Law 257. For an overview of the opcat, see Murray et al., The Optional Protocol to the un Convention Against Torture (oup, 2011). See also Novak and McArthur, The United Nations Convention against Torture: A Commentary (oup, 2008), which also looks at the text of the opcat; however, as the commentary was written before the opcat Committee had commenced its work, it is no longer a wholly reliable guide to current understandings. For the drafting history, see Evans and Haenni-Dale, ‘Preventing Torture? The Development of the Optional Protocol to the un Convention against Torture’ (2004) 4(1) Human Rights Law Review 19. For the drafting of the ecpt and the cpt’s initial work, see Evans and Morgan, Preventing Torture? A Study of the European Committee for the Prevention of Torture and Inhuman

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The ‘idea’ underpinning both instruments is that the risk of torture and illtreatment can be lessened by visits of a preventive nature being undertaken by independent bodies to places where persons may be deprived of their liberty by, or with the acquiescence of, the public authorities.25 As a result, states parties are required to allow the spt (under the opcat) and the cpt (under the ecpt) to visit any such place and have free access to them, and to those held there.26 Following their visits, the bodies are to produce reports containing appropriate recommendations and which form the basis of an ‘on-going dialogue’ between the state and the committee on their implementation.27 These reports are confidential, but may be made public if the states to which they are addressed give their consent.28 In addition, the opcat requires states parties to establish bodies with similar powers at the national level. These bodies are known as National Preventive Mechanisms (npms)29 and the spt has the specific mandate to advise and assist states parties in their establishment and to advise and assist both the state party and the npm itself on the conduct of its work.30 This is a very broad-brush description of the essential features of the two systems but it is sufficient for the purpose of this chapter, which is to consider how, in practice, the work of these two bodies might be aligned in a harmonious fashion. This will be considered in detail in the following sections. Before doing so, however, it is helpful to step back a little and consider some more fundamental questions which may not have been fully reflected on. It was both inevitable and proper that the experience of the cpt should have been an influence on the work of the spt. After all, both owe their origins

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26 27 28 29 30

or Degrading Treatment or Punishment (oup, 1998). For a more recent presentation and analysis of its work and practice, see Kicker and Möstl, Standard Setting Through Monitoring? The role of the Council of Europe expert bodies in the development of human rights (Council of Europe Press, 2012); and Kicker, ‘The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment’, in de Beco (ed.), Human rights Monitoring Mechanisms of the Council of Europe (Routledge, 2012) 43. Indeed, the original idea was even bolder in its claims, being publically launched in a pamphlet entitled: Torture: How to Make the International Convention Effective (International Commission of Jurists/Swiss Committee against Torture, 1979). Article 4 opcat; and Article 2 ecpt. Article 16(1) opcat; and Article 10(1) ecpt. Article 16(2) opcat; and Article 10(2) ecpt. See Articles 17–23 opcat. Article 11(b) opcat. For a recent examination of the work of the spt relative to npms, see Steinerte, ‘The Jewel in the Crown and its Three Guardians: Independence of National Preventive Mechanisms Under the Optional Protocol to the un Torture Convention’ (2014) 14(1) Human Rights Law Review 1.

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to the same campaign and, as regards their visiting mandate, do essentially the same thing—undertake visits to places of detention, produce confidential reports and engage in confidential dialogue. The question which seems to have gone by default is whether they should undertake their work in essentially the same way. The significance of this question ought not to be underestimated, since it goes to the heart of discussions concerning the future of both un treaty bodies and of the more general systems of human rights protection. There seems to be an underlying assumption that if different bodies are indeed doing essentially the same thing that they should also go about it in the same way; barriers to their doing so should be removed and ‘harmonisation’ of working practices encouraged. The experience of the spt and cpt suggests that this is not always true. It is worth going back to basics. The ecpt is a remarkably sparse text. It provides that ‘[t]he Committee shall, by means of visits, examine the treatment of persons deprived of their liberty with a view to strengthening, if necessary, the protection of such persons from torture and from inhuman or degrading treatment or punishment’.31 It also provides that ‘[a]s a general rule, the visits shall be carried out by at least two members of the Committee. The Committee may, if it considers it necessary, be assisted by experts and interpreters’.32 Finally, it provides that ‘[t]he Committee shall notify the Government of the Party concerned of its intention to carry out a visit’.33 Apart from this, almost everything else concerning how the cpt might go about its work is a matter of implication drawn from other provisions which are not addressed to the cpt itself but to the states parties, setting out what they must permit the cpt to do—should it wish to do so. For example, Article 8(2)(c) provides that it should have ‘unlimited access to any place where persons are deprived of their liberty, including the right to move inside such places without restriction’, whilst Article 8(3) provides that ‘[t]he Committee may interview in private persons deprived of their liberty’. All this clearly indicates that it is envisaged that during its visits the cpt would ‘inspect’ facilities and interview detainees. Likewise, Article 7(1) provides that ‘[t]he Committee shall organise visits to places referred to in Article 2. Apart from periodic visits, the Committee may organise such other visits as appear to it to be required in the circumstances’. It is on the basis of this latter provision that the cpt bases its mandate to undertake ‘periodic’ and ‘ad hoc’ visits, but it is notable that there is nothing in the text of the Convention which indicates what ‘periodic’ may 31 32 33

Article 1 ecpt; and reiterated in Article 7(1) ecpt. Article 7(2) ecpt. Article 8(1) ecpt.

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mean, either in terms of periodicity between visits or in terms of what such visits might look like, or how long they might last. In other words, the ecpt says very little about how the cpt was to go about its task.34 The cpt commenced its work in 1990 and immediately established a methodology for undertaking its visits, the basics of which have remained largely unchanged, though there have been significant changes in nuance over the years.35 It was, however, its practice in its earliest years which had the greatest impact on the future direction of the opcat as this coincided with its drafting— and it was the very fact that the cpt had proven to be a workable idea that provided the inspiration for relaunching the opcat project at the un.36 Inevitably, then, the relevant provisions of the opcat, and the approach to them, is very similar. There are a number important differences, however, notably the requirement in opcat that visits be ‘regular’, rather than ‘periodic’ and that it ‘may propose a short follow-up visit after a regular visit’.37 This latter provision has come in for considerable criticism,38 since it is generally assumed that this means that the spt is not able to undertake ‘ad hoc’ visits in the fashion of the cpt, and is limited to ‘following up’ on its previous visits which have been undertaken as a part of its regular cycle of visiting. This misunderstanding provides an excellent example of the problems which flow from assuming that the practices and procedures which have been adopted under one mechanism are to be projected onto another. The reason why the provision in the opcat appears restrictive is that it is assumed that there is programme of ‘regular’ visits which needs to be undertaken before the spt can return to a country within its programme of visits. Whilst it is entirely true that the opcat says that the Subcommittee on Prevention shall be guided by the principles of confidentiality, impartiality, non-selectivity, universality and

34

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36 37 38

See generally Evans and Morgan, supra n 24; and Kicker, supra n 24. Kicker and Möstl (supra n 24 at 62) say that ‘the provisions of the ecpt and its explanatory report allow for a dynamic interpretation of the cpt in practice’. Whilst this might not be strictly the case, the reality is that there is so little guidance in either that there has been little alternative. In its early years the cpt focused largely on undertaking longer ‘periodic’ visits to countries. In recent years the numbers of shorter, targeted ‘ad hoc’ visits have increased and shorter visits taking the form of ‘high level talks’ have also been undertaken. See Kicker and Möstl, supra n 24 at 89. See Murray et al., supra n 22 at 22–4. It was in 1991 that the process of drafting the opcat within the un was recommenced. Article 13(4) opcat. See, for example, Rodley, ‘Reflections on Working for the Prevention of Torture’ (2009) 6(1) Essex Human Rights Review 21 at 28.

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objectivity,39 nowhere is it said that this means that all states parties must have received a regular visit before another can take place to a country which has already been visited. To this must be added the practice of announcing the ‘programme’ of regular visits in advance. The cpt decided at the outset of its work to announce its programme of visits for the following year at the end of its last plenary session in the preceding year.40 There are good reasons for doing so, and in the context of the ecpt this does not prevent the cpt from undertaking ‘ad hoc’ visits in addition to the pre-announced ‘periodic’ programme. When this practice was transposed to the spt, however, it reinforced the impression of rigidity, since, as it did not have an express mandate for ‘ad hoc’ visits, it appeared that it had no scope for undertaking visits outside of the pre-announced annual41 programme. Of course, there is absolutely nothing to prevent the spt from amending its plans at any time during the course of the year (indeed, this has happened).42 More importantly, there is nothing in the text of the opcat (or indeed of the ecpt) which says what a ‘regular’ (or ‘periodic’) visit should look like at all. There is no reason why ‘regular’ or 39 40

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Article 2(3) opcat. In practice, this meant that the announcement was made in early December in respect of the following year. As of 2014, this practice has changed and the list of regular visits to be undertaken is now issued at the start, rather than at the end of the year: see cpt, Press Release: Council of Europe anti-torture Committee announces visits to ten states in 2015, 20 March 2014, available at: www.cpt.coe.int/en/visits/2014-03-20-eng.htm. It is also worth noting that it is assumed that the ‘programme of regular visits’ referred to in Article 13(1) opcat is an ‘annual’ programme. This is not entirely obvious. The text refers to the programme being established ‘at first by lot’. This is not found in the ecpt, but the cpt decided to select the countries to visit in its first year in this fashion: see cpt, 1st General Report, 20 February 1991, CPT/Inf (91) 3, at para 19. This practice of the cpt then became reflected in the text of the opcat, but without making it clear that it ought only to apply to visits in the first year of an annual programme of visits. The spt, unsurprisingly, interpreted the text in this fashion: see spt, First Annual Report, CAT/C/40/2, at para 14, where it also said that it would proceed on the basis of a ‘reasoned process’ thereafter. Thus a visit to Gabon planned for 2012 took place in 2013, and a planned visit to Togo in that year was postponed to 2014. Moreover, in its press release setting out its visiting programme for 2014 the spt highlighted that ‘[i]n addition, the spt will also conduct a broad range of visits to places of detention, as well as short missions that will focus on advising the national authorities on how to best to comply with their opcat obligations’, thus indicating a degree of flexibility in its operational activities: see spt, Press Release: Key un group on prevention of torture announces countries to be visited in 2014, 18 November 2013, available at: www.ohchr.org/EN/NewsEvents/Pages/DisplayNews .aspx?NewsID=14001&LangID=E.

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‘periodic’ visits have to be of a similar nature—and indeed, they are not, either in terms of length, focus, numbers of participating members and so on.43 In short, the criticisms made of the opcat text on this point are largely based on assumptions that the working methods of the cpt would be transposed to the spt, thereby producing a perception of weakness which, but for those assumptions, need not exist. This is a clear illustration of how ‘harmonisation’ can be a hindrance to the effective implementation of a specific convention mandate, the details of which have been shaped by different parameters. One further example may suffice to illustrate the point being made. From the outset, the cpt adopted what has been called a ‘triangulation’ methodology, in which it seeks to demonstrate the risk of ill-treatment by corroborating the testimony of detainees with medical examinations and documentary analysis, and it carries this ‘evidence-based’ approach into all aspects of its work.44 Indeed, the beauty of the mechanism is that it allows the cpt, and spt, to undertake such forms of scrutiny. Nevertheless, there is absolutely nothing in the ecpt which requires the cpt to work in this way. This was very much a conscious choice taken by the cpt at the outset of its work. This choice has led to the cpt’s constant call for it to have members with the requisite degree of medical expertise and this in turn has been carried over into the work of the spt and perceptions of its membership needs. Interestingly, the text of the ecpt does not expressly mention medical expertise; it refers to members ‘known for their competence in the field of human rights or having professional experience in the areas covered by this Convention’,45 as does the opcat.46 Nor is there any express power to undertake medical examinations or access medical records, though this is clearly within the scope of its more 43

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For example, in 2010, when the spt increased in size from 10 to 25 members, between eight and nine members participated in each visit, whereas the norm for a regular visit is around four to six. Shorter or more focused visits may have fewer than this: thus the short visit to Nigeria in April 2014 was undertaken by only two members, the minimum number set out in Article 13(3) opcat. Likewise, in 2012 the cpt conducted a ‘periodic’ visit to two states parties—Monaco and San Marino—lasting four days or fewer, whilst all of its ‘ad hoc’ visits lasted four days or, in some cases, considerably longer: see cpt, 23rd General Report, 6 November 2013, CPT/Inf (2013) 29, annex 7. See, for example, the description of its methodology given by the first President of the cpt: Cassese, Inhuman States: Imprisonment, Detention and Torture in Europe Today (Polity Press, 1996) at 76–9. Article 4(2) ecpt. Article 5(2) opcat, which does, however, expressly identify other forms of relevant expertise ‘in the administration of justice, in particular criminal law, prison or police administration’.

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general powers.47 It is, of course, clear that medical expertise is important to the ­committee, and the Explanatory Report to the ecpt clearly envisages that there will be medical dimensions to visits.48 The point being made here is that the focus on medical examination during visits is a matter of choice and may reasonably be contingent on the capacity of the body in question. If it is somewhat lacking in medical capacity, this does not mean that the visit is in some way ‘defective’. It may be able to achieve just as much, but in other ways. Much depends on how a visit has been constructed and what is its purpose. The underlying point is that modelling an approach developed under one legal framework and/or institutional setting upon that undertaken in another may not be optimal. This can again be illustrated by a simple comparison between the contexts within which the cpt and spt operate. The cpt functions within the context of the Council of Europe and currently has 47 states parties. It works in two official languages, English and French (though much of its work is translated into others). It is comprised of one member per state party, a total of 47.49 It is currently serviced by a full-time core secretariat of some 24 members.50 In 2012 and 2013 it was able to undertake 21 visits of varying natures.51 The spt functions within the context of the United Nations and the opcat currently has 80 states parties, drawn from all regions of the world.52 Official documentation is translated into all un languages and it currently uses three working languages.53 With 25 members it is substantially smaller than the cpt but is still the largest of the un treaty bodies. It is serviced by a core secretariat of five staff 47

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49 50 51 52

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Article 14(1) opcat. This is couched, somewhat awkwardly, as an undertaking of the state party to enable the spt to undertake its work, rather than as powers of the spt itself. In practice, nothing turns on this, however. See Explanatory Report annexed to ecpt, at para 36, which notes that cpt members ‘do not have to be lawyers’ and that ‘it would be desirable’ for it to have members with medical experience. Article 4(1) ecpt. See 23rd General Report, supra n 43 at annex 5. Ibid. at para 1 and annex 7. Eleven visits were ‘periodic’ and ten ‘ad hoc’. At the end of 2015 the numbers of states parties from each of the five un regional groupings are: Africa, 18; Asia and the Pacific, 9; Eastern Europe, 19; Latin American and Caribbean States, 15; and Western Europe and Others, 19. See spt, Ninth Annual Report, CAT/C/57/2, at para 3; and the status of opcat in the un Treaty Series Online Collection, available at: treaties.un.org/Pages/ViewDetails .aspx?src=TREATY&mtdsg_no=IV-9-b&chapter=4&lang=en. These being English, French and Spanish. Until recently, translation at sessions was also provided into Arabic and Russian.

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and until 2014 was unable to undertake more than six visits of varying natures. It is by no means obvious that the working methodologies devised to function within a European regional and Council of Europe political context would be easily transposed to a global and un political context. Yet it is the case that the cpt system provided the model around which the spt visiting mandate was initially crafted and, indeed, was for some time considered to be the only way in which the spt could undertake its work. In some ways, and particularly as regards resources, the un provides an impoverished working context. But in other ways, it offers much richer possibilities, not only by virtue of its global reach and authority, but through the possibilities of complementarity with other un processes, procedures and mechanisms which could, at least in theory, combine to form a mutually reinforcing framework which would be beyond that possible within the Council of Europe context. As a result, the transposition of cpt methodology, rather than the crafting ab initio of a bespoke spt methodology reflecting its own mandate, structure and institutional setting, might have been something of a lost opportunity. Perhaps even more problematic, however, was the failure to step back to evaluate objectively whether the cpt’s approach to the application of a preventive visiting mandate was in fact optimal. This is not to suggest that it does not work well. However, the fact that after over 20 years of work, and numerous visits to all states parties, its ‘fundamental safeguards’ are not yet in place in a considerable number of states parties which have received frequent visits, does prompt such questions.54 Indeed, it will be interesting to see if the recent European Court of Human Rights ‘pilot judgments’ concerning conditions in pre-trial detention may prove as, or more, effective in bringing about change than the cpt’s recommendations, on which those judgments draw.55 The 54

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Cf. Kicker and Möstl, supra n 24 at 145, who rather apologetically conclude that ‘[t]he expert advice given … is thus only one, albeit informed, proposal as to how norm standards may be implemented. It remains up to the political will and capacity of states parties to take up exactly the … experts bodies’ recommendations in order to realise a norm standard’. See, in particular, Ananyev and Others v Russia Applications Nos 42525/07 and 60800/08, Merits and Just Satisfaction, 10 January 2012, where the Court set out in considerable detail the approaches which it thought might be undertaken by the Russian authorities to address structural failings which had led to conditions of detention in Russian sizos (pretrial detention centres) being considered to be in violation of Article 3 echr on over 80 occasions. The Court has recently adopted a similar approach in relation to Italy in Torreggiani and Others v Italy Applications Nos 43517/09 et al., Merits and Just Satisfaction, 8 January 2013. For the pilot judgment procedure more generally, see Leach et al., Responding

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underlying point of relevance here, however, is that the business of forging common approaches does not necessarily yield effective outcomes, a point which is of considerable relevance for current ‘harmonisation’ projects. 3

‘Working in Alignment’

Having considered some of the broader systemic questions, this section will raise a number of practical issues which arise when seeking to achieve a degree of operational harmony. It is clear that working in harmony does not mean harmonising process. Rather, it is more about finding ways of working which respect and reflect the various institutional and other parameters which bear upon their functioning in such a way as to maximise their practical impact, which, picking up on current terminology, might reasonably be termed ‘working in alignment’. To the extent that what follows remains a critique of the experience of the spt, including its experience in relation to the cpt, it has to be acknowledged at the outset that there is an additional constraint which needs to be navigated, which is the need to respect the confidentiality which attaches to its visit reports.56 It is convenient to distinguish between securing alignment on procedural and substantive issues, though for the reasons given in Section 1, the relationship between process and substance over time must not be forgotten.

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to Systemic Human Rights Violations: An Analysis of ‘Pilot Judgments’ of the European Court of Human Rights and Their Impact at National Level (Intersentia, 2010). Article 11(1) ecpt; and Article 16(1) opcat. The recommendations and reports of both bodies arising from the country visits remain confidential unless the state in question authorises their publication. If there is a failure to cooperate or to take steps to improve the situation in the light of the recommendations, the opcat makes provision for the report to be published or for there to be a public statement (Article 16(4) opcat), whereas the ecpt provides only for the making of a public statement (Article 10(2) ecpt). According to their websites, as of August 2014 the cpt has transmitted a total of 361 reports of which 312 have been published and has issued seven public statements: see www.cpt.coe.int/ en/about.htm. The spt has transmitted 31 reports (including reports to npms arising out of its npm visits) of which 17 have been published at the request of the state: see www .ohchr.org/EN/HRBodies/OPCAT/Pages/OPCATIndex.aspx. No report has been published without the consent of the state or public statement made under the opcat. The more general approach of the spt to its obligation of confidentiality is set out in its Fourth Annual Report, CAT/C/46/2, at paras 46–48.

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A Procedural Coordination (i) Between Systems The work of most un treaty bodies is focused on considering the reports submitted to them by states parties. Although there is of course a degree of flexibility concerning when a report will be considered, and whether some form of consideration might take place in the absence of a report, it is true to say that their work responds to the material which is submitted to them. Both the spt and the cpt work in an entirely different way, carrying out their own separate annual programmes of visits to states parties. Immediately, this raises a question of ‘coordination’ between these bodies, not least because approximately half of the spt’s 80 states parties are also parties to the ecpt, and so are liable to be visited by both.57 If the methodology and approach of both bodies were essentially similar, it may seem reasonable for an external observer to ask whether it is sensible for the spt to undertake visits to countries which are also being visited by the cpt,58 when it manifestly lacks the capacity to visit its states parties in anything approaching a ‘regular’ fashion. Is this not just a chronic example of unnecessary duplication? At one level, it is. But at the same time, a visit from the un mechanism produces outcomes which can feed into the work of other un mechanisms and processes in a way which material generated by a regional body cannot. It is also important that international mechanisms work in a truly international context, both to avoid questions of partiality and bias and, more positively, in order to ensure that there is proper learning from the experience and practice in all parts of the world. Rather more prosaically, an spt which ignored half of its states parties in order to focus its efforts on the other half would simply lack credibility within the global community. Abstention from such ‘duplication’ is not a realistic option and cannot form an element of any such ‘alignment’ in the long term.59 57

In its first year, when the countries to be visited were chosen by lot, the spt visited Sweden (in March 2008). This did not prevent the cpt from deciding later that year to undertake a periodic visit to Sweden which took place in June 2009. 58 Indeed, there were proposals during the drafting of the opcat to restrict the visiting mandate of the spt in regions where other visiting mechanisms were operating and this finds some residual reflection in Article 31 opcat, where it says that ‘[t]he [spt] and the bodies established under such regional conventions [instituting a system of visits to places of detention] are encouraged to consult an cooperate with a view to avoiding duplication and promoting effectively the objectives of the present Protocol’. Article 31 has not been the subject of much considered reflection either in theory or in practice. 59 The spt did in fact abstain from visiting any ecpt member state subsequent to the visit to Sweden until 2010, when it conducted a regular visit to Ukraine. Although it has

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It is more helpful, therefore, to think in terms of achieving a degree of coordination so as to avoid ‘getting in each other’s way’.60 It is fairly obvious that it would be ridiculous for both the spt and the cpt to be visiting the same country at the same time, or within a short time of each other. What is not so obvious is that it may be equally unhelpful for one body to be visiting at a time when the state may have just received a report from the other, and is considering its response. One does not want to confuse matters in this way. And yet the process of dialogue arising out of a visit is lengthy61 and, in the case of the cpt, will blur into the conduct of a subsequent visit within a few years.62 In a sense, there is no way of avoiding the problem of parallel dialogues arising from visits, even when those visits are at a remove from each other. As a result, the best that can be done is to avoid visits taking place in too close a proximity to each other; though even that can be more difficult than it sounds. Both the spt and cpt make their decisions within complex factual and practical matrices, and ‘keeping out of each other’s way’ may not be a completely decisive criterion in the light of other pressing factors.63 Moreover, the deliberations of each are confidential and, moreover, the timings of decision-making may mean that the relevant information is just not yet there to share.64 conducted shorter visits focused on advising and assisting npms to Armenia, Germany and Malta in the meanwhile, its next regular visit to a cpt state party was to Azerbaijan in 2014. 60 For an endorsement of this fairly minimal ambition, see Kicker and Möstl, supra n 24 at 88. 61 On average, a cpt visit report is transmitted about eight or nine months after the visit takes place, and a response is requested within six months. Thus the state is likely to be most engaged substantively about a year after the actual visit has taken place. Although the spt tends to transmit its reports four or five months after a visit, the period of response is similar. The spt then sends further written comments on the state’s reply, which may prompt further exchanges. Of course, not all will respond in a timely fashion and this produces its own discussion, and so on. 62 The spt may also undertake ‘follow-up visits’ and has done so on a number of occasions; to Paraguay in 2010 following up on a visit undertaken in 2009; to Cambodia in 2013 following up on a visit undertaken in 2009; and to the Maldives in 2014, following up on a visit undertaken in 2007. 63 Thus in its Third Annual Report the spt said that it took account, inter alia, of the date of ratification, establishment of an npm, geographical distribution, size and complexity of a state, regional preventive monitoring and urgent issues reported: see spt, Third Annual Report, CAT/C/44/2, at para 19. These are by no means the only factors; others include the work of other un mechanisms, discussed in the following section, and practical, technical and logistical issues. 64 Thus whilst the decision-making of the spt takes place in June of the preceding year, that of the cpt now takes places earlier and is made public in time for it to be taken into

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At least as between the spt and cpt, the degree of institutional relationship is such as to ensure that such problems are, in practice, minimal as regards the publicly announced programmes, but in principle there is a need to take a similar approach to the cognate work undertaken in other regions, such as that of the Committee for the Prevention of Torture in Africa as well as of the missions undertaken by the Inter-American Commission on Human Rights.65 There is also the plethora of other processes which might reasonably be taken into account, were they known about in advance of decisions being taken. Further issues arise as regards the presence and in-country work of the International Committee of the Red Cross (icrc), and both the ecpt and the opcat enjoin a degree of engagement in order to forestall difficulties in the field.66 Likewise, other mechanisms might reasonably take account of the spt’s plans, once known. The truth, however, is that there is such relatively little knowledge of what others may be hoping to do, and the capacity to discover and take account of what might be discovered is so limited, that the merits of anything other than a very broad-brush approach are to be doubted. Even at the most basic levels, then, the degree of procedural coherence that can be achieved between the work of the mechanisms operating within different institutional frameworks is severely limited. The question is whether one ought to spend time seeking to address this, or simply learn to live with it. From the perspective of the mechanisms themselves, such incoherence need only become a problem when it impacts upon the levels of cooperation received from states who are at the ‘receiving end’ of such multiple attentions. But it does have to be accepted that such a situation does lend credence to concerns that some states are being over-scrutinised.

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consideration. Obviously, the cpt will not be aware of the spt’s as yet undecided plans. This reverses the situation before 2014, when the decision-making of the spt was made in ignorance of the cpt’s plans, though it must be said that there is a degree of predictability to the cpt’s cycle of regular visits. The cpt’s ad hoc visits are of course entirely unpredictable and cannot be factored into any planning process. It seems unlikely that the cpt takes much account of the spt’s visiting programme when considering whether to undertake an ad hoc visit, but given their differing natures and backgrounds, that is reasonable. For an overview, see Murray et al., supra n 22 at 146–155. Article 17(3) ecpt says that the cpt ‘shall not’ visit places visited by the icrc under the Geneva Convention and Additional Protocols ‘on a regular basis’. This suggests that the work of the one excludes that of the other. Although initial drafts of the opcat were similar, the opcat takes a very different approach in Article 32 providing that the opcat does not affect the obligations of states under the Geneva Conventions and Additional Protocols, suggesting scope for parallel work. See Novak and McArthur, supra n 22 at 1162.

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(ii) Within Systems Whilst it might be accepted that coordination across systems poses near-insuperable practical problems, the idea that coordination within an organisation might also prove extremely problematic might seem less easy to accept. Yet this seems to be the experience within the un. For example, when arranging its annual programme of visits, the spt seeks to ascertain the intentions of the various un special procedures whose work intermeshes with its own, and in particular that of thematic mandates, including the un Special Rapporteur on Torture, the Working Group on Arbitrary Detention and the Working Group on Enforced Disappearances. However, the visits made by the special procedures are subject to the consent of the state in question and so have a high degree of contingency, whereas the spt programme, based on a convention mandate, does not. As a result, whilst it is useful to be aware of each other’s plans, it is not always wise to work on the assumption that such plans will come to pass.67 It is also the case that the same practical parameters concerning when it is possible for institutional reasons to conduct visits may apply to both the spt and the special procedures. Once again, what appears to be easy is, in practice, considerably more complex. This is not to say that there are not useful opportunities to develop beneficial procedural coordination within the un system. For example, by definition all parties to the opcat are parties to the un Convention against Torture. The consideration of a country report by the Committee against Torture (cat), the 10-member treaty body established by the un Convention against Torture, provides an excellent opportunity to follow up on compliance with opcat obligations, such as the establishment of an independent National Preventive Mechanism, and to raise questions concerning the implementation of npm or spt recommendations. This is now a routine practice.68 Similarly, the decision of the cat to pioneer the technique of focusing its reporting process by issuing ‘Lists of Issues Prior to Reporting’ presents the spt with the opportunity to channel suggestions to the cat of issues which they might choose 67

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Thus, for example, the visit of the un Working Group on Arbitrary Detention to Nauru, an opcat state party, was cancelled by the state in April 2014 at a few days’ notice. It is worth noting that the Working Group on Arbitrary Detentions was at the time completing a visit to New Zealand, which the spt had itself visited in May 2013 and at the time of visit was awaiting the reply to its visit report, which was received in May 2014. Thus the cat annual report for 2012–13 shows that 11 of the 17 countries whose reports were considered were opcat states parties and in all these cases the concluding observations made reference to relevant opcat provisions and spt recommendations, albeit rather generically: see cat, A/68/44.

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to raise in their dialogues, which again can be a valuable means of enhancing each other’s work. Nevertheless, even within the un system there are barriers to cooperation, the most significant of which is confidentiality. As has been said, the fact that the spt has undertaken a visit is clearly public information, but the report and recommendations which it generates are confidential unless the state concerned agrees to their publication. The same is true of the written responses of states, and the written replies of the spt to those responses. Other interactions also remain confidential and there is no realistic prospect of this changing, requiring as it would not only an amendment to the treaty but a shift in the basic convention balance between permitting extraordinary levels of international access against the assurance of confidentiality. As a result, there is a very real limit to the material which can be shared formally even within the un system, which severely limits the possibility of procedural cooperation as regards the implementation of recommendations—and of course the sharing of those recommendations themselves. This is particularly problematic as regards the Committee Against Torture itself, which has its own confidential inquiry procedure under Article 20, the reports of which are likewise confidential until the conclusion of what might be a drawn-out process, at the end of which a ‘summary account’ may be given in the Committee’s annual report.69 It is therefore entirely plausible that the cat has visited, or may be contemplating undertaking an Article 20 visit, to a state which the spt has visited or is contemplating visiting, and vice versa. Indeed, this has happened. The spt visited Lebanon in May 2010 (the report of which remains confidential) and the cat subsequently undertook an Article 20 inquiry. To the outside observer, this may appear to raise serious issues of coordination, but to those within the system it is an inevitable product of their governing treaties. It would be considerably more problematic again should the recommendations flowing from such visits, for some reason, be at variance with each other—this being something that might be known by the state but not by the mechanisms themselves. Thus even when the cat and the spt are engaged in not dissimilar visiting activities, the possibility for procedural dissonance remains—and this can result in what for many is the far more serious issue of substantive dissonance, and raises the issue of how to achieve substantive coordination in a complex procedural environment. B Substantive Coordination In some ways, it may seem a little strange to speak of substantive coordination between independent mechanisms. Whilst each body is doubtless aware 69

Article 20 uncat.

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of the work of the other and draws on that work to help inform its own activities—and to reinforce the work of the other when it is possible and appropriate to do so70—each works within its own context and responds to the situation which it encounters in the light of the substantive obligations which are applicable to the particular situation and provided for in the instrument in question. Indeed, unless there were substantive norms applicable to the situation in question provided for in the governing instrument the matter would not be before it at all. What is really at issue is not so much the coordination of ‘outputs’ but of ensuring that there are no significant differences of approach in the understanding of essentially similar substantive norms and applicable concepts. This is a very real concern, since such variance has occurred and may result in unhelpful ‘forum shopping’. The problem is exacerbated when the norm or concept is of a relatively undefined or inchoate nature. There is, then, a clear need to strive for a degree of consistency if the work of the various bodies is to have credibility, let alone coherence. Yet this is not necessarily easy to achieve. Once again, the experience of the spt and cpt illustrates some difficulties which need to be faced. The drafting history of the ecpt shows that there was extreme nervousness that the cpt would ‘usurp’ the function of the European Court of Human Rights by making determinations that there had been a breach of Article 3 of the European Convention on Human Rights (echr), which, to its thinking, was a matter solely for the Court itself.71 Alive to this concern, the cpt has tended to avoid using the terms ‘torture’ or ‘inhuman or degrading treatment or punishment’ in a way which implies that is making a determination that a state is in breach of its obligations; instead it uses more descriptive or indicative terminology, and this approach has also been adopted by the spt. But such problems are not confined to the interpretation of Article 3 of the echr itself: early in its work the cpt’s practice of visiting those detained at airports came into question when the European Commission of Human Rights concluded that, since they were free to leave the country should they wish to do so, they

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Thus the cpt now routinely raises issues concerning the establishment of npms under the opcat; for example, in 2012 it went as far as devoting a section in its annual general report to ‘Relations between the cpt and National Preventive Mechanisms’: cpt, 22nd General Report, 6 November 2012, CPT/Inf (2012) 25, at 13–19. When planning its own visits the spt will also regularly have regard to the published reports of the cpt and the recommendations which they contain. See Evans and Morgan, supra n 24 at 118–122. This is underlined by the Explanatory Report annexed to ecpt (at para 27), which rather bluntly says that ‘[t]he Committee should not seek to interfere in the interpretation and application of Article 3 [of the echr]’.

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were not ‘detainees’ as such.72 Although this remarkable view was rejected by the Court,73 it serves to illustrate the difficulties that can arise. Today, the situation is quite different, with the reports of the cpt being accorded significant evidential weight in both echr and domestic jurisdictions when determining the nature of detention conditions in a broad variety of cases, and particularly in the context of deportation and extradition proceedings.74 As a result, there does not appear to be any particular problem in this regard, largely because of the understanding shown by both the cpt and the European Court of each other’s respective competencies. This contrasts with the near paranoia that following the establishment of the spt erupted within civil society, and, indeed, within the cpt itself, that it would generate ‘standards’ or follow approaches which were different to those articulated by the cpt, thus undermining its work. Although both mechanisms are focused on prevention of torture through a visit-based methodology, as has already been explained, there was never any clear conception of what a ‘preventive visit’ might look like, and the standards developed by the cpt have been those which are appropriate in the light of its chosen methodology. Once the spt adopted a similar methodology, the inevitable question was whether it would adopt the same standards. If it did not, it risked undermining the work of the cpt in Europe: if it did, then it ran the risk of being considered to be ‘exporting’ European assumptions and approaches in an unreflective fashion and applying them to situations in which they might not be readily transferable, or appropriate. In a sense, the very circumstances which gave rise to this problem also paved the way for its solution. It is notable that the same degree of concern had never been raised in connection with the approach taken by other un mechanisms when working in Council of Europe countries: for example, there does not seem to have been any concern that the recommendations of the Special Rapporteur on Torture, or of other un special procedures—or, indeed, treaty body recommendations—might not be fully consonant with those of the cpt. These were seen as operating in entirely separate spheres. The spt and cpt, however, though belonging to different ‘families’, had a common ancestry 72 73 74

Amuur v France Application No 19776/92, Commission Report, 10 January 1995, at paras 44–50. Amuur v France Application No 19776/92, Merits and Just Satisfaction, 25 June 1996, at paras 38–49. See, for example, the extensive use made of cpt material in the pilot judgment Ananyev and Others v Russia, supra n 55. The examples of such use are now far too numerous to mention.

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and this served to keep the issue in focus. Even more pertinently, four of the ten members first elected to the spt were either current or former cpt members—indeed, the first Chair of the spt was a member of the cpt and had been its Chair from 2000 to 2007.75 Under such circumstances, any difference of approach or of standards between the bodies would inevitably take on a new dimension. These issues were discussed at length at a major conference in Strasbourg in 2009—tellingly, convened by the cpt and the Association for the Prevention of Torture, a non-governmental organisation, with spt members attending as invitees—and it is instructive to quote from the Foreword to the Conference Proceedings, in which the conveners observed: With more actors on the stage, there is a greater need for coordination and to share information about what each body is doing, how they are going about their tasks and what they are finding. It is also important that preventive bodies do not develop contradictory and diverging standards but instead ensure a degree of coherence.76 It may well be that the context of prevention is different from other contexts: the very point of a preventive approach is to suggest to states what they ought to do in order to try to reduce the likelihood of a breach of the substantive standard occurring, and it is easy to see that suggesting different preventive strategies or priorities might be problematic—though it is less easy to see why it is more problematic that one body finds something to be a breach of an international obligation when another does not. If anything, it is less so. This is because, as the spt has said, ‘there is no logical limit to the range of issues that, if explored, might have a preventive impact’77 and, as a result, there is no need to be limited to the application of a given set of ‘standards’ as such.78 As a result, the guiding principle behind the spt’s approach is that: 75

Dr Silvia Casale was a member of the cpt from 1998 until 2009 and its Chair from 2000 until 2007; she was a member of the spt from its inception in February 2007 until June 2009 and its Chair from February 2007 until February 2009. 76 See the conference proceedings published as: Council of Europe, New partnerships for torture prevention in Europe (Council of Europe/APT, 2010) at 7–8. 77 See spt, The approach of the Subcommittee on Prevention of Torture to the concept of prevention of torture and other cruel, inhuman or degrading treatment or punishment under the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, CAT/OP/12/6, at para 5(f). 78 This contrasts with the cpt which does issue statements of standards on a periodic basis. Interestingly, former cpt member Renate Kicker now distinguished between the

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there is more to the prevention of torture and ill-treatment than compliance with legal commitments. In this sense, the prevention of torture and ill-treatment embraces—or should embrace—as many as possible of those things which in a given situation can contribute towards the lessening of the likelihood or risk of torture or ill-treatment occurring. Such an approach requires not only that there be compliance with relevant international obligations and standards in both form and substance but that attention also be paid to the whole range of other factors relevant to the experience and treatment of persons deprived of their liberty and which by their very nature will be context specific.79 By taking this approach, it is possible to avoid becoming ensnared in discussion of applicable standards and focus on the crafting of recommendations which are relevant to the particular situation in hand, inspired by as many sets of standards as one is able to consult and draw inspiration from. As a result, the spt has not taken the route of setting out formal statements of standards as such, and nor does it have a ‘hidden primer’ of standards on which it draws. Rather, it has said that it believes that ‘it is appropriate to focus on those issues which, in the light both of its visit to the State party in question and its more general experience, appear to it to be most pressing, relevant and realizable’.80 It has to be admitted that there is a degree of disingenuousness about this, since at the end of the day, there has to be some reference back to what might be thought to be the most appropriate response to situation, and it cannot all be context driven, not least because the international framework provides an element of that context. Nevertheless, at a formal level, and since there is no shortage of standards, the spt’s approach is not to endorse or replicate the standards articulated by others but to focus on what using such standards in a preventive fashion might mean in practice. It is in this sense that it is possible to forge an approach which is ‘coherent’: not in the sense of there being formal commonality, but in the sense of there being a common vision which each is striving towards, with the practical recommendations which each makes being informed by their own assessment of the element of the situation which it is called on to address. Put that way, it is exactly the same as is done by all human rights bodies. There is no speciality

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­ ormative standards applicable to states and the ‘implementation standards’ which n guide the work of expert bodies: see generally Kicker and Möstl, supra n 24. spt, supra n 77 at para 3. Ibid. at para 5(f).

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or exceptionalism here, and it offers an alternative understanding of what it means to be ‘working in alignment’. 4

Conclusion: The Ever-Expanding Reach of Human Rights Implementation

Space precludes a fuller exploration of the issues raised but by way of ­conclusion it is necessary to recall that there is something perversely parochial about international human rights mechanisms concerning themselves with the procedural and substantive confluence of their work. Once again, the opcat provides a good illustration. States parties have an obligation to establish National Preventive Mechanisms. The spt has the responsibility to advise and assist states as they do so, and, once established, to maintain contact with the npms as they go about their own preventive work, which is modelled on that of the spt in terms of mandate. As soon as this is said, it becomes apparent that the work of the npms—which have to be formally designated as an element of the opcat system—may give rise to exactly the same questions of coordination and coherence as do the linkages within the un and across the international and regional systems.81 The idea that every npm ought to harmonise its practice and approaches with those of others and of the spt needs only to be stated to be dismissed as both inconceivable and nonsensical. Each must respect its context if its work is to have ‘purchase’. That is what being a part of a ‘system’ means. Again, this is not just a specific approach the relevance of which is limited to the field of torture prevention. Indeed, this focus on national implementation of international human rights obligations merely mirrors the increased attention given to the role of national human rights institutions, ombudsmen’s offices and many other national structures in the delivery of compliance.82 This is where the future of human rights protection lies. As a result, when speaking of harmonising approaches, we ought not to be thinking so much of the 81

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This does not, of course, mean that they should not share and benefit from each other’s work, or cooperate or collaborate when this is useful and practical. To that end, several npm networks have been established within Europe and npms frequently share experiences to inform others of their approach. For example, there is now a European npm Network Newsletter. There is, however, no sense that domestic npms are in some sense not working as they ought simply because they have different approaches and working methods. See generally Goodman and Pegram (eds), Human Rights, State Compliance, and Social Change: Assessing National Human Rights Institutions (cup, 2012).

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j­urisprudence of the international mechanisms, or of their working practices and procedures, but of how the multilayered systems of dialogue and delivery of human rights compliance work across national, regional and international divides, embracing as this does a multitude of potential players. The aim cannot be to move progressively towards uniformity in approach and understanding. Rather, the aim should be achieving a textured harmony, not striving to impose a monotone uniformity: when it comes to human rights protection we need to hear the music of the spheres.

chapter 18

Human Rights through the Backdoor: The Contribution of Special Procedures to the Normative Coherence and Contradictions of International Human Rights Law Elvira Domínguez-Redondo* 1 Introduction Special procedures are human rights monitoring mechanisms established by  the United Nations Human Rights Council to address either specific ­country situations or a phenomenon of human rights concern worldwide. The existence of special procedures is the unintended result of the competence accorded to the Commission on Human Rights and the Sub-Commission on Prevention of Discrimination and Protection of Minorities in the 1967 ­Economic and Social Council Resolution No 1235 (xlii),1 by which these Commissions were authorised ‘to examine information relevant to gross violations of human rights and fundamental freedoms’.2 This authorisation was understood as conferring power to nominate experts who could monitor the ­situation of human rights in specific countries (geographic mandates). Since 1980 this practice has been extended to, and largely replaced by, monitoring specific violations of human rights on a worldwide basis (thematic mandates). The lack of foresight in the creation of mechanisms which would come to be known as ‘special procedures’ is a fundamental factor in explaining the diversity of legal frameworks that they use to promote and protect human rights. The conditions which regulate their creation and renewal also contribute to their variety. The birth of a special procedure is dependent on approval of a resolution creating the mandate by a simple majority of the un Human Rights Council * Special thanks to Joshua Castellino, Alice Donald, Cathal Doyle, José A. Guevara, David Keane, Philip Leach and Magdalena Sepúlveda for their comments on earlier drafts. 1 Question of the violation of human rights and fundamental freedoms, including politics of racial discrimination and of segregation and of apartheid, in all countries, with particular reference to colonial and other dependent countries and territories, 6 June 1967. 2 Ibid. at para 2.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004284258_020

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(or by its precursor, the Commission on Human Rights).3 As a consequence, the resolutions determining a special procedure mandate, including scope of competence and method of work, result from political negotiations between states. As these matters are often framed in vague and open-ended terms, special procedure mandate holders have been afforded great flexibility and autonomy when operationalising their activities. Such flexibility has led to a diversity of methodologies, and to the progressive expansion of the competences of special procedures through practice, adding to the complexity of the functions they have come to fulfil. Today, most special procedures cover not only the examination of situations of gross violations of human rights, but also extend to the consideration of complaints from individuals; the use of ‘urgent appeals’ to protect the life and/or physical integrity of people allegedly under imminent risk; the conduct of fact-finding missions; the provision of technical assistance; and the codification of emerging international human rights norms.4 This latter activity will form the prime focus of this chapter. This chapter explores the contribution of mandate holders of special procedures to the coherence of international human rights standards using as a paradigm their diverse interpretation of the legal framework, which serves as the basis of their operations. It evaluates the extent to which the human rights norms developed by the special procedures are consonant with other international efforts to regulate the same matters. The remainder of this chapter is divided into three substantive sections. Sections 2 and 3 provide an overview of the role of special procedures in the creation and/or consolidation of new norms of international human rights in the context of clarifying their own scope of competences. Special attention is paid, in Section 4, to the most salient human rights instruments drafted by mandate holders, understanding as such, those that have received approval or endorsement by their parent body, the Commission on Human Rights and,

3 Until 2006, the Commission on Human Rights, a subsidiary body of the Economic and Social Council created in 1946, was the main human rights policy-making organ of the United Nations. It consisted of representatives of 53 states and met publicly once a year in Geneva for a six-week session: see ecosoc Res 5 (i), 16 February 1946; and ecosoc Res 9 (ii), 21 June 1946. The Human Rights Council was created by ga Res 60/251, 15 March 2006. The Human Rights Council is a subsidiary organ of the un General Assembly consisting of representatives of 47 states, which meets no fewer than three times every year for a period of no less than ten weeks. 4 A more detailed explanation of the functions covered by special procedures can be found in Ramcharan, The Protection Roles of un Human Rights Special Procedures (Martinus Nijhoff, 2009).

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sometimes, also the General Assembly. Whether these efforts contribute to the strengthening of emerging trends in international law (for example, the recognition of the right to water, or sexual orientation as human rights issues), or whether they add a layer of complexity to the quest for supporting the universality of human rights on the basis of the existence of uniform norms on a given topic, remains an open question, as will be demonstrated. 2

Early Conceptual Contributions by Special Procedures to International Human Rights

The expertise of special procedures mandate holders has been regularly used to assist in the codification of new international human rights standards.5 As early as 1976, the Commission on Human Rights ordered its Ad Hoc ­Working Group  of Experts on Southern Africa to evaluate the Declaration and Programme of Action of the International Seminar on the Eradication of Apartheid and in Support of the Struggle for Liberation in South Africa.6 Conceptual contributions by experts in charge of special procedures have been facilitated by the political nature of the resolutions to which they owe their existence. The open-ended nature of these resolutions has allowed mandate holders to use a wide range of binding and non-binding national, regional and international norms as normative frameworks to evaluate the information brought before them. The codification of norms by special procedures has at times ­culminated in the approval of a Declaration by the General Assembly which may be the leading or exclusive normative framework for a given field, such as extreme poverty, internally displaced persons or business and human rights.7 Mandate holders of special procedures are formally required to evaluate the information they receive in the light of any internationally recognised human rights standards relevant to their mandate, as stated by the operative paragraph 6 of their Code of Conduct,8 which codified a practice already well established among them. However, some mandates were created to monitor rights with no clear normative framework identified; for example, the mandates on foreign debt, the use of mercenaries as a means of impeding the right 5 Freedman, The United Nations Human Rights Council: A critique and early assessment (Routledge, 2013) at 110–1. 6 See unchr Res 8 (xxxii), 4 March 1976; and unchr Res 6 (xxxiii), 4 March 1977. 7 See Section 4 below. 8 hr Council Res 5/2, 18 June 2007.

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to self-determination, the right to water and the right to food. Therefore, some mandate holders have had to focus on clarifying, and sometimes codifying, the human rights standards they are called upon to promote and implement. The oldest thematic procedure, the Working Group on Enforced or Involuntary Disappearances, has included thematic studies in its reports from its inception, relying on a wide range of international human rights instruments.9 Its 1981 report included a study of the wide range of civil, political, economic, social and cultural rights infringed by the practice of enforced or involuntary disappearances.10 The Working Group based its analysis on the full range of relevant human rights instruments. These included the Universal Declaration of Human Rights (udhr); the International Covenant on Economic, Social and Cultural Rights (icescr); the International Covenant on Civil and Political Rights (iccpr); the American Declaration on the Rights and Duties of Man; the American Convention on Human Rights (achr); the European Convention on Human Rights (echr); the Standard Minimum Rules for the Treatment of Prisoners;11 and Additional Protocol 1 to the Geneva Convention of 12 August 1949, relating to the Protection of Victims of International Armed Conflicts. It also relied on other relevant resolutions of the General Assembly,12 as well as the report of the Working Group on the situation of human rights in Chile.13 In subsequent reports, the Working Group on Enforced or Involuntary Disappearances has been completing and updating its normative framework by focusing on other international human rights provisions potentially violated in relation to groups affected by disappearances such as children and mothers14 or other relatives of the victims.15 The Special Rapporteur on arbitrary and summary execution is another early example of the breadth of normative standards used by special procedures to delimit the conceptual and legal contours of their mandates. From his first report in 1983, the then Special Rapporteur, Amos Vako, listed the international and national standards used to carry out his work, including the udhr; i­ccpr; achr; echr; the African Charter on Human and Peoples’ Rights; ­commentaries of the Human Rights Committee; Code of Conduct of 9

The Working Group on Enforced Disappearances was established by the unchr Res 1980/20, 29 February 1980. 10 E/CN.4/1435, at paras 184–187. 11 ecosoc Res 663 C (xxiv), 31 July 1957. 12 ga Res 34/179, 17 December 1979; and ga Res 35/188, 15 December 1980. 13 A/33/331. 14 See E/CN.4/1492, at paras 164–171; and E/CN.4/1984/21, at paras 151–161. 15 E/CN.4/1984/21, at paras 147–150.

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Law Enforcement Officials;16 un Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman and Degrading Treatment;17 Standard Minimum Rules for the Treatment of Prisoners;18 Geneva Conventions of 1949 and their Protocols; Convention on the Prevention and Punishment of the Crime of Genocide; International Convention on the Suppression and Punishment of the Crime of Apartheid; and numerous General Assembly resolutions.19 In the context of delimiting the scope of his mandate, the first Special ­Rapporteur on torture, Peter Kooijmans, addressed from his first report the meaning of ‘torture’ in international law, as well as the judicial and administrative measures available to prevent it and mitigate its effects.20 The report contained an analysis of the conditions under which torture is normally ­perpetrated.21 More significantly, it introduced innovative approaches to the topic of torture. The Special Rapporteur was the first human rights monitoring body to recognise rape as a method of torture and to report on the use of ­gender-based torture such as rape, sexual assaults and sexual threats.22 Koojimans was also ahead of his time when he examined the legal framework applicable to the trade of implements specially designed to implement torture in 1986.23 This was a topic not properly considered by intergovernmental bodies until the twenty-first century, again by another mandate holder of the mandate on torture, Theo van Boven,24 with the first—and still unique—set 16 17 18 19 20 21 22

23 24

ga Res 34/169, 17 December 1979. ga Res 3452, annex, 9 December 1975. Supra n 11. See E/CN.4/1983/16, at paras 22–47. On the conceptual analysis of the scope of the mandate, see paras 48–67. See E/CN.4/1986/15, at paras 22–54. Ibid. at paras 112–117. E/CN.4/1986/15, at para 119. This has been repeatedly established by subsequent special rapporteurs and relevant case law. See, for instance, report of the Special Rapporteur on torture, A/HRC/7/3, at para 36. On the significance and limitations of the recognition of rape as torture by the Special Rapporteur in 1986, see Blatt, ‘Recognizing Rape as a Method of Torture’ (1992) 19(4) New York University Review of Law and Social Change 821 at 833 and 847. For a compilation of international jurisprudence on the topic, see ‘Redress for Rape: Using international jurisprudence on rape as a form of torture or other ill-treatment’,­2013, available at: www.redress.org/downloads/publications/FINAL%20 Rape%20as%20Torture%20(1).pdf. E/CN.4/1986/15, at para 120. See several studies on the situation of trade in and production of equipment which is specifically designed to inflict torture or other cruel, inhuman or degrading treatment, its origin, destinations and forms: E/CN/4./2005/62, at paras 12–39; E/CN.4/2004/56, at

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of multilateral trade controls set up by the European Union in 2005.25 This expansive approach by the first mandate holders found opposition among states, although the Commission on Human Rights did not immediately respond to their objections.26 The Code of Conduct of mandate holders of special procedures has since limited this practice27 and, currently, special procedures may only rely on treaties ratified by the state concerned when examining violations of human rights in relation to specific states.28 3

Clarifying or Obscuring Contentious Human Rights Issues?

Many mandate holders of special procedures have continued to devote a significant part of their reports to explaining the legal framework within which they develop their work. However, this activity has rarely followed a coherent approach and the outcomes constitute a myriad of analyses on a range of ­human rights topics. This section presents some of the most salient examples, illustrating the possible overlaps and contradictions within the system. The cases chosen demonstrate that the framework of analysis selected by mandate holders is crucial in determining the outcome and divergences between special procedures’ approaches to human rights topics. A Hate Speech The controversy over the cartoons portraying the Muslim Prophet Muhammad, published on 30 September 2005 by the Danish newspaper JyllandsPosten,29 provides a striking example of contradictory approaches by special paras 66–68; A/58/120, at paras 22–28; and E/CN.4/2003/69. Other failed attempts to codify the trade of torture equipment can be found in Dymond and Fraha, ‘The trade in torture technologies’, in acat, A World of Torture (acat-France, 2013) 243. 25 See Council Regulation (ec) No 1236/2005 of 27 June 2005 concerning trade in certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment [2007] oj L 200/1; and Regulation (eu) No 1352/2011 of 20 December 2011 amending it (oj L 338/31). 26 Ramcharan, The concept and present status of the international protection of human rights: Forty years after the Declaration (Martinus Nijhoff, 1987) at 136. 27 Supra n 8 at Article 6(c). 28 On the establishment of this rule and its implications, see Domínguez-Redondo, ‘Rethinking the Legal Foundations of Control in International Human Rights Law – The Case of Special Procedures’ (2011) 29(3) Netherlands Quarterly of Human Rights 261. 29 See Müller and Özcan, ‘The Political Iconography of Muhammad Cartoons: Understanding Cultural Conflict and Political Action’ (2007) 40(2) Political Sciences and Politics 287.

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procedures mandates. In this instance, the Human Rights Council requested a joint report by its mandate holders on racism and on freedom of religion on the question of incitement to racial and religious hatred.30 In their final reports the two mandate holders took divergent positions, which had the effect of fuelling rather than assuaging the controversy.31 The Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, Doudou Diène, unequivocally expressed his condemnation of the cartoons, labelling them ‘racist’. As explained by Keane,32 the position of Doudou Diène was already well established in the context of drawing the conceptual contours of his report ‘Defamation of religion and Global Efforts to Combat Racism: Anti-Semitism, Christianophobia and Islamophobia’,33 in which he based his analysis on Articles 18 (freedom of religion) and 19 (freedom of expression) of the iccpr.34 According to the Special Rapporteur the cartoons reflected ‘an alarming resurgence of defamation of religions … [and] failed to show the commitment and vigilance that [the Danish Government] normally displays in combating religious intolerance and incitement to religious hatred’.35 Diène used the joint report36 to reaffirm his previous position on the defamation of religions and what he viewed as the relationship with racist trends promoting racial and religious hatred in the context of the post-9/11 ‘war on terror’. Meanwhile the Special Rapporteur on freedom of religion or belief, Asma Jahangir, adopted a more cautious approach towards limiting freedom of expression. Rather, that Special Rapporteur emphasised the distinction between racism and religious defamation.37

30 See hr Council Decision 1/107, 30 June 2006, decided by a recorded vote of 33 votes to 12, with one abstention. The votes against came from Canada, the Czech Republic, Finland, France, Germany, Japan, the Netherlands, Poland, Romania, Switzerland, the Ukraine and the United Kingdom; the Republic of Korea abstained. 31 Joint Report, ‘Incitement to Racial and Religious Hatred and the Promotion of Tolerance’, A/HRC/2/3. 32 Keane, ‘Cartoon Violence and Freedom of Expression’ (2008) 30(4) Human Rights Quarterly 845. 33 See report submitted by Diène, E/CN.4/2006/17, following the request in unchr Res 2005/3, 12 April 2005, at para 16. 34 E/CN.4/2006/17, at paras 23–47. 35 Ibid. at para 25. 36 A/HRC/2/3. 37 See Rehman, ‘The Sharï’ah, International Human Rights Law and the Right to Hold Opinions and Free Expression: After Bilour’s Fatwā’, in Frick and Müller (eds), Islam

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At the heart of these seemingly contradictory positions are the different normative frameworks and interpretations used by each mandate holder to deal with the topic. The Human Rights Council had requested the mandate holders to examine the question under Article 20(2) of the iccpr which prohibits ‘hate speech’;38 however, the joint report also engaged Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination (icerd).39 In Keane’s words: Jahangir’s comments are representative of the legal instruments that govern racial discrimination and religious intolerance. While racist speech is prohibited under Article 4 of the binding International Convention on the Elimination of Racial Discrimination 1965, no comparable international instrument exists in the area of religion. Her analysis was conducted solely under Article 20(2) iccpr, and the Danish cartoons do not reach the required level to constitute incitement under this provision. Diène seems to associate the cartoons with racist propaganda, as prohibited by Article 4 icerd. Jahangir appears not to agree with this assessment.40 It is important to emphasise that the Human Rights Council’s request for the examination of the increasing trends of defamation of religion and incitement to racial and religious hatred was addressed to the special procedures on freedom of religion and racism, but did not include the special procedure on freedom of expression.41 Nonetheless, the Special Rapporteur on freedom of expression, Ambeyi Ligabo, provided his own understanding of the legal restrictions on freedom of expression in 2008.42 Without referring to the report of his peers, he underlined his strong stance against defamation laws, a stance already published in 2002 along with the Organisation for Security and Co-operation in Europe (osce) Representative on freedom of the media, and and International Law: Engaging Self-Centrism from a Plurality of Perspectives (Martinus Nijhoff, 2013) 244 particularly at 252. 38 Article 20(2) iccpr provides: ‘Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law’. 39 Article 4 icerd provides: ‘States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination’. 40 Keane, supra n 32 at 872. 41 See hr Council Decision 1/107, 30 June 2006, supra n 30. 42 A/HRC/7/14, at paras 30–53.

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the Organization of American States (oas) Special Rapporteur on freedom of expression.43 Complicating matters further, the Committee on the Elimination of Racial Discrimination, which monitors implementation of the icerd, took a similar stance as the Special Rapporteur on racism.44 For their part, the successors as special rapporteurs on religion and racism took a slightly different approach to their predecessors, underlining the importance of framing this issue within the existing human rights framework instead of viewing it as a matter of defamation of religion.45 These divergent approaches to the same topic within the un were a catalyst for dialogue and cooperation among the special rapporteurs involved in the interpretation and implementation of international standards on freedom of expression, freedom of religion and racial discrimination. This resulted in the emergence of consensus regarding some of the most controversial issues, such as blasphemy laws, and a departure from a focus on ‘defamation of religion’.46 On 22 April 2009, the Special Rapporteurs on racism, freedom of religion and freedom of expression issued a joint statement enshrining a common view on ‘defamation of religion’.47 The Office of the High Commissioner for Human Rights (ohchr) hosted a multilateral discussion on the relationship between Articles 19 and 20 of the iccpr which took place in the context of expert workshops held in 2011, in Europe, Africa and Asia. The aim of these workshops was to arrive at a ‘comprehensive assessment of the implementation of legislation, 43 Ibid. at para 43. 44 Keane, supra n 32 at 873–4. 45 A summary of the discussion and the positions held by the Chair of the Committee on the Elimination of Racial Discrimination at the time, Anwar Kemal, and the newlyappointed Special Rapporteurs on racism, Githu Muigai, and on freedom of religion and belief, Heiner Bieledfedt, can be found in International Service for Human Rights (ishr), ‘Support for “defamation of religion” continues to decline; draft resolutions passes by only 12 votes’, Press Release, 25 November 2010, available at: www.ishr.ch/news/ support-defamation-religion-continues-decline-draft-resolution-passes-only-12-votes. 46 However, this does not mean that states within the Organisation of Islamic Cooperation have abandoned their positions on this topic: see Rehman and Berry, ‘Is “Defamation of Religions” Passé? The United Nations, Organisation of Islamic Cooperation, and Islamic State Practices: Lessons from Pakistan’ (2012) 44(3) The George Washington International Law Review 431. 47 Joint Statement by Mr Githu Muigai, Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, Ms Asma Jahangir, Special Rapporteur on freedom of religion and belief, and Mr Frank La Rue, Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, ‘Freedom of expression and incitement to racial or religious hatred’, 22 April 2009, available at: www2.ohchr.org/english/issues/racism/rapporteur/docs/Joint_Statement_SRs.pdf.

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jurisprudence and policies regarding advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence at the national and regional levels, while encouraging full respect for freedom of expression as protected by international human rights law’.48 Members of the Human Rights Committee, the Committee on the Elimination of Racial Discrimination and the mandate holders of special procedures on racism, freedom of religion and freedom of expression participated in several working groups.49 The outcome report states a common un position on the interpretation of Articles 19 and 20 of the iccpr and Article 4 of the icerd with specific recommendations to states on how to incorporate human rights legislation at domestic level. The conclusions regarding policies aimed at states, the un and other stakeholders do little beyond acknowledging the importance of cooperating and sharing information between the various regional and cross-regional mechanisms working on these issues worldwide. Still, it can only be welcome that the dialogue served as the immediate precedent for the adoption of General Comment No 34 on freedoms of opinion and expression by the Human Rights Committee in July 2011.50 The interpretation of the iccpr by the three special rapporteurs was considered in the drafting process of the general comment.51 The discussion also seems to have prompted the Committee on the Elimination of Racial Discrimination to revisit Article 4 of the icerd and to issue, in September 2013, its General Recommendation No 35 on combatting racist hate speech.52 While the Committee reiterates its belief that laws are needed to combat racist speech, it also took a more balanced view of the issue, favouring the Jahangir rather than the Diène approach, and seeking a more synchronised approach with other un treaties.53 48 49

50 51

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See ‘Rabat Plan of Action’, ohchr Press Release, 2013, available at: www.ohchr.org/EN/ Issues/FreedomReligion/Pages/RabatPlanOfAction.aspx. The documentation resulting from these workshops, stakeholders’ positions and background papers is available at: www.ohchr.org/EN/Issues/FreedomOpinion/Articles19-20/ Pages/Index.aspx. General Comment No 34: Article 19: Freedoms of opinion and expression, CCPR/C/ GC/34. O’Flaherty, ‘Freedom of Expression: Article 19 of the International Covenant on Civil and Political Rights and the Human Rights Committee’s General Comment No 34’ (2012) 12(4) Human Rights Law Review 627 at 648 and 650–1. General Recommendation No 35: Combating racist hate speech, CERD/C/GC/35. McGonagle, ‘New General Recommendation Combating Racist Hate Speech’, Database on legal information relevant to the audiovisual sector in Europe, available at: merlin.obs.coe .int/iris/2013/10/article7.en.html.

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Armed Conflicts and Applicability of International Humanitarian Law The use of drones for targeted killings has renewed interest in the controversial discussion among scholars over the applicability of international human rights law in armed conflict situations.54 Pre-conflict, conflict and post-conflict scenarios may lead to divergence in approach by special procedure mandate holders due to the lack of clear guidance in international law.55 A further opportunity for divergence arises where special procedures have been created with an unequivocal mandate to investigate situations that may involve violations of international humanitarian law, as is the case with the Special Rapporteur on the situation of human rights in the occupied Arab territories.56 This is so because, for the most part, mandates have been created without specific mention of the applicability of international humanitarian law as a legal framework of reference. Even when special rapporteurs have requested specific guidance from the Commission on Human Rights on this question, they have not always received an answer.57 In addition, as in virtually every other matter covered by special proce­ dure mandates, the uncertain terms of the mandates have allowed experts to follow different approaches. The Special Rapporteur on extrajudicial, summary or arbitrary executions has interpreted the scope of his mandate to cover armed conflict scenarios engaging applicable humanitarian standards.58 The Special Representative on the situation of human rights in El Salvador devoted a specific section of his reports to the implementation of international B

54 55

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See Ohlin, ‘Is Jus in Bello in Crisis?’ (2013) 13(1) Journal of International Criminal Justice 27. See also Chapter 12 of this volume. Schabas, ‘Lex Specialis? Belt and Suspenders? The Parallel operation of human rights law and the law of armed conflict and the conundrum of jus ad bellum’ (2007) 40(2) Israel Law Review 592; and Hampson, ‘The relationship between international humanitarian law and human rights law from the perspective of a human rights treaty body’ (2008) 90 International Review of the Red Cross 549. Despite the clear mandate, Israel had strong objections to this as reflected in the report of the Special Rapporteur, who sought further guidance on this point from the Commission: see Report of the Special Rapporteur on the situation of human rights in the Occupied Arab Territories, including Palestine, E/CN.4/2002/32, at paras 7–10. Domínguez-Redondo, ‘Making the Connection: Security and Human Rights’, in Bassiouni and Schabas (eds), New Challenges for the Human Rights Machinery: What Future for the un Treaty Body System and the Human Rights Council Procedures? (Intersentia, 2011) 255. The position of the Special Rapporteur over the years is well summarised in Alston et al., ‘The competence of the un Human Rights Council and its Special Procedures in Relation to Armed Conflicts’ (2008) 18(1) European Journal of International Law 183 at 202–6.

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­humanitarian law.59 When Felix Ermacora took up the mandate of Special Rapporteur on the situation of human rights in Afghanistan, he laid down the legal framework relevant to his mandate, including international humanitarian law.60 However, others, such as the Working Group on Arbitrary Detentions, have decided from the outset not to deal with situations and cases linked to the existence of an armed conflict.61 Similarly, in light of the competence of the International Red Cross to address situations of disappearance during international armed conflicts, the Working Group on Enforced or Involuntary Disappearances has determined not to deal with situations of international armed conflict, although it considers disappearances in internal armed conflicts when the agent perpetrating an enforced disappearance is apparently a representative of the state.62 The hosting of special sessions has contributed to the standardisation of the use of humanitarian law in the work of the Human Rights Council (and formerly the Commission) since the early 1990s. These special sessions are mostly linked to situations of armed conflict and, therefore, the mandates of the inquiry commissions and special procedures mandates resulting from the sessions are routinely empowered with the authority to gather, compile and investigate information on acts that constitute breaches of international humanitarian law.63 In addition, these resulting reports are made available to the Security Council. Since the creation of the Human Rights Council these 59 60 61

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See, for instance, E/CN.4/1992/32, at paras 96–117; and A/47/596, at paras 105–117. E/CN.4/1985/121, at para 161. The Working Group established its position in its first report (E/CN.4/1992/20, at para 16), and it is reflected in its current working methods: currently published by the ohchr as ‘Fact Sheet No 26: The Working Group on Arbitrary Detention’, annex iv, available at: www.ohchr.org/Documents/Publications/FactSheet26en.pdf. The Working Group established its position for the first time in relation to the cases of disappearances brought to its attention during the Iran–Iraq war: see E/CN.4/1983/14, at paras 118–120. This was confirmed as a general position in the wgeid report in 1984: see E/CN.4/1984/21, at paras 20 and 21. See also the methods of work published in E/ CN.4/1996/38, annex i at para 5; and A/HRC/13/31, annex 1 at para 11; and the comment on inconsistencies by the Working Group on Arbitrary Detention and Working Group on Enforced or Involuntary Detention in Domínguez-Redondo (2011), supra n 57 at 272–3. For the mandate of the inquiry commission established following the 5th special session on the situation of occupied Palestinian territories, see unchr Res 2000/S-5/1, 19 October 2000, at para 6(a). See also unchr Res 1999/S-4/1, 27 September 1999, at para 6, for the mandate of the inquiry commission on East-Timor; and unchr Res 1994/S-3/1, 25 May 1994, at para 21, for the mandate of the Special Rapporteur on Rwanda. Humanitarian law violations are present in the resolutions resulting from the first two special sessions on the former Yugoslavia, but were not articulated expressly as elements of the mandate of

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sessions have increased exponentially, adding further to this trend.64 Under the Universal Periodic Review mechanisms, humanitarian norms are expressly called upon to evaluate the situation of human rights worldwide.65 Some special procedures considered such standards, not only because they have chosen to include them by their own initiative, but because they are included expressly in their mandates, established by the Human Rights Council. This development is nonetheless viewed with caution by some commentators and practitioners, because of its inconsistency and the risk of undermining humanitarian standards if not taken seriously or if applied in a disjointed manner by human rights bodies.66 C Approaches towards Non-state Actors The importance of non-state actors as potential violators of human rights has been another live issue in the lifetime of special procedures.67 In the past, this subject has been addressed mostly in relation to the laws of armed conflict and the existence of paramilitary and armed opposition groups. Nonetheless, it involves a wide range of non-governmental actors potentially responsible for human rights abuses including international organisations, peacekeeping operations, transnational corporations and internationally-administered territories. For the most part, special rapporteurs have adhered to the less controversial norms of international law concerning responsibility for breaches of international law by confining their attribution of alleged human rights violations to state actors. As a consequence they have implicitly or explicitly adopted the principle that non-state actors should not be approached in the course of their investigations into cases or situations of human rights violations.68 Until the Special Rapporteur: see unchr Res 1992/S-1/1, 14 August 1991; and unchr Res 1992/ S-2/1, 1 December 1992. 64 By March 2014, twenty special sessions had been held by the Human Rights Council. 65 See hr Council Res 5/1, 18 June 2007, endorsed by ga Res 62/434, 3 December 2007, at para 1. On the opposition by some states to this provision, see Domínguez-Redondo, ‘The Universal Periodic Review of the un Human Rights Council: An Assessment of the First Session’ (2008) 7(3) Chinese Journal of International Law 721 at 727. 66 O’Donnell, ‘Trends in the application of international humanitarian law by United Nations human rights mechanisms’ (1998) 38 International Review of the Red Cross 481. See also Meron, ‘The humanization of humanitarian law’ (2000) 94(2) American Journal of International Law 239 at 269 and 270. 67 One of the earliest contributions can be found in the 1992 Report of the Working Group on Enforced Disappearances, E/CN.4/1992/18, at paras 373–381. 68 One of the early explicit explanations of this can be found in the 1986 report of the Working Group on Enforced or Involuntary Disappearances, E/CN.4/1986/18, at para 34.

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recently it remained exceptional to read reports such as those of the former Special Rapporteur on the situation of human rights in El Salvador, in which he interpreted the political nature of the special procedure as giving him a licence to investigate human rights violations attributed to insurgents or guerrilla groups.69 Thus, even those experts who routinely acknowledge abuses of human rights perpetrated by non-state actors, such as the Special Rapporteur on summary executions,70 emphasise that their methods of work only permit them ‘to intervene when the perpetrators are believed to be government agents or have a direct or indirect link with the state’.71 However, special rapporteurs have increasingly (though not unanimously) taken the approach that, while non-state actors cannot strictly be held accountable for human rights violations deriving from obligations they are not bound by—mainly inter-state human rights treaties they cannot ratify—they are nonetheless expected to respect common human rights standards such as those expressed in the Universal Declaration of Human Rights.72 The possibility of divergent approaches is acknowledged in the 2008 Manual of operations of the special procedures of the Human Rights Council,73 which devotes an entire section to the relationship between special procedures and non-state actors.74 It affirms states’ responsibility under international law for violations committed within their jurisdiction, either by state agents or others, and then leaves open the possibility of holding non-state actors ‘to account for human rights violations’, stating that they ‘may be relevant interlocutors in the quest to restore respect for human rights and to establish accountability for violations’.75

69

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71 72 73 74 75

Nonetheless, as visible in the report of the visit to Peru that same year, the Working Group has sometimes listed allegations of disappearances by non-state actors without investigating them: see E/CN.4/1986/18/Add.1; and E/CN.4/1987/15/Add.1. The mandate holder, José Antonio Pastor-Ridruejo, explained this decision, based on political and ethical considerations rather than legal principles, in ‘Les procédures publiques spéciales de la Commission des Droits de l’Homme des Nations Unies’ (1991) 228(3) Recueil de Cours de l’Académie de Droit International 183 at 214–15. In his first report the mandate holder focused only on governmental actions, referring to them in subsequent reports. For a summary of this approach with references to the case law of the International Court of Justice, the Human Rights Committee and the InterAmerican Commission on Human Rights, see E/CN.4/2005/7, at paras 65–76. E/CN.4/2002/74, at para 71. See Clapham, ‘Human rights obligations of non-state actors in conflict situations’ (2006) 88 International Review of the Red Cross 491 at 504–7. Available at: www.ohchr.org/Documents/HRBodies/SP/Manual_Operations2008.pdf. Ibid. at Section E, paras 81–83. Ibid. at para 81.

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The manual of operations makes explicit reference to the possibility of communication between special rapporteurs and the ‘de facto’ authority in specific territories,76 which confirms traditional principles of state responsibility.77 Many mandate holders have sent communications in relation to human rights cases and situations perpetrated by governments which may not have enjoyed international recognition, such as the Taliban in Afghanistan78 or the once unrecognised government of Haiti in the early 1990s.79 Mandate holders have also addressed alleged human rights violations committed by international authorities in territories under their jurisdiction such as in Timor Leste between 1999 and 200280 and Kosovo between 1999 and 2008.81 After the attacks against the United States on 11 September 2001, groups labelled as terrorist have gained prominence among non-state actors for whom accountability for human rights abuses is sought by states. Whether this is a change of focus or merely a change of language is a matter beyond the scope of this chapter. However, the mandate holder with the closest relationship to the issue, the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, has adopted a ‘neutral’ approach to this topic. The former mandate holder, Martin Scheinin, expressed his willingness to follow the work of the (then) Commission on Human Rights on the question of whether human rights violations can be attributed to non-state actors.82 76 77

78 79 80

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Ibid. at para 82. Article 9 Draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the International Law Commission at its fifty-third session (2001), included as annex in ga Res 56/83, 12 December 2001, and corrected by document A/56/49(Vol.I)/ Corr.4. See, for instance, the reports of the Special Rapporteur on freedom of religion or belief, A/56/253, at paras 25–30. See Report of the Special Rapporteur on the situation of Haiti, E/CN.4/1993/47, at para 124(c). See Report of the Working Group on Enforced Disappearances, E/CN.4/2002/79, at paras 355–356. The communications of the Group during 2001 were sent to the United Nations Transitional Administration in East Timor (untaet) and to Indonesia. See the allegation letter addressed to the un Interim Administration in Kosovo (unmik) by the Special Rapporteur on trafficking in persons, especially women and children, and the Special Rapporteur on extrajudicial, summary or arbitrary executions on 19 October 2011, available at: spdb.ohchr.org/hrdb/19th/AL_Kosovo_19.10.2011_(1.2011).pdf. See also the dialogue established with unmik during the visit to Serbia (including Kosovo) in the 2009 report of the Special Rapporteur on freedom of religion or belief, A/HRC/13/40/ Add.3. E/CN.4/2006/98, at paras 67 and 70.

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The launch of a Forum on Business and Human Rights within the United Nations in 201283 is another milestone in the consideration of non-state ­actors by un Charter bodies, and marks the culmination of a process ignited by the Global Compact project launched by the former Secretary-General Kofi Annan in 1999.84 This represents a substantial change from the sporadic and fragmented consideration of the impact of trade,85 economic aid86 and debt,87 as well as that of business enterprises on the enjoyment of human rights that could be found, since 1977, in the reports of different subsidiary bodies of the former Commission on Human Rights.88 Mandate holders have also pioneered and rapidly consolidated the practice of scrutinising the role in human rights abuses of transnational corporations. This activity has merited scant contestation despite its problematic legal basis. The practice of engaging with corporations as actors potentially accountable for human rights violations outside the realms of traditional state responsibility is no longer confined to the few mandate holders endowed with competence to deal with violations typically involving business, such as the Special Rapporteur on toxic waste89 and the Working Group on Transnational Corporations.90 Rather, since 2011, the ohchr has expressly acknowledged the standardisation of this practice, including in its publications on the ‘facts and figures of special procedures’. These annual publications explain that allegations of human rights violations are not only sent to states, but also to ‘third parties, such as international 83

Established by hr Council Res 17/4 on Human rights and transnational corporations and other business enterprises, 6 July 2011, at operative para 12. 84 Annan, The Global Compact (United Nations World Economic Forum, 1999). 85 See Domínguez-Redondo and Sepúlveda Carmona, ‘An Overview of Human Rights Instruments to Raise Concerns About Trade and Investment Policies’, in Murphy and Paasch (eds), The Global Food Challenge: Towards a Human Rights Approach to Trade and Investment Policies (Brot für Alle, 2009) 92. 86 See Commission on Human Rights Decision 1997/103, 3 April 1997, appointing an independent expert on the effects of structural adjustment policies on economic, social and cultural rights. On the study by Cassese regarding the impact of foreign economic aid and assistance on respect for human rights in Chile, see Ramcharan (2009), supra n 4 at 131. 87 See unchr Res 1998/24, 17 April 1998. The mandate on structural adjustment programmes and foreign debt got consolidated as a single mandate by unchr Res 2000/82, 26 April 2000. 88 Ramcharan (2009), supra n 4 at 131–4. 89 It is part of the mandate of the Special Rapporteur to examine and produce a list of transnational corporations engaged in the illicit traffic of toxic and dangerous products and wastes to developing countries as requested in the latest Human Rights Council resolution renewing the mandate: hr Council Res 18/11, 29 September 2011. 90 For the Methods of Work followed by the Working Group, see A/HRC/WG.12/3/1, annex.

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o­ rganisations or multinational corporations, requesting information on the allegation and calling for preventive or investigative action’.91 Nonetheless, the centralised facts provided by the ohchr do not yet explain what percentage of ­communications or interactions are held with non-state actors. Only a few reports by special rapporteurs provide specific details about this practice. However, special rapporteurs increasingly refer to their engagement with corporations, although the vocabulary and approach remains far from uniform. The Special Rapporteur on the sale of children, child prostitution and child pornography uses the term ‘corporate social responsibility’,92 while other mandate holders prefer to refer to business and human rights.93 This apparent inconsistency in terminology across mandate holders can be reconciled by the fact that following the adoption of the un Guiding Principles on Business and Human Rights, with its affirmation of a corporate responsibility to respect human rights, the notion of ‘corporate social responsibility’ has to be reconceptualised from one in which its content is determined by corporations, to one which embodies the universal responsibility of all businesses to respect all human rights.94 4

Codification of New International Human Rights Instruments

Exceptionally, special procedures have been created with the main mandate of contributing to the codification of a particular area of law. This is the case, since the creation in 1986,95 of the Special Rapporteur on freedom of religion or belief, who is mandated to examine incidents and governmental actions incompatible with the Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief96 in addition to

91

ohchr, United Nations Special Procedures: Facts and Figures 2013 (ohchr, 2014) at 10. See also the publications in 2012 at 10; and 2011 at 9. 92 A/HRC/25/48, at paras 101–108. 93 Report of the Special Representative of the un Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie, un Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework, A/HRC/17/31. 94 Doyle, Indigenous peoples’ issues and participation at the un Forum on Business and Human Rights: Progress to date and potential for the future (European Network on Indigenous Peoples, 2014). See also Ruggie, Just Business (Amnesty International, 2013). 95 unchr Res 1986/20, 10 March 1986. 96 ga Res 31/138, 16 December 1976.

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recommending remedial measures.97 The international standards considered by the Special Rapporteur extend beyond this instrument, as laid out in the digest published by the mandate holder in 2011, on the twenty-fifth anniversary of the creation of the mandate.98 The standards include the udhr, most core human rights instruments and the general comments of different treaty bodies. Most special procedures mandate holders have had to develop conceptual and normative frameworks relevant to their mandate in order to clarify the scope of their competences when dealing with cases or situations of human rights violations. This final section outlines some of the most salient initiatives by special procedures that have been endorsed or approved by their parent bodies, therefore endowing them with special authority. These new human rights standards serve as international benchmarks in a variety of areas. They enjoy a special position among other normative contributions by special procedures because they have been adopted or endorsed by the Human Rights Council (or former Commission) or/and the General Assembly. In the absence of specific restrictions on the geographic scope of their mandates, or the sources they can use in the course of their work, these codification efforts have involved the consideration of a topic from a universal perspective, taking into account the contributions of governmental, intergovernmental and nongovernmental actors worldwide. In that sense, the normative standards developed by special procedures function as a catalyst to efforts to conceptualise and codify human rights worldwide. The Working Group on Enforced or Involuntary Disappearances has pioneered codification of a new international instrument among special procedures—the Declaration on the Protection of All Persons from Enforced Disappearance,99 the immediate precedent for the Convention with the same name adopted fourteen years later.100 The Working Group instigated adoption by the un General Assembly of the Declaration101 and contributed substantially­ 97

This remains a central part of its mandate, as reiterated in hr Council Res 6/37, 14 December 2007, at para 18(c). 98 Rapporteur’s Digest on Freedom of Religion or Belief, 2011, available at: www.ohchr.org/ Documents/Issues/Religion/RapporteursDigestFreedomReligionBelief.pdf. 99 ga Res 47/133, 18 December 1992. 100 International Convention for the Protection of All Persons from Enforced Disappearance, adopted by ga Res 61/177, 20 December 2006 (in force since 23 December 2010). 101 See the recommendations of the Group enshrined in its reports E/CN.4/1985/15, at para 302; and E/CN.4/1988/19, at para 251(b).

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to the final draft.102 The Working Group oversees states’ implementation of the Declaration, which constitutes the main legal framework within which it carries out its mandate.103 The Special Rapporteur on the human rights of internally displaced persons104 understood that the main aim of his mandate was the elaboration of a specific norm for internally displaced people, and framed the Guiding Principles on Internal Displacement,105 focusing his work on the preparation of such guidelines, and their distribution and promotion.106 The Guiding Principles have been further complemented by a handbook107 and legal annotations.108 In addition, they have had a measurable impact on legislation and policies. The case of Colombia, where the Guiding Principles have been used as basis of decisions of its Constitutional Court, is outstanding,109 but there are many other examples illustrating their influence at national, regional and international level.110

102 E/CN.4/1990/13, at paras 28–38. 103 See Revised Methods of Work of the Working Group on Enforced or Involuntary Disappearances, A/HRC/19/58/Rev.1, annex ii, adopted on 11 November 2011 and applicable from 1 January 2012, at para 1. 104 Until 2010 the mandate holder was a Representative of the Secretary-General. On the decision to change the denomination, see hr Council Res 14/6, 23 June 2010. For the original mandate, see unchr Res 1991/25, 5 March 1991; unchr Res 1992/73, 5 March 1992; and unchr Res 1994/68, 9 March 1994. 105 See E/CN.4/1998/53/Add.2. On the background and process of framing these principles, see Bagshaw, ‘Internally Displaced Persons at the Fifty-Fourth Session of the United Nations Commission on Human Rights, 16 March – 24 April 1998’ (1998) 10(3) International Journal of Refugee Law 548; and Kälin, Guiding Principles on Internal Displacement: Annotations (American Society of International Law, 2000). 106 Latest mandate for this special procedure can be found in hr Council Res 23/8, 13 June 2013. 107 unhcr, Handbook for the Protection of Internally Displaced Persons (Global Protection Cluster Working Group, 2010). 108 Kälin, The Guiding Principles on Internal Displacement: Annotations, 2nd edn (American Society of International Law, 2008). 109 Cepeda Espinosa, ‘The Constitutional Protection of idps in Colombia’, in Arango Rivadeneira (ed.), Judicial Protection of Internally Displaced Persons: The Colombian Experience (Brookings Institution/University of Bern, 2009) 1. 110 Wyndham, ‘A Developing Trend: Laws and Policies on Internal Displacement’ (2006) 14(1) Human Rights Brief 7; and Couldrey and Herson (eds), ‘Ten Years of the Guiding Principles on Internal Displacement’ (2008) Special Issue Forced Migration Review.

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In 2011 the Human Rights Council formally endorsed111 the Guiding principles on business and human rights,112 and a year later adopted113 the Guiding Principles on extreme poverty and human rights.114 Both sets of guiding principles were drafted by the Special Rapporteurs with mandates on the concerned topic. These three sets of guiding principles provide global policy guidelines on topics not codified in international law, and are now widely used to evaluate state behaviour in relation to displacement of people, poverty, and business and human rights.115 In addition, mandate holders cooperate with the ohchr in drafting manuals, guides and other publications directly related to their mandates. Besides the Handbook for the Protection of Internally Displaced Persons cited above, other examples include the participation of the Special Rapporteur on torture in the drafting of the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol)116 and the forthcoming Handbook for realizing the human right to safe drinking water and sanitation prepared by the Special Rapporteur on the human right to water.117 In the context of the preparation of international human rights conferences, the experts in charge of special procedures have also contributed to studies that clarify existing normative frameworks and draw attention to the need for new regulations where appropriate.118 111 hr Council Res 17/4, 16 June 2011, at operative para 1. 112 Supra n 93. For a resource centre devoted to the guiding principles, see businesshumanrights.org/UNGuidingPrinciplesPortal/Home. 113 hr Council Res 21/11, 27 September 2012, at para 2. In political terms it is important to notice that in this case the Council ‘adopts’ rather than ‘endorses’ the guiding principles. 114 Sepúlveda Carmona, Final draft of the guiding principles on extreme poverty and human rights, A/HRC/21/38. 115 For instance, the Guiding principles on extreme poverty were mentioned in the European Committee of Social Rights’ decision on the merits in Defence for Children International (dci) v Belgium (69/2011) Merits, 23 October 2012, at para 81. 116 See HR/P/PT/8/Rev.1. The Manual was itself inspired by the Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, A/54/426, at paras 53–55. 117 ohchr, United Nations Special procedures: Facts and Figures 2013 (ohchr, 2014) at 6 and 7. This document highlights other contributions to standard-setting during 2013 by the mandates on the use of mercenaries, trafficking in persons, countering terrorism, torture, summary executions and freedom of religion. 118 See, for instance, the two thematic studies prepared by the Special Rapporteur on religious freedom prepared for the International Conference on Racism, analysing the issue of ‘aggravated discrimination’: A/CONF.189/PC.1/7, annex; and ‘legal and factual aspects of racial discrimination in education’: A/CONF.189/PC.2/22, annex 2. See also, in relation

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The Working Group on Arbitrary Detention and the Working Group on Enforced or Involuntary Disappearances have drafted the equivalent of ‘general comments’ following a model pioneered by treaty bodies. The Working Group on Enforced or Involuntary Disappearances uses the same terminology as the treaty bodies119 and devoted its first six ‘general comments’, issued between 1996 and 2006, to the interpretation of specific Articles of the Declaration on the Protection of All Persons from Enforced Disappearance.120 Since the creation of the Human Rights Council such comments have addressed topics other than Articles of the Declaration, including the definition of enforced disappearance;121 disappearance as a crime against humanity122 and as a continuous crime;123 the right to truth;124 the right to recognition as person before the law;125 and the specificity of disappearances when affecting children126 and women.127 The Working Group on Arbitrary Detention uses the terminology ‘deliberations’. Most of its deliberations are related to particular cases which raise matters of a general nature, the aim being to provide consistent precedents in order to assist as many states as possible to prevent the practice of arbitrary deprivation of liberty.128 These deliberations offer another striking example of the potential to use special procedures to question the practice of other bodies operating at an international level on concomitant issues. The Working Group on Arbitrary Detention accepted a complaint brought by General Duško Tadić, which challenged the legality of his detention by the International Criminal Tribunal­for to the same conference, the contribution made by the Special Rapporteur on the rights of migrants, A/CONF.189/PC.2/23. 119 See E/CN.4/1997/34, at paras 20 and 21. 120 See E/CN.4/1996/38, at paras 48–58 (Articles 3 and 4); E/CN.4/1997/34, at paras 22–30 (Article 10); E/CN.4/1998/43, at paras 68–75; E/CN.4/2001/68, at paras 25–32 (Article 17); and E/CN.4/2006/56, at para 49 (Article 18). 121 A/HRC/7/2, at para 26. 122 A/HRC/13/31, at para 39. 123 A/HRC/16/48, at para 39. 124 Ibid. 125 A/HRC/19/8/Rev.1, at para 42. 126 A/HRC/WGEID/98/1 and A/HRC/WGEID/98/1/Corr.1. 127 A/GRC.WGEID/98/2. 128 A compilation of its nine Deliberations, covering the issues of house arrest; rehabilitation through labour; immigrants and asylum seekers; allegations against the International Criminal Court for the former Yugoslavia; psychiatric detention; and deprivation of liberty linked to the use of the internet, is available at: www.ohchr.org/Documents/Issues/ Detention/CompilationWGADDeliberation.pdf.

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the Former Yugoslavia on the basis of Article 9 of the iccpr (the right to liberty and security).129 The Group finally accepted its lack of competence to express a view on the conformity of a decision taken by an international court within the norms of international law. It did, however, decide that this raised an interpretation problem and adopted a ‘deliberation’ which would guide the Group in future if other communications relating to the administration of justice by an international criminal court were brought before it.130 The Working Group re-engaged with this topic in relation to the arrest of Joseph Kanyabashi, which raised the issue of the legality of the establishment of the International Criminal Tribunal for Rwanda.131 This was the first time a special procedure had examined the legality of the practice of another un body, in particular one established as a subsidiary organ of the Security Council. The Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism has since examined the question of the compliance with human rights standards by the United Nations by assessing the role of the General Assembly, the Security Council and the United Nations field presences in anti-terrorist activities.132 The Special Rapporteur has concluded that Chapter vii of the un Charter does not provide a legal basis for the Security Council framework of mandatory resolutions of a quasi-legislative or quasi-judicial nature,133 has commented on the compatibility of the mandate of the Office of the Ombudsperson of the Security Council with international human rights norms using case law from treaty bodies, the European Court of Human Rights, and British and Swiss domestic courts, among others,134 and has recommended a means of improving the accountability of the United Nations in this area.135 The Working Group on Arbitrary Detention has also issued a decision on whether the deprivation of liberty of persons held at Al-Khiam prison in south Lebanon involved the responsibility of the government of Lebanon, Israel or the South Lebanon Army.136 With this opinion, the Working Group contributed to clarifying the fragmented jurisprudence regarding the need to evaluate 129 E/CN.4/2001/14, at paras 12–33. 130 Ibid. 131 E/CN.4/2003/8, at paras 49–60. 132 See A/65/258. 133 Ibid. at paras 33–58. 134 See A/67/396, at paras 12–58. 135 Ibid. at paras 68–80. 136 E/CN.4/2000/4, at paras 11–18.

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attribution of unlawful acts of states, by endorsing the ‘overall test’ doctrine established by the International Court of Justice, rather than approaches developed by other adjudicatory bodies.137 General comments and deliberations issued by the working groups use a variety of international and regional instruments as their normative framework. These include references to the American Convention on Human Rights, the Rome Statute of the International Criminal Court, the Inter-American Convention on Forced Disappearances of Persons, the Hague Convention concerning the Laws and Customs of War, and the Geneva Conventions of 1949, among others. Leading case law articulated by other treaty bodies and international and regional courts is also frequently cited. 5 Conclusions The impact of the special procedures in the creation and consolidation of international human rights standards, and their clarification of the scope of existing human rights norms, is widely acknowledged and one of their least contested activities. It nonetheless creates problems of coordination and duplication of tasks among different organs of the United Nations addressing similar or closely related matters. The different approaches of mandate holders in understanding their mandate and methods are partly the result of the myriad of existing mandates (55 special procedures were in force by March 2015).138 The single rubric ‘special procedures’ has enabled special rapporteurs to tackle different human rights violations (by country and by theme) through independent experts who have developed different methods of work. The preceding pages have outlined synergies and contradictions in the approaches adopted by special procedures regarding: (a) the scope and content of controversial topics of human rights law (hate speech); (b) the applicability of international standards to their mandates (international humanitarian law); and (c) their different understanding of those potentially responsible for human rights violations when dealing with non-state actors.

137 For a commentary, see Cassese, ‘The Nicaragua and Tadić Tests Revisited in Light of the icj Judgment on Genocide in Bosnia’ (2007) 18(4) European Journal of International Law 649 especially at n 19. See also Crawford, State Responsibility (cup, 2013) at 141. 138 The list is available at: www.ohchr.org/EN/HRBodies/SP.

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Until 1993, when the ohchr was created and when annual meetings of special procedures became institutionalised, the absence of general standards was complicated by the lack of centralised support and coordination. However, the absence of uniform standards and practice has not prevented these bodies from developing normative frameworks that have become gradually accepted as the most authoritative—and at times exclusive—codification of human rights standards in the diverse human rights covered by the special procedures.

chapter 19

A European Respect for the Opinions of Mankind?1 Michael O’Boyle I look back without nostalgia on the charms of a bygone era in which the national judge lived in splendid isolation. jean-marc sauvé2

1 Introduction In Atkins v Virginia3 the United States Supreme Court held that the Eighth Amendment bars states from executing murderers who are ‘mentally retarded’. Justice Stevens, writing for the Court, observed that ‘within the world community’ the execution of the mentally retarded is ‘overwhelmingly disapproved’. In Lawrence v Texas,4 the following year, the Court found that a criminal law prohibiting consensual homosexual acts violated the Fourteenth Amendment. Reference was made to Dudgeon v United Kingdom.5 This was the first time that a judgment of the European Court of Human Rights (ECtHR) had been cited by the us Supreme Court. Two years later in Roper v Simmons6 the Supreme Court declared unconstitutional the execution of murderers who committed their crimes while under the age of eighteen years and lamented that the U ­ nited States stood alone in imposing the death penalty on juveniles. These judgments and others rekindled a lively debate amongst us judges and

1 The Declaration of Independence 1776 (The unanimous Declaration of the thirteen united States of America), adopted 4 July 1776, at para 1, states: ‘When in the course of human events, it becomes necessary for one people to … assume among the Powers of the Earth, the separate and equal Station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation’. (emphasis added). 2 Vice President, French Conseil d’État, quoted by the President of the Court, Dean Spielmann, in his Opening Speech to the Court’s annual seminar (Strasbourg, 30 January 2014) at 2. 3 536 u.s. 304 (2002). 4 539 u.s. 558 (2003). 5 Application No 7525/76, Merits, 22 October 1981. 6 543 u.s. 551 (2005).

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004284258_021

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constitutional scholars as to whether it was ever appropriate for the Supreme Court to refer to foreign sources, with some notable brotherly disagreements between Justices Scalia and Breyer.7 In the Atkins case Justice Scalia famously stated that the practices of the ‘world community’ are irrelevant and that ‘where there is not first a settled consensus among our own people, the views of other nations, however enlightened the Justices of this Court may think them to be, cannot be imposed upon Americans through the Constitution’.8 Such parochial opinions can perhaps be seen as a reaction to growing judicial globalisation and a conviction that the importation of foreign constitutional values from other systems was constitutionally improper. It has even been suggested that the reluctance to cite foreign and international law has contributed to a decline in the influence of the Supreme Court.9 European lawyers observed this debate with a degree of fascination since it seemed inconceivable that such experienced legal minds could fail to grasp that recourse to a comparative perspective could actually be a source of enrichment of the process of adjudication. After all, where is the harm in looking to the non-binding experience of other superior courts dealing with similar issues? Justice Ginsberg quietly asserted herself as the voice of reason in this clash of views pointing out that from the birth of the United States as a nation, foreign and international law influenced legal reasoning and judicial decision-making. Founding fathers, most notably, Alexander Hamilton and John Adams, were familiar with leading international law treatises, the law merchant and English constitutional law.10 7

8 9 10

See, for example, from extensive literature on the topic, Delahunty and Yoo, ‘Against Foreign Law’ (2005) 29(1) Harvard Journal of Law and Public Policy 291; and Cleveland, ‘Our International Constitution’ (2006) 31(1) Yale Journal of International Law 1. See also full written transcript of the debate on foreign law between Justices Breyer and Scalia, American University, 13 January 2005, available at: www.freerepublic.com/focus/news/1352357/ posts. Supra n 3 at 348. Law and Versteeg, ‘The declining influence of the United States Constitution’ (2012) 87(3) New York University Law Review 762 at 852–4. Ginsberg, ‘A Decent Respect for the Opinions of [Human] Kind: The Value of a Comparative Perspective in Constitutional Adjudication’ (2011) 26(4) American University International Law Review 927 at 927. In this article Justice Ginsberg recounts (at 929) that during the Senate hearings on the nomination of Elena Kagan for the Supreme Court one senator expressed surprise that during Kagan’s tenure as Dean of the Harvard Law School first year students were required to take a course in international law. Another stated (at 929)

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Her own view is uncomplicated: If us experience and decisions may be instructive to systems that have more recently instituted or invigorated judicial review for constitutionality, so too can we learn from others now engaged in measuring ordinary laws and executive actions against fundamental instruments of government and charters securing basic rights.11 Learning from others by having recourse to persuasive as opposed to precedential authority is thus at the heart of this discussion. This debate has no counterpart in Europe. The ECtHR regularly refers to both public international law and the decisions of national and international courts in its judgments. Sometimes such references are purely ornamental, ‘citas eruditas’ or glamorous window dressing. On other occasions they are of key importance to the Court’s reasoning. In general the contracting parties have not complained to the Court that there is anything untoward or unconstitutional in this practice and lawyers appearing before the Court on both sides, like Alexander Hamilton and John Adams, are assiduous in bringing relevant comparative judgments and decisions to the Court’s attention, as are third party interveners. But how has the ECtHR reached such a point of enlightenment and to what extent has a comparative perspective taken root in the Court’s practice? This chapter explores the practice of the ECtHR with reference to the judgments of national courts outside the zone of the European Convention on Human Rights (echr), including us court decisions, principles of international law and the judgments of the Inter-American Court of Human Rights (IACtHR). 2

The Practice of the European Court of Human Rights

If one reads attentively the judgments of the Grand Chamber of the ECtHR, one will find a cornucopia of references to different branches of public international law, including, inter alia, international treaties, international humanitarian law, judgments of the International Court of Justice (icj), the Court of Justice of the European Union (cjeu) and the IACtHR and, of course, those

11

that he was ‘troubled’ that Kagan believed ‘that we can turn to foreign law to get good ideas’. Ibid. at 928.

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of many national superior courts. There are also occasional references to the views of the United Nations Human Rights Committee and of other un treaty bodies. Soft law is also abundantly cited with references to resolutions of the Parliamentary Assembly of the Council of Europe and the Committee of Ministers of the Council of Europe, or resolutions of the United Nations Security Council. It is not unusual to find references to reports of Council of Europe monitoring bodies such as the Committee for the Prevention of Torture in cases concerning prison conditions or the European Commission against Racism and Intolerance (ecri) with respect of racial discrimination issues. Most of these citations appear in the ‘relevant international law and practice’ section of the Court’s leading judgments. On some occasions they merely reproduce what materials third parties have cited to the Court in their submissions and serve no purpose other than to record the richness of argument that has developed in the course of the proceedings. These are essentially ornamental citations. However, on other occasions the Court relies on such materials to establish a European or international consensus concerning a particular point of interpretation. The materials cited then assume relevance or even a centrality to the legal arguments deployed by the Court to reach its conclusion. The Court’s current practice is relatively recent. It dates back to that of the former Court in the 1990s and, with the establishment of the single Court in 1998, it has developed as a more rooted and systematic practice. Today few would question the common sense of the Court exploring how the decisions of national and international courts have addressed similar issues without in any sense being bound by such decisions. The practice of the former Court prior to the 1990s was rather restrictive. That Court was prepared to look to the 1969 Vienna Convention on the Law of Treaties (vclt) and to interpret the Convention in the light of the principles set out in Article 31 of that treaty.12 However, it was rare for the Court of that period to refer to the judgments or opinions of other international courts and tribunals such as the IACtHR or even authoritative foreign national courts such as the us Supreme Court. The Court’s first reference to the work of the IACtHR occurred as late as 1996 in Akdivar and Others v Turkey,13 citing Velásquez Rodríguez v Honduras14 and

12 See Golder v United Kingdom Application No 4451/70, Merits and Just Satisfaction, 21 ­February 1975, at para 35, referring to Article 31(3)(c) vclt; and Loizidou v Turkey Application No 15318/89, Preliminary Objections, 23 March 1995, at para 73. 13 Application No 21893/93, Merits and Just Satisfaction, 16 September 1996, at para 68. 14 IACtHR Series C 1 (1987).

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the advisory opinion of 10 August 199015 on issues concerning exhaustion of remedies and the distribution of the burden of proof. This was a late recognition by the ECtHR of an impressive body of judgments and advisory opinions addressing similar issues. Perhaps the important point is that the ECtHR was departing from its previous practice since there was, in fact, no real need to cite these sources given the abundance of its (and the former Commission’s) case law on exhaustion of remedies issues. Akdivar16 can thus be seen as the cautious beginning of the Court’s present practice. It was quickly followed up in the next year with references to Godínez Cruz v Honduras17 and Caballero Delgado and Santana v Columbia18 (disappearance cases) in Kurt v Turkey,19 the Court’s first pronouncement in a disappearance case, although these references were not relied on by the Court to reach its conclusion. So why was the former Court so reluctant to cite foreign authorities? There was no distinct policy by the former Court not to do so or any principled ­‘constitutional’ objection, of the sort that has been made by judges and scholars in the United States, to looking at foreign sources outside the region. It was  rather a practice that had developed from the beginning of the Court’s life that had no particular doctrinal foundation and which, like the habits of other conservative judicial institutions, was applied repeatedly without much discussion on the matter. Having worked at the former Court since 1990 I cannot remember any Court deliberations where the issue was ever discussed, although I do recall being informed by my lawyer colleagues that the then Registrar did not accept citation of foreign judgments and to avoid doing so in drafts. It might be said that the Court was concerned throughout the 1970s and 1980s, as the number of cases before it began to increase, with the establishment of its own authority as an international court and the acceptance of that authority by states parties. The copious citation of its own judgments was one technique for achieving this goal and the Court’s Registrar during those years was rather adamant that foreign sources be cited as sparingly as possible—if at all. However, there were forces at play that made a change of this approach to the comparative perspective both inevitable and irresistible. During this 15 OC-11/90, Exceptions to the Exhaustion of Domestic Remedies (Arts 46(1), 46(2)(a) and 46(2) (b) of the American Convention on Human Rights) IACtHR Series A 11 (1990). 16 Supra n 13. 17 IACtHR Series C 5 (1989). 18 IACtHR Series C 22 (1995). 19 Application No 24276/94, Merits and Just Satisfaction, 25 May 1998, at para 67.

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­ eriod the former Court had not yet developed its practice of granting third p parties leave to file written submissions on cases.20 When third party intervention became an accepted feature of the Court’s procedure in the 1990s, interveners would refer on a regular and systematic basis to judgments of national and international courts in support of their submissions. This development coincided felicitously with the growth of the Internet which rendered access to foreign judgments much easier than it had ever been. The combination of both of these factors meant that, not only were more foreign judgments being cited by the parties and by interveners, but also that judges and lawyers in the Registry could access them in a matter of seconds. It is clear, with the benefit of hindsight, that the Court was unaware of the path it had embarked upon when it chose to cite judgments of the IACtHR in Akdivar.21 That path has led inexorably to the following developments. The Court today has a strong conviction of the relevance of foreign sources and of the interconnections between the different systems of human rights protection. This is undoubtedly linked to the concept of the universality of human rights that encourages international courts and tribunals to engage in dialogue with each other, inter alia, through a reciprocal examination of case law and to learn from one another. Thus the citation of foreign judgments has underlined the need for regular dialogue between international courts, but also between international courts and national courts, in order to ensure a proper degree of consistency in the development of human rights standards and to avoid harmful and damaging fragmentation. It has also led to the ECtHR strengthening its own research capacities through the establishment of the Jurisconsult’s Department which is tasked by the Court with carrying out detailed research, inter alia, on the case law of other national and international courts concerning similar issues.22 Such reports commonly set out not only relevant issues from other international bodies, but also provide a conspectus of legislation ‘and relevant jurisprudence’ in a wide variety of Convention countries with a view to determining whether there exists a European consensus or emerging trend on the issue before the Court. The existence of such a consensus or trend will impact directly on the extent of the margin or appreciation afforded to the respondent state. For example, in Bayatyan v Armenia23 in finding a violation 20 21 22 23

See Harris et al., Harris, O’Boyle and Warbrick: Law of the European Convention on Human Rights, 3rd edn (oup, 2014) at 152–5. Supra n 13. Such reports are prepared mainly in Grand Chamber cases or in other important cases on the Court’s docket. Application No 23459/03, Merits and Just Satisfaction, 7 July 2011, at para 103.

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of Article 9 of the Convention the Court attached decisive importance to the fact that an overwhelming majority of European states had recognised a right of conscientious objection. On the other hand, in Sitaropoulos and Giakoumopoulos v Greece24 the Court noted that there was an absence of uniformity on whether voters living outside their countries had a right to vote in national elections.25 The importance attached by the Court to comparative research has led to a recent decision by the President of the Court to establish an information exchange network which will enable all European supreme courts to have a point of contact within the Court, through the Jurisconsult, to access relevant case law information and to enable the Court to have ready access to important national decisions.26 3

National Courts outside Europe

In the Court’s leading judgments it is today commonplace to see reference to a host of comparative materials where national courts (and international monitoring bodies) have made pronouncements that are of relevance to the issues in a case. While it is clear that the Court does not consider itself in any way bound by these decisions, it will examine them carefully to see whether they reveal a consensus. The materials may be invoked by the parties or by third party interveners or cited in the report prepared by the Registry’s Research Division. For example, in Gäfgen v Germany27 the Grand Chamber was confronted with the argument that real evidence obtained through torture or other breach of Article 3 of the Convention should not be taken into consideration by the national court (‘the exclusionary rule’). The Court noted from the outset that there existed no clear consensus in the states parties to the 24 25

26 27

Application No 42202/07, Merits, 15 March 2012, at paras 74–75. There is a growing scholarship on the issue of consensus. See, for example, Mahoney and Kondak, ‘Common Ground: A Starting Point or Destination for Comparative-Law Analysis by the European Court of Human Rights?’, in Andenas and Fairgrieve (eds), Courts and Comparative Law (oup, 2015) 119; Wildhaber et al., ‘No Consensus on Consensus? The Practice of the European Court of Human Rights’ (2013) 33(7/12) Human Rights Law Journal 248; and Dzehtsiarou and O’Mahony, ‘Evolutive Interpretation of Rights Provisions: A Comparison of the European Court of Human Rights and the u.s. Supreme Court’ (2013) 44(2) Columbia Human Rights Law Review 309. European Court of Human Rights, Speech by the President of the Court, Dean Spielmann, on the Opening of the Judicial Year (30 January 2015). Application No 22978/05, Merits and Just Satisfaction, 1 June 2010.

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Convention on the scope of the exclusionary rule. It then examined, under the rubric of comparative law, the statements of human rights monitoring bodies, referring in particular to General Comments No 7 and No 20 of the un Human Rights Committee as well as observations of the un Committee against Torture to the effect that confession statements obtained by torture should be excluded from evidence, as should all other evidence obtained directly or indirectly by torture, in order to discourage torture and provide safeguards against its repetition.28 The Court also cited a raft of us Supreme Court judgments developing the scope of the exclusionary rule and the doctrine of ‘the fruit of the poisonous tree’ to the effect that ‘evidence will be excluded if it can be shown that “but for” the illegal conduct it would not have been found’.29 A judgment of the South African Court of Appeal was also referred to where real evidence had been excluded by the Court on the grounds that it was tainted by torture.30 The above citations were instrumental in assisting the Court to reach its conclusions on the exclusionary rule. It concluded that incriminating real evidence obtained as a result of acts of torture should never be relied on as proof of the victim’s guilt, irrespective of its probative value. Any other conclusion would only serve to legitimise, indirectly, the sort of morally reprehensible conduct that the authors of Article 3 of the Convention sought to proscribe or to ‘afford brutality the cloak of law’.31 It also observed that there is no clear consensus among the contracting states to the Convention, the courts of other states and other human rights monitoring institutions about the exact scope of application of the exclusionary rule. In particular, factors such as whether the impugned evidence would, in any event, have been found at a later stage, independently of the prohibited method of investigation, may have an influence on the admissibility of such evidence.32 In the leading transsexual judgment, Christine Goodwin v United Kingdom,33 the ngo Liberty had provided the Court with materials showing that there had been statutory recognition of gender re-assignment in Singapore and a similar pattern of recognition in Canada, South Africa, Israel, Australia, New Zealand and all except two of the states of the United States of America. It cited in

28 29 30 31 32 33

Ibid. at paras 70–72. Ibid. at para 73. Ibid. at para 74. Ibid. at para 167. Ibid. at para 174. Application No 28957/95, Merits and Just Satisfaction, 11 July 2002, at paras 55–57.

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particular the cases of Attorney-General v Otahuhu Family Court34 and Re Kevin35 where in New Zealand and Australia transsexual persons’ assigned sex was recognised for the purposes of validating their marriages. The Court famously went on to find breaches of both Articles 8 and 12 of the Convention for failure to afford legal recognition of the applicant’s new post-operative gender. Under Article 12 it said the following about the comparative materials: It may be noted from the materials submitted by Liberty that though there is widespread acceptance of the marriage of transsexuals, fewer countries permit the marriage of transsexuals in their assigned gender than recognise the change of gender itself. The Court is not persuaded however that this supports an argument for leaving the matter entirely to the Contracting States as being within their margin of appreciation. This would be tantamount to finding that the range of options open to a Contracting State included an effective bar on any exercise of the right to marry. The margin of appreciation cannot extend so far. While it is for the Contracting State to determine inter alia the conditions under which a person claiming legal recognition as a transsexual establishes that gender re-assignment has been properly effected or under which past marriages cease to be valid and the formalities applicable to future marriages (including, for example, the information to be furnished to intended spouses), the Court finds no justification for barring the transsexual from enjoying the right to marry under any circumstances.36 It is of particular interest that in the much decried prisoners’ voting judgment, Hirst v United Kingdom (No 2),37 the Grand Chamber cited the Canadian Supreme Court’s judgment in Sauvé v Attorney General for Canada (No 2) and Justice Beverly McLachlin’s remark that ‘to deny prisoners the right to vote was to lose an important means of teaching them democratic values and social responsibility and ran counter to democratic principles of inclusiveness, equality, and citizen participation and was inconsistent with the respect for the dignity of every person that lay at the heart of Canadian democracy’.38 34 35 36 37 38

[1995] 1 nzlr 60. [2001] FamCA 1074. Supra n 33 at para 103. Application No 74025/01, Merits and Just Satisfaction, 6 October 2005. Ibid. at paras 35–36.

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This was followed up in Scoppola v Italy (No 3)39 where the Court was obviously impressed by the fact that judgments of the Canadian Supreme Court, the Constitutional Court of South Africa and the Australian High Court had all struck down absolute bars on prisoner voting. It is striking that very few of the critiques of these judgments that have appeared in the uk have addressed either the propriety of the Court reaching out to the constitutional traditions of national courts outside the ken of the Convention or the fact that these foreign superior courts have reached similar conclusions on the issue. The Court cannot be accused of selective citation of those foreign judgments that support its conclusion (‘cherry picking’) or, as some us judges have put it, of ‘looking over the crowd and picking your friends’.40 Were the Court to engage in selective judgment in this way, it would amount to a serious blight on its use of the comparative perspective. There is no sign of it. It would go against one of the fundamental purposes of the Court’s examination of the comparative record, namely to see whether there exists any consensus or emerging trend that should inform its approach to adjudication of the issues. It would thus make no sense to carry out such a survey with a view to occulting decisions or trends that would embarrass or run counter to the Court’s views. As a gross distortion of the Court’s technique it could lay the basis for subsequent revision requests. There are many examples of the Court citing authorities that do not support its position. In Evans v United Kingdom,41 for example, it cited Nachmani v Nachmani,42 a decision of the Israeli Supreme Court which reached quite the opposite conclusion to that of the Grand Chamber on the question whether the interests of women in bearing children should prevail over a man’s right not to be forced to become a parent. Equally in the 2014 judgment s.a.s. v France,43 about the absolute ban on the public wearing of the full face veil, the Grand Chamber cited various judgments of superior courts which had found against such an absolute ban—a ban which the Court found to pass muster under the Convention in a French context. The Chamber judgment of Schalk and Kopf v Austria44 is another eloquent example. There a Chamber of the Court, which found no violation of the right to marry (Article 12 of the echr), did not 39 40

Application No 126/05, Merits and Just Satisfaction, 22 May 2012, at paras 49–60. This expression has been used in the context of us judges referring to legislative history. Most recently it was used in Justice Scalia’s dissent in Roper v Simmons, supra n 6 at 617: ‘In other words, all the Court has done today, to borrow from another context, is to look over the heads of the crowd and pick out its friends’. 41 Application No 6339/05, Merits, 10 April 2007, at para 49. 42 50(4) p.d. 661 (Israel). 43 Application No 43835/11, Merits and Just Satisfaction, 1 July 2014, at paras 41–52. 44 Application No 30141/04, Merits and Just Satisfaction, 24 June 2010.

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hold back from noting that the interveners had referred to judgments from the Constitutional Court of South Africa, the Courts of Appeal of Ontario and British Columbia in Canada, and the Supreme Courts of California, Connecticut, Iowa and Massachusetts in the United States of America, which had found that denying same-sex couples access to civil marriage was discriminatory!45 4

Judgments of us Courts46

There have been many judgments of United States courts brought to the Court’s attention by the parties or relied on in national court decisions being considered in proceedings before the Court. It is a matter of curiosity that the first reference to a judgment of the us Supreme Court occurred as late as 1985 in the Barthold v Germany47 judgment, concerning commercial speech, in the concurring opinion of Judge Pettiti. Yet there is good reason to believe that the Court, in the development of its freedom of expression jurisprudence, was either directly or indirectly influenced by leading us judgments, such as New York Times v Sullivan,48 without this being explicitly acknowledged. The principles that the limits of acceptable criticism are wider as regards a politician than private citizens, that a distinction must be drawn between opinions and facts, that commercial speech is protected as free speech but at a lesser level as well as the ‘living instrument’ doctrine—are all important principles that have also been developed in United States case law (as well as the case law of other national courts) although their provenance is not specifically referred to in the early case law of the Court or the Commission. To give a further example, the famous opinion of the European Commission of Human Rights in East African Asians v United Kingdom49 that to single out a group for differential treatment on racial grounds (by denying nationals and passport holders a right to enter the country) amounts to degrading treatment in breach of Article 3 of 45 46

Ibid. at para 48. ‘I draw on statements by certain United States Supreme Court Justices … not because I treat their decisions as precedents to be applied in our Courts, but because their dicta articulate in an elegant and helpful manner [church-state related] problems which face any modern court … Thus, though drawn from another legal culture, they express values and dilemmas in a way which I find most helpful in elucidating the meaning of our own constitutional text’: statement by Justice Albie Sachs in S v Lawrence, S v Negal, S v Solberg (4) sa 1176 (cc) 1997. 47 Application No 8734/79, Merits, 25 March 1985. 48 376 u.s. 254 (1964). 49 Application No 4403/70, Commission Report, 14 December 1973.

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the Convention bears a striking resemblance, mutatis mutandis, to the us Supreme Court’s finding in Trop v Dulles50 to the effect that depriving a person of his citizenship amounted to cruel and unusual punishment. Yet nowhere in the Commission’s opinion is this judgment cited or discussed. Nor does the opinion mention that the case was cited – as indeed it was – during the hearing before the Commission.51 While many parties and interveners will bring us judgments to the Court’s attention, which will normally be referred to by the Court in the ‘Relevant national and international Law’ part of the judgment, the Court has rarely relied on such sources as a key component of its legal reasoning.52 On the other hand, it is quite common for dissenting judges to rely considerably on leading us Supreme Court judgments in their opinions, especially in freedom of expression cases where First Amendment law is considerably more protective of free speech than the Court’s jurisprudence.53 The record will disappoint us constitutional lawyers since most of the references are to demonstrate that the Court has listened carefully to those who appeared before it. Only occasionally has the Court mentioned us decisions in the law part of its judgments. Three cases, in particular, stand out: Appleby v United Kingdom,54

50 356 u.s. 86 (1958). 51 Anthony Lester QC represented the applicants in the East African Asians case before the former European Commission of Human Rights. He has told the author that he brought to the Commission hearing Professor Charles Black from the Yale Law School. Professor Black encouraged Lester to refer to the Supreme Court’s holding in Trop v Dulles. See generally Helgadóttir, Influence of American Theories of Judicial Review on Nordic Con­ stitutional Law (Martinus Nijhoff, 2006) at 209–11; and Goldhaber, A People’s History of the European Court of Human Rights (Rutgers University Press, 2007) at 181. For an account of the case, see Lester, ‘Thirty Years On: The East African Case Revisited’ [2002] Public Law 52. 52 See ‘Reference to the Judgments and Decisions of us courts in the Court’s case law (1985– 2012)’, internal document prepared by the Research Division of the Court (on file with author). 53 See, for example, Concurring Opinion of Judge Zupančič in Vejdeland and Others v Sweden Application No 1813/07, Merits and Just Satisfaction, 9 February 2012; Joint Dissenting Opinion of Judges Sajó, Lazarova Trajkovska and Vučinić in Mouvement Raëlien Suisse v Switzerland Application No 16354/06, Merits and Just Satisfaction, 13 July 2012; Concurring Opinion of Judge Pinto de Albuquerque in Fáber v Hungary Application No 40721/08, Merits and Just Satisfaction, 24 July 2012; and Joint Partly Dissenting Opinion of Judges Vučinić and Pinto de Albuquerque in Perinçek v Switzerland Application No 27510/08, Merits and Just Satisfaction, 17 December 2013 and Grand Chamber judgment of 15 October 2015. 54 Application No 44306/98, Merits, 6 May 2003, at paras 46–47.

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Jalloh v Germany55 and, to a lesser extent, m.c. v Bulgaria.56 In these cases the Court has either confirmed its position with reference to us law, contrasted us decisions or has borrowed from the vivid language of leading us judgments to illustrate a point. It thus cannot be said that the ECtHR is significantly influenced by decisions of us courts. On the other hand, us judgments are frequently cited before the Court and are well reflected in the judges’ separate opinions. 5

Public International Law

The Court has looked at principles of public international law on a regular basis throughout its history starting with the Golder v United Kingdom57 judgment and the finding that the Convention was to be interpreted against a background of the principles set out in Article 31 of the vclt.58 It has also had regard to the jurisprudence of other international courts, such as the International Court of Justice, when determining the scope and content of the relevant international norm.59 Since Golder the Court has dealt with cases that have related either directly or indirectly to issues of public international law concerning a wide variety of areas: customary international law,60 international humanitarian law (ihl),61 the law of the sea,62 jurisdiction,63 the International

55 56 57 58

Application No 54810/00, Merits and Just Satisfaction, 11 July 2006, at paras 76 and 105. Application No 39272/98, Merits and Just Satisfaction, 4 December 2003, at paras 143–146. Supra n 12. See Forowicz, The Reception of International Law in the European Court of Human Rights (oup, 2010). There are also specific provisions of the Convention that require the Court to examine international law. These are Article 7 (prohibition of retrospective laws and penalties), Article 15 (derogation in situations of emergency), Article 35 (the rule on exhaustion of domestic remedies) and Article 1 Protocol No 1 to echr (protection of rights to property). 59 See, for example, Hassan v United Kingdom Application No 29750/09, Merits, 16 September 2014, at paras 36 and 82. 60 See Kononov v Latvia Application No 36376/04, Merits and Just Satisfaction, 17 May 2010, at paras 203, 211 and 221. 61 See Forowicz, supra n 58 at 313–48; and Hassan v United Kingdom, supra n 59. 62 Medvedyev and Others v France Application No 3394/03, Merits and Just Satisfaction, 29 March 2010; and Mangouras v Spain Application No 12050/04, Merits and Just Satisfaction, 28 September 2010. 63 Amongst many authorities, Banković and Others v Belgium and Others Application No 52207/99, Admissibility, 12 December 2001.

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Labour Organization,64 interim measures,65 the law of treaties,66 recognition,67 reservations,68 refugee law,69 state immunity,70 state responsibility,71 state succession,72 United Nations law,73 as well as a variety of international treaties (rights of the child, torture and abduction of children).74 It has made it clear in Al-Adsani v United Kingdom75 that the Convention cannot be interpreted in a vacuum and that it must take the relevant rules of international law into account being mindful of the Convention’s special character as a human rights treaty. In Demir and Baykara v Turkey the Court went a step further: The Court, in defining the meaning of terms and notions in the text of the Convention, can and must take into account elements of international law other than the Convention, the interpretation of such elements by competent organs, and the practice of European States reflecting their common values. The consensus emerging from specialised international instruments and from the practice of Contracting States may constitute a relevant consideration for the Court when it interprets the provisions of the Convention in specific cases. In this context, it is not necessary for the respondent State to have ratified the entire collection of instruments that are applicable in respect of the precise subject matter of the case concerned. It will be sufficient for 64

Demir and Baykara v Turkey Application No 34503/97, Merits and Just Satisfaction, 12 November 2008; and Sindicatul ‘Păstorul cel Bun’ v Romania Application No 2330/09, Merits, 9 July 2013. 65 Mamatkulov and Askarov v Turkey Applications Nos 46827/99 and 46951/91, Merits and Just Satisfaction, 4 February 2005. 66 See Forowicz, supra n 58 at 23–69. 67 See Cyprus v Turkey Application No 8007/77, Admissibility, 10 July 1978. 68 Harris et al., supra n 20 at 24–6. 69 Forowicz, supra n 58 at 232–80. 70 Ibid. at 283–308. 71 Behrami and Behrami v France and Saramati v France, Germany and Norway Applications Nos 71412/01 and 78166/01, Admissibility, 2 May 2007. 72 Ališić and Others v Bosnia and Herzegovina, Croatia, Serbia, Slovenia and The Former Yugoslav Republic of Macedonia Application No 60642/08, Merits and Just Satisfaction, 16 July 2014. 73 Nada v Switzerland Application No 10593/08, Merits and Just Satisfaction, 12 September 2012; and Al-Dulimi and Montana Management Inc. v Switzerland Application No 5809/08, Merits and Just Satisfaction, 26 November 2013 and 21 June 2016 (Grand Chamber). 74 Forowicz, supra n 58 at 107–45 and 190–228. 75 Application No 35763/97, Merits, 21 November 2001, at para 55.

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the Court that the relevant international instruments denote a continuous evolution in the norms and principles applied in international law or in the domestic law of the majority of member States of the Council of Europe and show, in a precise area, that there is common ground in modern societies.76 It is not possible to set out in detail the extent to which the Court has explored in its judgments relevant international law standards since the case law is so extensive. Three observations can, however, be made. The first is that the extent to which the Court is called on to examine issues of international law has grown proportionately with the growth of the Court’s docket. Today, many of the Court’s leading judgments involve intricate issues of international law. In cases such as Behrami and Behrami v France,77 Korbely v Hungary,78 Kononov v Latvia,79 Nada v Switzerland,80 Hassan v United Kingdom81 and Jaloud v The Netherlands82 the Court’s judgments contain extensive materials on the relevant principles of international, United Nations and humanitarian law. This trend continues, and cases concerning the relationship between the Convention and Article 103 of the Charter of the United Nations are currently pending before the Grand Chamber.83 Secondly, establishing the scope of the relevant international rules, as in the cases of Vasiliauskas84 and Kononov,85 may require the Court to establish the state of international law at a given historical period as a question of intertemporal law. For example, in Kononov the killing of villagers took place in 1944 and the applicant was only convicted of war crimes in 2004 after Latvia had gained her independence. In examining the applicant’s complaint under Article 7 of the Convention the Court had first to establish what the relevant ihl rules were in 1944 when the killings took place and whether such acts could

76 Supra n 64 at paras 85–86. 77 Supra n 71. 78 Application No 9174/02, Merits and Just Satisfaction, 19 September 2008. 79 Supra n 60. 80 Supra n 73. 81 Supra n 59. 82 Application No 47708/08, Merits and Just Satisfaction, 20 November 2014. 83 See Al-Dulimi and Montana Management Inc. v Switzerland, supra n 73; and Vasiliauskas v Lithuania Application No 35343/05, Merits and Just Satisfaction, 20 October 2015. 84 Ibid. 85 Supra n 60.

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have been considered as war crimes or lawful acts of war.86 The Court’s examination in this case of the relevant principles of ihl both before and after the war is a remarkable example of the extent to which the Court may be required to penetrate the thicket of international law to do justice in the complaint before it. There are also situations where the relevant norm of international law may be far from clear or the subject of outright disagreement between international lawyers, yet the Court is required to take a position on the matter in order to decide the case. In Jones and Others v United Kingdom,87 for example, the question arose whether the rules on state immunity applied also to the officials of the state that carried out acts of torture as well as the state itself.88 The Court reached the conclusion that, while the issue was open to some doubt, the grant of immunity to state officials reflected generally recognised principles of international law. To reach this conclusion the Court examined judgments from the icj and the International Criminal Tribunal for the former Yugoslavia but also judgments on state immunity from Australia, Canada, France, Greece, Italy, New Zealand, Poland and Slovenia.89 Finally, the Court may be called on to seek to accommodate the relevant principles of international law with the special nature of the Convention as a ‘constitutional instrument of public order in the field of human rights’. In one case, currently pending before the Grand Chamber, the Swiss government has argued that where there is a conflict of norms its obligations under the un Charter to give effect to resolutions of the Security Council should prevail over its Convention obligations to respect the applicant’s right of access to a court.90 A similar argument had been made by the United Kingdom in Al-Jedda v United Kingdom91 and Nada v Switzerland92 but had been left open. In Hassan v United Kingdom the Court sought to accommodate Article 5 of the Convention with the right of states under ihl to detain combatants as prisoners of war and other persons considered to amount to a threat to security. The Court’s solution was to read into Article 5 the right to detain certain persons in a war theatre where ihl permitted such detention, subject to certain safeguards against arbitrary detention.93 86 Ibid. at paras 196–213. 87 Applications Nos 34356/06 and 40528/06, Merits and Just Satisfaction, 14 January 2014. 88 See Al-Adsani v United Kingdom, supra n 75. 89 Jones and Others v United Kingdom, supra n 87 at paras 81–94 and 112–149. 90 Al-Dulimi and Montana Management Inc. v Switzerland, supra n 73. 91 Application No 27021/08, Merits and Just Satisfaction, 7 July 2011, at paras 64–68. 92 Supra n 73 at para 111. 93 Supra n 59 at para 105.

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These cases reflect the existence of a certain tension between the general principles of international law and the obligations under the Convention. Occasionally, and not without controversy, the Court has had regard to the special nature of the Convention as the necessary prism through which international law must pass.94 Its previous rulings on the binding nature of interim measures and on reservations and recognition95 are informed by the Court’s (and the former Commission’s) identification of the Convention as being ‘unlike international treaties of the classic kind’. For the Court ‘the Convention comprises more than mere reciprocal engagements between Contracting States. It creates, over and above a network of mutual, bilateral undertakings, objective obligations which, in the words of the preamble, benefit from a “collective enforcement”’.96 The cases therefore also demonstrate that the Court’s jurisprudence continues not only to interpret the Convention against the background of international law, but at the same time to make an important contribution to its development in the area of human rights protection. 6

The Judgments of the Inter-American Court of Human Rights97

There has always been enthusiasm in the ECtHR for the case law of the IACtHR but this has not been necessarily reflected in its citations of that court’s case law. The enthusiasm began with the participation of Council of Europe experts in the drafting of the American Convention on Human Rights. This was followed by modest staff exchanges between the secretariats of the InterAmerican­Commission on Human Rights and the former European Commission of Human Rights. There have also been reciprocal visits by delegations 94

95 96 97

For a critique of the Court’s approach, see, for example, Pejic, ‘The European Court of Human Rights’ Al-Jedda Judgment: The Oversight of International Humanitarian Law’ (2011) 93 International Review of the Red Cross 837. See also ibid. at Dissenting Opinion of Judge Spano joined by Judges Nicolaou, Bianku and Kaladjieva. Supra nn 65, 67 and 68. Ireland v United Kingdom Application No 5310/71, Merits and Just Satisfaction, 18 January 1978, at para 239. See, generally, Cano-Palomares, Diálogo entre jurisdicciones supranacionales de derechos humanos: El Tribunal Europeo de Derechos Humanos y la Corte Interamericana de Derechos Humanos, Paper delivered at a conference on human rights in the 21st century, University of Cadiz, 5–7 June 2014 (proceedings to be published in 2015). The author, a member of the Court’s Research Department, spent four months working for the IACtHR as part of an exchange programme instituted by both courts. I have drawn liberally from this excellent study of the cross-pollination between the two jurisdictions.

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from both courts with a view to exchanging views on issues of substantive case law and procedure. In 2014 six of the judges of the IACtHR visited Strasbourg for a week in the course of October. Furthermore, in recent years lawyers from the ECtHR’s registry have spent up to four months working in the registry of the IACtHR and vice versa, with a view to familiarising themselves with the working methods of each court and their case law, as well as explaining to judges and lawyers the procedural and organisational features of their respective courts. As a result of these recent exchanges, each court has appointed a liaison officer or focal point to provide information on relevant case law developments and agreement has been reached on providing access to IACtHR case law through the ECtHR’s search tool (Hudoc). Thus there is a natural interest in each other’s work. This is not at all surprising given the similarity of the rights and freedoms protected by both Conventions, the existence of similar criteria of admissibility and the attachment of both courts to certain common principles of interpretation such as the proportionality principle, the interpretation of the Convention in the light of the r­ elevant provisions of the vclt, the effectiveness principle and the evolutive principle of interpretation (the so-called ‘living instrument doctrine’).98 ­However, it must be immediately conceded that this natural attraction ­appears much stronger on the side of the IACtHR when one examines closely the ­statistics of citation. While one cannot say that the attraction of the IACtHR for E ­ CtHR judgments is completely unrequited, there is nevertheless a clear dissymmetry in the frequency with which both courts cite each other’s case law. Thus the ECtHR (out of more than 10,000 judgments) has cited judgments or opinions of the I­ ACtHR in 25 of its judgments, whereas the IACtHR has ­cited the case law of the European Court in 123 judgments. This amounts to 45 per cent of the 276 judgments handed down by the IACtHR. At first sight this strongly suggests that the pursuit of dialogue is unidirectional and that the European Court is not paying sufficient attention to the developing case law of the Inter-American Court. However, as Guillem Cano-Palomares points out, the dissymmetry can also be explained with reference to other factors.99 Thus he underlines that the InterAmerican Court is a much younger institution than the European Court and gave its first judgment only in 1987. In ­consequence, many of the legal issues that the IACtHR was called on to examine such as the criteria concerning the issue of reasonable time or the meaning of inhuman and degrading treatment and punishment, had already been the subject of well-established Strasbourg jurisprudence. This explains the tradition that has developed in the IACtHR 98 Ibid. 99 Ibid. at Section 2.

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from the very beginning of its e­ xistence of looking systematically to Strasbourg jurisprudence to identify and import standards that had already been consolidated in Europe. Another key explanation lies in the qualitative differences between the types of cases that are examined in each jurisdiction. Thus while the European Court had been focusing during the period from 1970 to 1990 on important questions of society ­confronting the established western democracies (for example, issues concerning adoption, homosexuality, transsexualism, length of criminal and civil proceedings and fair trial), the Inter-American Court has been dealing from its inception with the most fundamental violations of human rights—disappearances, massacres, extrajudicial killings and other excesses caused by the civil wars of the ­region. The role of fine-tuning existing standards was predominantly, with some notable exceptions, a Strasbourg calling. Other explanations relating to the far higher traffic of business in Strasbourg, which makes ­comparative research more difficult, and the issue of language are also relevant in this context.100 Yet while such factors provide some contextual explanations for the hugely favourable reception of ECtHR case law by the IACtHR, they remain only partially convincing. The reality is that the ECtHR has been so preoccupied since the 1990s with its runaway caseload that dialogue with other international courts as a matter of judicial comity seemed to have taken a back seat. Fortunately, the ECtHR has, over the last ten years at least, fully awakened to the richness and relevance of the Inter-American Court’s case law. That this development has more or less coincided with an avalanche of cases dealing with fundamental human rights issues under Articles 2 and 3 of the Convention against Turkey and, as a result of the opening up of the Convention to Russia and other eastern European countries, is far from accidental. In many respects this development has conferred a new relevance on the jurisprudence of both courts in respect of Articles 2 and 3 issues. It is undoubtedly in these areas that dialogue between the two regional Courts has involved a degree of cross-fertilisation and where international jurisprudence on such fundamental questions has been beneficially fortified by mutually supporting judgments.101 Some recent examples illustrate the point. In Gäfgen v Germany102 the Court was confronted with the question of the legal characterisation 100 Strasbourg judgments are in English and/or in French. IACtHR judgments are drafted in Spanish and although there are English translations available of the leading judgments, these are not approved by the Court and follow much later: see Cano-Palomares, supra n 97 at 6–7. 101 For an analysis of divergent and convergent case law, see ibid. at Sections 3–4. 102 Supra n 27 at para 66.

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of a threat to torture someone. It referred to the IACtHR judgment of Maritza Urrutia v Guatemala103 (among other authorities) to sustain its finding that the ‘threat to torture can amount to torture, as the nature of torture covers both physical pain and mental suffering. In particular the fear of physical torture may itself constitute mental torture’.104 In Varnava and Others v Turkey,105 which concerned large-scale historic disappearances of persons in Cyprus, the Court referred to cases such as Blake v Guatemala,106 Serrano Cruz Sisters v El Salvador107 and Heliodoro Portugal v Panama108 when examining whether the procedural obligation to carry out an effective investigation arose in respect of disappearances that took place before the international court had jurisdiction ratione temporis. The ECtHR noted that the procedural obligation under Article 2 arising from disappearances operates independently of the substantive obligation. It notes that the Inter-American Court, and to some extent the Human Rights Committee, apply the same approach to the procedural aspect of disappearances examining allegations of denial justice or judicial protection even where the disappearance occurred before recognition of its jurisdiction.109 Also in the area of procedural obligations under Article 2, the Grand Chamber in Al-Skeini and Others v United Kingdom110 referred to the IACtHR judgment in Mapiripán Massacre v Colombia,111 where the IACtHR had stressed that the country’s conditions, no matter how difficult, did not release the state party to the American Convention of its obligations set forth in the treaty. These remained applicable. The Inter-American Court emphasised that when the state conducts or tolerates actions leading to extra-legal executions, not investigating them adequately and not punishing those responsible, as appropriate, it breaches the duties to respect rights set forth in the Convention and to ensure their free and full exercise, both 103 IACtHR Series C 103 (2003). 104 Supra n 27 at para 108. 105 Applications Nos 16064/90 et al., Merits and Just Satisfaction, 18 September 2009, at paras 93–98. 106 IACtHR Series C 36 (1998). 107 IACtHR Series C 118 (2004). 108 IACtHR Series C 186 (2008). 109 Varnava and Others v Turkey, supra n 105 at para 147. 110 Application No 55721/07, Merits and Just Satisfaction, 7 July 2011, at para 94. 111 IACtHR Series C 134 (2005).

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by the alleged victim and by his or her next of kin [and] does not allow society to learn what has happened as it reproduces the conditions of impunity for [these types] of facts to happen once again.112 In an important passage in the Al-Skeini judgment the European Court developed this principle: [T]he procedural obligation under Article 2 continues to apply in difficult security conditions, including in a context of armed conflict. It is clear that where the death to be investigated under Article 2 occurs in circumstances of generalised violence, armed conflict or insurgency, ­obstacles may be placed in the way of investigators and … concrete constraints may compel the use of less effective measures of investigation or may cause an investigation to be delayed. Nonetheless, the obligation under Article 2 to safeguard life entails that, even in difficult security conditions, all reasonable steps must be taken to ensure that an effective, independent investigation is conducted into alleged breaches of the right to life.113 Finally, reference must be made to the ECtHR judgments in Marguš v Croatia114 (compatibility of amnesties for grave breaches of human rights with the Convention) and Opuz v Turkey115 (repetitive spousal violence) where the Court borrowed significantly from IACtHR jurisprudence. Both judgments represent a high point in the European Court’s willingness to follow and be inspired by the case law of the IACtHR. In Marguš the European Court recognised that the issue of amnesty in respect of war crimes and crimes against humanity had been examined extensively by the IACtHR and set out a comprehensive account of that court’s case law.116 In the law part of the judgment the Court noted that the IACtHR has firmly set its face against amnesties in respect of such crimes. The relevant passage reveals a clear recognition by the European Court that as regards issues such as amnesty the IACtHR speaks with an authoritative voice based on considerable first-hand experience:

112 113 114 115 116

Ibid. at para 238. Al-Skeini and Others v United Kingdom, supra n 110 at para 164. Application No 4455/10, Merits and Just Satisfaction, 27 May 2014. Application No 33401/02, Merits and Just Satisfaction, 9 June 2009. Supra n 114 at paras 60–66.

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The Court also notes the jurisprudence of the Inter-American Court of Human Rights, notably the above-cited cases of Barrios Altos v. Peru, Gomes Lund et al v. Brazil, Gelman v. Uruguay and The Massacres of El Mozote and Nearby Places v. El Salvador, where that court took a firmer stance and, relying on its previous findings as well as those of the Inter-American Commission on Human Rights, the organs of the United ­Nations and other universal and regional organs for the protection of ­human rights, found that no amnesties were acceptable in connection with grave breaches of fundamental human rights since any such amnesty would seriously undermine the States’ duty to investigate and punish the perpetrators of such acts (see the above-cited judgments of the Inter-American Court of Human Rights in the cases of Gelman v. Uruguay, § 195, and Gomes Lund et al v. Brazil, § 171). It emphasised that such ­amnesties contravene irrevocable rights recognised by international human rights law (see Gomes Lund et al, § 172).117 In Opuz v Turkey118 the Court recorded violations of Articles 2 and 3 because of the failures of the respondent state to take effective steps to protect the life of the applicant from her husband’s violence. It also considered the question of discrimination (Article 14) in conjunction with Articles 2 and 3. In finding a breach of this provision it relied, inter alia, on the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (as well as findings by the un Committee on the Elimination of Discrimination against Women) and a finding by the Inter-American Commission on Human Rights in Maria da Penha v Brazil119 that held violence against women constituted a form of discrimination owing to the state’s failure to exercise due diligence to prevent and investigate a domestic violence complaint. Later the Inter-American Court in Gonzáles and Others (‘Campo Algodonero’) v Mexico120 referred in turn to the Opuz judgment in a case concerning the killing of women in Juárez (Mexico) to illustrate the principle of indirect discrimination­ 117 Ibid. at para 138. See also for a discussion on the right to truth, which has been recognised in IACtHR case law, El-Masri v The Former Yugoslav Republic of Macedonia Application No 39630/09, Merits and Just Satisfaction, 13 December 2012, and especially Joint Concurring Opinion of Judges Tulkens, Spielmann, Sicilianos and Keller; and Concurring Opinion of Judges Casadevall and López Guerra. 118 Supra n 115. 119 Case 12.051, Report No 54/01 (2001). 120 IACtHR Series C 205 (2009) at para 396.

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against women whereby discrimination occurs when a law which appears neutral on its face has adverse effects on women which cannot be explained by any objective factors other than discrimination – a well-known principle of eu and us discrimination law applied by the ECtHR in d.h. and Others v Czech Republic.121 7 Conclusion The Court has demonstrated that it is willing to take into consideration the judgments of national courts, both within and outside of Europe, and of international tribunals as well as principles of international law. If anything its practice is deepening as the concept of dialogue with such courts is seen as an essential part of the Court’s process of adjudication going beyond mere judicial comity.122 It is obviously more than a desire to engage in dialogue for the sake of dialogue or to be seen to take seriously the research that has been carried out by the parties and interveners. Such dialogue is taking place also as part of a conscious policy to fortify the legitimacy of the Court’s judgments by demonstrating that its findings are not pure inventions by the Court but the reflection of rules and practices to which other important courts in the world have also subscribed. This is essentially the same point that the us Supreme Court was making in Atkins v Virginia123 and Roper v Simmons.124 It is most graphically seen in Grand Chamber judgments such as Vinter and Others v United Kingdom where the Court points out that there is ‘now clear support in European and international law for the principle that all prisoners, including those serving life sentences, be offered the possibility of rehabilitation and the prospect of

121 Application No 57325/00, Merits and Just Satisfaction, 13 November 2007. 122 See speech by the President of the Court, Dean Spielmann, on the Opening of the Judicial Year, supra n 26: ‘Of course, it is mainly with the other national and international courts that we have been pursuing our dialogue in 2014.… However, I would like to mention the visit of a few days that we received from our sister institution on the American continent, the Inter-American Court of Human Rights. I am pleased to note the ever-closer relationship that has been built up, over the years, between our two courts. In 2015 we will receive a delegation from the International Court of Justice. These meetings reflect our idea of an international court that is open and receptive to other courts. This is surely the best antidote to avoid becoming stuck in one’s ways’. 123 Supra n 3. 124 Supra n 6.

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release if that rehabilitation is achieved’.125 The case of Othman (Abu Qatada) v United Kingdom126 is another example where the Court has prayed in aid, as a well-established international principle, the view that evidence adduced by torture cannot be used in court. The Court is also paying increased attention to the judgments of the IACtHR, especially in cases that concern violations of Articles 2 to 5 of the Convention-after a slow start. Surprisingly, the ECtHR has not been especially swayed by the constitutional case law of the United States. A keen observer of Strasbourg jurisprudence could be forgiven for thinking otherwise. Although there are many references to us decisions in its case law, these are not usually part of the key legal reasoning employed by the Court to reach its conclusion although dissenting judges have frequent recourse to them to illustrate their position. The explanation undoubtedly lies in the higher protection afforded to many rights under us constitutional law particularly in the fields of freedom of expression and the criminal law. There are three factors at play that are at the root of this development of the Court’s practice. The first is the practice of intervening ngos in drawing the Court’s attention to foreign judgments and decisions that the parties may not have referred to in their pleadings. Second, the Court has sought to build up its relations and increase its dialogue not only with many national courts, but also with important courts and bodies such as the un treaty monitoring bodies, the IACtHR, the icj, the cjeu and the International Committee of the Red Cross. This has taken the form of visits by delegations of the Court to the headquarters of these institutions and the appointment of in-house Liaison Officers to act as points of contact with their secretariats. In this way important case law developments will be brought directly to the Court’s attention either through the reports prepared by the Research Division or discovered at first hand by judges in the course of an exchange of views on legal topics of common interest. Finally, in keeping with the Court’s interest in encouraging 125 Applications Nos 66069/09 et al., Merits and Just Satisfaction, 9 July 2013, at para 114. 126 Application No 8139/09, Merits and Just Satisfaction, 17 January 2012. The Court observed at para 266: ‘Strong support for that view is found in international law. Few international norms relating to the right to a trial are more fundamental than the exclusion of evidence obtained by torture. There are few international treaties which command as widespread support as uncat. One hundred and forty-nine States are party to its provisions, including all Member States of the Council of Europe … uncat reflects the clear will of the international community to further entrench the ius cogens prohibition on torture by taking a series of measures to eradicate torture and remove all incentive for its practice’.

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dialogue, the Court has developed its Research Department, under the authority of its Jurisconsult, to furnish the Grand Chamber with detailed reports on relevant national and international legal developments in order to ensure that it is kept fully abreast of the most important developments in the cases it has under consideration. A critic might question the legitimacy of an international court taking into account judgments from courts beyond Europe where the social, economic and political circumstances underlying the case law may be unknown to the Court. Is it right that the ECtHR should be looking to the IACtHR or the us courts when these bodies are far removed from European realities? Should a European court not be more circumspect in its practice? These are legitimate questions and if the ECtHR was systematically following the jurisprudence of the IACtHR or the case law of the un Human Rights Committee or the us ­Supreme Court, its practice and its independence as a court could un­ derstandably be called into question on such grounds. But the answer lies in the ­prudent manner in which the Court has regard to foreign sources. Its practice is not systematic but cautious. It seeks to learn from other courts and to strive for consistency. It does not consider itself bound to follow any foreign authority. Indeed there are many instances, for example, where the case law of the European and the Inter-American Courts diverge.127 It is t­elling that when the Court invokes foreign sources as part of its legal ­reasoning—in a relatively limited number of leading judgments—it is seeking to examine whether there is a common practice in respect of issues that raise the most fundamental human rights problems such as the compatibility of amnesty laws or the use of real evidence gained through torture. Such a practice is not called into question by the states parties for the good reason that there is  a general acceptance that the European Court of Human Rights—the world’s foremost international human rights court—should keep track of ‘evolving standards of decency’ as it addresses the pressing challenges of our times and would be remiss not to do so. Its influence and legitimacy as an international court, both inside and outside Europe, are undoubtedly enhanced by it. Trans-judicial communication has thus become an essential feature of the Court’s adjudicatory process in its most important cases. It is likely to develop in importance as states criticise the Court for judicial activism since the obvious and natural defense to such charges is to demonstrate that the Court’s view is confirmed by an identifiable international practice or trend that goes 127 See Cano-Palomares, supra n 97.

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in the same direction. We can thus conclude that the ECtHR is not only demonstrating in its practice a European respect for the opinions of mankind, but a decent European respect for such opinions. There is, however, one dark cloud on the horizon that has settled not over Strasbourg but over Luxembourg. It is somewhat paradoxical that at a time when the ECtHR’s practice of acknowledging the work of other courts is developing apace that the practice of the cjeu is developing in quite the opposite direction to the point that the cjeu is no longer—or only scarcely—citing judgments of the ECtHR when it interprets provisions of the eu Charter of Fundamental Rights.128 Indeed, it appears to have little practice of referring to international and comparative materials either.129 With such an insular and parochial approach to citing foreign sources the cjeu is thus strangely out of sync with not only the ECtHR but many of the superior courts throughout the world arguably to the detriment of its own legitimacy and influence. It is reminiscent of the early practice of the ECtHR in the 1960s and 1970s, mentioned earlier, when there was an obvious concern of the Court to build up its own reputation and authority. Yet the reputation of the cjeu is on solid grounds and it has no real need to cut itself off from the civilising influences of other important jurisdictions even in respect of the interpretation and application of human rights standards. There are certainly many reasons for the recently developed practice of not citing the judgments of the ECtHR and the cjeu’s manifest dislike of the possible accession of the eu to the echr is likely to be one of the most important of them. This is a leading European court that is saying to the ECtHR that it needs no outside assistance to interpret and apply the human rights provisions of the eu Charter. Yet there can be no doubt on reading the Court’s judgments that the cjeu is, in fact, taking ECtHR jurisprudence into account as it has done openly and fully in the past. It has just decided not to acknowledge that it is doing so. Yet there are important lessons to be learned from this development, namely that the refusal to acknowledge valuable external sources can be used by a 128 See McCrudden, ‘Using Comparative Reasoning in Human Rights Adjudication: The Court of Justice of the European Union and the European Court of Human Rights Compared’ (2013) 15 Cambridge Yearbook of European Studies 383; Callewaert, ‘To accede or not to accede: European protection of fundamental rights at the crossroads’ (2014) European Journal of Human Rights 496 at 502–3; and Callewaert, The Accession of the European Union to the European Convention on Human Rights (Council of Europe Press, 2014) at 32–3. 129 De Búrca, ‘After the eu Charter of Fundamental Rights: The Court of Justice as a Human Rights Adjudicator?’ (2013) 20(2) Maastricht Journal of European and Comparative Law 168 at 176–8.

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judicial body not only in the belief that it is increasing its legitimacy vis-à-vis national courts, but also to signal its discontent with the general trend of looking to the work of other courts inherent in the comparative perspective and, in so doing, to draw attention to its own perceived unchallengeable authority as a court. However, by adopting such a stance, is there not a risk that in the long run the cjeu will undermine its credibility and legitimacy as a judicial body when it is clear that such a policy is motivated by extraneous considerations that are not related to the cases under examination, that the parties before it (and possibly the Advocate General) have referred to outside sources in their pleadings and when it is plain that such sources are in fact being taken into account sub silentio? Can this really be a solid basis on which to rest the unity and coherence of eu law?130

130 See Opinion 2/13: The compatibility with eu law of the Draft Agreement for eu accession to the European Convention on Human Rights, 18 December 2014, EU:C:2014:2454. The point is cogently made by de Búrca, ibid. at 184: And yet the three years since the Charter came into force reveals that the cjeu is referring even less now to the echr than it did before, and even more rarely to the case law of the Court of Human Rights. More worryingly still, there has been a steady trend towards dispensing with the need for an Advocate General’s Opinion in a great many cases, including in 22 of the 124 cases raising human rights claims based on the Charter since 2009. At present, the cjeu’s main focus seems to be on ensuring the acceptability of its judgments to the national courts of the Member States, with less regard for other relevant constituencies including litigants and the public more broadly. Notably, the Court seems largely unconcerned about the external impact and influence of its rulings. The Court appears to have concluded that its existing style and methodology is best suited to maintaining its legitimacy and the acceptability of its rulings to Member State courts. By so doing, however, I suggest that the cjeu, by emphasizing the autonomy of eu law and of its own interpretation, is missing the opportunity of developing informed expertise in the field of human rights adjudication, and of ensuring that its standards of rights protection are at least as developed as the relevant regional and international standards. The Court is also missing the opportunity to improve the quality and fairness of its judgments and to strengthen their legitimacy in the eyes of European citizens and other relevant constituencies.

Appendix

Harmonising the Jurisprudence of Regional and International Human Rights Bodies: A Literature Review Chloe Cheeseman 1 Introduction This Background Paper was prepared for an Expert Workshop at the Human Rights Law Centre, University of Nottingham held on 24 to 25 June 2013. In it I have sought to provide a brief review of literature relevant to the harmonisation of jurisprudence within regional and international human rights systems and an overview of the extent to which the un human rights treaty monitoring bodies and regional human rights courts and commissions have cited one another’s jurisprudence/practice, as has been identified in recent scholarship. Examples are not exhaustive but intended to illustrate the range of ways in which external citations have been used. Also set out are the normative and practical arguments for and against this practice and a review of the current thinking and commentary about the desirability of harmonisation.

2

Identifying Harmonisation

A

The Phenomenon of Judicial Borrowing

There has been increasing scholarly recognition of an international judicial phenomenon that Anne-Marie Slaughter terms ‘transjudicial communication’.1 National and international judicial bodies are communicating with each other via formal and ­informal channels, including making citations to one another’s precedents in their judgments.2 Slaughter and Bork have both recognised this as a trend on the 1 Slaughter, ‘A Typology of Transjudicial Communication’ (1994) 29(1) University of Richmond Law Review 99; Slaughter, ‘A Global Community of Courts’ (2003) 44(1) Harvard International Law Journal 191; and Slaughter, A New World Order (Princeton University Press, 2004). 2 Frishman, ‘Transnational Judicial Dialogue as an Organisational Field’ (2013) 19(6) European Law Journal 739; Glendon, ‘Comparative Law in the Age of Globalization’ (2014) 52(1) Duquesne Law Review 1; Glendon, Rights Talk: The Impoverishment of Political Discourse (The Free Press, 1991); and Voeten, ‘Borrowing and Non-Borrowing among International Courts’ (2010) 39(2) Journal of Legal Studies 547.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004284258_022

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increase,3 though the empirical evidence for this has been debated.4 Venter argues that ‘it is generally known that there is a global dialogue among judges’.5 Much attention has been focused on the United States Supreme Court’s use of international citations,6 but the phenomenon has also been identified and investigated in other judicial settings, such as other domestic constitutional courts,7 international dispute resolution tribunals—including the World Trade Organization (wto) Dispute Settlement Panels, the Iran-us Claims Tribunal and the International Tribunal for the Law of the Sea—and international criminal tribunals including the tribunals for Rwanda (ictr) and the former Yugoslavia (icty).8 De Wolf and Wallace argue that out of this  trend an ‘emerging global community of courts is developing’, as international jurists increasingly influence each other’s interpretations of legal rules.9 The phenomenon of judicial communication or ‘borrowing’ has been particularly noted within the human rights context,10 in constitutional courts as well as at the international and regional levels.

3 4 5

6 7 8

9

10

Slaughter (2004), supra n 1; and Bork, Coercing Virtue: The Worldwide Rule of Judges (aei Press, 2003). Black and Epstein, ‘(Re-)Setting the Scholarly Agenda on Transjudicial Communication’ (2007) 32(3) Law and Social Inquiry 789. Venter, ‘Book Review: Tania Groppi and Mari-Claire Ponthoreau (eds), The Use of Foreign Precedents by Constitutional Judges’ (2014) 12(1) International Journal of Constitutional Law 261 at 263. Black and Epstein, supra n 4; Glendon (2014), supra n 2; and Voeten, supra n 2. Jackson, ‘Transitional Discourse, Relational Authority, and the u.s. Court: Gender Equality’ (2003) 37(2) Loyola of Los Angeles Law Review 271. Borda, ‘The Direct and Indirect Approaches to Precedent in International Criminal Courts and Tribunals’ (2013) 14(2) Melbourne Journal of International Law 608; and Miller, ‘An International Jurisprudence? The Operation of “Precedent” Across International Tribunals’ (2002) 15(3) Leiden Journal of International Law 483. De Wolf and Wallace, ‘The Overseas Exchange of Human Rights Jurisprudence: The u.s. Supreme Court in the ECtHR of Human Rights’ (2009) 19(3) International Criminal Justice Review 287 at 287. Groppi and Ponthoreau (eds), The Use of Foreign Precedents by Constitutional Judges (Hart Publishing, 2013); McCrudden, ‘A common law of human rights? Transnational judicial conversations on constitutional rights’ (2000) 20(4) Oxford Journal of Legal Studies 499 at 528; Pasqualucci, ‘The Harmonization of Human Rights Laws: Guaranteeing the Plurality of Individual Rights’, in Backer, Harmonizing Law in an Era of Globalization: Convergence, Divergence, and Resistance (Carolina Academic Press, 2007) 35 at 38; and Slaughter, ‘Judicial globalization’ (2000) 40(4) Virginia Journal of International Law 1103 at 1111.

Literature Review

B

597

Citations and Their Relationship with Influence

The next part of this chapter reviews the extent to which international and regional human rights bodies reference one another. Studying formal citations is an obvious way to do this. However, there are limitations in using them as a tool to analyse the cross-fertilisation of human rights jurisprudence. An external citation is not transparent in revealing its influence. Quantitative studies of external citations cannot be used in isolation to establish borrowing practices because some types of reference indicate a higher level of influence than others. McCrudden creates some distinctions between different categories of citation: passing references of ‘minor relevance’, judges ‘following’ a case as an authority, or the use of external cases to ‘distinguish’ their interpretation.11 He has urged greater academic engagement with how citations and references are employed in order to better understand the phenomenon of borrowing. However, putting citations into these different categories in practice may be a challenging task. Neuman and Voeten both caution that it is possible to overestimate the influence of a citation that is actually ‘decorative or rhetorical’.12 The reverse is also true. For example, in her study of the way the European Court of Human Rights (ECtHR) and European Commission of Human Rights have engaged with international law in their jurisprudence, Forowicz concludes that they have been ‘reluctant to grant too much weight to international sources’.13 However, in Rachovitsa’s review of Forowicz’s work, she finds that ‘many of the discussed cases could support the reverse conclusion, meaning that the ECtHR actually openly grants significant weight to international law’.14 She presents Mamatkulov and Askarov v Turkey15 and Saadi v United Kingdom16 as examples. Secondly, studying only formal citations may well underestimate the extent to which judges have been influenced by external decision(s). Slaughter’s work has set out the myriad formal and informal communications between jurists from different systems that allow for the exchange of ideas.17 The movement of jurists between systems also means that transfers of human rights norms and concepts may occur, even if their origins remain formally unacknowledged.18 As Voeten and Neuman have both 11 12

McCrudden (2000), ibid. at 512. Neuman, ‘The External Reception of Inter-American Human Rights Law’ (2011) Special Edition Quebec Journal of International Law 99 at 101; and Voeten, supra n 2. 13 Forowicz, The Reception of International Law in the European Court of Human Rights (oup, 2010) at 384–5. 14 Rachovitsa, ‘Book Reviews’ (2011) 11(4) Human Rights Law Review 795 at 798. 15 Applications Nos 46827/99 and 46951/99, Merits and Just Satisfaction, 4 February 2005. 16 Application No 13229/03, Merits and Just Satisfaction, 29 January 2008. 17 Slaughter (1994), supra n 1; Slaughter (2003), supra n 1; and Slaughter (2004), supra n 1. 18 Neuman (2011), supra n 12.

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argued, the absence of an international citation does not automatically indicate the absence of transjudicial influence.19 Venter argues that many judges ‘take note’ of comparative research, but ‘without acknowledging it in their written judgments’.20 A recent volume by Groppi and Ponthoreau presents extensive research of the formal and informal use of external case law and precedent in 16 national constitutional courts, including human rights case law.21 The book’s goal is ‘to assess, beyond the vast amount of theoretical scholarship, the reality and true extent of transjudicial communication between courts by looking directly at case law’.22 To this author’s knowledge, a comparably systematic piece of research on the exchange of regional and ­international human rights jurisprudence has not yet been conducted. The true extent of transjudicial dialogue at the level of international and regional human rights courts remains an underexplored topic.23 These limitations in the research are reflected in much of this literature review. As Voeten concludes from his preliminary analysis of judicial cross-referencing, ‘future studies should seek to account for both the presence and the absence of explicit connections between courts rather than to simply document cross citations where they occur’.24

C

The Extent to which Human Rights Courts and Other Monitoring Bodies Refer to Each Other’s Jurisprudence and Practice or to Other International Law Sources

Borda has noted that the extensive literature on transjudicial communication has largely focused on domestic courts and their use of judgments from foreign jurisdictions.25 By comparison, the literature on the exchange of precedents between international and regional courts is not as extensive.26 Terris, Romano and Swigart observed less than a decade ago that ‘[t]he role of precedent across international courts has not yet been thoroughly studied, since it is only recently that the number of international rulings of most courts has become sizeable’.27 As Voeten identifies, as yet there is little comparative evidence that demonstrates how often, or why, international tribunals

19 Voeten, supra n 2; and Neuman (2011), ibid. 20 Venter, supra n 5 at 261. 21 Groppi and Ponthoreau, supra n 10. 22 Ibid. at 3. 23 Frishman, supra n 2. 24 Voeten, supra n 2 at 573. 25 Borda, supra n 8. 26 Ibid. at 609. 27 Terris et al., The International Judge: An Introduction to the Men and Women Who Decide the World’s Cases (oup, 2007) at 120.

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refer to one another’s judgments.28 One important study averred that international jurisprudential cross-referencing is extremely limited. Terris, Romano and Swigart’s research, largely based on interviews with a range of international judges between 2004 and 2006, looked at jurisprudential referencing at the icty, the ictr, the Special Court for Sierra Leone, the International Criminal Court, the International Court of Justice, the ECtHR, the International Tribunal for the Law of the Sea and the World Trade Organization Appellate Body.29 They summarise that jurisprudential dialogue ‘does not happen often’, but only ‘from time to time’,30 and ‘citing is generally done sparingly, selectively, and grudgingly’.31 However, there are a number of other studies that explore transjudicial influences within one or several human rights courts through analysing cross-citations, which reach different conclusions. Some of these have taken a largely quantitative approach, while others attempt to establish the degree of influence of external jurisprudence as well. These studies are used below to build up a picture of the borrowing practices of the main regional human rights courts and of the Human Rights Committee. These studies tend more to support Voeten’s conclusions from his study of international human rights courts, international criminal tribunals and dispute resolution tribunals that ‘there are large asymmetries in the extent to which international courts rely on each other’s jurisprudence’.32 He challenges Slaughter’s ideal of a ‘horizontal network’ of courts.33 There are some courts which clearly engage in much more open and enthusiastic citation and borrowing than others.

(i)

The Inter-American Court of Human Rights: A ‘Universalistic’ Approach

Since its inception, the Inter-American Court of Human Rights (IACtHR) has actively looked outwards in its judgments and drawn extensively on regional and international instruments and jurisprudence to inform its interpretations. In Pasqualucci’s most recent study of the Court’s practice and procedures, she notes that the Court ‘regularly supplements its interpretation of the provisions of the American Convention with references to other treaties, its own case law, and that of other international tribunals and bodies’.34 The Court has explicitly stated its practice of referencing the corpus juris 28 Voeten, supra n 2 at 548. 29 Terris et al., supra n 27. 30 Ibid. at 119. 31 Ibid. at 120. 32 Voeten, supra n 2 at 549. 33 Ibid. at 572. See Slaughter (2003), supra n 1; and Slaughter (2004), supra n 1. 34 Pasqualucci, The Practice and Procedure of the Inter-American Court of Human Rights, 2nd edn (cup, 2013) at 13.

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of international human rights law to interpret the rights protected by the American Convention.35 Citation analysis supports these assertions. In Shelton’s survey of the first 15 years of the Court’s operations,36 she notes references to the European Convention on Human Rights (echr),37 the International Covenant on Civil and Political Rights (iccpr),38 decisions of the ECtHR39 and decisions of the International Court of Justice (icj).40 Later studies confirm this trend. Miller’s survey of 102 judgments finds references to the decisions of other tribunals—including the ECtHR, the icj and the Court of Justice of the European Union (cjeu)—on 45 occasions.41 Sixteen of these were to the ­ECtHR.42 From Killander’s study of IACtHR cases on the topic of freedom of expression, he concludes that the IACtHR has ‘generally followed a universalistic approach’, by extensively relying on regional and United Nations human rights instruments, as well as on decisions from the international and regional human rights bodies, in order to interpret its treaty provisions.43 Neuman points out some of the different uses to which external references have been put by the IACtHR.44 Firstly, the Court incorporates normative argumentation from other bodies into its own. In the Herrera Ulloa case, the Court summarised the 35 OC-16/99, The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law IACtHR Series A 16 (1999) at para 114. 36 Shelton, ‘The Jurisprudence of the Inter-American Court of Human Rights’ (1994) 10(1) American University Journal of International Law and Policy 333 at 357. 37 OC-5/85, Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism IACtHR Series A 5 (1985) at paras 43–46. 38 OC-4/84, Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica IACtHR Series A 4 (1984) at paras 50–51. 39 OC-2/82, The Effect of Reservations on the Entry Into Force of the American Convention on Human Rights (Arts. 74 and 75) IACtHR Series A 2 (1982) at para 2; and OC-4/84, Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica, ibid. at para 56. 40 OC-1/82, Other Treaties Subject to the Advisory Jurisdiction of the Court (Article 64 American Convention on Human Rights) IACtHR Series A 1 (1982) at para 23; OC-2/82, The Effect of Reservations on the Entry Into Force of the American Convention on Human Rights (Arts. 74 and 75), ibid. at para 30; and OC-3/83, Restrictions to the Death Penalty (Arts. 4(2) and 4(4) of the American Convention on Human Rights) IACtHR Series A 3 (1983) at paras 24, 32, 40 and 44. 41 Miller, supra n 8 at 489. 42 Ibid. 43 Killander, ‘Interpreting Regional Human Rights Treaties’ (2010) 7 sur – International Journal on Human Rights 145 at 163. 44 Neuman, ‘Import, Export, and Regional Consent in the Inter-American Court of Human Rights’ (2008) 19(1) European Journal of International Law 101.

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jurisprudence of the ECtHR on the subject of defamation before concluding it was ‘logical and appropriate that statements concerning public officials … should be accorded … a certain latitude’.45 Secondly, the IACtHR uses international or regional standards as ‘external landmarks’ to clarify and elaborate concepts and obligations in the American Convention.46 For example, the American Convention on Human Rights has an indeterminately worded provision on child protection: ‘Every minor child has the right to the measures of protection required by his condition as a minor on the part of his family, society, and the State’.47 The Court used what it called the ‘very comprehensive international corpus juris for the protection of the child [to] help [the] Court establish the content and scope of the general provision established in Article 19 of the American Convention’.48 Shelton points out, however, that the Court has made clear that it will use cases decided by the ECtHR and the Human Rights Committee when their value is to increase rights protection, but never to restrict rights.49 Despite some studies indicating that references to external jurisprudence have declined as the Court’s own jurisprudence has increased,50 the works surveyed in this chapter indicate that the IACtHR is committed to incorporating and publicly acknowledging a wide range of regional and international human rights jurisprudence in its reasoning. As Pasqualucci observes, the Court continues ‘influencing and being influenced by other sources of international law’.51



References to the European Court of Human Rights

Voeten analysed the Court’s 126 judgments in the period from 2000 to 2006 and found that 60 per cent of these referred to the ECtHR, adding that this was ‘probably an 45 46 47 48

Case of Herrera Ulloa v Costa Rica IACtHR Series C 107 (2004) at para 128. Neuman (2008), supra n 44 at 113. Article 19 achr. Case of the ‘Street Children’ (Villagrán Morales et al.) v Guatemala IACtHR Series C 63 (1999) at para 194. 49 Shelton, Regional Protection of Human Rights (oup, 2010) at 144. See OC-5/85, Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, supra n 37 at paras 42–52. 50 For example, Shelton (1994), supra n 36; and Bertoni, ‘The Inter-American Court of Human Rights and the European Court of Human Rights: A dialogue on freedom of expression standards’ (2009) 3 European Human Rights Law Review 332. Bertoni notes, for example, that despite reference to European jurisprudence in early freedom of expression cases, in the most recent that he surveyed (Case of Tristán Donoso v Panama IACtHR Series C 193 (2009); Case of Ríos et al. v Venezuela IACtHR Series C 194 (2009); and Perozo et al. v Venezeula IACtHR Series C 195 (2009)) there is no reference to any European precedent(s). 51 Pasqualucci (2013), supra n 34 at 13.

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­ ndercount’ given the IACtHR’s ‘irregular citation standards’.52 He remarks that ‘it is u not unusual for [IACtHR] judgments to cite a dozen or more ECtHR judgments and discuss their meaning extensively’.53 He also observes that the European case law cited by the IACtHR is very diverse in subject matter. The cited judgments are ‘often recent’, indicating that Inter-American Court judges closely follow ECtHR jurisprudence.54 Neuman similarly analyses the IACtHR’s importation of judgments and finds that it often cites the ECtHR on ‘comparable issues’.55 The IACtHR not only regularly cites the ECtHR’s jurisprudence, but sometimes has used European precedent to provide ‘major support’ for its interpretation of provisions of the American Convention.56 Shelton notes that in elaborating the meaning of the rights in the American Declaration and Convention in its first 15 years (for example, right to life, freedom of expression, the right to nationality or freedom from discrimination), the Court used the jurisprudence of the European Commission of Human Rights and the ECtHR as a significant aid to interpretation.57 Bertoni similarly concludes from a survey of freedom of expression judgments that the Inter-American Court has extensively relied upon European precedents, particularly in its early judgments such as Herrera Ulloa58 and Ivcher v Peru,59 to elaborate the concepts and flesh out the contours of the right.60



References to the African Commission

Killander observes that the African Commission’s case law has ‘rarely been cited’ by the Inter-American bodies61 while, on the other hand, Neuman finds that the IACtHR has referred to the African Commission on ‘several’ occasions.62 These include Maya indigenous communities of the Toledo district v Belize63 and Ecuador v Colombia.64 In its first major judgment on defamation law, the Court cited an African decision as well as 52 Voeten, supra n 2 at 563, n 24. 53 Ibid. at 549. 54 Ibid. 55 Neuman (2008), supra n 44 at 109. See, for example, Case of ‘The Last Temptation of Christ’ (Olmedo Bustos et al.) v Chile IACtHR Series C 73 (2001) at para 69 and n 18. 56 Neuman (2008), ibid. 57 Shelton (1994), supra n 36 at 360. 58 Case of Herrera Ulloa v Costa Rica, supra n 45. 59 Case of Ivcher Bronstein v Peru IACtHR Series C 74 (2001). See also Case of Ricardo Canese v Paraguay IACtHR Series C 111 (2004). 60 Bertoni, supra n 50 at 348. 61 Killander, supra n 43 at 154. 62 Neuman (2011), supra n 12 at 106. 63 Case 12.053, Report No 40/04 (2004) at para 149. 64 IP-02, Report No 112/10 (2010) at para 117.

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several European decisions and a Human Rights Committee decision, before concluding that the different regional systems and the universal system ‘agree on the essential role played by freedom of expression’.65



References to the Human Rights Committee



References to International Soft Law



Exporting Inter-American Jurisprudence

Neuman notes that the Human Rights Committee is a ‘frequent source’ in Inter-American jurisprudence, including its general comments on the iccpr, views on individual communications and concluding observations on country reports.66

In addition to the case law of the other human rights bodies, Neuman notes that the Inter-American Court also draws on a variety of global soft law documents in its judgments.67 For example, in the Moiwana Community case, the Court invoked the un Guiding Principles on Internal Displacement as a major basis of the conclusion that the state had violated the rights of the Moiwana community.68 In some decisions of this kind, Neuman believes that the Court is ‘converting global soft law into regional hard law’.69

In the other direction, Neuman has studied the way Inter-American human rights jurisprudence has been received by the other international and regional tribunals.70 Like Shelton,71 Neuman notes that some of the Court’s regionally-specific jurisprudence has been precedent-setting internationally. This is particularly in the area of remedies for violations, forced disappearances, impunity and the rights of indigenous peoples. However, the IACtHR has not been cited by the global and European human rights 65 66

67 68 69 70 71

Case of Herrera Ulloa v Costa Rica, supra n 45 at paras 113–116. Neuman (2008), supra n 44 at 109. See Case of Ricardo Canese v Paraguay, supra n 59 at paras 115–135, citing Human Rights Committee, General Comment No 27: Freedom of movement (art. 12), 18 October 1999, CCPR/C/21/Rev.1/Add.9; Case of Velásquez Rodríguez v Honduras IACtHR Series C 7 (1989) at para 28, citing Human Rights Committee’s views on individual communications; and Case of Raxcacó Reyes v Guatemala IACtHR Series C 133 (2005) at para 69, citing Human Rights Committee, Concluding observations regarding Iran, 29 July 1993, CCPR/C/79/Add.25; and Concluding observations regarding Iraq, 5 November 1997, CCPR/C/79/Add.84. Neuman (2008), ibid. Case of the Moiwana Community v Suriname IACtHR Series C 124 (2005) at paras 111 and 120. Neuman (2008), supra n 44 at 210. Neuman (2008), ibid.; and Neuman (2011), supra n 12. Shelton (1994), supra n 36.

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bodies to the same extent that it has relied upon them in its own judgments, as will become clear below.

(ii)

The European Court of Human Rights: A ‘Judicial Monologue’?

Compared to its Inter-American counterpart, the ECtHR has engaged much less openly with other international and regional precedents. The wide use of references to the ECtHR by other tribunals in comparison with its own sparse use of external referencing has led Killander to describe the so-called judicial dialogue between the regional tribunals as a ‘monologue’ by the European body.72 This claim has been validated by several other empirical studies:

• In a 2002 study, Miller compared the references of a range of international tribu-

nals73 to each other’s jurisprudence and noted only eight instances of external referencing by the ECtHR.74 This included three references to the icj and one instance of reference to the IACtHR. This compared to a total of 61 instances in which the other courts referred to the ECtHR.75 • Killander notes only one time in the period up to 2010 that the African Commission was cited by the ECtHR,76 in Stoll v Switzerland.77 • Voeten evaluated all of the 7,319 judgments delivered by the ECtHR up to October 2006, and found only 29 majority judgments (0.4 per cent) that cited one of the f­ ollowing human rights courts: the IACtHR, the Human Rights Committee, the Committee against Torture, the icty and the ictr, the icj, the World Trade Organization, the United States Supreme Court, the Canadian Constitutional Court and the South African Constitutional Court.78 This included five majority judgments that cited a decision of the IACtHR (strikingly few compared to 60 per cent of InterAmerican judgments that reference the ECtHR),79 five references to the icj and eight to the cjeu.80 External case law citations played a more significant role in separate opinions (which accompanied 17 per cent of cases), that is, Voeten counted­

72 Killander, supra n 43 at 154. 73 The wto Dispute Settlement Panels, the Iran–us Claims Tribunal, the ictr and icty, the icj, the IACtHR, the Human Rights Committee, the ECtHR and the International Tribunal for the Law of the Sea. 74 Miller (2002), supra n 8 at 489. 75 Ibid. 76 Killander, supra n 43. 77 Application No 69698/01, Merits, 10 December 2007, at para 39. 78 Voeten (2010), supra n 2 at 558. 79 Ibid. at 562. 80 Ibid. at 564.

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46 cases in which at least one separate opinion referenced an external decision.81 He also remarks that ‘[t]here has been an increase in the number of external citations over time, but this increase has not kept pace with the overall increase in judgments’.82 He concludes from his study that the ECtHR is ‘sparse in citing other international courts’.83 However, while the ECtHR definitely employs fewer external citations than its InterAmerican counterpart, it has nevertheless still engaged with human rights precedents drawn from elsewhere. De Wolf and Wallace note that the Court does not have any reservations about using jurisprudence from other bodies to inform its views; they describe its use of external human rights jurisprudence as ‘now relatively commonplace’.84 For example, in Mamatkulov and Askarov v Turkey, the ECtHR summarises at length the jurisprudence and rules of the icj, the IACtHR, the Human Rights Committee and the Committee against Torture, before making a judgment on the binding nature of interim measures.85 Killander also cites the Goodwin case86 as an example of the ECtHR reversing its earlier jurisprudence in light of more progressive international attitudes and jurisprudence.87 The Court states that, despite the absence of a clear European consensus, there is ‘clear and uncontested evidence of a continuing international trend in favour not only of increased social acceptance of transsexuals but of legal recognition of the new sexuality of post-operative transsexuals’.88 In Ergin v Turkey,89 the ECtHR quoted the Human Rights Committee and referred to the IACtHR’s case law in support of its findings on the trial of civilians in military courts. The amount of weight that external human rights jurisprudence and international law is given by the ECtHR has been disputed. Forowicz argues that the ECtHR and the former Commission have been ‘reluctant to grant too much weight to international sources’.90 She reviews their reception of international law by examining six special regimes: child rights, refugee rights, civil and political rights, state immunity, international humanitarian law and the prohibition on torture. She concludes that the overall 81 Ibid. at 558. 82 Ibid. 83 Ibid. at 564. 84 De Wolf and Wallace, supra n 9 at 288. 85 Supra n 15 at paras 39–51. 86 Christine Goodwin v United Kingdom Application No 28957/95, Merits and Just Satisfaction, 11 July 2002. 87 Killander, supra n 43 at 153–4. 88 Christine Goodwin v United Kingdom, supra n 86 at para 85. 89 Ergin v Turkey (No 6) Application No 47533/99, Merits and Just Satisfaction, 4 May 2006, at paras 22–25. 90 Forowicz, supra n 13 at 384–5.

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approach of the two Strasbourg bodies is one of ‘selectivity’: references to international law are ‘cherry-picked, often to advance the aims and objectives of the echr’.91 Throughout her examination, Forowicz consistently refers to external jurisprudence as a ‘source of inspiration’92 or as an ‘aid for interpretation’.93 However, Rachovitsa challenges Forowicz’s opinion. She argues that cases such as Mamatkulov and Askarov v Turkey,94 Saadi v United Kingdom95 and m.c. v Bulgaria96 ‘clearly demonstrate that the reception of international law [has] had an immense impact on the construction of the echr’, rather than being merely a ‘supportive consideration’.97 For Voeten, the marked disparity in external references between majority and separate opinions implies that ‘ECtHR judges are aware of external jurisprudence but are cautious in their explicit reliance on it’.98



References to the Inter-American Court of Human Rights

In 2004, at the annual opening of the ECtHR, the then President of the IACtHR Cançado Trindade celebrated the ‘fruitful dialogue’ between the two courts, arguing that the ‘spirit of cooperation, mutual respect and coordination’ was an ‘inspiring example’ for other such tribunals.99 Neuman observes that the ECtHR has ‘openly engaged’ with Inter-American precedents, both on procedure and substance.100 However, Voeten concludes from his study of jurisprudence up until 2006 that the relationship between the two Courts is ‘unusually asymmetric’, with the ECtHR relying on the Inter-American jurisprudence in a limited and selective fashion.101 More recent empirical studies suggest a modest—and perhaps increasing—level of engagement. A recent study by the ECtHR found that 25 of its judgments made reference to Inter-American jurisprudence, including references in the separate opinions

91 Ibid. at 383. 92 Ibid. at 168 and 329. 93 Ibid. at 165, 168, 188 and 222. 94 Supra n 15. 95 Supra n 16. 96 Application No 39272/98, Merits and Just Satisfaction, 4 December 2003. 97 Rachovitsa, supra n 14 at 798. 98 Voeten, supra n 2 at 549. 99 Cançado Trindade, ‘Speech given by Mr Antônio Augusto Cançado Trindade, President of the Inter-American Court of Human Rights, on the occasion of the opening of the judicial year, 22 January 2004’, in ECtHR, Annual Report 2003 (Registry of the ECtHR, 2004) 29 at para 12. 100 Neuman (2011), supra n 12 at 99. 101 Voeten, supra n 2.

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of judges.102 These include the IACtHR’s landmark cases on disappearances, which were cited for example at length in Kurt v Turkey.103 The ECtHR has also referred to the IACtHR’s Barrios Altos case104 approvingly, as stating international law and practice regarding the impermissibility of amnesty or time-bars preventing prosecution for torture or inhuman or degrading treatment.105 In the period up until 2006, the majority of external citations to the IACtHR occurred in cases concerning Turkey.106 However, the most recent study by the ECtHR shows Inter-American citations in judgments concerning a wider variety of respondent states including Italy, Greece, Russia and Slovenia.107 In his study of the significant impact of European jurisprudence on Inter-American freedom of expression cases, Bertoni notes that in 2007 the case of Stoll v Switzerland108 was the first time the ECtHR cited the IACtHR jurisprudence in a freedom of expression case.109 Bertoni regards this as the ‘beginning of a dialogue on matters of freedom of expression’.110

(iii)

The African Commission: Opening up to ‘Universalism’

Articles 60 and 61 of the African Charter on Human and Peoples’ Rights provide for the Commission to draw inspiration from a wide range of international human rights sources. This is unique among the regional human rights instruments.111 However, Viljoen has observed that the African Commission avoided reference to the United Nations and other regional jurisprudence in its beginnings.112 In one of the few early references in 2000,113 the Commission’s citation was ‘merely to distinguish the African system’ from other international human rights systems.114

102 ECtHR, ‘Research Report: References to the Inter-American Court of Human Rights in the case law of the European Court of Human Rights’ (2012). 103 Application No 24276/94, Merits and Just Satisfaction, 25 May 1998, at para 67. 104 Case of Barrios Altos v Peru IACtHR Series C 75 (2001). 105 Lexa v Slovakia Application No 54334/00, Merits and Just Satisfaction, 23 September 2008, at paras 97–98 and 139. 106 Voeten, supra n 2 at 562. 107 ECtHR, supra n 102. 108 Supra n 77. 109 Bertoni, supra n 50 at 352. 110 Ibid. at 352, n 70. 111 Neuman (2011), supra n 12 at 105. 112 Viljoen, International Human Rights Law in Africa, 2nd edn (oup, 2012) at 325. 113 74/92, Commission Nationale des Droits de l’Homme et des Libertés v Chad, 11 October 1995, at para 21. 114 Viljoen, supra n 112 at 325.

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Over time, the African Commission has ‘evolved strikingly in its practice of external citations’.115 Viljoen notes that the Commission’s tendency of avoiding external references has ‘changed markedly’ since it published its 14th Annual Activity Report in 2001.116 Viljoen, Neuman and Killander remark that the Commission now frequently refers to global treaties and interpretations, European and Inter-American human rights instruments and judgments of the regional courts.117 In 2003, the African Commission stated that it is ‘more than willing to accept legal arguments with the support of appropriate and relevant international and regional human rights instruments, principles, norms and standards’.118 Killander argues that the African Commission now takes a ‘universalistic’ approach to treaty interpretation.119 The Commission has, for example, referred to the general comments of the Committee on Economic, Social and Cultural Rights120 and to general comments and case law of the Human Rights Committee.121 It has also made many references to soft law, including the un Basic Principles on the Independence of the Judiciary.122 In examining the external reception of Inter-American human rights jurisprudence, Neuman finds that between 2000 and 2008, the African Commission cited interpretations by the IACtHR or the Inter-American Commission as part of its reasoning in eight published cases.123 In some of these cases, the IACtHR was the only non-African material cited for a proposition.124 In others there were also un and/or European sources.125 His analysis reveals that the references by the African Commission to European decisions exceed its references to Inter-American ones, but not significantly.126 However, the international sources, including the Human Rights Committee’s views 115 Neuman (2011), supra n 12 at 104. 116 Viljoen, supra n 112. 117 Viljoen, ibid.; Neuman (2011), supra n 12; and Killander, supra n 43. 118 241/01, Purohit and Moore v The Gambia, 29 May 2003, at para 48. 119 Killander, supra n 43 at 163. 120 155/96, Social and Economic Rights Action Center (serac) and Center for Economic and Social Rights (cesr) v Nigeria, 27 October 2001, at para 63. 121 245/02, Zimbabwe Human Rights ngo Forum v Zimbabwe, 15 May 2006, at para 203. 122 206/97, Centre for Free Speech v Nigeria, 15 November 1999, at para 13. 123 Neuman (2011), supra n 12 at 104–5. 124 Including 211/98, Legal Resources Foundation v Zambia, 7 May 2001, at para 59; and 240/01, Interights et al. (on behalf of Mariette Sonjaleen Bosch) v Botswana, 20 November 2003, at para 31. 125 See Social and Economic Rights Action Center (serac) and Center for Economic and Social Rights (cesr) v Nigeria, supra n 120 at para 57, citing both IACtHR and ECtHR jurisprudence; and Zimbabwe Human Rights ngo Forum v Zimbabwe, supra n 121 at paras 144–147 and 153, citing IACtHR, un and European sources. 126 Neuman (2011), supra n 12 at 105.

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and general comments and international soft law, are cited ‘more frequently than any regional system’.127 Viljoen has noted that the Commission has also made reference to general principles of interpretation, as contained in the Vienna Convention on the Law of Treaties, to refute state arguments that domestic law justifies non-compliance with international law.128 The African Commission is selective in the way it references external jurisprudence. Neuman notes that the Commission in the Zimbabwe Human Rights ngo Forum case129 made reference to Inter-American jurisprudence on several issues. However, it did not mention the relevant jurisprudence in its discussion of jus cogens, despite the InterAmerican Court being quite active in discussing this topic.130

(iv)

The Human Rights Committee: Hidden Influences?

While there is evidence of an influence of regional human rights jurisprudence on some of the reasoning and findings of the Human Rights Committee, it has ‘generally avoided open reference to regional precedent’ in its opinions.131 For example, the Human Rights Committee has followed the Inter-American approach on implied nonderogable rights, as is set out in General Comment No 29.132 Yet ‘characteristically’ it makes no explicit reference to Inter-American jurisprudence within this General Comment.133 Neuman argues that ‘the [Human Rights Committee] has a general practice of not openly citing regional human rights precedents’.134 Slaughter and Helfer similarly suggest that the Human Rights Committee has been influenced by European human rights jurisprudence and adopted similar styles of reasoning to the ECtHR, yet without acknowledging its influence.135 Scott Davidson argues that the Human Rights Committee is ‘not interested’ in developing a ‘horizontally integrated international human rights jurisprudence’.136

127 Ibid. 128 Viljoen, supra n 112 at 326. See Legal Resources Foundation v Zambia, supra n 124 at para 59. 129 Supra n 121. 130 Neuman (2011), supra n 12 at 124. 131 Ibid. at 99. 132 Human Rights Committee, General Comment No 29: States of Emergency (art. 4), 24 July 2001, CCPR/C/21/Rev.1/Add.11. 133 Neuman (2011), supra n 12 at 111. 134 Ibid. 135 Slaughter (1994), supra n 1 at 106; and Helfer and Slaughter, ‘Toward A Theory of Effective Supranational Adjudication’ (1997) 107(2) Yale Law Journal 273 at 377. 136 Davidson, ‘Introduction’, in Conte et al., Defining Civil and Political Rights: The Jurisprudence of the United Nations Human Rights Committee (Ashgate, 2004) 1 at 11.

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2

Should International and Regional Human Rights Courts and Other Monitoring Bodies Refer to One Another’s Jurisprudence/Practice?

A (i)

Arguments in Favour Cross-Referencing will Lead to Harmonised Human Rights Jurisprudence

Several scholars and legal commentators have expressed an expectation that widespread external referencing by international and regional human rights bodies will encourage harmonisation of their jurisprudence and ensure a uniform interpretation of international human rights standards.137 This will occur through an ongoing process of ‘cross-fertilization’ and ‘interpretative interaction’, underpinned by a mutual goal of universal human rights protection.138 Some scholars have cited evidence of this process. For example, Killander looks at the points of convergence in the jurisprudence on civilian trials in military courts and corporal punishment, examining the regional courts and international treaty monitoring bodies. He argues that ‘the dialogue that has developed has led to an increasingly convergent international human rights law’.139 Bertoni examines the jurisprudence on freedom of expression from the IACtHR and the ECtHR, concluding that the standards have converged as the Inter-American judges have looked to Europe to help interpret this right.140 Lixinski has examined the interpretive principle of the margin of appreciation, arguing ‘the doctrine is gradually making its way through human rights case law in universal treaty bodies’, with some convergence occurring.141 Pasqualucci observes in her most recent review of the IACtHR’s procedures and practices that the Court ‘effectively contributes to the harmonization of international law and principles by influencing and being influenced by other sources of international law’.142 These scholars all treat harmonisation as a desirable goal, one that realises the vision of a universal human rights regime. However, this is not a universally shared view – as will be discussed in Section 3 below. There are also recent studies that question 137 For example, Cançado Trindade, ‘The Merits of Coordination of International Courts on Human Rights’ (2004) 2(2) Journal of International Criminal Justice 309 at 312; Pasqualucci (2007), supra n 10; Lixinski, ‘Treaty interpretation by the Inter-American Court of Human Rights: Expansionism at the service of the unity of international law’ (2010) 21(3) European Journal of International Law 585; Lixinski, ‘Choice of Forum in International Human Rights Adjudication and the Unity/Fragmentation Debate: Is Plurality the Way Ahead?’ (2009) 9 University College Dublin Law Review 23; and Killander, supra n 43. 138 Cançado Trindade, ibid. at 312. 139 Killander, supra n 43 at 163. 140 Bertoni, supra n 50. 141 Lixinski (2009), supra n 137 at 32. 142 Pasqualucci (2013), supra n 34 at 13.

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whether harmonisation is an inevitable outcome of cross-referencing between human rights bodies. Veçoso, for example, analyses the dialogue between the Inter-American and European Courts through the way ECtHR jurisprudence on domestic amnesties and freedom of expression has been received by its Inter-American counterpart.143 She concludes from her study that a ‘uniform understanding of the international case law on human rights’ cannot be seen as ‘a natural consequence’ of the cross-fertilization process.144 This is because the dialogue between the courts ‘does not occur in a neutral or uninterested fashion’ and the political context of an Inter-American judgment may exert ‘substantive [sic] influence over the way this court uses European decisions in its own case law’.145 It is also evident from the review of referencing by the different human rights bodies in Section 1 above that the current practices of cross-referencing are rather unbalanced and selective; this would suggest they are not conducive to convergence. However, to concede that the use of external citations may not produce harmonisation is not necessarily to argue against the practice. Beyond cross-referencing ‘at the service of the unity of international law’,146 referencing external human rights jurisprudence may present a variety of other advantages to human rights judges. These will be discussed below in terms of quality, effort and persuasive power.

(ii)

Improving Judicial Reasoning

As Voeten has noted, most proponents of citing external jurisprudence tend to argue that it improves the quality of judicial decision-making.147 A typical example comes from Viljoen, who recognises the shift towards more external referencing by the African Commission over the years as part of its development of more ‘reasoned and well-researched findings’.148 This argument recognises that human rights judges across different jurisdictions frequently face similar difficult questions related to the interpretation and application of human rights law. When judges consider how comparable issues have been tackled by their counterparts internationally, Slaughter argues this ‘helps them do a better job at home, in the sense that they can approach a particular problem more creatively or with greater insight. … It provides a broader range of ideas and experience that makes for better, more reflective opinions’.149 McCrudden agrees 143 Veçoso, ‘Towards a fraternity of human rights courts? Assessing the uses of the European Court’s case law by the Inter-American Court’, 2012, unpublished conference paper, reproduced with permission of the author. 144 Ibid. at para 6 (Introduction). 145 Ibid. 146 Lixinski (2010), supra n 137. 147 Voeten, supra n 2 at 550. 148 Viljoen, supra n 112 at 325. 149 Slaughter (2003), supra n 1 at 201.

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with Slaughter150 that considering external jurisprudence gives judges another tool for constructing a well-reasoned judgment.151 He argues that human rights judges in different regions and different jurisdictions are struggling to achieve a common goal of realising universal human rights. This recognition of universalism does not ‘anoint any one tribunal with universal authority to interpret and apply these rights’ but rather demands ‘[c]ollective judicial deliberation, through awareness, acknowledgment, and use of decisions rendered by fellow human rights tribunals’.152 Helfer and Slaughter have argued that there is a visibly positive impact on the quality of reasoning when relevant external jurisprudence is considered.153 Discussing the Human Rights Committee’s views in Johnson v Jamaica,154 they argue that the majority felt compelled to set out its position in detail because the dissenting opinion by Committee Member Chanet accused them of retreating from a more rights-protective stance, and therefore falling behind the European system of rights protection. They conclude that ‘the Committee feels compelled to employ more rigorous legal reasoning when analyzing an issue with respect to which it has engaged in an open dialogue with the [ECtHR]’.155

(iii)

Sources of Guidance That Spare Time and Effort

Other commentators have argued from a more practical perspective whereby making use of well-reasoned judgments from other courts can spare human rights judges some of the time and effort that is needed to consider a human rights issue completely afresh. Considering recent comparative judicial reasoning in human rights cases in a variety of regional and domestic settings, McCrudden remarks that judges ‘increasingly draw on interpretations by judges in other jurisdictions for guidance and for support’.156 Neuman’s study of the IACtHR supports this observation.157 Neuman reflects that the Court may have imported pre-existing interpretations of certain rights for ‘pragmatic’ reasons, including ‘decreasing the Court’s burden of independent argumentation’.158 For example, he noted one benefit of the Court using international and regional interpretations of state obligations with regards to children’s rights: it ‘spare[d] the Court considerable effort in working out and justifying the consequences 150 151 152 153 154 155 156

Slaugter (1994), supra n 1. McCrudden (2000), supra n 10 at 528. Slaughter (1994), supra n 1 at 122. Helfer and Slaughter, supra n 135. Errol Johnson v Jamaica (588/1994) Views, CCPR/C/56/D/588/1994 (1996). Helfer and Slaughter, supra n 135 at 375, n 460. McCrudden, ‘The Pluralism of Human Rights Adjudication’, in Lazarus et al. (eds), Reasoning Rights: Comparative Judicial Engagement (Hart Publishing, 2014) 3 at 5. 157 Neuman (2008), supra n 44. 158 Ibid. at 112.

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of Article 19 [of the American Convention on Human Rights, which deals with child protection]’.159 More generally, he speculates that the Court has made an active engagement with global and European human rights discourse because of the paucity of support from regional states for regional human rights protection and, particularly, the absence of widespread rights-protective state practice to inform its interpretations.160 External jurisprudence in this context has provided welcome guidance. Within the European human rights system, Forowicz has noted that judges in Strasbourg have sometimes made use of references to external sources of international law and their interpretations by international bodies when the ‘Court and Commission wanted to clarify or expand the meaning of the echr’ but were ‘unable to find guidance within their own jurisdiction’.161 Thus the interpretations and case law relating to documents that have ‘textual parallels’ with the echr, such as the iccpr, can and have been used to provide occasional guidance.162 Viljoen argues that Articles 60 and 61 of the African Charter have put an emphasis on the importance of international human rights instruments, which ‘has assisted the Commission to adopt a progressive interpretation of the Charter’.163 He welcomes these provisions, which ‘open a wide array of possible sources that could give interpretative guidance’, including un human rights instruments, customary international law, judicial precedents, academic writing and general principles of law.164 Killander notes that incorporating concepts and interpretations from international treaties, soft law and other courts and monitoring bodies is one of the main ways that regional courts have interpreted their human rights instruments.165 However, he cautions that the approaches of other courts and treaties should not be followed ‘blindly’; references should always be made thoughtfully, with external precedents followed only after reflection on the ‘persuasive value of the reasoning of the court or quasi-judicial body’.166 He expresses some concern that the IACtHR, the Inter-American Commission and the African Commission have sometimes referred to external jurisprudence ‘without considering the particular context of the case’.167 Neuman shares Killander’s concerns about relying on external interpretations that are not strongly justified by quality or practicality.168 159 Ibid. at 114. 160 Ibid. at 101. 161 Forowicz, supra n 13 at 361. 162 Ibid. 163 Viljoen, supra n 112 at 325. 164 Ibid. 165 Killander, supra n 43. 166 Ibid. at 154. 167 Ibid. 168 Neuman (2008), supra n 44 at 116.

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Persuasion and Influence

Empirical studies have noted that references to external jurisprudence can have ­strategic value for human rights judges. Miller and Voeten have both studied the way that a range of international courts and tribunals refer to one another, including the icj, the ECtHR, the cjeu and the IACtHR.169 They conclude similarly that courts may use external citations as a source of persuasion, employing external jurisprudence as a means to demonstrate support for their stated understanding of the law. Miller  concludes that the tribunals he surveyed show ‘remarkable flexibility’ in the way they refer to one another, but that ‘[b]y a margin of 173 to 11 … tribunals are much more likely to refer to one another in a positive or neutral way than to distinguish or overrule’.170 Voeten considers a range of reasons why judges may choose to borrow from other courts and tribunals, and argues that ‘there may be a strategic logic underlying judicial borrowing’, which is using external citations purposively in order to achieve a desired effect with a particular audience.171 He suggests that in choosing to cite external jurisprudence, judges may be considering the receptivity of states parties to outside references, particularly those states parties who are sensitive to the implication that they are non-compliant with international norms and standards. As Pasqualucci remarks, ‘most states are sensitive about their international reputations and world image’;172 external referencing may be a means to leverage this sensitivity in order to further rights protection. There is some evidence from Voeten’s study that this sensitivity may be higher with democratising states than stable democracies.173 McCrudden echoes this view about leveraging, arguing that reasoning using comparative examples is very important in the ‘politics of human rights’, where changes in one jurisdiction can be used to ‘leverage change in a similar direction’ in another jurisdiction.174 Veçoso has studied the way that the IACtHR references ECtHR jurisprudence in cases concerning amnesties and freedom of expression.175 She argues that it does not apply European interpretations in a ‘mechanical’ way but instead ‘imports European interpretations in a strategic fashion, following its own reasoning’. It references case law from the IACtHR’s ‘older sister’ in Europe for the purposes of ‘persuasion’ and bringing ‘legitimacy and authority’ to the Court’s decisions.176 Based on her analysis, 169 Miller, supra n 8; and Voeten, supra n 2. 170 Miller, ibid. at 490. 171 Voeten, supra n 2 at 553. 172 Pasqualucci (2013), supra n 34 at 29. 173 Voeten, supra n 2 at 573. 174 McCrudden (2014), supra n 156 at 5. 175 Veçoso, supra n 143. 176 Ibid. at para 4 (Introduction).

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she concludes that the Court’s use of international precedent follows ‘institutional interests and political choices’.177 Forowicz also argues that the ECtHR makes strategic reference to international law. She observes in her study that ‘the Court has justified a particular interpretation of the echr by claiming that it is consistent with the treatment of the same issue under a different international treaty’.178 For example, she cites the case Groppera Radio ag and Others v Switzerland,179 in which the Court supported its reasoning using Article 19 of the iccpr in its attempts to harmonise Article 10 of the echr with this international provision.

B

Arguments Against

The literature on the use of external citations by human rights courts and monitoring bodies seems generally in favour of the practice. However, there are some significant expressions of disagreement, particularly about the strategic value of external citations. In the studies surveyed for this chapter, objections to the borrowing or referencing of human rights case law between human rights courts and monitoring bodies are rarely absolute. Commentary generally urges greater caution regarding the extent to which external references are used and the manner in which they are employed.

(i)

Exceeding Delegated Authority

Neuman raises an objection to the IACtHR’s ready and frequent resort to global and regional human rights case law as a tool for interpreting the American Convention on Human Rights. He argues that this approach bypasses the essential consensual aspect of human rights treaties: states parties to the American Convention did not consent to become bound by the precedents and interpretations of monitoring bodies for other global and regional human rights instruments.180 Extensive reliance on external standards to interpret the Convention therefore undermines the Court’s legitimacy. Helfer and Slaughter recognise a similar potential objection to a reliance on European human rights jurisprudence by the Human Rights Committee: a practice that normalises or compels the consultation of regional sources ‘confers powers on the Committee not expressly specified in the text of the [iccpr]’ and therefore violates the constituent treaty.181 They challenge this objection, by arguing that regular references to external treaties and decisional law constitute a practice that sets apart the human rights courts and tribunals from other international monitoring bodies. They 177 Ibid. at last para (Introduction). 178 Forowicz, supra n 13 at 355. 179 Application No 10890/84, Merits, 28 March 1990, at para 61. 180 Neuman (2008), supra n 44 at 114. 181 Helfer and Slaughter, supra n 135 at 377.

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imply that this practice is now so commonplace in the human rights context as to have become a part of the established and accepted modus operandi of the global human rights regime.182 This certainly appears to be the opinion of the IACtHR. In the Ituango Massacres case183 the Court states that there is an international corpus juris of human rights law including treaties, conventions, resolutions and declarations, all of which are available for consideration when interpreting the American Convention on ­Human Rights. Voeten speculates that the judges at the ECtHR have been more conscious to avoid exceeding their proper authority.184 He notes that, in the period up until 2010, out of the mere 46 judgments in which an external citation is made in the majority opinion, there are eight in which ‘the separate opinion argues that the majority has overstepped the bounds of its delegated authority by citing an external opinion’.185 These include Mamatkulov and Askarov v Turkey.186 Voeten argues that considerations about exceeding the proper authority of the court are very significant for international tribunals when deciding whether to cite external jurisprudence; some judges clearly feel that it is highly improper to do so.187

(ii)

Undermining Compliance by Alienating States Parties

These concerns about the (il)legitimacy of external referencing have a strategic as well as principled dimension. As Forowicz points out with regards to the ECtHR, considering the consent of contracting states is crucially important because ‘[c]onsensus among Contracting States constitutes an important factor in maintaining the Court’s institutional credibility and in ensuring that its decisions are implemented’.188 She also notes that attention to ‘political issues’ and ‘state interests’ have played a role in the level of reception of international law in the European human rights system. This is because the [ECtHR] may feel the need to ensure that its authority is assured, which requires it to take a pragmatic approach.… It remains vulnerable to criticism from Contracting States that it is not taking state practice into account. This aspect is of tremendous importance as the Convention’s effectiveness is based on the

182 Ibid. at 377, n 467. 183 Case of the Ituango Massacres v Colombia IACtHR Series C 148 (2006) at para 157, n 177. 184 Voeten, supra n 2. 185 Ibid. at 566. 186 Supra n 15. 187 Voeten, supra n 2 at 549. 188 Forowicz, supra n 13 at 367.

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states’ cooperation in implementing the necessary changes into domestic law following a Court ruling.189 Forowicz studies the reception of six specialist human rights law regimes and two general international law regimes by the ECtHR and the former European Commission of Human Rights. She observes that, in the cases where these European bodies referred to international human rights instruments, the judges noted either that the relevant instrument was ratified by the contracting state or by a significant number of contracting states. This, she speculates, is because the ECtHR and the former Commission ‘did not want to appear to be imposing additional obligations contained in external documents not approved by the Contracting States’.190 The reception of international law was also ‘facilitated’ by the citation of the relevant international legal sources either by the parties at the domestic level or by the domestic courts in their judgments. Forowicz speculates that in these circumstances both Court and Commission ‘probably felt that … the Contracting States would not contest their use of these external sources’.191 She implies that otherwise the Commission and Court judges would fear that they would be ‘criticized’ because their external references would not constitute a ‘legitimate reliance on international law’.192 Similarly, in his study of external citations made by the Court, Voeten notes the limited use of citations in the majority judgments compared to a more frequent use in separate opinions.193 He suggests that one of the explanations for this may be because some judges are concerned that ‘reliance on external sources would lead to challenges that the court is exceeding its delegated authority’.194 Forowicz does not conclude that these concerns should preclude external referencing from the ECtHR’s judgments. She is critical of instances when the Court has used reasoning employed in another international body, but failed to acknowledge it for fear of aggravating the state party. She instead advocates that external referencing be done carefully and ‘in a properly justified manner’.195 In the Inter-American context, Neuman has criticised the IACtHR’s extensive reference to, and reliance on, external human rights jurisprudence to interpret the American Convention on Human Rights.196 This is because he fears negative consequences on rights enforcement. He recognises there are advantages for the Court in referring 189 Ibid. at 363. 190 Ibid. at 367. 191 Ibid. at 353. 192 Ibid. 193 Voeten, supra n 2. 194 Ibid. at 572. 195 Forowicz, supra n 13 at 364. 196 Neuman (2008), supra n 44.

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to external jurisprudence and even in importing external interpretations, particularly when external argumentation has seemed persuasive. However, he urges greater caution in the manner in which the Court goes about its borrowing activities. He argues that the Court’s practice of importing interpretations from global and regional instruments and case law has undervalued the importance of the opinions of the states ­parties to the American Convention on Human Rights. This ‘distorts the Court’s elaboration of human rights norms, and risks damage to the effectiveness of the regional human rights system’.197 To make human rights effective, Neuman argues, the Court must facilitate their implementation. Rights which are elaborated with the participation and consent of states parties are more feasible to enforce at a national level than those that are not. State participation also provides an insight into potentially fruitful implementation methods. He also argues that states will be more likely to encourage other states parties to comply with standards that they support and subscribe to.198 Commentary on the African Commission acknowledges similar considerations about the importance of regional consent to effective implementation. Viljoen suggests that the African Commission’s initial neglect to reference the other international and regional human rights bodies in its early years may have been partly influenced by the desire to establish the Commission as an African institution, and to avoid alienating the states parties.199

(iii)

External Jurisprudence May Not be Relevant

Although human rights courts and monitoring bodies face similar challenges, there may be instances where the regional specificity of a particular human rights violation means that external jurisprudence is less relevant to the case under discussion. Shelton argues ‘each system’s case load is different and reflects the particular problems of the region and the guarantees of the normative instruments’.200 Forowicz therefore speculates that the relative unwillingness of the European human rights bodies to refer to jurisprudence from the international treaty monitoring bodies may be due ‘in part’ to the fact that the international instruments and the judgments concerning them ‘are not specific to the European context’.201 She argues that international case law references ‘would not necessarily contribute to the interpretation of ECtHR rights’.202 This is because the states parties to the international treaties have ‘diverse backgrounds’ while the parties to the echr are ‘relatively homogeneous’ in economic, 197 Ibid. at 102. 198 Ibid. at 115. 199 Viljoen, supra n 112 at 325. 200 Shelton (2010), supra n 49 at 148. 201 Forowicz, supra n 13 at 367. 202 Ibid. at 368.

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social, political and legal culture.203 Similarly, de Wolf and Wallace speculate that the relative paucity of references by the ECtHR to external jurisprudence may be due to ‘a desire by the ECtHR to maintain its autonomy as well as the integrity of its own regional jurisprudence’.204 However, these considerations do not necessarily preclude external referencing. Using McCrudden’s typology above, it could still be appropriate to refer to regional or international precedent on a similar human rights issue in order to ‘distinguish’ the regional specificity of the case at hand.205

3

Should We Aim for Harmonisation?

A. (i)

Arguments in Favour of Harmonisation The Prevailing Wisdom against Fragmentation

In 2006 the United Nations International Law Commission released an important report on the fragmentation of international law.206 It looked at conflicts of norms of international law, and considered the idea of a systematic interpretation of international law, concluding that it is necessary. This concern to avoid fragmentation appears to be long-standing among international jurists and legal commentators. Eissen reflects this train of thought within the scholarship on international human rights law.207 Writing about the International Covenant on Civil and Political Rights and the European Convention on Human Rights, he is keen that the two regimes are harmonised. This would address the ‘risk’ that ‘discrepancies’ between interpretations would create ‘conflicting international rules’.208 Considering the way interim measures are treated by the different human rights courts, Pasqualucci also states the importance of avoiding ‘inconsistent pronouncements on basic concepts’.209 Thus she argues ‘international norms must be interpreted consistently’,210 because, ‘[w]ere the enforcement organs to work in a vacuum without … relying on developments in the other 203 Ibid. 204 De Wolf and Wallace, supra n 9 at 288. 205 McCrudden (2000), supra n 10 at 512. 206 Report of the Study Group of the International Law Commission, ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law’, finalised by Martti Koskenniemi, 13 April 2006, A/CN4/L682. 207 Eissen, ‘The European Convention on Human Rights and the United Nations Covenant on Civil and Political Rights: Problems of Coexistence’ (1972) 22(1) Buffalo Law Review 181. 208 Ibid. at 209. 209 Pasqualucci, ‘Interim Measures in International Human Rights: Evolution and Harmonization’ (2005) 38(1) Vanderbilt Journal of Transnational Law 1 at 5. 210 Ibid. at 4.

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bodies, international law could become splintered and conflicting’.211 Neither of these scholars explains why conflicting international rules have negative consequences; it is unclear if this is because the answer is presumed to be obvious, or whether they consider a discrepancy in standards to be bad in itself. However, this absence of explicit reasoning suggests that, as Meron noted in 1982, the ‘prevailing wisdom’ within international law is that it is ‘important to improve coordination, to avoid conflict, and to avoid different interpretations’.212 Indeed, Forowicz implies that consistency within a specialist regime such as human rights law is a prerequisite for its classification as a coherent branch of international law. Otherwise it is merely ‘a number of disparate treaty provisions’.213

(ii)

Universality is a Core Promise of Human Rights

Fragmentation is considered to be particularly problematic in the human rights sphere. This is because the concept of human rights itself implies—at least to many of its advocates—that standards of freedoms and protection should be applied universally and consistently to every human being. Ní Aoláin explains that the ‘standardization of human rights norms is central to the vision of universalized rights, valid across borders, and despite cultural differences’.214 This universal vision has been echoed by Pasqualucci, who argues that harmonisation of human rights norms is ‘essential if all human beings are to benefit equally’.215 The goal of universality has been central to the IACtHR’s justification for its borrowing practices.216 Cançado Trindade, the former President of the IACtHR, proclaimed in 2004 that ‘[t]he same criteria, principles and norms should apply to all States, which are juridically equal, and should operate to the benefit of all human beings, irrespective of their nationality’.217 In Other Treaties,218 the IACtHR explains that ‘[m]ankind’s universality and the universality of the rights and freedoms which are entitled to protection form the core of all international protective systems’. From this perspective, divergent jurisprudence between human rights courts would undermine the universal

211 Ibid. at 5. 212 Meron, ‘Norm Making and Supervision in International Human Rights: Reflections on Institutional Order’ (1982) 76(4) American Journal of International Law 754 at 777. 213 Forowicz, supra n 13 at 355. 214 Ní Aoláin, ‘The Emergence of Diversity: Differences in Human Rights Jurisprudence’ (1995) 19(1) Fordham International Law Journal 101 at 101. 215 Pasqualucci (2007), supra n 10 at 51. 216 Neuman (2008), supra n 44 at 112. 217 Cançado Trindade, supra n 99 at para 22. 218 OC-1/82, Other Treaties Subject to the Advisory Jurisdiction of the Court (Article 64 American Convention on Human Rights), supra n 40 at para 40.

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foundation of the human rights concept. As Lixinski puts it, this would ‘put in jeopardy’ the credibility of the entire human rights system.219

(iii)

Divergence Undermines Protection

(iv)

Harmonisation Spreads Best Reasoned Jurisprudence

There is a worry that divergent jurisprudence could undermine the effectiveness of the human rights system through causing confusion about the scope and meaning of particular rights. Ní Aoláin and Pasqualucci have expressed concern about this potential consequence of discordance.220 Confusion could be exploited by rights-violating states. As Meron warned, ‘[s]tates guilty of human rights violations could take advantage of conflicting opinions of control organs by hiding behind the milder opinion’.221 More recent commentary by Lixinski echoes these concerns. He argues that a fragmentation in jurisprudence could give rise to ‘forum shopping’, with violating states searching for the least stringent rights-protective forum.222 Arguably, there is strength in global consensus about what constitutes a particular violation, and the appropriate measures to be taken by a state as a remedy; a violating state may be more persuaded to comply with a judgment if it is supported by consistent rulings across the regional and international systems. Helfer and Slaughter consider the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment established under the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. They argue that carrying out its responsibilities would be easiest if it had a ‘coherent body of jurisprudence’ to draw upon from the ECtHR, the United Nations Human Rights Committee and other bodies.223 In contrast, if a particular body or court has inconsistent jurisprudence with the rest of the human rights adjudication bodies, its authority in the eyes of violating states could be weakened. For example, Helfer and Slaughter have warned in the European context that the European Committee’s divergence from the well-reasoned jurisprudence of the ECtHR could undermine its authority.224

Echoing the argument that judges look to external jurisprudence to improve their decision-making, Pasqualucci contends that the process of harmonisation ensures that the most well-reasoned and most rights-protective judgments will be adopted

219 Lixinski (2009), supra n 137 at 25. 220 Ní Aoláin, supra n 214; and Pasqualucci (2007), supra n 10. 221 Meron, supra n 212 at 764. 222 Lixinski (2009), supra n 137. 223 Helfer and Slaughter, supra n 135 at 375. 224 Ibid.

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by other international human rights bodies.225 This ‘spurs developing concepts and procedures’.226 She sees this process as epitomised by the international harmonisation of interim measures, which has seen the main human rights bodies reflecting the strong stance of the IACtHR. Cerna also concludes that multiple jurisdictions for human rights standards serve to put a kind of ‘peer pressure’ on more conservative bodies to adopt the standards implemented by the more innovative ones.227 Voeten notes the operation of this kind of peer pressure to keep up with the most rightsprotective judgments within the case law of the ECtHR. He concludes from his study of all the ECtHR’s judgments from 2000 to 2006 that external case law is used more in separate opinions than majority opinions; the external referencing in the latter is usually used to support a claim in favour ‘of a more expansive ruling’.228 External case law ‘often plays a large and sometimes even exclusive role in these arguments’.229 As an example he cites the partly dissenting opinion of Judge Bonello in the ECtHR case Anguelova v Bulgaria.230 Before quoting Velásquez Rodríguez at length, Bonello notes: ‘It is ­cheerless for me to discern that in the cornerstone protection against racial discrimination the Court has been left lagging behind other leading human rights tribunals’.231

B (i)

Justifying Divergence Different Rights, Different Purposes, Different Standards

Helfer and Slaughter have urged the Human Rights Committee to harmonise its ­decisions with the jurisprudence of the European human rights bodies as far as possible.232 However, they advocate ‘thoughtful convergence’ rather than complete harmonisation.233 These scholars express concern that the Committee might depart from settled European jurisprudence without adequate explanation. However, they list several reasons that, when clearly articulated, could form the justifications for ‘informed divergence’.234 These include, perhaps obviously, when there are different rights protected in each treaty or when the same rights are protected but the rights are defined 225 Pasqualucci (2005), supra n 209. 226 Ibid. at 6. 227 Cerna, ‘How the Inter-American System for the Protection of Human Rights has Contributed to the Development of International Law’, in Delas et al. (eds), Les Juridictions internationales: Complémentarité ou concurrence? (Bruylant, 2005) 127. 228 Voeten, supra n 2 at 567. 229 Ibid. 230 Application No 38361/97, Merits and Just Satisfaction, 13 June 2002. 231 Ibid. at Partly Dissenting Opinion of Judge Bonello, para 11. 232 Helfer and Slaughter, supra n 135 at 374. 233 Ibid. 234 Ibid.

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significantly differently as to be ‘definitionally distinct’. The authors note that there are several easily identifiable differences between the iccpr and the echr, including regarding the right to life, right to a fair trial, right of marriage and political rights.235 Helfer and Slaughter also argue that divergence is justified when the constituent treaties differ in object and purpose with relevance to the case considered, and ‘enshrine different substantive goals’.236 For example, they note that the iccpr contains limited references to democratic principles, unlike the echr; these ‘principles of democratic liberalism’ run through the jurisprudence of the Covenant and inform its interpretations of human rights standards.237

(ii)

Divergence Avoids Sinking to the Lowest Common Denominator

Considering the potential integration of the European and United Nations human rights systems, Meron has expressed concern that the laudable aim of integration and coordination of human rights enforcement should not ‘prevent or impede the raising of standards’.238 He has warned that ‘overzealous’239 efforts to rationalise the system and achieve uniformity might lead to ‘acceptance of the lowest common denominator’240 where ‘the most favourable’ is brought into line with ‘the least farreaching’.241 McCrudden cautions against the optimism of human rights activists that judicial borrowing will always lead to more liberal, rights-protective reforms. He warns that harmonisation can sometimes lead to ‘levelling down rather than levelling up’.242 Killander has expressed a similar anxiety about harmonisation leading to the adoption of poorly reasoned judgments. He observes that the general comments of the treaty monitoring bodies have had a ‘harmonising effect’ on the development of human rights law.243 However, he is concerned about the ‘lack of judicial reasoning’ shown by some of the general comments and views adopted by the treaty monitoring bodies, which makes their harmonising impact problematic.244 From this perspective, divergence should be welcomed where it allows more progressive and rights-protective judgments to emerge. Conforti argues that divergent

235 Ibid. at 378. 236 Ibid. 237 Ibid. at 379. 238 Meron, supra n 212 at 761. 239 Ibid. at 777. 240 Ibid. at 762. 241 Ibid. at 777. 242 McCrudden (2014), supra n 156 at 5. 243 Killander, supra n 43 at 163. 244 Ibid.

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decisions in international adjudication can be beneficial because they help the interpretation of legal rules to evolve.245 Forowicz has argued that variances and divergences between ECtHR jurisprudence and that of other international regimes are justified insofar as ‘harmonizing the Convention [with these regimes] could weaken the echr system and be detrimental to human rights protection’.246 If other bodies are interpreting human rights in a way that would pose a threat to the rights and freedoms protected under the echr, Forowicz argues that this should be a block to its incorporation into ECtHR jurisprudence. These views seem at odds with the more optimistic viewpoints of Pasqualucci and Cerna above,247 which predict that harmonisation will be a force for spreading the most well-reasoned and progressive jurisprudence. However, a bridge between these two opposed arguments is provided by Helfer and Slaughter, who argue that harmonisation is desirable but not when a court thinks it can improve on relevant external precedent.248 When an argument is explicitly cited from a regional tribunal, but the judges deem it to be unpersuasive, Helfer and Slaughter argue that their judgment can ‘legitimately depart’ from the precedent.249 With regards to the Human Rights Committee, they argue that it ‘should not be foreclosed from improving’ on European reasoning.250 Indeed, they see this as the basis of a productive ‘two-way dialogue’ between the United Nations and Europe on human rights issues.251 This also appears to be the stated approach of the IACtHR, which is happy to use external jurisprudence to inform its interpretations of Convention rights if this would lead to an expansion of protection, but not if this would restrict rights.252

(iii)

Respecting State Consent and Regional Independence (Promotes Compliance)

Considering the reasons why some courts do not refer to one another as much as others, Miller speculates that the more reticent courts may have ‘a desire to maintain their independence and the integrity of their jurisprudence’ while also wanting to respect that of other tribunals.253 This concern to maintain independence seems often 245 Conforti, ‘Unité et Fragmentation du Droit International: “Glissez, Mortels, N’Appuyez Pas!”’ (2007) 111(1) Revue Générale de Droit International Public 5 at 6. 246 Forowicz, supra n 13 at 381. 247 Pasqualucci (2005), supra n 209; and Cerna, supra n 227. 248 Helfer and Slaughter, supra n 135. 249 Ibid. at 385. 250 Ibid. at 386. 251 Ibid. 252 OC-5/85, Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, supra n 37 at paras 42–52. 253 Miller, supra n 8 at 499.

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e­ xpressed as a practical or strategic consideration: aggravating states by undermining the principle of state consent and/or imposing ‘foreign’ norms onto a region could threaten the authority or perceived legitimacy of the human rights body; this in turn may affect the level of compliance with its judgments. The importation of jurisprudence from another region risks being rejected as culturally inappropriate. Thus Neuman argues that the IACtHR’s wide-scale importation of human rights norms from outside the region may undermine its legitimacy in the eyes of states parties and therefore threaten rights implementation efforts.254 Toufayan discusses the relevance of these concerns about effective implementation to the jurisprudence of the Human Rights Committee on death row detention.255 In a series of cases starting with Pratt and Morgan v Jamaica256 and culminating in Johnson v Jamaica,257 the Human Rights Committee repeatedly rejected the claim that detention on death row amounts to cruel, inhuman or degrading treatment as prohibited under Article 7 of the iccpr. This contrasted with the ECtHR’s approach, which was more favourable to applicants in such cases.258 Assessing the Committee’s reasons for moving away from European jurisprudence in the Johnson case, Toufayan speculates that ‘it was gravely concerned about the palatability of its decision[s] in a Third World state where the political climate was different from the one existing in European nations’.259 Although the ECtHR’s approach was more rigorous, judgments following it may have been so out of touch with the domestic situation of many states that they would have been unlikely to comply with the rulings. Thus Toufayan notes that the Caribbean’s highest court, the United Kingdom Privy Council, was accused of ‘judicial imperialism’ and ‘super-imposing Eurocentric notions and values’ when it pursued a rights-expansionist strategy regarding capital punishment.260 He considers the merits of judges exhibiting more ‘political pragmatism’, by issuing judgments that allow a violating state to ‘make common cause with the Committee and to perceive its future rulings as authoritative and legitimate’.261 He notes, however, that this approach carries the risk of sheltering regressive policies. Helfer and Slaughter mirror these arguments in another of their justifications for ‘informed divergence’: when uniquely regional legal developments have informed the interpretation of treaty rights. With regards to the ECtHR, Helfer and Slaughter argue 254 Neuman (2008), supra n 44 at 108. 255 Toufayan, ‘Identity, Effectiveness, and Newness in Transjudicialism’s Coming of Age’ (2010) 31(2) Michigan Journal of International Law 307. 256 (210/1986 and 225/1987) Views, A/44/40 at 222 (1989). 257 Supra n 154. 258 Toufayan, supra n 255 at 376. 259 Ibid. at 377. 260 Ibid. at 378. 261 Ibid. at 379.

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that divergence from its settled case law is justified where there is a ‘uniquely European gloss’ to particular precedent(s). In this instance, they argue it would be illegitimate for a global body such as the Human Rights Committee to ‘impose’ a regional human rights experience on to the world at large.262 The conclusion of these cited authors is that some harmonisation is desirable, but that care must be taken to thoughtfully consider and articulate why external jurisprudence is suitable to follow or not in each particular case. It may not be wise to aim for complete convergence if this will alienate states parties and undermine future compliance with judgments.

(iv)

Divergence Reflects Cultural Pluralism

A stronger argument against the convergence of human rights jurisprudence has been made by scholars who assert the importance of reflecting regional cultures and identities in the interpretation of human rights standards. This argument is best situated in the context of a broader debate about universality and cultural diversity, which has been conducted passionately in human rights scholarship. Carozza summarises the problem neatly: ‘There is an inherent tension in international human rights law between affirming a universal substantive vision of human dignity and respecting the diversity and freedom of human cultures’.263 Pasqualucci argues that the opponents of harmonisation fear it would enforce ­uniformity on a diverse world. She describes the anxiety by some that harmonisation will ‘interfere with cultural pluralism and create a more homogenous world’.264 The value of the regional human rights courts may be, therefore, as Neuman argues, to articulate ‘regionally specific conceptions of shared human rights concepts’.265 This regionally specific interpretation could be lost as harmonisation creates universal interpretations. Pasqualucci argues that those who object to harmonisation hold the view that rights are ‘culturally relative in character’.266 In contrast to the view of universalism expressed above, which holds that universal rights demand uniform standards, proponents of cultural relativism would allow for differences in rights standards on the basis of ‘religious or cultural differences’.267 However, not all proponents of divergence in standards label themselves as ‘relativists’. Viljoen, for example, acknowledges that 262 Helfer and Slaughter, supra n 135 at 384. 263 Carozza, ‘Subsidiarity as a Structural Principle of International Human Rights Law’ (2003) 97(1) American Journal of International Law 38 at 38. 264 Pasqualucci (2007), supra n 10 at 40. 265 Neuman (2008), supra n 44 at 106. 266 Pasqualucci (2007), supra n 10. 267 Ibid. at 40.

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universality implies ‘all human beings have an equal claim to a dignified existence’.268 However, he insists that the ‘detailed reality’ of the lives and expectations of different cultures, nations and religious backgrounds will necessitate diversity in the way that this dignity is realised.269 He argues: The principle of the universality of human rights does not therefore mean uniformity in the application of this principle across the globe. Human rights have no fixed or pre-determined meaning; they are constantly made visible and are given concrete meaning in very different contexts.270 According to Viljoen, human rights law needs to reflect a dialogue about the best way to integrate universal values into local context; this implies that standards should not be harmonised completely across all jurisdictions. The alternative is ‘vagueness’ or universal or ‘Western’ values being imposed on different cultures.271 McCrudden raises a more practical concern with thoughtlessly transplanting legal concepts or interpretations of human rights standards from one jurisdiction to another. Because legal concepts are often closely connected with other concepts and institutional practices within the same jurisdiction, ‘borrowing the rhetoric without understanding the practice can lead to unintended consequences’.272 Shelton argues that claims of diversity are ‘often disingenuous’, used by repressive governments to serve their purposes under the guise of the ‘tired debate’ about cultural relativism.273 However, she recognises that the ‘relativism debate’ is different from acknowledging legitimate concerns with diversity, autonomy and the value of self-governance. Shelton agrees that there is an inherent tension between universal rights and these values, and that international institutions must strive to accommodate diversity and yet preserve and promote universal human rights values.274 Similarly, Forowicz acknowledges that regional specificity is a relevant consideration for the judges in the ECtHR. However, she urges that it ‘should not dominate the judges’ reasoning’, because human rights ‘have a universal value’.275 It seems that this tension between protecting and acknowledging diversity and realising universal rights will continue to present the proponents of harmonisation with a significant challenge. 268 Viljoen, supra n 112 at 8. 269 Ibid. 270 Ibid. 271 Ibid. at 10. 272 McCrudden (2014), supra n 156 at 5. 273 Shelton (2010), supra n 49 at 112. 274 Ibid. at 113. 275 Forowicz, supra n 13 at 368.

Index Abortion rights comparative materials, use of European Court of Human Rights 104–5 Human Rights Committee 106 Inter-American Commission on Human Rights 105 variation in approaches 106 conclusions 128–30 effectiveness of Committee on the Elimination of Discrimination against Women 113–15 European Court of Human Rights 106–12 Inter-American Commission on Human Rights 112–13 explicit rights 126–7 globalisation of abortion 127–8 international law, role of 123–8 introduction 103–4 lack of consensus on 123–4 life, right to mother 127 unborn child 123–4, 129 margin of appreciation 123–4 practicality of Committee on the Elimination of Discrimination against Women 113–15 European Court of Human Rights 106–12 Inter-American Commission on ­Human Rights 112–13 private and family life, right to ECtHR use of hrc comments in interpretation of rights 144–8 use of 127 procedural and substantive rights, interplay between 125–7 reproductive health, protection of African Women’s Protocol 115–16 European Court of Human Rights 116, 118–22 Human Rights Committee 116–18 Parliamentary Assembly of the Council of Europe 116 unsafe abortions 122–23

therapeutic abortion African Women’s Protocol 115–16 European Court of Human Rights 116, 118–22 Human Rights Committee 116–18 Parliamentary Assembly of the Council of Europe 116 unsafe abortions 122–23 Africa children’s rights African Charter on Human and People’s Rights 298 African Charter on the Rights and Welfare of the Child 298–300 African Committee of Experts on the Rights and Welfare of the Child 300–3 standing 302–3 work, right to 221–2 African Charter on Human and Peoples’ Rights children’s rights 298 death penalty 71 gender equality 198–202 African Charter on the Rights and Welfare of the Child children’s rights 298–300 death penalty 71 African Commission on Human and Peoples’ Rights children’s rights 298 death penalty abolition of capital punishment 89 cross-fertilisation of jurisprudence 82–3 death row phenomenon 97–8 provisional measures 87 restriction of capital punishment 90–7 state practice 71 duty to investigate barriers to effective investigation 47 burden of court 55–6 disappearances 45 discrimination, evidence of 46 due diligence standards 34

629

Index effectiveness 36–40 exhaustion of domestic remedies 52–3 jurisdiction 47–8 next-of-kin involvement 42 reparations 59–60 systemic violations 44 trigger for duty to arise 43 truth, right to know 58 victim involvement 42 extraterritorial activities of companies, and 449 gender equality 208–10 international humanitarian law, approach to 397–400 interpretation by 489 referencing external sources use of by Commission 607–9 Inter-American jurisprudence 602–3 sexual orientation comparative reliance 181 future evolution of rights 189–92 treaty norms and interpretation 168–71 African Committee of Experts on the Rights and Welfare of the Child children’s rights 300–3 African Court on Human and Peoples’ Rights children’s rights 298, 302 gender equality 200 international humanitarian law, approach to 400 moral prejudice 60 sexual orientation 191–2 African Union abortion 115 children’s rights 299 gender equality 200 sexual orientation, treatment of 163–4 African Women’s Protocol abortion rights 115–16 American Convention on Human Rights children’s rights 304, 311 death penalty 70–1 echr, similarities and differences with constitutional 349–54 historical 343–7 institutional 349 interpretative 354–8

introduction 342–3 textual 347–8 margin of appreciation, and 340–2 American Declaration of the Rights and Duties of Man death penalty 70–1 Anti-terrorism sanctions private and family life, right to ECtHR interpretation of rights 143– 4, 149–52 Armed conflict special procedures drones, use of 553 El Salvador 553–4 Human Rights Council 554–5 Association, freedom of trade unions right not to associate 226–7 right to organise 224–5 special groups 227–9 threats to right to organise 229–32 Attribution extraterritorial application of echr 426 Burden of proof duty to investigate right to life violations 54–6 Capital punishment see Death penalty Caste racial discrimination 281–2 Child exploitation children’s rights 318–19 Child pornography special procedures 559 Child prostitution special procedures 559 Children, sale of special procedures 559 Children’s rights African regional human rights system African Charter on Human and People’s Rights 298 African Charter on the Rights and Welfare of the Child 298–300 African Committee of Experts on the Rights and Welfare of the Child 300–3 standing 302–3

630 Children’s rights (cont.) conclusion 322 Council of Europe regional human rights system European Convention on Human Rights 313–15 European Social Charter 316–21 generally 311–12 European Social Charter child exploitation 318–19 corporal punishment of children 319–20 education 316, 320–1 migrant workers and families 317–18 social and economic protection 316–17 Inter-American regional human rights system American Convention on Human Rights 304, 311 Inter-American Commission on Human Rights 304–7 Inter-American Court of Human Rights 303–4, 307–11 Office of the Rapporteur on the Rights of the Child 305 Organization of American States 305 introduction 296–8 Citations harmonising jurisprudence, and 597–8 Codification new international human rights instruments 559–65 Co-existence of un and regional systems see also Regional human rights tribunals, United Nations challenges of generally 502–3 newer specialised norms 511–13 same cases but different litigants 507–9 same issues but different cases and litigants 509–11 same matter 503–7 confidentiality, and European Committee for the Prevention of Torture 523–31 expanding reach of human rights implementation 541–2

Index introduction 516–23 procedural coordination between systems 532–4 procedural coordination within systems 535–6 Subcommittee for Prevention of Torture 523–31 substantive coordination 536–41 working in alignment 531–41 introduction 493–5 opportunities of deepening interpretation of provisions or issues 499–500 elaborating unclear or vague concepts 498–9 generally 495–6 marshalling support to depart from previous positions 496–8 supporting conclusions in particular case 501–2 un perspective 513–15 working in alignment generally 531 procedural coordination between systems 532–4 procedural coordination within systems 535–6 substantive coordination 536–41 Collective bargaining European Committee of Social Rights 233–8 European Convention on Human Rights 240–2 European Union 238–40 introduction 233 Committee against Torture co-existence, and 496, 499 confidentiality 535, 536 international humanitarian law, approach to 376, 379 referral to cases from death penalty 81 ECtHR 574, 605 Committee on Economic, Social and Cultural Rights consistent terminology, use of 247 extraterritorial activities of companies, and 442–4

Index international humanitarian law, approach to 374, 377 Committee on the Elimination of Discrimination against Women abortion rights 104, 105, 113–15, 126 extraterritorial activities of companies, and 447 gender equality 193, 202–5 referral by ECtHR to jurisprudence of 500 Committee on the Elimination of Racial Discrimination caste-based discrimination 281 ethno-religious discrimination 290, 292 extraterritorial activities of companies, and 442, 444–5 international humanitarian law, approach to 376 linguistic minorities 285–6, 288 special procedures hate speech 550–2 universal minority rights, status of 277, 283–4 Committee on the Rights of the Child (un) African Committee of Experts on the Rights and Welfare of the Child, and 301 esr Committee, and 318–20 extraterritorial activities of companies, and 445–7 Inter-American bodies, and 306–7 international humanitarian law, approach to compliance with ihl 373–3 concluding observations 379 general comments, issuing 375 Committee on the Rights of Persons with Disabilities co-existence, challenges of 511–13 Companies state obligations regarding extraterritorial activities of African Commission on Human and People’s Rights 449 Committee on Economic, Social and Cultural Rights 442–4 Committee on the Elimination of Discrimination against Women 447 Committee on the Elimination of Racial Discrimination 444–5

631 Committee on the Rights of the Child 445–7 conclusions 452–3 corporate impunity gap 436–7 Council of Europe 447–9 developments outside hr systems 449–52 emerging obligations 438–42 Human Rights Committee 445 Inter-American Commission on Human Rights 449 International Covenant on Civil and Political Rights 438–9 International Law Commission 440–1 introduction 435–8 Maastricht Principles 439–42 oecd 451–2 regional systems 447–9 un Guiding Principles 447 un Security Council 449–50 Compétence de la compétence powers of regional human rights tribunals 462–73 Compliance harmonising jurisprudence and cross-referencing 616–18 divergence 624–6 powers of regional human rights tribunals 478–9 Confidentiality co-existence of un and regional systems, and European Committee for the Prevention of Torture 523–31 expanding reach of human rights implementation 541–2 introduction 516–23 Subcommittee for Prevention of Torture 523–31 working in alignment 531–41 Convention on the Elimination of All Forms of Discrimination against Women gender equality 195–7 Convention on the Rights of the Child home births 265 Inter-American bodies, and 306 international humanitarian law, compliance with 372–3 universal minority rights, status of 279

632 Corporal punishment children’s rights 319–20 Corporate impunity gap extraterritorial activities of companies, and 436–7 Court of Justice of the European Union approach to human rights 269–73 armed conflicts 403–4 collective bargaining 238–40 disapplication of domestic legislation 351 harmonising jurisprudence, and 614 referral by ECtHR to jurisprudence of 569, 589, 591–2 Council of Europe extraterritorial activities of companies, and 447–9 sexual orientation, treatment of 158–60 Cyprus, un buffer zone in extraterritorial application of echr 418 Data processing private and family life, right to ECtHR interpretation of rights 138–41 Death in custody promptness of investigation 40 Death penalty abolition of capital punishment 88–90 African Commission on Human and People’s Rights abolition of capital punishment 89 cross-fertilisation of jurisprudence 82–3 death row phenomenon 97–8 provisional measures 87 restriction of capital punishment 90–7 state practice 71 conclusions 100–2 cross-fertilisation of jurisprudence African Commission on Human and People’s Rights 82–3 European Court of Human Rights 78–82 generally 72–3 Human Rights Committee 83–5 Inter-American Court of Human Rights 73–8

Index European Court of Human Rights abolition of capital punishment 88 cross-fertilisation of jurisprudence 78–82 death row phenomenon 97 human rights instruments 70 provisional measures 87 restriction of capital punishment 90–7 harmonisation of jurisprudence abolition of capital punishment 88–90 death row phenomenon 97–100 generally 85–6 provisional measures 86–8 restriction of capital punishment 90–7 Human Rights Committee abolition of capital punishment 89–90 cross-fertilisation of jurisprudence 83–5 death row phenomenon 98–100 human rights instruments 69–70 provisional measures 87–8 restriction of capital punishment 90–7 human rights instruments African Charter on Human and Peoples’ Rights 71 African Charter on the Rights and Welfare of the Child 71 American Convention on Human Rights 70–1 American Declaration of the Rights and Duties of Man 70–1 European Convention on Human Rights 70 International Covenant on Civil and Political Rights 69–70 Inter-American Court of Human Rights abolition of capital punishment 88–9 cross-fertilisation of jurisprudence 73–8 death row phenomenon 97 provisional measures 87 restriction of capital punishment 90–7 state practice 70–1

633

Index introduction 68–9 restriction of capital punishment 90–7 state practice Africa 71 Americas 70–1 Europe 70 international 69–70 Death Row inhuman and degrading treatment 97–100 Delay duty to investigate, and 40–1 Deportation private and family life, right to ECtHR interpretation of rights 141–3 Detention extraterritorial application of echr 416 extraterritorial detention 424–5 private and family life, right to ECtHR interpretation of rights 143–4 working group on arbitrary detention 24 Disabilities Committee on the Rights of Persons with Disabilities co-existence, challenges of 511–13 Disappearances duty to investigate, and 44–5 Discrimination duty to investigate, and 45–6 Displaced persons special procedures 561 Divergence of jurisprudence harmonising jurisprudence, and 621 justifying avoiding lowest common denominator 623–4 different purposes 622–3 different rights 622–3 different standards 622–3 promoting compliance 624–6 reflecting cultural pluralism 626–7 Drones special procedures 553 Due diligence duty to investigate right to life violations, and 34–42 Duty to investigate general principles

effectiveness obligation 35–40 impartiality 41 independence 41 instigating investigation on own initiative 35 introduction 34–5 next-of-kin involvement 41–2 promptness 40–1 victim involvement 41–2 investigatory standards disappearances 44–5 discrimination, evidence of 45–6 isolated violations 43–4 systemic violations 43–4 life, right to barriers to effective investigation 46–7 burden of proof 54–6 conclusions 64–7 due diligence, and 34–42 effectiveness obligation 35–40 exhaustion of domestic remedies 51–4 impartiality 41 independence 41 instigating investigation on own initiative 35 investigatory standards, differences in 43–6 jurisdiction 47–51 next-of-kin involvement 41–2 origins of 33–4 promptness 40–1 reparations 58–64 submission of applications 51–4 trigger for duty to arise 42–3 truth, right to know 56–8 victim involvement 41–2 Education children’s rights 316, 320–1 Effective investigation, duty of African Commission on Human and People’s Rights 36–7 European Court of Human Rights 35, 37 Inter-American Court of Human Rights 36 scope of obligation 37–40

634 El Salvador special procedures 553–4 Ethnic origin racial discrimination 282–3 Eurocentrism non-use of margin of appreciation 360–1 European Commission against Racism and Intolerance referral by ECtHR to jurisprudence of 569–70 European Commission of Human Rights extraterritorial applicability of echr approach to referral to views of other bodies 408–11 case law 1960s to November 2001 411–13 case law December 2001 to November 2004 413–17 case law November 2004 to present 417–28 conclusion 432–4 introduction 407–8 reasons for referral to views of other bodies 408 referral to decisions of other bodies Human Rights Committee 413, 414, 416, 430–2 Inter-American Court of Human Rights 414–15 International Court of Justice 416–17, 428–30 International Law Commission 415–16 European Committee for the Prevention of Torture Subcommittee for Prevention of Torture, and 523–31 European Committee of Social Rights collective bargaining 233–8 European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment health, right to 267–9 European Convention on Human Rights and Fundamental Freedoms achr, similarities and differences with constitutional 349–54 historical 343–7 institutional 349

Index interpretative 354–8 introduction 342–3 textual 347–8 children’s rights 313–15 collective bargaining 240–2 death penalty 70 extraterritorial applicability approach to referral to views of other bodies 408–11 case law 1960s to November 2001 411–13 case law December 2001 to November 2004 413–17 case law November 2004 to present 417–28 conclusion 432–4 introduction 407–8 reasons for referral to views of other bodies 408 gender equality 197–8 health, right to 260–7 European Court of Human Rights abortion rights comparative materials, use of 104–5 effectiveness of 106–12 practicality of 106–12 reproductive health, protection of 116, 118–22 therapeutic abortion 116, 118–22 death penalty abolition of capital punishment 88 cross-fertilisation of jurisprudence 78–82 death row phenomenon 97 human rights instruments 70 provisional measures 87 restriction of capital punishment 90–7 duty to investigate access to witnesses 37 barriers to effective investigation 46–7 burden of court 55 disappearances 44–5 discrimination, evidence of 46 due diligence standards 34 effectiveness 35–40 exhaustion of domestic remedies 53–4

Index impartiality 41 independence 41 jurisdiction 48–51 new evidence 37 next-of-kin involvement 42 promptness 40 reparations 58–9, 61–4 systemic violations 44 trigger for duty to arise 42–3 truth, right to know 56–8 victim involvement 42 extraterritorial applicability of echr approach to referral to views of other bodies 409–11 case law 1960s to November 2001 411–13 case law December 2001 to November 2004 413–17 case law November 2004 to present 417–28 conclusion 432–4 introduction 407–9 reasons for referral to views of other bodies 409 gender equality 205–8 Human Rights Committee, referral to decisions of 430–2 Inter-American Court of Human Rights referral to jurisprudence of ECtHR 601–2 referring to decisions of 583–9 International Court of Justice, referral to decisions of 428–30 international humanitarian law, approach to 389–97 powers of articulating principles of interpretation 485–8 interim measures 482–4 jura novit curia 464–6 private and family life, right to conclusions 152–5 automatic processing of personal data 138–41 domestic judgments from non-­ member states 132–3 European Social Charter 135–8 Human Rights Committee 141–52

635 international criminal law 134–5 introduction 131 scope of 132 referencing by iacthr to jurisprudence of 601–2 referencing external sources generally 567–9, 604–7 Inter-American Court of Human Rights 583–9 non-echr national courts 573–7 procedure 569–73 public international law 579–83 us case law 577–9 sexual orientation comparative reliance 173–6 treaty norms and interpretation 164–5 European Social Charter children’s rights child exploitation 318–19 corporal punishment of children 319–20 education 316, 320–1 migrant workers and families 317–18 social and economic protection 316–17 health, right to 255–60 private and family life, right to 135–8 European Union collective bargaining 238–40 Court of Justice of the European Union approach to human rights 269–73 armed conflicts 403–4 collective bargaining 238–40 disapplication of domestic legislation 351 harmonising jurisprudence, and 614 referral by ECtHR to jurisprudence of 569, 589, 591–2 health, right to 269–73 work, right to 216–20 Evidence powers of regional human rights tribunals 473–4 Executions see also Death penalty special procedures 546–7

636 Exhaustion of domestic remedies duty to investigate right to life violations 51–4 Expression, freedom of special procedures 551 Extraterritorial acts and omissions jurisdiction, and 423 Extraterritorial applicability of echr referral by ecommhr and ECtHR to view of other human rights bodies approach to 408–11 case law 1960s to November 2001 411–13 case law December 2001 to November 2004 413–17 case law November 2004 to present 417–28 conclusion 432–4 introduction 407–8 reasons for 408 Fragmentation harmonising jurisprudence, and 619–20 Framework Convention for the Protection of National Minorities racial discrimination 276 Freedom of expression special procedures 551 Freedom of religion or belief special procedures 549, 551 Freedom of the media special procedures 550 Gender equality African Commission on Human and People’s Rights 208–10 Committee on the Elimination of Discrimination against Women 202–5 concepts of 194–5 European Court of Human Rights 205–8 introduction 193 legal instruments African Charter on Human and Peoples’ Rights and the Women’s Protocol 198–202 Convention on the Elimination of All Forms of Discrimination against Women 195–7

Index European Convention on Human Rights 197–8 legal pluralism 210–12 Globalisation abortion rights 127–8 Harmonising jurisprudence arguments in favour of harmonisation divergence 621 fragmentation 619–20 spreading best-reasoned jurisprudence 621–2 universality 620–1 citations 597–8 cross-referencing between bodies exceeding delegated authority 615–16 generally 610–11 influence 614–15 judicial reasoning 611–12 persuasion 614–15 relevance of external source 618–19 saving time and effort 612–13 undermining compliance 616–18 divergence, justifying avoiding lowest common denominator 623–4 different purposes 622–3 different rights 622–3 different standards 622–3 promoting compliance 624–6 reflecting cultural pluralism 626–7 introduction 595 judicial borrowing 595–6 reference to external sources African Commission on Human and People’s Rights 607–9 European Court of Human Rights 604–7 generally 598–9 Human Rights Committee 609 Inter-American Court of Human Rights 599–601 Hate speech special procedures 548–52 Health, right to Europe European Convention for the Prevention of Torture 267–9

Index European Convention on Human Rights 260–7 European Social Charter 255–60 European Union 269–73 International Covenant on Economic, Social and Cultural Rights collective data demonstrating inequality 251–2 General Comment No 14 247–9 importance of 274 limitation of rights 252–4 standard of implementation 250–1 state discretion 252 World Health Organisation, and 254–5 introduction 246–7 High seas extraterritorial application of echr 421–2 Human Rights Committee (un) abortion rights comparative materials, use of 106 reproductive health, protection of 116–18 therapeutic abortion 116–18 death penalty abolition of capital punishment 89–90 cross-fertilisation of jurisprudence 83–5 death row phenomenon 98–100 human rights instruments 69–70 provisional measures 87–8 restriction of capital punishment 90–7 extraterritorial activities of companies, and 445 international humanitarian law, approach to concluding observations 378, 379–80 general comments, issuing 373–5 individual complaints 383 private and family life, right to 141–52 referencing external sources European Commission and Court 413, 414, 416, 430–2 influence of 609

637 Inter-American jurisprudence 603 sexual orientation comparative reliance 181–5 treaty norms and interpretation 172–3 Human Rights Council special procedures armed conflict 554–5 hate speech 550 Human rights tribunals, regional conclusion 489 form 457 function 457–8 inherent powers admissibility and appreciation of evidence 473–4 compétence de la compétence 462–73 deciding the merits 474–6 generally 458–62 introduction 454–7 specific functions and consequent powers articulating principles of interpretation 484–9 generally 476–9 interim measures 479–84 Impartiality duty to investigate, and 41 Independence duty to investigate, and 41 Inherent powers of regional human rights tribunals admissibility and appreciation of evidence 473–4 compétence de la compétence 462–73 deciding the merits 474–6 generally 458–62 Inhuman and degrading treatment, freedom from death row, and 97–100 Inter-American Commission on Human Rights children’s rights 304–7 international humanitarian law, approach to 384–9 Inter-American Court of Human Rights abortion rights comparative materials, use of 105 effectiveness of 112–13

638 Inter-American Court of Human Rights (cont.) practicality of 112–13 children’s rights 303–4, 307–11 death penalty abolition of capital punishment 88–9 cross-fertilisation of jurisprudence 73–8 death row phenomenon 97 human rights instruments 70–1 provisional measures 87 restriction of capital punishment 90–7 state practice 70–1 duty to investigate barriers to effective investigation 46–7 burden of court 54–5 disappearances 44–5 discrimination, evidence of 46 due diligence standards 34 effectiveness 36–40 exhaustion of domestic remedies 51–2, 54 impartiality 41 independence 41 jurisdiction 47 know truth, right to 56–8 next-of-kin involvement 41–2 promptness 41 reparations 58–9, 60–1 systemic violations 43–4 trigger for duty to arise 43 victim involvement 41–2 extraterritorial activities of companies, and 449 international humanitarian law, approach to 384–9 powers of articulating principles of interpretation 488–9 interim measures 480–2 jura novit curia 467, 470–3 referencing external sources African Commission on Human and People’s Rights 602–3 European Court of Human Rights 601–2 generally 599–601

Index Human Rights Committee 603 Inter-American jurisprudence 603–4 international soft law 603 referencing jurisprudence of 583–9, 414–15 sexual orientation comparative reliance 176–80 treaty norms and interpretation 165–7 work, right to 220–1 Interim measures powers of regional human rights tribunals European Court of Human Rights 482–4 generally 479–80 Inter-American Court of Human Rights 480–2 Internally displaced persons special procedures 561 International Committee of the Red Cross co-existence and confidentiality 534 disappearances in international armed conflicts 554 referral to external sources 590 International Conference on Population and Development abortion, and 104, 119 International Convention for the Protection of All Persons from Enforced Disappearance compliance with international humanitarian law, and 373 International Convention on the Elimination of All Forms of Racial Discrimination (icerd) racial discrimination linguistic minorities 285–8 minority rights versus 278–85 religious minorities 288–93 International Court of Justice Convention on the Rights of the Child, and 429 European Commission and Court, referral to decisions of 428–30 International Covenant on Civil and Political Rights death penalty 69–70 racial discrimination 275–6, 278

Index state obligations regarding extraterritorial activities of companies 438–9 International Covenant on Economic, Social and Cultural Rights health, right to collective data demonstrating inequality 251–2 General Comment No 14 247–9 importance of 274 limitation of rights 252–4 standard of implementation 250–1 state discretion 252 World Health Organisation, and 254–5 International Criminal Court jurisprudential cross-referencing 599 International criminal law right to private and family life ECtHR interpretation of rights 134–5 International Criminal Tribunal for Rwanda jurisprudential cross-referencing 596, 599 International Criminal Tribunal for the Former Yugoslavia jurisprudential cross-referencing 596, 599 International humanitarian law African Commission on Human and Peoples’ Rights, approach of 397–400 African Court on Human and Peoples’ Rights, approach of 400 applicability 369 co-applicability 369–71 Committee against Torture, and 376 Committee for the Elimination of Racial Discrimination, and 376 Committee on Economic, Social and Cultural Rights, and 374, 377 Committee on the Rights of the Child, and compliance with ihl 373–3 concluding observations 379 general comments, issuing 375 common but differentiated approaches 400–6 European Court of Human Rights, approach of 389–97 Human Rights Committee, and

639 concluding observations 378, 379–80 general comments, issuing 373–5 individual complaints 383 Inter-American Commission and Court, approach of 384–9 introduction 366–71 un treaty bodies, and concluding observations 377–82 general comments, issuing 373–7 individual complaints 382–3 introduction 372–3 International Labour Organization co-existence, and 495 work, right to 215–16 universal minority rights, and 277 International Law Commission referral to decisions of 415–16 state obligations regarding extraterritorial activities of companies 440–1 International Tribunal for the Law of the Sea jurisprudential cross-referencing 596, 599 Interpretation powers of regional human rights tribunals 484–9 Iraq extraterritorial application of echr 418–20, 425–6 international humanitarian law, application of 392–3 minority protection 279 Judicial borrowing harmonising jurisprudence 595–6 Judicial independence powers of regional human rights tribunals 460–1 Jura novit curia powers of regional human rights tribunals application of 462–4 European Court of Human Rights 464–6 Inter-American Court of Human Rights 467, 470–3 reasons for extensive use of 462–73

640 Jurisdiction duty to investigate right to life violations 47–51 Jurisprudence harmonising arguments in favour of harmonisation 619–22 citations 597–8 cross-referencing between bodies 610–19 divergence, justifying 622–7 introduction 595 judicial borrowing 595–6 reference to external sources 598–609 Kosovo extraterritorial application of echr 417 League of Nations Minorities Treaties racial discrimination 275 Life, right to abortion rights, and mother 127 unborn child 123–4, 129 duty to investigate violations barriers to effective investigations 46–7 burden of proof 54–6 conclusions 64–7 due diligence, and 34–42 effectiveness obligation 35–40 exhaustion of domestic remedies 51–4 impartiality 41 independence 41 instigating investigation on own initiative 35 investigatory standards, differences in 43–6 jurisdiction 47–51 know truth, right to 56–8 next-of-kin involvement 41–2 origins of 33–4 promptness 40–1 reparations 58–64 submission of applications 51–4 trigger for duty to arise 42–3 victim involvement 41–2 introduction 33

Index Linguistic minorities racial discrimination 285–8 Know truth, right to duty to investigate right to life violations, and 56–8 Maastricht Principles state obligations regarding extraterritorial activities of companies 439–42 Mandate holders of special procedures child pornography 559 child prostitution 559 children, sale of 559 cooperation with ohchr 562 executions arbitrary 429, 546–7, 553 summary 429, 546–7, 553 freedom of expression 551 freedom of religion or belief 549, 551 freedom of the media 550 internally displaced persons 561 promotion and protection of human rights 564 racial discrimination 549, 551 role of 545–6 torture 547–8, 562 toxic waste 558–9 water, right to 562 xenophobia 549 Mankind reference to opinions of 567–9 Margin of appreciation abortion rights 123–4 American Convention of Human Rights, and 340–2 blanket rules 332–3 concept of 326–31 conclusions 362–5 consensus, role of 333–7 critiques of 337–40 echr and achr similarities and differences constitutional 349–54 historical 343–7 institutional 349 interpretative 354–8 introduction 342–3 textual 347–8 indiscriminate rules 332–3 introduction 325–6

Index non-use of, explanations for anti-eurocentrism 360–1 misunderstanding of margin of appreciation 361 protecting universality of human rights 359–60 rhetorical non-use 361–2 standard of review, and 331–2 Media, freedom of the special procedures 550 Merits, decisions on powers of regional human rights tribunals 474–6 Migrant workers children’s rights 317–18 Minority rights racial discrimination icerd 278–85 status of 275–8 National preventative mechanisms Optional Protocol to the Convention against Torture, and 524 Next-of-kin duty to investigate, and 41–2 Occupied territories extraterritorial application of echr 416–17 Office of the Rapporteur on the Rights of the Child children’s rights 305 Office of the United Nations High Commissioner for Human Rights sexual orientation, and 161 opcat Committee see Subcommittee for Prevention of Torture Optional Protocol to the Convention against Torture adoption of 523 European Committee for the Prevention of Torture 523–31 national preventative mechanisms 524 Subcommittee for Prevention of Torture 523–31 Organisation for Economic Co-operation and Development extraterritorial activities of companies, and 451–2

641 Organization for Security and Co-operation in Europe sexual orientation, and 181 Organization of African Unity international humanitarian law, and 397 sexual orientation, and 163, 168, 190, 191 Organization of American States children’s rights 305 sexual orientation, treatment of 160–1 Parliamentary Assembly of the Council of Europe abortion rights 116 Permanent Court of International Justice inherent and implied powers 454 Personal data, automatic processing of private and family life, right to ECtHR interpretation of rights 138–41 Pornography special procedures 559 Powers of regional human rights tribunals admissibility and appreciation of evidence 473–4 compétence de la compétence 462–73 deciding the merits 474–6 generally 458–62 Private and family life, right to abortion rights 127 interpretation by European Court of Human Rights conclusions 152–5 automatic processing of personal data 138–41 domestic judgments from non-member states 132–3 European Social Charter 135–8 Human Rights Committee 141–52 international criminal law 134–5 introduction 131 scope of 132 Promptness duty to investigate, and 40–1 Prostitution special procedures 559 Provisional measures death penalty harmonisation of jurisprudence 86–8

642 Public interest functions of regional human rights tribunals 477 Public international law cross-referencing by ECtHR to 579–83 Public policy functions of regional human rights tribunals 477–8 Racial discrimination caste 281–2 conclusion 293–5 descent 281 ethnic origin 282–3 International Convention on the Elimination of All Forms of Racial Discrimination (icerd) linguistic minorities 285–8 minority rights versus 278–85 religious minorities 288–93 linguistic minorities 285–8 minority rights icerd versus 278–85 status of 275–8 religious minorities 288–93 special procedures 549, 551 universal minority rights, status of Framework Convention for the Protection of National Minorities 276 icerd 277–8 International Covenant on Civil and Political Rights 275–6, 278 League of Nations Minorities Treaties 275 un Declaration on Minorities 276 un Declaration on the Rights of Indigenous Peoples 276–7 Referencing jurisprudence of external sources arguments against exceeding delegated authority 615–16 relevance of external source 618–19 undermining compliance 616–18 arguments in favour of generally 610–11 judicial reasoning 611–12 saving time and effort 612–13 influence 614–15 persuasion 614–15

Index Regional human rights tribunals see also Co-existence of un and regional systems African Commission on Human and People’s Rights articulating principles of interpretation 489 compétence de la compétence 462–73 conclusion 489 establishment by state 459–61 European Court of Human Rights articulating principles of interpretation 485–8 interim measures 482–4 jura novit curia 464–6 evidence, admissibility and appreciation of 473–4 form and function 458–9 inherent powers admissibility and appreciation of evidence 473–4 compétence de la compétence 462–73 deciding the merits 474–6 generally 458–62 Inter-American Court of Human Rights articulating principles of interpretation 488–9 interim measures 480–2 jura novit curia 467, 470–3 interim measures European Court of Human Rights 482–4 generally 479–80 Inter-American Court of Human Rights 480–2 introduction 454–7 judicial independence 460–1 jura novit curia application of 462–4 European Court of Human Rights 464–6 Inter-American Court of Human Rights 467, 470–3 reasons for extensive use of 462–73 merits, decisions on 474–6 specific functions and consequent powers articulating principles of interpretation 484–9 compliance 478–9

Index generally 476–7 interim measures 479–84 public interest 477 public policy 477–8 Religious freedom special procedures 549, 551 Religious minorities racial discrimination 288–93 Reparations duty to investigate right to life violations 58–64 Sexual orientation African Commission on Human and People’s Rights comparative reliance 181 future evolution of rights 189–92 treaty norms and interpretation 168–71 comparative reliance, factors influencing 188–9 conclusion 186–92 European Court of Human Rights comparative reliance 173–6 treaty norms and interpretation 164–5 external jurisprudence, reliance on 186–7 Human Rights Committee comparative reliance 181–5 treaty norms and interpretation 172–3 Inter-American Court of Human Rights comparative reliance 176–80 treaty norms and interpretation 165–7 introduction 156–8 limited influence through cross-pollination 186 political context African Union 163–4 Council of Europe 158–60 determining external influence 188–9 introduction 158 Organization of American States 160–1 United Nations 161–3

643 Ships extraterritorial application of echr 421–2 Society’s opinions reference to 567–9 South Ossetian extraterritorial application of echr 426–8 Special procedures armed conflict drones, use of 553 El Salvador 553–4 Human Rights Council 554–5 clarifying or obscuring contentious issues armed conflicts 553–5 hate speech 548–52 non-state actors, approaches towards 555–9 codification of new international human rights instruments 559–65 conclusions 565–6 early conceptual contributions 545–8 Guiding principles on business and human rights 562 on extreme poverty and human rights 562 hate speech 548–52 introduction 543–5 mandate holders arbitrary and summary executions 546–7 child pornography 559 child prostitution 559 cooperation with ohchr 562 freedom of expression 551 freedom of religion or belief 549, 551 freedom of the media 550 human rights of internally displaced persons 561 promotion and protection of human rights 564 racial discrimination 549, 551 role of 545–6 sale of children 559 torture 547–8, 562 toxic waste 558–9 water, human right to 562 xenophobia 549

644 Special procedures (cont.) non-state actors, approaches towards 555–9 Office of the High Commissioner for Human Rights cooperation of mandate holders with 562 multilateral discussion on hate speech 551 working groups arbitrary detention 563–5 enforced or involuntary disappearances 546, 560–1 State obligations extraterritorial activities of companies African Commission on Human and People’s Rights 449 Committee on Economic, Social and Cultural Rights 442–4 Committee on the Elimination of Discrimination against Women 447 Committee on the Elimination of Racial Discrimination 444–5 Committee on the Rights of the Child 445–7 conclusions 452–3 corporate impunity gap 436–7 Council of Europe 447–9 developments outside hr systems 449–52 emerging obligations 438–42 Human Rights Committee 445 Inter-American Commission on Human Rights 449 International Covenant on Civil and Political Rights 438–9 International Law Commission 440–1 introduction 435–8 Maastricht Principles 439–42 oecd 451–2 regional systems 447–9 un Guiding Principles 447 un Security Council 449–50 Subcommittee on Prevention of Torture European Committee for the Prevention of Torture, and 523–31

Index Terrorism suspects right to private and family life ECtHR interpretation of rights 143–4, 149–52 Torture special procedures 547–8, 562 Toxic waste special procedures 558–9 Trade unions right not to associate 226–7 right to organise 224–5 special groups 227–9 threats to right to organise 229–32 Transdniestria extraterritorial application of echr 422–3 Truth, right to know duty to investigate right to life violations, and 56–8 United Nations see also Co-existence of un and regional systems co-existence, perspective on 513–15 Commission on Human Rights special procedures 543–5, 548, 553, 557, 558 Economic and Social Council 543 extraterritorial activities of companies, and Guiding Principles 447 Security Council 449–50 General Assembly religious minorities 288 sexual orientation 160–2, 178 special procedures 544, 545 strengthening treaty body system 515, 521 racial discrimination Declaration on Minorities 276 Declaration on the Rights of Indigenous Peoples 276–7 Security Council anti-terrorism sanctions 149–50 cross-referencing external sources 570 extraterritorial activities of companies 450

645

Index international humanitarian law, and 393 special procedures 554, 564 sexual orientation, treatment of 161–3 United Nations treaty bodies international humanitarian law, approach to concluding observations 377–82 general comments, issuing 373–7 individual complaints 382–3 introduction 372–3 Universality harmonising jurisprudence, and 620–1 Unsafe abortions abortion rights to prevent 122–3 us case law cross-referencing by ECtHR to 577–9 Victims duty to investigate, and 41–2 Water, right to special procedures 562 Work, right to collective bargaining

European Committee of Social Rights 233–8 European Convention on Human Rights 240–2 European Union 238–40 introduction 233 conclusions 242–5 harmonious interpretation, arguments for 222–4 introduction 213–4 textual overview Africa 221–2 Americas 220–1 Europe 216–20 international 214–16 trade unions right not to associate 226–7 right to organise 224–5 special groups 227–9 threats to right to organise 229–32 World Health Organisation right to life 254–5 Xenophobia special procedures 549