BPP Pro Bono Centre BPP Law School BPP University London WC1R 4NY United Kingdom
Copyright © 2020 BPP Pro Bono Centre No part of this publication may be reproduced, transmitted, in any form or by any means, electronic, mechanical, recording or otherwise, or stored in any retrieval system of any nature, without the prior, express written permission of the BPP Pro Bono Centre and the author, to whom all requests to reproduce copyright material should be directed in writing. The opinions advanced by the contributors should not necessarily be considered reflective of those held by the Editors of the BPP Human Rights Journal, BPP Pro Bono Centre and BPP University. Whilst every effort has been made to ensure that the information contained is correct in this journal, the Editors, BPP Pro Bono Centre and BPP University do not accept any responsibility for any errors or omissions, or for any resulting consequences.
This volume should be cited (2020) B.P.P.H.R.J.
EDITORIAL TEAM
Editors Alethea Redfern, BPTC, London Lucasta Bath, LLM, London Ryan Cooper, GDL, London
Editorial Board Lucy Wildig, Solicitor and Joint Head of Pro Bono, BPP PRO BONO CENTRE Jessica Duxbury, Pro Bono Streetlaw Manager, BPP PRO BONO CENTRE
CONTENTS
FOREWORD ...... i Baroness Helena Kennedy QC EDITORS’ NOTE ...... v Alethea Redfern, Lucasta Bath and Ryan Cooper
Articles AN END TO QUALIFIED IMMUNITY? ...... 8 Kahill Sarronwala (LPC, London) CLIMATE CHANGE LITIGATION AND THE ROLE OF THE JUDICIARY: A CHALLENGE TO THE SEPARATION OF POWERS? ...... 21 Alexander Westin Hardy (LLM, London) “[T]O HOLD IT FULLY ACCOUNTABLE UNDER INTERNATIONAL LAW”: THE DEFENCE OF HUMAN RIGHTS BY THIRD-STATES IN THE INTERNATIONAL COURT OF JUSTICE...... 33 Adam Weston (GDL, London) THE JURISDICTION PROBLEM IN BUSINESS AND HUMAN RIGHTS ADVANCES ...... 48 Maria Shepard (GDL, London) TOWARDS AN INTERNATIONAL CONSTITUTIONAL LAW: REGIONAL TRADE AGREEMENTS AS A VEHICLE FOR HUMAN RIGHTS ...... 57 Omar Mohamed (LLM, London)
A TALE OF TWO SYSTEMS: EXTRADITION AND SECURITY IN HONG KONG ...... 71 Georgia-Mae Chung (BTC, Birmingham) WHAT DOES THE FUTURE HOLD FOR ARTICLE 3 ECHR IN CASES INVOLVING THE DEPORTATION OF ILL PERSONS? ...... 86 Miranda Sadler (GDL, Bristol) IMMIGRATION DETENTION: IS NOW THE TIME TO LOOK TO ALTERNATIVES? ...... 96 Kerrina Gray (GDL, London) RAPE MYTHS IN THE UK CRIMINAL JUSTICE SYSTEM ...... 111 Isabella De Re (GDL, London)
Case Commentary TO CATCH A PREDATOR: PAEDOPHILE HUNTERS AND ARTICLE 8 ...... 127 Gregory Turpin (LLM, Leeds) ELGIZOULI V SECRETARY OF STATE FOR THE HOME DEPARTMENT [2020] UKSC 10: CASE SUMMARY AND ANALYSIS ...... 133 Oskar Butcher (GDL, London)
FOREWORD
BARONESS HELENA KENNEDY QC
A pandemic presents huge challenges to societies - the risk of a cataclysmic death toll means that governments have to take exceptional steps. Few people of sound mind disagree. It is why virtually every nation in the world has passed Emergency Legislation to limit our freedom of assembly, curtail freedom of association, create powers to enforce rules on social distancing and quarantine and even develop apps which involve locational surveillance. The key part of this deal is that any liberties taken should not be out of all proportion to social need and the powers should be time limited and circumscribed.
The problem is that this contagion coincides with another contagion – the rise of populism and authoritarianism. Under the flag of the pandemic, or using it as a distraction, many of the world’s new style “illiberal democrats” have seized the moment. The escalation of human rights abuse is truly
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alarming. Horrifying, in fact. This year has seen the implementation of the National Security Law in Hong Kong, the rise of extreme religious conservatism and fascism in Hungary and Poland, crisis in Belarus as Lukashenko holds on to power and the continued assault against the legal profession and journalists worldwide. Across the Middle East and North Africa, in Pakistan and India, through Europe and the United States there has been an explosion of reported abuse and escalating violence against women behind closed doors. Police and military forces are using the virus as a pretext to round up dissidents. In the Philippines, President Duterte has given the instruction to shoot dead anyone breaking the lockdown rules. Throughout India the opportunity to turn on Muslims has been seized. Thousands of Uiyghur Muslims in China are locked up in concentration camps, with almost no accountability for the Chinese authorities. Even in the United Kingdom, the UK Government intends to break international law with the Internal Market Bill. A disregard for the rule of law has become a global issue.
It would be all too easy to lay to one side the stealthy erosion of the Rule of Law and to think these abuses of human rights are not our problem. But this is another kind of contagion and it seeps into people’s hearts and minds and eventually it feeds on the body politic. To be silent and turn a blind eye is to be complicit.
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This is why I am grateful to be able to provide the foreword to this year’s BPP Human Rights Journal and introduce a series of articles by young lawyers with a great concern for the world’s human rights issues. Ruth Bader Ginsburg, whose recent death is a great source of sadness to us all, once said when asked about “post-truth” politics, that “when the pendulum swings too far in one direction it will go back”. The reason we have faith that the pendulum will swing back, and once again there will be global respect for the rule of law and human rights, is because of the young lawyers like those featured in this journal who are shocked by what they see in the world and become determined to bring about change. The breadth of issues covered in this issue speaks to the many ills seen round the world, from the increase in China’s control over Hong Kong to the additional plight faced by those in immigration detention throughout the crisis, and the ways in which the law must step in to correct such ills, such as the defence of Human Rights by Third States in the International Court of Justice.
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EDITORS’ NOTE
It gives us great pleasure to present BPP Law School’s 2020 Human Rights Law Journal. Now in its eighth edition, the Journal was founded in 2008 by the Human Rights Unit, a student-led society within BPP University which organises events raising awareness of human rights around the world, as well as helping students become involved with related projects and initiatives. The Journal went out of print after 2017. Although 2020 has brought unprecedented disruption and difficulties, it also gave our editorial team a unique and unexpected opportunity to bring it back.
Previous editions emphasised that human rights issues do not stop at borders. They explored domestic troubles, from Brexit to the devastating effects of legal aid cuts, and brought readers closer to understanding international problems such as Australia’s immigration system, torture in the United States, and airstrikes in Afghanistan.
Human rights issues do not stop for pandemics, either. Amid an onslaught of COVID-19 coverage, other major stories have at times been overlooked. The articles in this edition – divided into domestic
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and international topics for the first time to highlight the Journal’s global scope – address this oversight. On the international plane, Georgia-Mae Chung and Kahill Sarronwala go behind the protest lines to explain how Chinese extradition legislation and the doctrine of qualified immunity triggered unrest in Hong Kong and the United States.
Other commentators assess possible mechanisms for enforcing human rights obligations. Alexander Westin Hardy considers the rise of climate change litigation, Adam Weston takes a close look at third- state intervention on human rights issues at the International Court of Justice, and Omar Mohamed examines the possibilities of a new generation of Regional Trade Agreements. In a similar vein, Maria Shepherd suggests that direct extra-territorial obligations might be help hold international businesses to account.
Turning towards the United Kingdom and the European Union, Miranda Sadler questions what the future holds for cases involving the deportation of seriously ill persons, while Kerrina Gray asks examines the flaws of immigration detention exposed by the COVID-19 pandemic”. In light of concerning prosecution figures released by the Crown Prosecution Service earlier this year, Isabella Da Re surveys the ongoing impact of a selection of rape myths on our criminal justice system.
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Two contributors offer summaries of recent cases. Oscar Butcher overviews the first Supreme Court judgment on the Data Protection Act, notable for its consideration of the legality of handing over information to countries which use the death penalty. Gregory Turpin outlines another case in which the Supreme Court considered whether evidence gathered by online “paedophile hunters” can be used at trial.
The pandemic exemplifies the global reach of human rights issues. It has affected everyone, but not equally. Even as the virus drove people indoors, it forced old injustices into the open: uneven access to education, xenophobia against migrants, families struggling with food insecurity and domestic violence. We must emerge more committed to making society equitable and sustainable. We hope the Journal succeeds in conveying this message to our readers.
Finally, we would like to offer our sincere thanks to Baroness Helena Kennedy QC for her astute foreword, Jessica Duxbury and Lucy Wildig at BPP for their input and oversight, and our talented contributors for the excellent pieces which make up this year’s Journal.
Alethea Redfern, Lucasta Bath and Ryan Cooper
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AN END TO QUALIFIED IMMUNITY?
Kahill Sarronwala
Introduction The killing of George Floyd triggered an eruption of outrage. Cities across the United States witnessed a wave of large-scale protests. The shockwaves reverberated throughout the world, as people in other countries protested the injustice. Despite eliciting strong reactions from the public, the killing of George Floyd was not a novel phenomenon in any respect. Across the United States, conspicuously militarised police forces have become infamous for their unwavering and zealous use of force, as well as institutionalised prejudices. Too often has this culminated in unjustifiable and inexcusable losses of innocent lives and the plain violation of civil liberties. There is a striking dissonance between America’s self-proclaimed status as the ‘land of the free’ and the strong police state mentality enshrined in the legal doctrine of ‘Qualified Immunity’. Qualified Immunity is highly relevant to the trial of George Floyd’s killer, Derek Chauvin, because of the historical lack of accountability for officers in similar situations. This article will explain the operation of Qualified Immunity and will then posit that the doctrine is incompatible with constitutional rights, legal reasoning, the rule of law, and common sense.
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What is Qualified Immunity? The doctrine of Qualified Immunity was first developed in 19671 and in 1982, the contemporary doctrine of Qualified Immunity was espoused in the watershed case of Harlow v. Fitzgerald. This doctrine grants police officers (among other officials) immunity from civil lawsuits when discharging official functions, unless the plaintiff can demonstrate that the officer violated a ‘clearly established statutory or constitutional right of which a reasonable person would have known’.2 Thus, this doctrine provides those who act for state emanations with a form of sovereign immunity in the event that they make ‘reasonable but mistaken judgments about open legal questions’.3 The effect of this in practice is that all officials who act reasonably will not be held accountable for their actions, regardless of whether their actions are unlawful. The reasonableness qualification would seem to exclude those who knowingly break the law or behave in an incompetent manner. 4 On the 15th of June, 2020, the US Supreme Court refused to reconsider the scope of the Qualified Immunity doctrine. 5 The primary rationale behind this doctrine is that by protecting those who perform public services from judicial
1 Pierson v. Ray, 386 U.S. 547 2 Harlow v. Fitzgerald, 457 U.S. 800 3 Ashcroft v. al-Kidd, 563 U.S. 731 4 Malley v. Briggs, 475 U.S. 335 5 Supreme Court Of The United States Order (June, 2020)
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[2020] BPP Human Rights Law Journal Vol. 9 scrutiny, we avoid placing restrictions on the freedom of the police force to act in the interests of the wider community.6 7 In other words, if we don’t police the police, they can better police the people.
Qualified Immunity in Action In Section 1983 of the US Code,8 Congress stated that if a citizen’s rights are violated via the mediums of police brutality, an illegal search, or an unlawful arrest, the aggrieved citizen can hold the state emanation financially accountable for the violating conduct. Congress was unequivocal in its intent to protect constitutional rights. However, as Rudovsky argues, the doctrine of Qualified Immunity has stepped in to eviscerate this very premise and due process often ends at the doorstep of Qualified Immunity.9 When dealing with police brutality, case law has established an objective two-limb test. 10 Firstly, does the evidence demonstrate that the police officers used excessive force in violation of the Fourth Amendment? Secondly, should the police have known (as per the standards of a reasonable person) that they were violating a clearly established
6 Joanna C. Schwartz, The Case Against Qualified Immunity, 93 Notre Dame L. Rev. 1797 (2018) 7 Hill v Chief Constable of West Yorkshire [1987] UKHL 12 8 Joanna C. Schwartz, The Case Against Qualified Immunity, 93 Notre Dame L. Rev. 1797 (2018) 9 Rudovsky, David, "The Qualified Immunity Doctrine in the Supreme Court: Judicial Activism and the Restriction of Constitutional Rights Activism and the Restriction of Constitutional Rights" (1989) 10 https://www.reuters.com/article/us-usa-police-immunity-scotus-specialrep-idUSKBN22K18C
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[2020] BPP Human Rights Law Journal Vol. 9 right? 11 If the answer to either test is no, then Qualified Immunity will prevail.
The primary problem with the tests outlined above stems from the taxonomy of ‘clearly established right’, espoused in the second limb. A right is not considered ‘clearly established’ unless someone has previously successfully brought a claim against a police officer for violating that right. This circular reasoning makes it almost impossible to establish a precedent. Perhaps even more striking is how a ‘clearly established right’ has been interpreted by the US courts. Take the case of Corbitt v. Vickers. 12 Vickers, a police officer, was attempting to shoot at a dog in a backyard, but instead hit 10-year-old Corbitt in the leg. The Corbitt family attempted to sue for this incident, but they were unsuccessful because the police officer was held not to have violated any ‘clearly established rights’. What does this mean? The reasoning of the federal court suggests that due to the absence of any previous cases where an officer was trying to shoot a family dog, and accidentally hit a child, the rights that were violated were not ‘clearly established’. This means that as long as a violation of a citizen’s constitutional rights by police officers involves a unique or original fact pattern (even in a de minimis respect), the rights will not be held to have been ‘clearly established’.13
11 Aldaba v. Pickens, 777 F.3d 1148 12 Corbitt v. Vickers, 929 F.3d 1304 13 Leef, George, "Qualified Immunity – A Rootless Doctrine The Court Should Jettison". Forbes (2018)
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In the case of Baxter v. Bracey, 14 the court considered an earlier ruling, which held that it was a violation of constitutional rights for the police to set dogs on suspects who had surrendered by lying on the ground. However, in Baxter v. Bracey, the plaintiff had surrendered by sitting on the ground with his hands up, instead of lying on the ground. Therefore, when Tennessee police officers let their dogs loose, the plaintiff had no recourse against the police merely because of the ever-so-slightly different fact pattern. In the words of Judge Don Willett,15 ‘Qualified Immunity smacks of unqualified impunity, letting public officials duck consequences for bad behaviour – no matter how palpably unreasonable – as long as they were the first to behave badly’. Such sentiments have been echoed by the Institute for Justice, which states that ‘Qualified Immunity means that government officials can get away with violating your rights, as long as they violate them in a way nobody thought of before’.16
Lastly, take the highly publicised case of Aldaba v. Pickens. A patient, Johnny Leija, was sick with pneumonia and not thinking lucidly. He refused to return to his hospital room. Police officers were called, who then employed vicious pins, stun guns,
14 Baxter v. Bracey, 751 F. App'x 869 15 https://reason.com/2019/09/25/a-license-for-outrageous-police-conduct/ 16 Wilson, J. Justin, "Institute for Justice Asks U.S. Supreme Court to Hold Government Officials Accountable For Destroying Idaho Home with Grenades" (2016)
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[2020] BPP Human Rights Law Journal Vol. 9 and injections, culminating in Leija’s death. Despite using excessive force leading to the death of an innocent, sick, and unarmed man, the police were not held accountable because there was no violation of clearly established rights. The aforementioned cases are only the tip of the iceberg. Brennan v. Dawson, Zadeh v. Robinson, West v. Winfield, Cooper v. Flaig, Hunter v. Cole, and Clarkston v. White are just a handful of many more cases which typify ‘unqualified impunity’.
The Legal Foundations When considering whether Qualified Immunity is fit for purpose, we must bear in mind the fact that the contours of Qualified Immunity are shaped by policy considerations and not common law principles.17
Prior to dismantling the rationales for Qualified Immunity, we will briefly address the flaws pertaining to constitutionality and legal logic. Qualified Immunity could be argued to be ‘judicial activism’ in that it is a doctrine invented by courts which has no legal basis in legislation.18 Indeed, the wording of Section 1983 would seem to lend strength to this position,19 which has also been supported by US Supreme Court Justice, Clarence Thomas. 20
17 Ziglar v. Abbasi, 582 U.S. 18 Schweikert, Jay; Neily, Clark, "As Supreme Court Considers Several Qualified Immunity Cases, A New Ally Joins The Fight". The Cato Institute. (2020) 19 Adelman, Lynn, "The Supreme Court's Quiet Assault on Civil Rights". (2017) 20 Ziglar v. Abbasi, 582 U.S
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Academics, such as Baude, have even suggested that Qualified Immunity is unlawful because of this.21 In addition to the shaky constitutional foundations of Qualified Immunity, there are substantial flaws within the legal reasoning. The key problem is the clear establishment of a right, which is discussed in detail above. There is no normative or defensible reason to distinguish between an unarmed suspect who surrendered by sitting down, and one who lay down to surrender (Baxter v. Bracey). To suggest that an infringement of a constitutional right occurs in the latter but not the former case is arbitrary.22 Yet, this type of superficial reasoning seems to have permeated the doctrine of Qualified Immunity. This impedes the development of the law by preventing the establishment of some form of ‘analogous circumstances’ doctrine. Thus, the first litigant trying a specific set of facts is likely to lose for no other reason than no precedents exist. 23 Even where cases are graced with due process, there is a lack of certainty that any decision will establish a clear legal standard. Indeed, this is going to be a crucial challenge in the trial of Derek Chauvin.
21 William Baude, "Is Qualified Immunity Unlawful?," University of Chicago Public Law & Legal Theory Paper Series, No. 610 (2017) 22 Chung, Andrew; Hurley, Lawrence; Botts, Jackie; Januta, Andrea; Gomez, Guillermo, "Special Report: For cops who kill, special Supreme Court protection". (2020) 23 Millhiser, Ian, "Why police can violate your constitutional rights and suffer no consequences in court" (2020)
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Dismantling the rationales for Qualified Immunity The first rationale for Qualified Immunity is that police officers should be protected in order to preserve their ability to make decisions,24 especially in hazardous situations, and to act in the interests of the wider community. To expose police officers to liability, as though they were acting as private citizens, would lead to a defensive exercise of police powers.25 The third rationale for Qualified Immunity is that a reduction in the scope of Qualified Immunity would not lead to an improvement in policing. However, this reasoning fails on three counts. Firstly, there is a lack of empirical evidence for the assertion that police would adopt a defensive approach. Both Stelios Tofaris and Joanna Schwartz have posited that this argument is based on self- referential reasoning rather than actual empiricism. 2627 Secondly, psychological studies suggest that police officers rarely consider the legal consequences of their actions in the heat of performing their duties.28 It follows that the threat of accountability is likely significantly overestimated when it comes to the effectiveness of policing.
24 Harlow v. Fitzgerald, 457 U.S. 800 25 Hill v Chief Constable of West Yorkshire [1987] UKHL 12 26 Joanna C. Schwartz, The Case Against Qualified Immunity, 93 Notre Dame L. Rev. 1797 (2018) 27 Steele and Tofaris "Negligence Liability for Omissions and the Police", 75 Cambridge Law Journal 128 (2016) 28 Tyler, Goff, MacCoun, The Impact of Psychological Science on Policing in the United States: Procedural Justice, Legitimacy, and Effective Law Enforcement, Yale Law Review (2015)
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Thirdly, in principle, the threat of liability should lead to state emanations enhancing their standards in order to limit the incidence of lawsuits, as discussed by Lord Toulson in the case of Michael.29
The second argument is that having to fight lawsuits against the police force leads to a diversion of public resources away from their primary function.30 Firstly, as with the previous argument, there is a lack of empirical evidence to support this assertion. 31 Secondly, as mentioned before, the threat of liability generates an actual economic incentive to limit the incidence of lawsuits, ultimately leading to a more efficient system.32 Thirdly, a diversion of resources away from their primary function is not necessarily undesirable, provided the resources are being utilised for a suitable public benefit. Holding police officers who use excessive force accountable hardly seems like an unjustifiable use of resources. Lastly, there is a practical fallacy to this argument. The strength of the diversion argument seems to correlate with the number of claims made. If there is more police brutality, there will be more cases to fight, and this will result in an increased diversion of resources. Thus, the greater the institutional
29 Michael & Ors v Chief Constable of South Wales Police & Anor [2015] UKSC 2 30 Ashcroft v. Iqbal, 556 U.S. 662 31 Joanna C. Schwartz, The Case Against Qualified Immunity, 93 Notre Dame L. Rev. 1797 (2018) 32 Steele and Tofaris "Negligence Liability for Omissions and the Police", 75 Cambridge Law Journal 128 (2016)
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[2020] BPP Human Rights Law Journal Vol. 9 problem, the less likely there is to be a remedy; this is simply counter-intuitive.33
The third strand of reasoning in favour of Qualified Immunity is that because police officers cannot be expected to predict the future course of constitutional law, a reduction in the scope of Qualified Immunity would have a ‘chilling effect’ on public service.34 Such a reduction could discourage people from becoming police officers 35 and this would deter all but the most resolute and most irresponsible from serving, according to the Supreme Court. 36 However, this is not an undesirable consequence. Being an officer is stressful, dangerous, and it places private citizens in an indisputable position of power over ordinary citizens. Given the dire consequences when that power is wielded unscrupulously or carelessly, it might well be more desirable for the job to have extra deterrents. Indeed, it is opined that greater deterrence, stemming from enhanced accountability, will result in overall higher performance standards for law enforcement agencies. If we were to accept the Supreme Court’s dichotomy, then the ‘most resolute’ officers will set higher standards, whilst the ‘most irresponsible’ can be more easily identified, held accountable, and removed from the police force. Moreover, this argument hinges on the
33 Armes v Nottingham [2017] UKSC 60 34 Procunier v. Navarette, 434 U.S. 555 35 Scheuer v. Rhodes, 416 U.S. 232 (1974) 36 Harlow v. Fitzgerald, 457 U.S. 800
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[2020] BPP Human Rights Law Journal Vol. 9 premise that more police officers will necessarily be more positive for effective policing. This is an ill- conceived premise which conflates quantity with quality.37
The fourth rationale is that Qualified Immunity is necessary in order to protect government officials from financial burdens ‘when acting in good faith in legally murky areas’.38 This argument is flawed on three fronts. Firstly, given the contemporary restatement of Qualified Immunity, police officers no longer need to be acting in good faith to benefit from protection. Therefore, Qualified Immunity protects police officers regardless of whether they are acting in good or bad faith, when arguably, public officials should be held to higher standards than private citizens. Secondly, the law is nebulous when it comes to Qualified Immunity because of the circular requirement of the violation of a ‘clearly established right’. The very doctrine that purports to protect officers who operate in legal uncertainty has created the perfect breeding grounds for unclear law.39 A straightforward and principled approach to the law of Qualified Immunity would endow law enforcement with clear parameters as to how and when they would be accountable. If this could be achieved,
37 https://eu.usatoday.com/story/news/investigations/2019/02/13/marshall-project-more-cops- dont-mean-less-crime-experts-say/2818056002/ 38 Pierson v. Ray, 386 U.S. 547
39 Cushing, Tim, "Appeals Court Judge: Qualified Immunity Is A Rigged Game The Government Almost Always Wins" (2018)
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[2020] BPP Human Rights Law Journal Vol. 9 there seems to be no defensible reason not to hold public officials financially responsible. Thirdly, from a practical standpoint, individual police officers are seldom personally liable for financial penalties. Between insurance and police unions, such financial burdens are hoisted away from individual officers.40
Some judges and academics have interpreted the ‘rule of law’ to mean that like cases are treated alike, and Qualified Immunity, therefore, aligns with the rule of law.41 However, according to Strauss, this view is poorly conceived. A key feature of the rule of law is that ‘any differences (between the treatment of cases should) be the result of procedures that can be independently justified’. 42 Qualified Immunity attempts to root a ‘clearly established right’ in precedents which share identical fact patterns to the case at hand. To cling to such an extreme definition creates rigidity and prevents the spirit of the law from finding itself present in claims against police officers. Moreover, it ignores the practical reality that cases are distinct from one another. Placing unjustified weight on arbitrary factual differences between cases (eg. Baxter v. Bracey), instead of looking at normative distinctions, is unlikely to produce sound law.
40 https://www.reuters.com/article/us-usa-police-insurance-idUSKCN0WJ2R1 41 Ilan Wurman, Qualified Immunity and Statutory Interpretation, 37 Seattle University Law Review 939 (2014) 42 Strauss, David A., Must Like Cases Be Treated Alike? (2002)
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Conclusion For the reasons outlined above, Qualified Immunity is in dire need of reform. Given the institutional prejudices within US law enforcement, the high-level of militarisation, and the number of police brutality cases, we must advocate for a more desirable law that is based on principle and not solely policy. Qualified Immunity should be heavily restricted and clearly defined, thus allowing police officers to be held accountable for reprehensible behaviour. This could be done by reconceptualising the notion of a clearly established right and looking for normative, rather than superficial distinctions between cases. Perhaps more radically, we could consider ending Qualified Immunity altogether and instead basing police immunity on common law self-defence. The increased accountability and the burden of the financial costs of violating constitutional rights should see a sustained reform in policing, and ultimately, a more fair and free society.
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CLIMATE CHANGE LITIGATION AND THE ROLE OF THE JUDICIARY: A CHALLENGE TO THE SEPARATION OF POWERS?
Alexander Westin Hardy Introduction The past three decades have seen the establishment of a broad international scientific consensus and the generation of robust evidence in support of a causal connection between anthropogenic greenhouse gas emissions, an increase in global mean surface temperature, and the likelihood of individual extreme weather events and climate-related environmental damage. 1 Over the same period, climate change litigation, or simply ‘climate litigation’, has grown in importance as a means of advancing effective action on climate change. As of May 2020, 1,587 cases of climate litigation have been instigated globally.2 The term ‘climate litigation’ encompasses a diverse range of cases. These include private law actions against major fossil fuel corporations, administrative
1 John Cook and others, ‘Consensus on consensus: a synthesis of consensus estimates on human-caused global warming’ (2016) 11 Environ Res Lett 048002; Intergovernmental Panel on Climate Change, Climate Change 2007: Synthesis Report (IPCC 2007). 2 Joana Setzer and Rebecca Byrnes, Global Trends in Climate Change Litigation: 2020 Snapshot (Grantham Research Institute on Climate Change and the Environment and Centre for Climate Change Economics and Policy 2020).
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[2020] BPP Human Rights Law Journal Vol. 9 challenges to environmental assessments and planning permits authorising construction of high- emission projects and, increasingly, strategic claims brought by activists and advocacy groups against governments. 3 The potential regulatory impact of strategic litigation is twofold.4 First, climate litigation may generate diffuse indirect impacts including the incentivisation of behavioural shifts by key governmental actors, increased sensitisation of legal institutions to the nature of climate change, and increased public awareness around climate change and its effects. Second, the direct regulatory impact of formal legal change may be manifested in the targeted rules, policies or decision-making procedures mandated by a judgment or arising out of judicial interpretation.
Direct regulatory impact and the immediate advancement of effective climate policy outcomes, however, requires successful litigation under the purview of the court. In addressing the relationship between climate change, human rights and the separation of powers, a pressing question must be answered: whether the judiciary can and, more importantly, whether the judiciary should act as the ultimate arbiters of climate change.
3 Joana Setzer and Lisa Vanhala, ‘Climate change litigation: a review of research on courts and litigants in climate governance’ (2020) 10 Wiley Interdisciplinary Reviews: Climate Change e580. 4 Jacqueline Peel and Hari Osofsky, Climate Change Litigation: Regulatory Pathways to Cleaner Energy (Cambridge University Press 2015).
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The Urgenda Decision: A Landmark Victory in Climate Justice In a landmark judgment on 20 December 2019, the Dutch Supreme Court, upholding two previous lower court decisions, ordered the State of the Netherlands to reduce its greenhouse gas emissions by at least 25 per cent relative to 1990 levels by the end of 2020.5 The decision not only marked the conclusion of a seven-year legal process, but represented a historic development in international jurisprudence on climate change for two key reasons.
First, the Supreme Court held that the State has a duty of care to protect its citizens from the threat of dangerous climate change in accordance with its positive obligations under Article 2 (right to life) and Article 8 (right to respect for private and family life) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). The State of the Netherlands was held to have acted unlawfully in failing to set adequate short-term national targets for the reduction of greenhouse gas emissions that were consistent with commitments under the 2015 Paris Agreement or the objectives of the United Nations Framework Convention on Climate Change, and to have given insufficient justification for a lower reduction goal. Although climate change is a global issue in both cause and scope, the Netherlands was nevertheless held to
5 Urgenda Foundation v State of the Netherlands (No 19/00135) judgment 20 December 2019, Supreme Court of the Netherlands.
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[2020] BPP Human Rights Law Journal Vol. 9 have an individual national responsibility. Second, the Supreme Court confirmed that Dutch domestic courts have the power to enforce national compliance with international climate treaties against the government.
Although decisions of the Dutch Supreme Court are not binding on courts in other jurisdictions, the principles laid down in the case will undoubtedly add weight to the current pressure on governments to take greater action to prevent dangerous climate change. The judgment, based in part on the ECHR, is of particular significance in a European context and confirms that climate change can be understood as a threat to human rights and an issue within the scope of international human rights law.6 It therefore provides a platform for continued reliance on rights- based arguments by claimants seeking government accountability and offers a new legal framework for climate protection.7 Michelle Bachelet, the UN High Commissioner for Human Rights, pronounced that the ‘landmark ruling provides a clear path forward for concerned individuals in Europe – and around the world – to undertake climate litigation in order to protect human rights’.8
6 Irene Antonopoulos, ‘The future of climate policymaking in light of Urgenda Foundation v the Netherlands’ (2020) 22 Env L Rev 119. 7 Jacqueline Peel and Hari Osofsky, ‘A rights turn in climate change litigation?’ (2018) 7 Transnational Env L 37. 8 OHCHR, ‘Bachelet welcomes top court’s landmark decision to protect human rights from climate change’ (20 December 2019)
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Moreover, the Urgenda case affirmed the potential for climate litigation to have a meaningful impact on climate change policy. In response to the decision, the Dutch government announced a commitment to reduce the capacity of its coal-fired power stations by 75 per cent and to implement a stimulus package of three billion euros to substantially reduce Dutch emissions by the end of 2020.9
Juliana and Greenpeace: Conservatism in the Courts In the case of Juliana v United States, a similar claim against the US federal government concerning violation of constitutional rights to life, liberty and property was met less favourably.10 The claimants sought a declaratory judgment affirming the existence of these rights. In addition, they sought remedial injunctive relief for governmental actions and inaction in contributing to climate change, citing climate change-induced harm caused by the continued promotion, authorisation and subsidisation of fossil fuel extraction and consumption. In January 2020, the claim was dismissed as nonjusticiable by the Ninth Circuit Court of Appeals for lack of standing. All three judges
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[2020] BPP Human Rights Law Journal Vol. 9 agreed that increasingly rapid anthropogenic climate change presents serious risks and acknowledged that greenhouse gas emissions stemming from fossil fuel combustion will wreak havoc on the Earth’s climate if left unchecked. Despite this, the court found it had insufficient power to order, design, implement, supervise or enforce any remedial government plan to phase out fossil-fuel emissions and draw down excess atmospheric carbon dioxide. Judge Hurwitz, in delivering the majority opinion, noted that ‘any effective plan would necessarily require a host of complex policy decisions entrusted, for better or worse, to the wisdom and discretion of the executive and legislative branches’. 11 The claimants’ injuries, even if found to have been substantially caused by the challenged conduct, were therefore deemed not to be redressable within the constitutional power of the court. Judge Hurwitz implored the claimants to instead address their case ‘to the political branches or to the electorate at large, the latter of which can change the composition of the political branches through the ballot box’.12 In this instance, judicial deference was the undoing of the claim.
Judicial deference can also be seen in the dismissal of Family Farmers and Greenpeace Germany v
11 Juliana v United States (No 18-36082) opinion 17 January 2020, United States Court of Appeals for the Ninth Circuit 25. 12 Juliana v United States (No 18-36082) opinion 17 January 2020, United States Court of Appeals for the Ninth Circuit 32.
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Germany. 13 In October 2019, the Administrative Court of Berlin dismissed an action by three German families of organic farmers and Greenpeace Germany in which they challenged the government’s failure to adhere to Germany’s Climate Action Programme. The Court held that the goal to reduce national greenhouse gas emissions by 40 per cent below 1990 levels by 2020, as a cabinet decision, was not legally binding. In addition, although the Court determined that government climate policy was in principle subject to judicial review, it also concluded that the government was entitled to a wide discretion in deciding how to fulfil its constitutional obligations. Precautionary measures that had achieved only a 32 per cent reduction in emissions from 1990 levels were not deemed wholly inadequate within an EU context; the minimum commitment for Member States set out in the EU Effort Sharing Decision, 20 per cent by 2020, had been achieved.14 Failure to meet the more ambitious target of a 40 per cent reduction in emissions compared to 1990 levels was therefore deemed not to be incompatible with the government’s duty to safeguard fundamental rights as enshrined in the German Constitution.
13 Family Farmers and Greenpeace Germany v Germany (VG 10 K 412.18) judgment 31 October 2019, Administrative Court of Berlin. 14 Council Decision 406/2009/EC of 23 April 2009 on the effort of Member States to reduce their greenhouse gas emissions to meet the Community’s greenhouse gas emission reduction commitments up to 2020 [2009] OJ L140/136.
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The Juliana and Greenpeace cases encapsulate issues that remain despite the success of Urgenda. The Juliana decision highlights that success in any jurisdiction will depend on the extent to which the judiciary is willing to bind the executive and legislature to commitments on climate change. The Greenpeace case, meanwhile, indicates that even where a government has committed to specific reductions, the courts may nevertheless be reluctant to find that failure to meet those targets constitutes a breach of constitutional or human rights. Further hurdles for human rights-based climate litigation have been identified by Keina Yoshida and Joana Setzer: the ‘causality challenge’; the ‘cross-temporal challenge’; and the ‘extra-territorial challenge’.15
Separation of Powers and the Competence of the Court The three cases considered above illustrate the contrasting views on the court’s role in controlling greenhouse gas emissions and regulating climate change. Scientific progress has allowed claimants to better isolate and quantify the climate-related contributions of individual projects, policies and laws.16 Accordingly, as highlighted in the dismissal of the Juliana case, the greatest remaining hurdle for human rights-based climate litigation lies in
15 Keina Yoshida and Joana Setzer, ‘The trends and challenges of climate change litigation and human rights’ (2020) 2 EHRLR 140. 16 Petra Minnerop and Friederike Otto, ‘Climate change and causation: joining law and climate science on the basis of formal logic’ (2020) 27 Buffalo J Env L.
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[2020] BPP Human Rights Law Journal Vol. 9 demonstrating that the courts are an appropriate mechanism through which to tackle the climate emergency.17
Questions of redressability implicate the separation of powers, and decisions in line with Juliana are typically posited on the assertion that it is outside the judicial domain to rule on political questions. As lamented by Judge Hurwitz in Juliana, ‘that the other branches may have abdicated their responsibility to remediate the problem does not confer on [the] courts, no matter how well-intentioned, the ability to step into their shoes’.18 It was argued by the Dutch State in Urgenda that climate protection is a political mandate and that it is not appropriate for the courts to undertake the politically-sensitive considerations or value judgements necessary for a decision on the reduction of greenhouse gas emissions. Such decisions necessarily require consideration of competing social, political and economic forces. Yet, as asserted by Jürgen Habermas, the judiciary can legitimately oppose democratic majoritarian decisions where fundamental rights are at stake.19 By subsuming the environmental debate within a human rights framework, therefore, the Urgenda case has brought the issue of climate change firmly within the remit of the court’s institutional
17 Laura Burgers, ‘Should judges make climate change law?’ (2020) 9 Transnational Env L 55. 18 Juliana v United States (No 18-36082) opinion 17 January 2020, United States Court of Appeals for the Ninth Circuit 32. 19 Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (William Rehg tr, Polity Press 1996).
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[2020] BPP Human Rights Law Journal Vol. 9 competence. This environmental constitutionalism redefines the matter of climate action from one of simply political decision-making to one of human rights protection through direct application of ECHR obligations. Pursuant to Article 13 ECHR, an effective legal remedy against a violation of safeguarded rights must be available before a national authority. The role of the courts in offering democratically-legitimised legal protection is an essential element of democratic society under the rule of law.
It may be argued that the Dutch Supreme Court’s explicit rejection of the State’s arguments and the imposition of an enhanced emissions reduction target represents a challenge to the separation of powers by going beyond simple enforcement or interpretation of existing climate legislation.20 Many view the intervention as unacceptable judicial activism. 21 The order issued, however, was restricted to the lower limit of the internationally- endorsed minimum necessary reduction and left decisions on what precise measures should be implemented to the executive and legislature. In this regard, the Urgenda and Greenpeace decisions can be more easily reconciled. The judiciary can, and should, play a role in determining whether political decisions have been made within the limits of the law. Within the context of climate change, this
20 Marc Loth, ‘Too big to trial? Lessons from the Urgenda case’ (2018) 23 Uniform L Rev 336. 21 Josephine van Zeben, ‘Establishing a governmental duty of care for climate change mitigation: will Urgenda turn the tide?’ (2015) 4 Transnational Env L 339.
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[2020] BPP Human Rights Law Journal Vol. 9 judicial intervention can include, but should be limited to, ensuring that governments set scientifically-supported minimum climate protection targets and commit to other suitable measures necessary to avert the imminent hazard of climate change that threatens fundamental human rights. Compliance with a normative architecture of internationally-accepted standards and expectations should not result in an impossible or unreasonable burden being imposed on the state.
Conclusion Climate change litigation is here to stay. Its effectiveness as a tool for climate governance, however, ultimately depends on litigants having access to justice and overcoming the technical legal hurdles of standing, financial costs and judicial deference. The entitlements and obligations of the various branches of government are interpreted differently across different legal systems, and these hurdles therefore remain jurisdictionally specific. Climate litigants must make strategic decisions about who will act as claimant, where and when to initiate proceedings, and what legal remedy will be sought. 22 These decisions are informed by past efforts, and the Urgenda case offers a promising roadmap for the future application of rights-based arguments to engender climate-related policy
22 Michael Ramsden and Kris Gledhill, ‘Defining strategic litigation’ (2019) 4 Civil Justice Quarterly 407.
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[2020] BPP Human Rights Law Journal Vol. 9 change. By subsuming the environmental debate within a human rights framework, it may also allow the use of the courts as a forum for challenging governmental inaction on greenhouse gas emissions without presenting an insurmountable obstacle to the doctrine of separation of powers. Provided judgments are not overturned by ministerial action or legislative reform, the evolution of climate litigation may offer an effective avenue for addressing the causes of climate change, mitigating its adverse consequences, and accelerating the transition to a more sustainable future.
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“[T]O HOLD IT FULLY ACCOUNTABLE UNDER INTERNATIONAL LAW”1: THE DEFENCE OF HUMAN RIGHTS BY THIRD-STATES IN THE INTERNATIONAL COURT OF JUSTICE.
Adam Weston
On 11 December 2019, Aung San Suu Kyi, State Counsellor of Myanmar, took to her feet at The Hague’s Peace Palace to defend an application by The Gambia to the International Court of Justice (‘ICJ’). The Gambia claimed that Myanmar is committing genocide against the Muslim Rohingya minority. For many, Aung San Suu Kyi’s statement, that the Rohingya’s suffering was collateral to an alleged ongoing internal armed conflict and that justice was being done against wrongdoers amongst
1 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar) (Application instituting proceedings and Request for indication of provisional measures) [2019]
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[2020] BPP Human Rights Law Journal Vol. 9 the Burmese military, marked a remarkable fall from grace for the 1991 Nobel Peace Prize Laureate.2 Another element of this case is also notable: The Gambia’s legal intervention into Myanmar’s treatment of its domestic population. In theory, the ICJ is an inter-state judicial forum. Established in 1945 as the successor to the interwar Permanent Court of International Justice, the ICJ is the judicial body of the UN, founded with the aim of providing a global forum for peacefully settling inter-state legal disputes. The ICJ is a generalist court, with no specific human rights mandate.
However, the past three decades have witnessed a gradual increase in states raising human rights issues in pleadings before the ICJ and bringing applications on human rights grounds. A growing number of these cases have involved states raising human rights issues when bringing applications as a third-party to a dispute. The Gambia, for instance, is some 11,500km distant from Myanmar; its territory and citizens are untouched by Myanmar’s alleged rights violations. Given that it is widely established that it is citizens’ own home states which are the most prolific violators of their rights, this trend appears somewhat significant. Of the 49 press releases by Amnesty International in May 2020, for
2 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar) (Verbatim Record, CR 2019/19) [2019]
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[2020] BPP Human Rights Law Journal Vol. 9 example, some 86% concerned states’ treatment of their own nationals domestically.3 After providing background on the jurisdiction of the ICJ, this article outlines the trend of third-state legal intervention on human rights issues at the Court, discusses the ICJ’s treatment of these cases and draws tentative conclusions on the meaning for international enforcement of human rights obligations.
The Jurisdiction of the ICJ Unlike domestic courts, the ICJ’s jurisdiction is rooted in the consent of the parties rather than the subject-matter of the dispute. The Court hears two types of cases., Advisory Opinions upon the application of an authorised organ of the UN4 and contentious cases between applicant and respondent parties.5 Several different mechanisms can bring a contentious case into the Court’s jurisdiction. Most simply, the parties may have reciprocally accepted the ICJ’s jurisdiction, either by a general declaration on compulsory jurisdiction, or
3 Amnesty International UK, ‘Press releases in 2020’ (Press releases in May 2020)
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[2020] BPP Human Rights Law Journal Vol. 9 by a special agreement to submit a dispute to the Court in a given case.6
More technically, the ICJ may hear cases stemming from parties invoking a compromissory clause contained within a treaty to which they are a party.7 In the Rohingya Genocide Case, The Gambia founded its application to the Court on the compromissory clause in the Genocide Convention8 referring disputes on the interpretation, application or fulfilment of the Convention to the ICJ. 9 This clause of the Convention was not subject to reservation by either party. The final mechanism, of lesser significance here, is the doctrine of forum prorogatum. This doctrine functions where a respondent to an application filed with the ICJ accepts the Court’s jurisdiction by its explicit or implicit conduct in replying to a claim.10
A key distinction between the ICJ and other international judicial bodies is that the Court is only open to contentious applications by states. 11 By contrast, the European Court of Human Rights is,
6 Ibid., arts 36(1) & 36(2). 7 Ibid., art 36(1). 8 Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277 (Genocide Convention) art IX. 9 Rohingya Genocide Case (Application instituting proceedings) [2019] (n 1) [17]-[19]. 10 e.g. Anglo-Iranian Oil Co. Case (United Kingdom v Iran) (Preliminary Objections) [1952] ICJ Rep 52 [114]-[115]. 11 ICJ Statute (n 3) art 35(1).
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[2020] BPP Human Rights Law Journal Vol. 9 familiarly, open to applications by both states and individuals within the relevant territorial jurisdiction.12 Correspondingly, unlike in cases before the International Criminal Court13, only states may be held responsible for violations of international law before the ICJ. The strict limits on the ICJ’s jurisdiction, of which parties’ consent and state responsibility are only two aspects, have been a source of frustration for those seeking a homogenised, integrated global human rights judiciary.14 Limits on jurisdiction have clearly proven a significant bar to the Court considering human rights issues and rights-based disputes. Beyond the inadmissibility of applications from individuals to the Court, the ICJ’s jurisdiction via operation of compromissory clauses is restricted by the significant number of states entering reservations in respect of these dispute-resolution provisions. Some 16 states, including Algeria, India and the US, have entered reservations in respect of Article IX of the Genocide Convention; either entirely rejecting the ICJ’s jurisdiction to hear disputes, or
12 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) arts 33-34. 13 Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90 (ICC Statute) arts 24-25. 14 See, e.g. Astrid Kjeldgaard-Pedersen, ‘The International Court of Justice and the Individual’ in Achilles Skordas (ed), Research Handbook on the International Court of Justice (Edward Elgar, 2020).
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[2020] BPP Human Rights Law Journal Vol. 9 requiring consent on a case-by-case basis. 15 Nevertheless, to dismiss any substantive role for the Court in international human rights law and jurisprudence is to neglect its role as the supreme interpreter of international law generally and its position as a central organ of the UN system. As the judiciary of the UN, the ICJ has established powers, inter alia, to award damages or demand performance in compliance with international legal obligations, enforceable by the UN Security Council.16
Third-States as Applicants to the ICJ The ICJ’s restrictive rules on jurisdiction appear a prima facie bar to third-states using the Court to legally intervene in other states’ behaviour with respect to human rights. The state alleged to be breaching human rights obligations may prevent itself becoming a respondent in litigation before the Court by withholding its consent to proceedings. There is also the issue of subject-matter jurisdiction. Even if the intervening third-state can establish the respondent state’s consent, such that the ICJ has jurisdiction ratione personae, there is then the issue of the Court’s subject-matter (‘ratione materiae’)
15 UN Treaty Collection, ‘Convention on the Prevention and Punishment of the Crime of Genocide’ (Treaty Status as of 12-06-2020 05:00 EDT)
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[2020] BPP Human Rights Law Journal Vol. 9 jurisdiction. In contentious cases, the ICJ can only entertain litigation if there is a dispute between the parties relating to an established legal right or interest the parties owe to each other. This requirement was at issue in the seminal South West Africa Cases, wherein the Court held that Ethiopia and Liberia had no legal interest in the performance of South Africa’s duties as the mandatory power governing South West Africa (modern-day Namibia) – most especially the duty to ensure that the territory had a path to self-determination.17 For newly-independent developing countries, the judgment in the South West Africa Cases was both a source of outrage and a bar to future applications to the Court for adjudication on human rights issues. 18 Yet the Court has since changed its position. In the judgment in the North Sea Continental Shelf Cases, delivered three years after the judgment in the South West Africa Cases, the ICJ made its first reference to rules of jus cogens.19 These are non-derogable norms binding in law on all states (obligations ‘erga omnes’) as a higher form of customary international law, typically concerning human rights obligations. Examples of jus cogens rules include the prohibitions on murder of civilians
17 South West Africa Cases (Ethiopia v South Africa; Liberia v South Africa) (Second Phase: Judgment of 18 July 1966) [1966] ICJ Rep 66 [42]-[43] & [51]. 18 John Crook, ‘The International Court of Justice and Human Rights’ (2004) 1 NJIHR 2. 19 North Sea Continental Shelf Cases (Germany/Denmark; Germany/Netherlands) (Judgment of 20 February 1969) [1969] ICJ Rep 3 [41]-[43].
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[2020] BPP Human Rights Law Journal Vol. 9 during wartime, forced deportation, slave labour20 and genocide21. Whilst disputes over rules of jus cogens cannot ground the Court’s jurisdiction ratione personae, as the parties’ consent to litigation is still required, their erga omnes quality generates a legal interest for all states in upholding them. Thus, the doctrine of jus cogens may be sufficient to ground the ICJ’s jurisdiction ratione materiae.
This was, partially, the basis on which The Gambia sought to ground its application against Myanmar at the ICJ; stating that “The Gambia also seeks to protect the erga omnes partes rights it has under the [Genocide] Convention”. 22 Without making any judgment on the merits of The Gambia’s claim, unlike in the South West Africa Cases, the ICJ held that the erga omnes quality of obligations under the Genocide Convention gave The Gambia a right to ensure that Myanmar upheld its obligations. This legal right was sufficient to ground the Court’s jurisdiction ratione materiae, and for the ICJ to make orders on Provisional Measures. 23 A similar erga omnes logic has been set out by applicants – and
20 Jurisdictional Immunities of the State Case (Germany v Italy: Greece Intervening) (Judgment of 3 February 2012) [2012] ICJ Rep 99 [140]-[142]. 21 Case Concerning Armed Activities on the Territory of the Congo (New Application: 2002) (DRC v Rwanda) (Judgment on Jurisdiction and Admissibility) [2006] ICJ Rep 6 [31]-[32]. 22 Rohingya Genocide Case (Application instituting proceedings) [2019] (n 1) [127]. 23 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar) (Order on Provisional Measures) [2020]
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[2020] BPP Human Rights Law Journal Vol. 9 provisionally accepted by the Court – in two other ongoing cases before the ICJ, in relation to the Convention on the Elimination of All Forms of Racial Discrimination.24
Yet the Court has only recently become amenable to this logic. Even as recently as 1995, with the ICJ’s judgment in the East Timor Case, while recognising the erga omnes character of the obligation of states to respect a people’s right to self-determination, the Court dismissed Portugal’s application despite both parties accepting the Court’s compulsory jurisdiction.25 The ICJ refused to allow the case to proceed as to do so would be to “rule … on the lawfulness of Indonesia’s conduct in the absence of that State’s consent”. 26 This principle, barring the Court from indirectly ruling on the legality of a party’s conduct without their consent, is a derived form of the consent requirement for jurisdiction ratione personae.
24 Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v Russia) (Order on Provisional Measures) [2017]
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Jurisdictional strictness has thus substantially restricted the scope for third-states to legally intervene in alleged human rights violations through application to the ICJ. Nevertheless, as Figure 1 demonstrates, there is a growing number of cases at the Court involving a third-state exercising their rights in international treaties, customary international law and under jus cogens to litigate on human rights issues which do not directly touch that state or their nationals. How might this be explained?
Figure 1. Total cases at the ICJ culminating with judgment on merits each decade, as against equivalent cases with human rights issues and those cases involving Third-States with human rights issues. Existing case law on third-state intervenors at the ICJ As outlined in Figure 1, the number of cases generally culminating in a merits judgment at the Court appears to follow a simple pattern. There is a
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[2020] BPP Human Rights Law Journal Vol. 9 first phase, during the 1940s and 1950s, where litigation was frequent, but few cases involved human rights issues. 27 28 Thereafter, a second phase in the 1960s-80s saw a lull in litigation, albeit an increase in the proportion of cases raising issues of human rights. Many of these cases relate to decolonisation and self-determination, including the aforementioned South West Africa Cases. After the failure of Ethiopia and Liberia to establish contentious jurisdiction ratione personae in these cases, activist states switched to making use of the ICJ’s advisory jurisdiction, referring issues of self- determination to the Court through the organs of the UN. Of the three cases in the 1960s-80s coded as involving third-state intervention and related to human rights issues in Figure 1, two were Advisory Opinions – one, the Namibia Advisory Opinion, on the same issue as the South West Africa Cases.29 Third-state legal intervention in the ICJ returned in the third, post-Cold war, phase of litigation at the Court. From the early 1990s the number of cases culminating in a merits judgment at the Court surged, likely due to the dual effects of an increased number of states in the international system following the collapse of the USSR and SFR Yugoslavia and a
27 See Simma, ‘Human rights before the International Court of Justice’ (n 3). 28 ‘Human rights issues’ have been defined by reading of relevant Judgments and categorised as relating to; asylum, torture, genocide, self-determination, international humanitarian law (treaty or customary) and general human rights. 29 Legal Consequences for States of the continued presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion of 21 June 1971) [1971] ICJ Rep 71.
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[2020] BPP Human Rights Law Journal Vol. 9 shift in attitudes towards the UN institutions. This third phase has included increasing pleading of human rights issues, most especially following the ICJ’s theoretical consideration of nuclear warfare in the Nuclear Weapons Advisory Opinion.30 As in the second phase, Advisory Opinions have remained a significant proportion of those cases involving third- state legal intervention and human rights issues: of the five relevant cases in the 2000s, 2010s and pending at the docket, three were Advisory Opinions. These Advisory Opinions involved issues ranging from self-determination to Israel’s construction of a wall in the occupied territories. Four further cases involved a state litigating against another as an exercise of diplomatic protection of their nationals experiencing infringements of their rights abroad.
The Rohingya Genocide Case is one of the two remaining cases concerning a third-state intervening on human rights issues. The other, the Prosecute or Extradite Case, concerned an application by Belgium against a state harbouring Hissène Habré – the former President of Chad and instigator of massive human rights abuses – to compel that state to either try Mr Habré or extradite him to face justice overseas. 31 In this case, the ICJ found that the respondent was in breach of its treaty obligations
30 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion of 8 July 1996) [1996] ICJ Rep 96; see also Simma, ‘Human rights before the International Court of Justice’ (n 3). 31 Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) (Judgment of 20 July 2012) [2012] ICJ Rep 12.
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[2020] BPP Human Rights Law Journal Vol. 9 and that these obligations, concerning the jus cogens rule against torture, were erga omnes. Rejecting the respondent’s argument to the contrary, the Court held – as with obligations to prevent genocide – that the “common interest in compliance” was sufficient for “any State party to the [Torture] Convention [to]… invoke the responsibility of another State party”.32 Belgium was not required, therefore, to demonstrate any ‘special interest’ in the particular case of Mr Habré to establish the Court’s jurisdiction ratione materiae.
Conclusion & Future Perspectives There are clear parallels between the ongoing Rohingya Genocide Case and the recent Prosecute or Extradite Case. Both cases concern abuses far from the territory or nationals of the applicant party. Both are cases built upon the principles of jus cogens slowly constructed at the ICJ and other international tribunals, recognised in treaty since the 1969 Vienna Convention. 33 In both cases the applicant has used the compromissory clauses of international human rights treaties, the Genocide Convention in the Rohingya Genocide Case, the Convention Against Torture 34 in the Prosecute or
32 Ibid, [450]. 33 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 (Vienna Convention) art 53. 34 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85 (Convention Against Torture).
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Extradite Case, as a mechanism to combine the jurisdiction ratione materiae leant by the erga omnes character of the jus cogens obligations within these treaties with jurisdiction ratione personae.
Where next from here? Since World War II, the ICJ has had a crucial role in formulating and solidifying jus cogens obligations for states. Most of these jus cogens obligations are basic human rights norms: freedom from torture, prevention of genocide and prohibition of slavery foremost among them. As these are obligations erga omnes, all states have a legal interest in litigating against alleged violations by other states. This interest is a sufficient grounding ratione materiae for states to apply to the Court against alleged violators. Yet jus cogens obligations remain insufficient as a grounding ratione personae for the Court to accept a state’s application in the absence of one of the four forms of jurisdictional consent by the respondent. Whilst this is a significant limitation for would-be activist applicant states, it is balanced by the increasingly widespread adoption of treaties, albeit with reservations, like the Genocide Convention (152 parties) and the Convention Against Torture (170 state-parties), which contain the requisite compromissory clauses.35
35 UN Treaty Collection, ‘Convention on Genocide’ (n 15); UN Treaty Collection, ‘Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (Treaty Status as of 15-06-2020 05:00 EDT)
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In the fore of this landscape, the Rohingya Genocide Case is thrown into sharp relief as a potential turning-point. Although the ICJ is a generalist court, not a specialist human rights forum, its location at the heart of the UN system makes it uniquely well- positioned to become a mechanism of redress for the worst rights abuses in states less integrated into the global human rights system. Unlike Europe, Asia and the Middle East continue to lack regional human rights institutions or judiciaries. The Rohingya Genocide Case, especially if decided in the The Gambia’s favour – like the Prosecute or Extradite Case – may come to mark a decisive shift in the role of the ICJ, towards the Court becoming a forum for litigating the worst rights abuses of the age, from Syria to the United States.
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THE JURISDICTION PROBLEM IN BUSINESS AND HUMAN RIGHTS ADVANCES
Maria Shepard
What is the jurisdiction problem? The traditional approach of international law with regards to corporations has been one of non- intervention. In fact, not so long ago, only states were subject to international law. Whilst advances have been made to extend its jurisdiction over corporate bodies, the principle of parent companies being a separate legal personality to their subsidiaries is still deeply rooted in company law. 1
This means that businesses set up or incorporated in ‘home’ states are not necessarily held liable for the activities of their subsidiaries, suppliers, or stakeholders abroad (in ‘host’ states). The truth is that this corporate model no longer works, partly because of the ‘governance gaps created by globalization.’2 Many companies choose
1 Jennifer A. Zerk, Multinationals and corporate social responsibility: limitations and opportunities in international law (Cambridge University Press, 2006), 1-3. 2 John Ruggie, ‘Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises,’ (7 April 2008) (Human Rights Council) 3
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[2020] BPP Human Rights Law Journal Vol. 9 to place their subsidiaries in countries with less stringent regulation, which often allows them to use cheap labour and thereby maximise profits. This can increase the risk of human rights abuses such as child labour and unsafe working conditions, combined with lack of training or adequate social protection. In many cases, both the companies and the ‘host’ governments use the global corporate model to deflect responsibility for these violations, leading to double standards and impunity. Consequently, it has become difficult, or even impossible, for victims of such abuses to obtain access to justice. Moreover, human rights defenders who try to address these issues become victims themselves, often as a result of defamation lawsuits and other forms of attack used by powerful corporations.
The voluntary approach As a result, there has been growing pressure3 for transnational companies to be subject to direct extraterritorial obligations (ETOs), in order to shift their position of impunity to one of accountability. This has led to the emergence of corporate social responsibility (CSR), including trends of greater reporting, and incentive schemes and codes of practice being issued. 4 However, the inherent voluntary nature of CSR means that many companies have barely done anything to improve
3ETO Consortium,
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[2020] BPP Human Rights Law Journal Vol. 9 their human rights record, whilst other more commercially astute companies can get away with lip-service, or even using it as a clever marketing ploy.
The first steps of ‘soft’ law The UN Guiding Principles on Business and Human Rights 2011 were arguably the first key step in the shift towards using a more international framework. These established three key pillars: the duty of States to protect human rights; the responsibility of corporations to respect human rights; and the responsibility of both States and businesses to ensure access to effective remedies. These were unanimously approved by the UN Human Rights Council, which also set up the UN Working Group on Business &Human Rights (UNWG).
National legislative efforts Although the UN guiding principles were merely voluntary and therefore unenforceable, some countries have implemented legislation in response to them, as part of their National Action Plans. France’s Corporate Duty of Vigilance Law5 (2017) is perhaps the best example, requiring companies to identify and prevent both human rights and
5 Loi n° 2017-399 du 27 mars 2017 relative au devoir de vigilance des sociétés mères et des entreprises donneuses d'ordre
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[2020] BPP Human Rights Law Journal Vol. 9 environmental impacts in their supply chains, including the companies they control directly and those with which they work. 6 Germany, Switzerland, Denmark, the Netherlands, Canada, Norway, Finland, and Austria are either considering, or have just implemented, legislation among similar lines. 7
However, whilst this is looking promising, some other countries, such as the US, Australia and the UK, have taken a more modest approach. For example, the California Transparency in Supply Chains Act, UK’s Modern Slavery Act 2015, and the Australian Modern Slavery Act 2018 merely require companies to be transparent about their supply chains and to report their actions, but do not actually require them to prevent or remedy abuses. Neither Australia nor the UK impose penalties on companies that don’t comply with the law.’8 Moreover, most of the above national legislation reflects one of the major shortcomings in the UN guiding principles: namely, that ETOs are not included. This brings us
6 Juliane Klippenberg, ‘A chance to curtail abuse in Germany’s supply chains,’ (Human Rights Watch, 10 September 2019)
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[2020] BPP Human Rights Law Journal Vol. 9 back to the jurisdiction problem, that is, the lack of enforceable ETOs on an international level, and the resulting lack of harmonisation in national initiatives.
A new international treaty under negotiation This absence of cross-jurisdictional rules, as well as the general failure of the voluntary approach on the part of businesses, consumers and governments, has led to calls for a binding international treaty on business and human rights. In July 2014, the UN Human Rights Council voted to begin negotiations, and by 2017, its Intergovernmental Working Group (IGWG) created its first draft (the ‘Zero draft’ and its Draft Optional Protocol).
This has been built on significantly in the most recent version, known as the Revised Draft Treaty (RDT), published in July 2019 and discussed at the UN in October 2019. It aims to lift the ‘corporate veil’ in two ways: both by expanding the liability of directors/shareholders, and by requiring states to regulate the extraterritorial activities of its businesses- a key development. Moreover, it requires not only mandatory transparency and due diligence, but also the active prevention9 of human rights abuses, and the protection of victims, e.g.
9 Revised Draft Treaty (OEIGWG Chairmanship, 16 July 2019) article 5
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[2020] BPP Human Rights Law Journal Vol. 9 through the improvement of access to remedies,10 legal redress and grievance mechanisms.
The balancing act Some critics, especially NGOs, are calling for a more radical approach, including more clarification of the relationship between the prevention and the remediation of human rights abuses. In her commentary, 11 Gabriela Quijano of Amnesty International suggests ways in which states can and must go beyond due diligence to prevent harm. As for the protection of victims, even though it has been substantially improved since the ‘Zero draft,’ some advocates such as Professor Doug Cassel claim that the RDT lacks clarity and specificity in key provisions. For example, it raises the possibility of the reversal of the burden of proof, but does not sufficiently define the circumstances in which this would occur, (i.e. when exactly the parent company must prove that it is not legally responsible.) In addition, while the RDT includes provisions for criminal liability, ‘nothing in the draft explicitly requires ‘civil liability’ for businesses which are complicit in human rights violations committed by states,’ meaning that actions such as funding or
10 Revised Draft Treaty (n 8) article 4 11 Gabriela Quijano, ‘A new draft Business and Human Rights treaty and a promising direction of travel,’ (Reflections on the Revised Draft Treaty blog series) < https://www.business- humanrights.org/en/a-new-draft-business-and-human-rights-treaty-and-a-promising-direction- of-travel> accessed on 13th December 2019.
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[2020] BPP Human Rights Law Journal Vol. 9 aiding violators may avoid penalties.
On the other end of the spectrum, others are arguing that the Treaty is going too far, potentially threatening the very fundamentals of company and international law. The expansion of ETOs is particularly controversial, allowing for simultaneous jurisdiction in the company’s ‘host’ country, ‘home’ country, or even in a third country that is in some way connected to the company’s ‘substantial business interests,’ (a phrase that is perhaps problematically undefined by the RDT.) The vast scope of these ETOs may result in uncertainty for businesses in terms of which laws they are subject to and where they might be sued, as well as practical issues regarding the lack of expertise that lawyers might have in another country’s laws. Moreover, concerns have been raised over the RDT’s inclusion of activities carried out by electronic means, which significantly widens the jurisdiction, especially in a world where electronic transactions are playing an increasingly key role in business. The idea that multinational corporations would have to conduct due diligence of entities not under their control, or potentially not even visible to them, is seen by some to be impractical or impossible. In addition, this due diligence does not merely involve investigation or even ‘reasonable steps’ towards prevention (as outlined by the UN guiding principles), but goes further by focusing on the outcome of prevention of
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[2020] BPP Human Rights Law Journal Vol. 9 human rights abuses, arguably placing even more of a burden on companies.12
The range of reactions from various actors, including States, reflects the ongoing challenge of balancing business interests and practicalities with the safeguarding of human rights. While a majority of developing and emerging countries (e.g. Ecuador, South Africa, Bolivia, Namibia and Cuba) support the treaty, many governments of developed countries - where numerous multinationals are headquartered – are generally more reluctant. These include Canada, Australia, and most notably the US (no longer a member of the Human Rights Council, under which the IGWG operates), which was absent from the session and issued a written statement maintaining that the ‘treaty process continues to detract from the valuable foundation laid by the UN Guiding Principles.’13
Conclusion Although the RDT is perhaps the closest we have come to establishing ETOs on corporations, it is still under negotiation at this stage. Given the wide range
12 Lavanga V. Wijekoon, Michael G. Congiu, and Stefan J. Marculewicz, ‘United Nations Takes Another Step in Developing a Treaty on Business and Human Rights, (Littler Insight, 5 November, 2019)
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[2020] BPP Human Rights Law Journal Vol. 9 of stakeholders involved in discussions, it is not surprising that it is subject to extensive debate. In many ways, these debates are necessary to create a truly effective treaty that properly addresses the complexity of the issues at stake.
However, with COVID-19 putting increasing pressure on global supply chains and exacerbating pre-existing human rights abuses, finding a practical solution is all the more urgent. Rather than being a subversive challenge to the fundamentals of company law, carefully-framed ETOs can be an invaluable tool in the global effort to hold international businesses to account.
Since this article was written in July 2020, the Second Revised Draft Treaty has been published. For more information, see this link: https://www.ohchr.org/Documents/HRBodies/HRCo uncil/WGTransCorp/Session6/OEIGWG_Chair- Rapporteur_second_revised_draft_LBI_on_TNCs_ and_OBEs_with_respect_to_Human_Rights.pdf
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TOWARDS AN INTERNATIONAL CONSTITUTIONAL LAW: REGIONAL TRADE AGREEMENTS AS A VEHICLE FOR HUMAN RIGHTS
Omar Mohamed
“We will continue to believe in open and fair trade across the world. Not as an end in itself – but as a way to deliver prosperity at home and promote our values and standards.”1 -- Ursula von der Leyen, ‘State Of Union Address’, 16 September 2020
At an event in Montréal marking the first anniversary of the Comprehensive Trade and Economic Agreement (CETA) between Canada and the European Union, Federica Mogherini (at the time the EU’s High Representative for Foreign Affairs) and Chrystia Freeland (Minister of Foreign Affairs of Canada) spoke about using trade agreements to expand values of human rights, democracy and rule of law. This article seeks to examine whether the new generation of Regional Trade Agreements, spearheaded by CETA, could be used as a mechanism to expand the legal enforcement of
1 Ursula von der Leyen, President of the European Commission, ‘State Of Union Address’ (Speech at the European Parliament Plenary, Brussels, 16 September 2020).
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[2020] BPP Human Rights Law Journal Vol. 9 human rights. The first half of this article will consider the academic discussion between Ernst-Ulrich Petersmann and Philip Alston regarding the efficacy of integrating human rights into international trade law. Using this as the basis, the second half of this paper will consider how Petersmann’s arguments have begun to operate in the context of recent advancements in international trade law.
Human Rights in ‘Worldwide Integration Law’ Just as the judiciaries within the Council of Europe are expected to interpret national laws in conformity with the provisions of the ECHR so, Petersmann argues, should "the law of worldwide organizations be interpreted in conformity with universally recognised human rights law.” 2 As investments, production, trade and environmental protection are predicated on the rights and obligations of the parties, Petersmann conceptualises a model of ‘Worldwide Integration Law’ centred around the recognition and empowerment of citizens— investors, producers, traders, polluters and consumers—as legal subjects of competition, regional integration and human rights law. Alston critiques the ambiguity that arises from Petersmann’s failure to expressly define his conceptualisation of a ‘Worldwide Integration Law’.
2 Ernst-Ulrich Petersmann, ‘Time for a United Nations ‘Global Compact’ for Integrating Human Rights into the Law of Worldwide Organizations: Lessons from European Integration’ (2002) 13(3) European Journal of International Law 621, 625.
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If Regional Integration Law articulates the way in which the law operates to harmonise regulations and adjudication within the legal multilevel pluralism of regional blocks, then ‘Worldwide Integration Law’ can reasonably be understood as the managed harmonisation of national laws and regulations by international bodies. In other words, ‘Worldwide Integration Law’ is merely an expansion of Regional Integration Law.
Secondly, Petersmann explicitly calls for human rights to be ‘legally concretized’, arguing that the inalienable core of human rights is at present ‘acknowledged’ rather than ‘granted’ by governments in national legal practice.3 This means that many states passively acquiesce to human rights as part of the corpus juris gentium rather than viewing them as rights which they have a duty to positively enforce. Petersmann postulates that international bodies could develop declarative mechanisms, like the International Labour Organisation’s Declaration, to function as an alternative to binding international law. These Declarations can then be given effect by embedding them within trade agreements. As will be discussed in further detail in the next section, the incorporation international agreements, such as the Rio Declaration (1992), within CETA reinforces international law. Thus when Alston questions
3 E Petersmann, ‘Time for a United Nations ‘Global Compact’ for Integrating Human Rights into the Law of Worldwide Organization’ (2002) 13(3) EJIL 621, 633.
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[2020] BPP Human Rights Law Journal Vol. 9 whether human rights are ever part of binding international law, which he characterises as Petersmann’s premise, he seems to be attacking a straw man by extrapolating an positive argument (that human rights are part of binding international law) from Petersmann’s evidently normative argument (that human rights ought to be ‘legally concretized’, such as by embedding them in trade agreements, which would extend their enforceability into states which are otherwise ambivalent or hostile towards human rights).
Thirdly, as an expansion of current European protections of ‘the economic dimensions of human rights’, Alston further questions whether such a ‘Worldwide Integration Law’ is even desirable as it prioritises economic liberties and property rights at the expense of human rights. 4 In contrast, Petersmann intentionally ties market freedoms and human rights, arguing that human rights protects “spontaneous information mechanisms (such as market prices)” as well as setting “incentives for savings, investments and the mutually beneficial division of labour, and protect individual rights to buy and sell goods and services” 5 Conversely, the classical theory on foreign investment sees the emergence of a human rights culture as being
4 Philip Alston, ‘Resisting the Merger and Acquisition of Human Rights by Trade Law: A Reply to Petersmann’ (2002) 13(4) European Journal of International Law 815. 5 E Petersmann, ‘Time for a United Nations ‘Global Compact’ for Integrating Human Rights into the Law of Worldwide Organization’ (2002) 13 EJIL 621, 626.
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[2020] BPP Human Rights Law Journal Vol. 9 equally dependent on socioeconomic rights as it is on civil and political rights. While Petersmann uses the case of European integration to defend the classical theory, Alston is more sceptical.6While he agrees that trade is a “means by which to attain the higher goals of human dignity which have been recognized as human rights,” he strongly criticises the tendency in Petersmann’s analysis to conflate the two in law, noting that economic factors “by themselves have not thereby metamorphosed into rights accepted as such by the international community, as Petersmann’s analysis would lead us to believe.”7 However, although trade and economic liberalisation do not seamlessly unfurl into human rights, Lorenzo Cotula notes that “investor-state arbitration provides foreign investors with an international remedy unavailable to others under international human rights law.”8 Thus the ongoing paralysis of the WTO arbitral mechanism has arguably removed a forum of dialogue (albeit one that addresses human rights tangentially via the prism of trade) between nation-states. To summarise the debate between Petersmann and Alston, both agree that human rights are not binding in international law. However, as previously noted by Cotula, investor-state arbitration has the capacity to
6 E Petersmann, ‘Time for a United Nations ‘Global Compact’ for Integrating Human Rights into the Law of Worldwide Organization’ (2002) 13(3) EJIL 621, 629. 7 P Alston, ‘Resisting the Merger and Acquisition of Human Rights by Trade Law:’ (2002) 13(4) EJIL 815, 828. 8 Lorenzo Cotula, ‘Rethinking investment treaties to advance human rights’ (2016) International Institute for Environment and Development.
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[2020] BPP Human Rights Law Journal Vol. 9 provide remedies otherwise unavailable under international human rights law. Consequently, the incorporation of human rights chapters in Regional Trade Agreements have the potential to expand the enforcement of human rights. As CETA is exemplary of the new generation of regional trade agreements, the remainder of this essay will explore the extent to which such an incorporation does extend access to human rights extends in practice.
Human Rights in CETA The EU’s practice of including conditionality on human rights in trade agreements has been in place since 1995 and enables the suspension or termination of the agreement in case of human rights violations.9 As Lorand Bartels notes, human rights is an ‘essential element’ clause in international agreements negotiated by the EU, and is either placed directly within the agreement itself or signed in linked political declarations. 10 In the case of CETA, the human rights conditionality appears in Article 2 of the Strategic Partnership Agreement (SPA) and is linked to CETA in Article 28(7). According to Katharina Meissner and Lachlan McKenzie, the extensive scope and potential to irreversibly terminate CETA “represents strong human rights language… given that Canada has a
9 European Commission, ‘Using EU Trade Policy to promote fundamental human rights: current policies and practices’ (2012). 10 Lorand Bartels, Human Rights Conditionality in the EU’s International Agreements (Oxford University Press 2005).
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[2020] BPP Human Rights Law Journal Vol. 9 recognized fundamental rights record”. 11 On the other hand, Alston lists the failure to enforce the ratification of the European Social Charter or ensure EU-based transnational corporations respect human rights in concluding that many EU initiatives “have been driven by narrow self-interest” rather than a genuine commitment to economic liberty or human rights.12 However, as this section will explore, the proposal contained in CETA for the establishment of a multilateral investment court, in conjunction with the expanding public policy scope of trade agreements, presents a novel approach to promoting human rights. The European Commissioner for Trade during CETA negotiations, Cecilia Malmstrӧm, argued that the proposed multilateral investment court “would represent a permanent body open to all interested countries” that “would safeguard the right to regulate in the public interest and health, safety, and environmental concerns, responding to popular concerns that the ISDS system did not provide sufficient protections for these.” 13 Alston apparently misjudged the movement of international arbitration law to encompass public policy and, by extension, the scope and efficacy of worldwide integration—
11 Katharina Meissner and Lachlan McKenzie, ‘The paradox of human rights conditionality in EU trade policy: when strategic interests drive policy outcomes’ (2019) 26(9) Journal of European Public Policy 1273, 1275. 12 P Alston, ‘Resisting the Merger and Acquisition of Human Rights by Trade Law:’ (2002) 13(4) EJIL 815, 833. 13 James S Welch Jr, ‘Addressing the Issues in Investor-State Arbitration: It is time for a New Direction’ [2019] 21 Atlantic Law Journal 1, 35-36.
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[2020] BPP Human Rights Law Journal Vol. 9 including its capacity to extend human rights through trading agreements.
The idea of a multilateral investment court, the remit of which extends beyond strict contractual infringements of the terms of a trade agreement, could be seen as a form of what Petersmann called ‘Worldwide Integration Law’. As explained in the first section, Petersmann is criticised for failing to provide a coherent definition of this ‘worldwide integration’ law but, from its comparisons with European integration, it can be seen as the harmonisation of national laws of signatory states in relation to public and private trade law. For example, the precautionary principle enables states acting within a strict scientific framework to erect non-fiscal barriers to trade in domains such as environmental regulation, food safety and public health in order to prevent harm. The difficulty under current WTO rules is that numerous approaches to the precautionary principle currently co-exist. CETA tries to address this by incorporating a definition of the precautionary principle drawn from the Rio Declaration (1992).14 If either party enacts policies which breach the agreed upon definition, there will be grounds for investors to make a claim. The economic benefits stemming from liberalised trade are thus interlinked with a much wider array of policy areas.
14 A Couvreur, ‘New Generation Regional Trade Agreements and the Precautionary Principle: ’ (2015) 15 Asper 265, 276.
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It is possible to envisage something similar with relation to human rights in CETA. The economic benefits can be leveraged to ensure compliance with human rights by the parties. Article 2(1) of the SPA states that “respect for democratic principles, human rights and fundamental freedoms, as laid down in the Universal Declaration of Human Rights… constitutes an essential element of this Agreement.” 15 In addition to the SPA being linked in CETA, the preamble of CETA itself carries almost identical language in which it reaffirms its attachment to the UDHR. As such, adherence to human rights can be seen in the context of CETA as legally binding. The permanent multilateral investment court proposed in CETA could interpret any breach of human rights as violation of the trade agreement. Moreover, the permanent court is envisaged as enveloping multiple trade agreements as they are signed. The EU trade deals with Japan and Vietnam have incorporated chapters on human rights and the multilateral investment court. It is, however, difficult to imagine either the EU or Canada committing severe human rights breaches that result in the suspension of CETA (or for the economic repercussions of such a suspension to significantly alter either party’s policies). Nonetheless, the repercussion of such a breach for less economically developed economies, particularly those reliant on the liberalised trade afforded by such agreements, would be
15 Strategic Partnership Agreement between Canada, of the One Part, and the European Union and its Member States, of the Other Part (2018)
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[2020] BPP Human Rights Law Journal Vol. 9 proportionally greater. In this way, the new generation of regional trade agreements simultaneously creates both an incentive to comply with human rights and fundamental freedoms, as well as a mechanism to penalise countries actively choosing not to.
This stands in stark contrast to the current state of affairs. In 2014, a Saudi Arabian investor in Indonesia’s ‘Bank Century’, claimed that he was being denied his rights to a fair trial guaranteed by Article 10(1) of the Agreement on Promotion, Protection and Guarantee of Investments amongst the Member States of the Organization of the Islamic Conference (OIC). The arbitral tribunal rejected this claim because the ‘basic rights’ in the aforementioned Article 10(1) referred to property rights as opposed to human rights. 16 By incorporating a provision on human rights into trade agreements, such as the express commitment to the Universal Declaration of Human Rights in CETA, investors and private parties can hold states to account should they breach human rights. In this way, human rights are ‘legally concretized’ through trade insofar as private parties could exert pressure on states to uphold their rights. Thus, had the OIC Agreement included a commitment to uphold the Declaration of Human Rights, then the right to a fair trial would have been read into the agreement and Al-Warraq’s claim would have been successful.
16 Hesham Talaat M. Al-Warraq v. Republic of Indonesia, UNCITRAL (Final Award, 2014), 522.
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This leads to the question of enforcement.
The novel multilateral investment tribunal proposed in CETA seeks a departure from the traditional ad hoc investor-state dispute settlement (ISDS) mechanisms contained within Bilateral Investment Treaties to a more permanent court system modelled upon that of the WTO.17 As long as future trade agreements include provisions on human rights, the proposed permanent court system will be empowered to examine breaches in agreed human rights terms. This could enable parties to the multilateral arbitration tribunal proposed in CETA to effectively bypass the process of UN sanctions (which often require difficult negotiations in the UN Security Council) by withholding trade to countries in breach of their human rights obligations. Affixing human rights with more direct economic consequences might lead states to be more hesitant to breach the former out of fear of the latter
Conclusion Aaronson and Chauffour point out that there are those who do not see trade agreements as an appropriate place to address human rights issues. Critics either argue that the inclusion of human rights provisions in trade agreements are intended “to
17 ‘Comprehensive Economic and Trade Agreement (CETA) between Canada, of the one part, and the European Union and its Member States, of the other part’ (2017) 11 Official Journal of the European Union 23, F.8.29.
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[2020] BPP Human Rights Law Journal Vol. 9 impose their values and norms with a view to globalizing their social policies or regulatory approach,” or else it is “simply a new form of protectionism in disguise.”18
In relation to human rights specifically, the former critique seems odd considering it is usually seen as desirous to promote the culture of human rights. The latter critique, at least in the case of CETA, seems somewhat more accurate. As Couvreur discusses, there are substantive differences regarding the interpretation of the precautionary principle. Canada, for instance, relies almost exclusively on scientific evidence in determining the risk of harm, whereas the EU takes the science into account as one among several factors. Similar differences to approaches to human rights could be exploited to circumnavigate breaches, or to legitimise protectionist policies.
However, the proposed multilateral investment court and Joint Committees can play a role in mitigating this. The inclusion of social chapters in trade agreements, such as Chapter Twenty-Two of CETA which commits to broad social and environmental goals, creates room for manoeuvre to ensure states retain some latitude to amend regulatory policy without fear of legal action. As Julien Chaisse and Yves Renouf observe, in negotiations with Australia, the European Commission has gone through great
18 Susan Ariel Aaronson and Jean Pierre Chauffour, ‘The Wedding of Trade and Human Rights: Marriage of Convenience or Permanent Match?’
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[2020] BPP Human Rights Law Journal Vol. 9 lengths to assure regulatory freedom.19 Thus, the inclusion of conditionality on human rights in trade agreements creates broad strokes of agreement under which states can continue to pursue the policies they so wish. The creation of a Joint Committee on Trade and Sustainable Development in the aforementioned Chapter Twenty-Two establishes structures for dialogue should concerns arise over the pursuit of particular policies. Similar Joint Committees on human rights would bolster the classical theory on foreign investment to which Petersmann subscribes.
In conclusion, the linking of human rights and trade law can be seen as a carrot-and-stick approach to promoting the former. As long as a country does not breach their human rights obligations, they are rewarded with liberalised trading arrangements. Certainly in trade agreements with Canada and Australia, it is harder to see any parties committing actions sufficiently egregious to constitute termination. However, more so with less economically developed countries, the asymmetrical power relations enable the protection and promotion of human rights. In this sense, this approach also shifts human rights from the political realm to the judicial, empowering investors to make claims where they see fit. The judgment on whether a country can suspend or terminate entirely the agreement is made
19 Julien Chaisse and Yves Renouf, ‘Investor-State Dispute Settlement’ in Jane Drake- Brockman and Patrick Messerlin (eds),Potential Benefits of an Australia-EU Free Trade Agreement: Key Issues and Options (University of Adelaide Press 2018), 294-295
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[2020] BPP Human Rights Law Journal Vol. 9 by judges rather than political actors who, at present, can turn a blind eye to human rights abuses which economically benefit their constituents.
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A TALE OF TWO SYSTEMS: EXTRADITION AND SECURITY IN HONG KONG
Georgia-Mae Chung
On 30th June 2020, China passed a national security law for Hong Kong. This has received much condemnation internationally and has been described as “controversial”1 and “draconian”.2 The implementation of the law has been as rapid as the criticism of it, with Hong Kong police making their first arrests under the law a mere day after it was passed.3
Protests have become prevalent in Hong Kong and are widely reported internationally. They began in
1 BBC News, ‘Hong Kong security law: China passes controversial legislation’ (30 June 2020) https://www.bbc.co.uk/news/world-asia-china-53230391. Accessed 29 July 2020. 2 Didi Tang, ‘Hong Kong: Girl, 15, among hundreds held as violence breaks out at rally’ (The Times, 2 July 2020) https://www.thetimes.co.uk/edition/news/hundreds-arrested-in-hong-kong- protests-against-draconian-chinese-law-. zhhcpj3k8?utm_source=newsletter&utm_campaign=newsletter_119&utm_medium=email&utm_ content=119_9829467&CMP=TNLEmail_118918_9829467_119. Accessed 29 July 2020. 3 BBC News, ‘Hong Kong: First arrests under ‘anti-protest’ law as handover marked’ (1 July 2020) https://www.bbc.co.uk/news/world-asia-china-53244862. Accessed 29 July 2020.
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[2020] BPP Human Rights Law Journal Vol. 9 response to a proposed extradition bill for Hong Kong. Now, the new national security law has served as a catalyst for their continuation.
This article will consider the substance of Hong Kong’s proposed extradition bill and its more recent security law and their implications for human rights and civil liberties, which are also of constitutional importance given the contents of the Basic Law, Hong Kong’s mini-constitution.4 Specifically, Article 4 contains an obligation “to safeguard the rights and freedoms of the HKSAR and of other persons in the region in accordance with the law.” Ultimately, this article will conclude that the bill and security law have far-reaching implications which fragment the relationship between Hong Kong’s citizens and mainland China, and which put the “one country, two systems” principle under threat.
The Murder of Amber Poon Hiu-Wing and The Proposed Extradition Law On 17th February 2018, a woman from Hong Kong named Amber Poon Hiu-Wing was murdered in Taipei, Taiwan’s capital, whilst on holiday with her boyfriend, Chan Tong-kai who was also from Hong Kong. After dumping Poon’s body in Taiwan, Chan
4 Hong Kong Free Press, ‘In full: Official English translation of the Hong Kong national security law’ (1 July 2020) https://hongkongfp.com/2020/07/01/in-full-english-translation-of-the-hong- kong-national-security-law/. Accessed 7 September 2020. Article 4 contains an obligation “to safeguard the rights and freedoms of the HKSAR and of other persons in the region in accordance with the law.”
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[2020] BPP Human Rights Law Journal Vol. 9 flew back to Hong Kong where he eventually confessed to the killing and was then placed under arrest on 13th March 2020. However, even with this confession, the Hong Kong police were unable to prosecute Chan for murder or manslaughter due to the territorial principle of public international law. Taiwan authorities also sought to charge Chan with murder. In December 2018, Taipei prosecutors issued a warrant for Chan. However, Hong Kong and Taiwan did not share an extradition treaty. Furthermore, there were substantial obstacles in the way of them forming one, such as Hong Kong’s inability to enter into an extradition treaty with Taiwan under its own authority as a special administrative region of China.5
In February 2019, the Hong Kong government proposed amendments to the Fugitive Offenders Ordinance (“FOO”) and the Mutual Legal Assistance in Criminal Matters Ordinance to address these issues. Focus was mainly placed on the proposed amendment the FOO, since this allows persons to be surrendered who are wanted in connection with criminal matters in other jurisdictions, under long- term reciprocal agreements. 6 The amendment was
5 Cindy Sui, ‘The murder behind the Hong Kong protests: A case where no-one wants the killer’ (BBC News, Taipei, 23 October 2019) https://www.bbc.co.uk/news/world-asia-china-50148577. Accessed 29 July 2020. 6 Note that FOO describes the formal transfers as “surrender” rather than “extradition”. English law used “surrender” to describe this process “when the jurisdiction that removed the individual did not have sovereign status and the U.K. was responsible for that place’s foreign affairs”. The
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[2020] BPP Human Rights Law Journal Vol. 9 to establish a mechanism for “one-off”, “case- based”, or “ad hoc” agreements for transfers of fugitives, on the order of Hong Kong’s chief executive, to jurisdictions with which Hong Kong lacks a formal extradition treaty; this necessarily included Taiwan and mainland China.7
This would have been “the first time in about 90 years” that it was possible for a person living in Hong Kong to be transferred to mainland China to serve a criminal sentence or stand trial. 8 Yet, despite the significant and unorthodox nature of this step, Chief Executive Carrie Lam sought to fast-track the proposal, using the Chan case as justification. 9 Nevertheless, it is evident that the prosecution of Chan would not have benefitted from this bill being implemented urgently, since Taiwanese authorities
term “surrender” was maintained, reflecting the reality that mainland China remains responsible for Hong Kong’s foreign affairs. 7 Hong Kong Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019 (29 March 2019) https://www.legco.gov.hk/yr18- 19/english/bills/b201903291.pdf. Accessed 29 July 2020. Accessed 29 July 2020, para 3. 8 Hong Kong Bar Association, ‘A Brief Guide to Issues Arising from the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019 (“The Bill”) (6 June 2019) https://www.hkba.org/sites/default/files/A%20Brief%20Guide%20to%20issues%20arising%20fr om%20the%20Fugitive%20Offenders%20And%20Mutual%20Legal%20Assistance%20in%20C riminal%20Matters%20Legislation%20%28Amendment%29%20Bill%202019%20%28%E2%80 %9CThe%20Bill%E2%80%9D%29.pdf. Accessed 6 September 2020. 9 Kris Cheng, ‘Hong Kong’s new one-off China extradition plan seeks to plug legal loophole, says Chief Exec. Carrie Lam’ (Hong Kong Free Press, 19 February 2019) https://hongkongfp.com/2019/02/19/hong-kongs-new-one-off-china-extradition-plan-seeks-plug- legal-loophole-says-chief-exec-carrie-lam/. Accessed 29 July 2020.
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[2020] BPP Human Rights Law Journal Vol. 9 asserted that they would not enter into a one-off arrangement with Hong Kong under the amended bill.
One may suspect that much of the intention behind pushing the implementation of the bill went beyond this single case. Surrender or extradition of a fugitive from one jurisdiction to another normally takes place under long-term reciprocal arrangements with terms and conditions about the process. These are created with “great care” and to ensure that the interests of countries “are secured on a long-term and predictable basis.” It also means that “there is uniformity of treatment when dealing with requests for surrender”. It follows that one-off arrangements are usually reserved for cases perceived as necessitating surrender when there are important and/or political reasons as to why a long-term reciprocal agreement is not in place. 10 The effect of this law would have been to buck this trend and make such arrangements more commonplace.
Hence, the proposed law raised concerns in the wider context of allowing extradition to mainland China beyond the Chan case. Having an extradition agreement that allowed this would undermine the independence of Hong Kong’s legal system from that in mainland China. It follows that, pro- democracy activists raised concerns that this law would lead to the erosion of the “one country, two
10 Above no 7, para 9.
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[2020] BPP Human Rights Law Journal Vol. 9 systems” principle in its use beyond the extradition of Chan.
Many elements of the law supported this. For instance, although an examining magistrate analyses cases where extradition is sought to ensure that the conditions under FOO are met and there are no grounds under which the surrender can be refused, the Chief Executive then has the power to approve or refuse a request regardless of the magistrate’s conclusions. Opponents have pointed to the chief executive’s selection by a Beijing- dominated election committee and formal appointment by the Chinese Government to raise concerns about their potential incentive to approve extraditions to mainland China.11
There was also a strong worry that the law could lead to the targeting of political opponents and that the safeguards cited by Hong Kong authorities were insufficient to protect the rights of Hong Kong residents. Extradition in connection with political offences is commonly restricted by long-term reciprocal arrangements used between other jurisdictions, as is extradition for reasons “connected with the fugitive’s status as a member of a political party or a religious group.” 12 However, since the agreements under the proposed bill would be “one- off” and based on individual cases, placing
11 BBC News, ‘Profile: Carrie Lam, Chief Executive of Hong Kong’ (13 August 2019) https://www.bbc.co.uk/news/world-asia-china-48646472. Accessed 29 July 2020. 12 Above no 7, para 16.
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[2020] BPP Human Rights Law Journal Vol. 9 restrictions on extradition for political reasons does not necessarily have to be a feature, nor is it likely to be.
Equally problematic was the apparent lack of safeguards provided by the bill against human rights violations by the jurisdiction which is to receive the fugitive. This is stark in comparison to the content of similar laws in other jurisdictions. For example, although “ad hoc” extradition agreements are allowed in other common law jurisdictions, such as the United Kingdom and Canada, in a range of circumstances, they have rarely been used. 13 For instance, only one case has arisen in the United Kingdom according to a 2013 publication, this relating to genocide and murder in Rwanda. 14 In comparison, it is highly unlikely that Hong Kong’s extradition bill would attract such rare use, given that the Chief Executive has far less room to refuse.
Moreover, unlike the United Kingdom, Hong Kong courts do not have an obligation to consider whether extradition would be compatible with the fugitive’s rights in accordance with the Hong Kong Bill of Rights Ordinance. This is particularly concerning given that the People’s Republic of China is not a
13 Albert Chen, ‘A Commentary on the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019 (“the Bill”) (HKU Legal Scholarship Blog, 3 May 2019) http://researchblog.law.hku.hk/2019/05/albert-chens-commentary-on-proposed.html Accessed 6 September 2020 14 Clive Nicholls et al., The Law of Extradition and Mutual Assistance (Oxford University Press, 3rd ed. 2013), p. 40.
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[2020] BPP Human Rights Law Journal Vol. 9 party to the International Covenant of Civil and Political Rights.15
Furthermore, a fugitive’s recourse to appeal is limited. For rights other than those to life and against torture and inhuman treatment, such as that to a fair trial, the fugitive can only raise concerns with the Chief Executive when the latter makes the order for surrender. This is unlikely to have an effect, particularly considering the criticism of the Chief Executive’s reliance on the Chinese government. Moreover, although this decision to surrender is subject to judicial review, the court can only consider if it was “made illegally, unreasonably, or the procedure adopted in reaching the decision was unfair.”16
Following pressure from protestors and commentators, the Secretary of State announced a change to the bill which allowed the Chief Executive to include terms requiring the requesting jurisdiction to respect certain rights.17 However, it is notable that
15 Above no 13. 16 Above no 7, para 23. 17 Hong Kong Bar Association, ‘Additional Observations of the Hong Kong Bar Association (“HKBA”) on the HKSAR Government’s proposed further changes to the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019’ (6 June 2016) https://www.hkba.org/sites/default/files/Additional%20Observations%20of%20the%20Hong%20 Kong%20Bar%20Association%20%28%E2%80%9CHKBA%E2%80%9D%29%20on%20the%2 0HKSAR%20Government%27s%20proposed%20further%20changes%20to%20the%20Fugitiv e%20Offenders%20and%20Mutual%20Legal%20Assistance%20in%20Criminal%20Matters%2
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[2020] BPP Human Rights Law Journal Vol. 9 this proposal was not to be written into the bill but was merely to be “in the form of policy statements and practices.” This is problematic, since it means that the level of protection is dependent on the Chief Executive’s negotiating ability and, considering the “asymmetrical relationship” between Hong Kong and the Mainland, it is unlikely that they would make the requests completely dependent on the requesting state’s compliance.18
Security Law The recently passed security law has since posed as another catalyst for human rights concerns. The law was not enacted by Hong Kong’s Legislative Council, instead being passed as a national law by China’s parliament and is applied to Hong Kong through the Basic Law. Endorsed and adopted after a “total absence of meaningful consultation” with the Hong Kong Bar Association, the law was vague through its failing to address the status of specific acts, as well as the lack of opportunity for police, Hong Kong residents, judges, lawyers, and even its Chief Executive to familiarise themselves with the law before its promulgation. Additionally, the law was only published in the Chinese language, which was unusual given Hong Kong’s bilingual legal system and “rendered its contents inaccessible to many
0%20Legislation%20%28Amendment%29%20Bill%202019.pdf. Accessed 6 September 2020, para 9. Also note that this was constrained to the presumption of innocence, open trial, visiting rights, banning forced confessions, and right to appeal (para 2). 18 Ibid.
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[2020] BPP Human Rights Law Journal Vol. 9 interested stakeholders.” 19 Despite this, ten protestors were arrested under the law only the day after the law was passed.20
The law criminalises secession, subversion of the central government, terrorism , and collusion with foreign or external forces.21 The maximum penalty for these offences is life imprisonment.22 This has raised concerns about such rights and civil liberties as freedom of expression, freedom of assembly, and the independent judiciary. For instance, the Hong Kong Bar Association has pointed out that secession may work “to prohibit mere speech or any peaceful advocacy”, subversion may apply to “media criticisms or picketing”, and colluding with foreign forces may encompass “certain activities of academics, NGOs and media organizations which were lawful or not unlawful in the past”.23 The law’s extraterritorial reach is also of great significance,
19 Hong Kong Bar Association, ‘Statement of the Hong Kong Bar Association on the Law of the People’s Republic of China (“PRC”) on Safeguarding National Security in the Hong Kong Special Administrative Region (“HKSAR”): Statement of the Hong Kong Bar Association’ (1 July 2020) https://www.hkba.org/sites/default/files/20200701%20HKBA%20statement%20on%20Safeguar ding%20National%20%20Security%20in%20HKSAR.pdf. Accessed 7 September 2020, paras 2, 3, and 6. 20 Hong Kong Free Press, ‘Hong Kong security law revealed – violators may face life imprisonment’ (30 June 2020) https://hongkongfp.com/2020/06/30/breaking-hong-kong- security-law-revealed-violators-may-face-life-imprisonment/. Accessed 29 July 2020. 21 Above no 1. 22 Above no 20. 23 Above no 19, paras 1, 2, and 4.
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[2020] BPP Human Rights Law Journal Vol. 9 with it applying to the conduct of foreign citizens anywhere in the world.
Like the extradition bill, this law has caused significant concern due to its interaction with human rights. It appears to contradict the Basic Law in several ways, for instance, Article 62 states that the national security law will prevail if there is inconsistency between it and domestic Hong Kong law. This appears to encompass all Hong Kong Ordinances, including that implementing the International Covenant on Civil and Political Rights. 24 This hierarchy is inconsistent with Article 4 of the Basic Law.
Methods of interpretation of the law have also been criticised. In the event of a conflict between the law and Hong Kong law, Beijing’s interpretation of the law takes precedence. Additionally, the vagueness of the law forms a path for intervention by the National People’s Congress Standing Committee, which potentially “undercut[s] the independent exercise of judicial power by the Courts of the Region.”25
Enforcement also allows increased intervention from mainland China. For instance, the law required Hong Kong to establish its own national security commission to enforce laws, with a Beijing-
24 Ibid., paras 4 and 5. Note: The relevant ordinance is the Hong Kong Bill of Rights Ordinance (Cap. 383). 25 Ibid., para 9.
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[2020] BPP Human Rights Law Journal Vol. 9 appointed adviser. The vagueness of the law’s application presents itself again here in the form of semantic ambiguity, which has caused debate over whether the actions of the newly established Committee for Safeguarding National Security can be judicially reviewed. Article 14 of the law states that “decisions by the Committee shall not be amenable to judicial review.” Both the Hong Kong Bar Association26 and Chief Executive Carrie Lam have perceived this as meaning that the Committee is exempt from judicial review. However, Albert Chen Hung-yee has argued against this, suggesting that “not amenable to judicial review does not mean everything the committee has decided will not be judicially reviewable.” 27 To have disagreement on the existence of such a crucial check against the state that is exercisable by individuals is deeply troubling.
Furthermore, the law allowed the mainland Chinese government to establish a law enforcement agency in Hong Kong, 28 which up until that point was unprecedented. The Hong Kong Secretary has, importantly, said that the right of a suspect to engage a lawyer who is registered to practice in Hong Kong,
26 Ibid., para 14. 27 Chris Lau, ‘National Security law: decisions of new committee in Hong Kong not above judicial review, legal expert says’ (South China Morning Post, 11 July 2020) https://www.scmp.com/news/hong-kong/politics/article/3092792/national-security-law-decisions- new-committee-hong-kong-not. Accessed 7 September 2020. 28 The Office for Safeguarding National Security of the Central People’s Government in the Hong Kong Special Administrative Region.
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[2020] BPP Human Rights Law Journal Vol. 9 but not in Mainland China, will be determined through the application of Mainland law. 29 This sustains fears that the law operates with a bias towards Mainland China.
Also fuelling this fear how the chief executive was given the power to appoint judges for national security cases, which has raised fears about judicial independence. Such judges can also be removed “if their words or deeds endanger national security.”30 Additionally, trials are allowed to take place in secret and may be held without juries “without any residual discretion in this regard being left to the courts of Hong Kong,31 which is problematic for transparency to combat accusations of judicial bias.
Moreover, a source of frustration as well as fear is how the law reignites concerns which were sparked by the former extradition bill. The security law allows some cases to be tried in mainland China rather than Hong Kong. Although it has been stressed that the power will only be available for a “tiny number” of cases”,32 there is a fear of such action for individuals who are perceived as supporting independence or
29 The Government of the Hong Kong Special Administrative Region Press Releases, ‘LCQ9: National security law for Hong Kong’ (15 July 2020) https://www.info.gov.hk/gia/general/202007/15/P2020071500491.htm. Accessed 7 July 2020 (reply to para 6). 30 Above no 19, para 10. 31 Ibid., Article 46 32 BBC News, ‘Hong Kong security law: What is it and is it worrying?’ (30 June 2020) https://www.bbc.co.uk/news/world-asia-china-52765838. Accessed 29 July 2020.
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[2020] BPP Human Rights Law Journal Vol. 9 criticising China, including “political dissidents, activists, human rights lawyers, and journalists.” 33 Moreover, unlike the former bill, these transfers to mainland China would not technically be extradition. Therefore, the judicial controls associated with extradition, as minimal as they may have been, do not apply here either. Mainland criminal procedures will operate in these cases and this again causes concern over the application of the accused’s right to fair trial.
Conclusion At the time of writing, the national security law has been imposed extensively. For instance, the protest slogan “Liberate Hong Kong, the revolution of our times” has been declared illegal by the Hong Kong government. Moreover, Hong Kong Public Libraries have placed books by pro-democracy leaders under review “to check for compliance with the new law”. The influence of the law has even spread to conduct in schools and democratic primaries.34
Furthermore, much of the international reaction to the law has also been critical. For instance, the United Kingdom and Australia have proposed ways for Hong Kong residents to gain citizenship or residency in their countries. They, along with
33 Above no 20. 34 Ibid.
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Canada35 and New Zealand,36 have also suspended their extradition treaties with Hong Kong. Moreover, the European Union has begun to limit technology exports to Hong Kong that could be used for suppression or repression, as well as agreeing to the imposition of sanctions and trade curbs and the review of visa agreements. 37 Most recently, the United Nations has condemned the law as contradicting international human rights obligations, such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.38
Many have long felt that the “one country, two systems” principle has been diminished by mainland China’s actions in curtailing their human rights and civil liberties. After the former extradition bill, the security law is now the latest, and by far the most widespread, action of this kind. It appears to bring the “one country, two systems” principle under a calamitous threat that may well be irrevocable.
35 Lily Kuo, ‘China halts Hong Kong extradition treaties with Canada, Australia and UK’ (The Guardian, 28 July 2020) https://www.theguardian.com/world/2020/jul/28/china-halts-hong-kong- extradition-treaties-with-canada-australia-uk. Accessed 29 July 2020. 36 BBC News, ‘Hong Kong security law: China hits back in extradition row’ (28 July 2020) https://www.bbc.co.uk/news/world-asia-53562437. Accessed 29 July 2020. 37 Above no 20. 38 Fionnuala Ní Aoláin, Elina Steinerte, Agnas Callamard, Irene Khan, Clement Nyaletsossi Voule, Mary Lawlor, Fernand de Varennes, ‘Reference OL CHN 17/2020’ (United Nations Human Rights Office, 1 September 2020) https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=254 87. Accessed 7 September 2020
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WHAT DOES THE FUTURE HOLD FOR ARTICLE 3 ECHR IN CASES INVOLVING THE DEPORTATION OF ILL PERSONS?
Miranda Sadler Foreign nationals resisting deportation may seek protection under Article 3 of the European Convention of Human Rights (ECHR) if they have a medical condition and can prove that the treatment provisions in their country of origin are insufficient to meet their needs. However, until recently, it was necessary for foreign nationals to be on their deathbed if they were to successfully fight deportation from the United Kingdom on these grounds. On 29 April 2020, the Supreme Court handed down a significant judgment in AM (Zimbabwe) v Home Secretary of State for the Home Department that relaxed the domestic law approach to be taken in these medical removal cases.1 The Supreme Court’s decision, reaffirming the approach taken by the European Court of Human Rights (ECtHR) in Paposhvili v Belgium [2016], appears to expand the state’s responsibility towards foreign nationals they are seeking to deport. 2 AM (Zimbabwe) also confirms that Article 3 has a much
1 AM (Zimbabwe) v Secretary of State for the Home Department [2020] 2 WLR 1152. 2 Paposhvili v Belgium [2016] ECHR 1113.
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[2020] BPP Human Rights Law Journal Vol. 9 broader scope of application in medical removal cases than previously envisaged by the lower courts. Background Article 3 enshrines the absolute right of individuals to freedom from torture and inhuman or degrading treatment or punishment at the hands of a member state. The right was extended to cover foreign nationals facing expulsion from member states to countries where they might face a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in Soering v United Kingdom [1989] 3 and Chalal v United Kingdom [1996].4 But D v United Kingdom [1997] was the first Article 3 claim heard by the ECtHR concerning the deportation of a foreign national who was resisting removal from a member state on the grounds that he would not have access to requisite medical treatment in his country of origin.5 The applicant in D was in the final stages of AIDS and it was argued that returning him to St Kitts, where he had no family and there was no treatment for AIDS at the time, would not allow him to die with dignity. The ECtHR upheld his Article 3 claim but treated the case as exceptional.
Indeed, the domestic law position later taken up by the House of Lords in N v Secretary of State for the Home Department [2005] confirmed a highly
3 Soering v United Kingdom (1989) EHRR 439. 4 Chalal v United Kingdom (1996) 23 EHRR 413. 5 D v United Kingdom (1997) 24 EHRR 423.
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[2020] BPP Human Rights Law Journal Vol. 9 restrictive approach to these types of claims.6 It was held that Article 3 would only prevent removal to another country in a medical treatment case where the claimant was on their deathbed. In N, there was evidence that the claimant, who had advanced HIV, could live for decades if she stayed in the United Kingdom, but would die within a matter of months if returned to Uganda. Nevertheless, the House of Lords held that the claim did not meet the high threshold for establishing an Article 3 breach because the claimant’s condition was stable and she was not facing imminent death like the applicant in D. The House of Lord’s restrictive approach was endorsed by the ECtHR in N v United Kingdom [2008], although the Court noted that there could be “other very exceptional cases in which the humanitarian considerations are equally compelling.”7
It wasn’t until 2016 that the ECtHR modified the approach to medical removal cases when it handed down judgment in Paposhvili. The applicant in Paposhvili had advanced leukemia and his condition was being stabilised in Belgium using a drug not available in Georgia, his country of origin. The ECtHR found that the Belgian authorities had violated Article 3 by trying to deport the applicant and also decided that the approach to Article 3 in medical removal cases needed to be “clarified.” The Court
6 N v Secretary of State for the Home Department [2005] 2 AC 296. 7 N v United Kingdom (2008) 47 EHRR 885.
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[2020] BPP Human Rights Law Journal Vol. 9 held that an issue could be raised under Article 3 in situations where there are substantial grounds for believing that the claimant, while not at imminent risk of dying, would “face a real risk, on account of the absence of appropriate treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy.”8
The first opportunity for the English courts to interpret the ECtHR’s wording from Paposhvili arose when the case of AM (Zimbabwe) was heard by the Court of Appeal in 2018.9 The case concerns a man from Zimbabwe who has resided in the UK since 2000 and whom the Home Office is seeking to deport on account of him holding several criminal convictions. The appellant is HIV positive and is resisting deportation on the grounds that, once back in Zimbabwe, he will not have access to the drug Eviplera which he tolerates well and which has increased his CD4 blood count. It is possible that he would have access to antiretroviral therapy (ART) in Zimbabwe but he has experienced intolerable side effects using this drug. The Court of Appeal, still bound by N v Secretary of State for the Home Department, dismissed the appeal. Sales LJ offered his own interpretation of the test in Paposhvili as representing only a “very modest” extension of the protection against removal under Article 3. 10 His
8 Paposhvili [183]. 9 AM (Zimbabwe) v Secretary of State for the Home Department [2018] 1 WLR 2933 (CA). 10 AM (Zimbabwe) (CA) [37].
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[2020] BPP Human Rights Law Journal Vol. 9 interpretation was that removal would only violate Article 3 if intense suffering or death would be imminent in the receiving state as a result of non- availability of treatment which would have been available in the UK.11 It was unanimously agreed that the claimant’s circumstances did not meet the threshold of this test.12
The Supreme Court’s landmark judgment in AM (Zimbabwe) in April 2020 departed from the Court of Appeal’s approach. Lord Wilson disagreed with Sales LJ’s interpretation of the test in Paposhvili and held that the proper approach was in fact significantly modified by ECtHR. It was held that the correct test for a breach of Article 3 is whether removal will give rise either to a real risk of serious, rapid and irreversible decline in the person’s state of health resulting in intense suffering or to a substantial reduction in life expectancy.13 Crucially, death no longer has to be imminent. The Supreme Court accordingly upheld the appeal and directed the appellant to gather up-to-date evidence which could be presented to the Upper Tribunal.14
A shift towards greater state responsibility The new approach confirmed by the Supreme Court is notable for shifting greater responsibility over to
11 ibid [38]. 12 ibid [44, 47, 48]. 13 AM (Zimbabwe) (SC) [30]. 14 ibid [37].
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[2020] BPP Human Rights Law Journal Vol. 9 the public authorities in the member state in medical removal cases. Traditionally, Article 3 has only applied where there is evidence that the authorities in the receiving country will actively contribute to or exacerbate the suffering of an applicant. Medical removal cases have therefore fallen into a gray area due to the fact that an applicant’s suffering would be the result of an absence of resources or state intervention in their country of origin. Consequently, the courts have had to grapple with the question of who should be held responsible for an applicant’s health in this situation. In D, the claim was upheld partly because so little input was required from the member state; the UK was only under a negative obligation not to deport an applicant who was going to die either way. In N v Secretary of State for the Home Department, Lord Brown observed that applying Article 3 in cases where an applicant isn’t facing imminent death is a question of whether the state should be under a positive obligation to provide the applicant with medical treatment indefinitely.15 In N v United Kingdom, the ECtHR confirmed that imposing a positive obligation to provide free and unlimited health care to foreign nationals who so require it places too great a burden on member states. 16 The Court vindicated member states in these cases by contending that any alleged future harm to the applicant would flow from “naturally occurring illness and the lack of sufficient resources”
15 N v Secretary of State [88, 90, 93] (Lord Brown). 16 N v United Kingdom [44]
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[2020] BPP Human Rights Law Journal Vol. 9 in the receiving country rather than from the “intentional acts or omissions” of non-state public bodies.17
However, it seems as though a change to the approach has been mooted for some time. Despite the unanimous decision to dismiss the appeal in N v Secretary of State for the Home Department, members of the House of Lords expressed discomfort with the distinction being drawn between applicants on their deathbeds and applicants whose life expectancy would be severely reduced. 18 In Mwanje v Belgium [2013], a case with similar facts to AM (Zimbabwe), there was a significant concurring opinion among six of the seven ECtHR judges that the requirement for applicants to be nearing death was “hardly consistent with the letter and spirit of Article 3.”19
The judgment handed down in Paposhvili and confirmed in AM (Zimbabwe) therefore reflected an anticipated shift in the vision of the role of the state in medical removal cases. The new approach places a greater investigative duty on the state to collect evidence and receive individual and sufficient assurances from the receiving state about the availability and accessibility of suitable treatment in
17 ibid [43]. 18 N v Secretary of State [91] (Lord Brown). 19 Mwanje v Belgium (2013) 56 EHRR 35 [OI-6].
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[2020] BPP Human Rights Law Journal Vol. 9 the receiving state. 20 Factors to be taken into account include the cost of medication and treatment, the existence of a social and family network, and the distance to be travelled in order to have access to the required care. 21 The new procedural requirements have been lauded as one of the greatest achievements of Paposhvili because they could help to guarantee claimants’ access to appropriate medical care in the receiving state.22 It is worth noting that the feasibility of obtaining individual and sufficient assurances from countries with questionable human rights records has been flagged as potentially problematic.23 However, as the burden of dispelling any doubts raised by the applicant’s evidence now rests with the public authority of the
20 Mark Symes and Miranda Butler, “Implications for expulsions following the Supreme Court ruling of AM (Zimbabwe)” (Garden Court Chambers, 19 May 2020)
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[2020] BPP Human Rights Law Journal Vol. 9 member state, it will surely be up to them to convince the court of the sufficiency of their obtained assurance.24
Expansion of Article 3 scope AM (Zimbabwe) also confirmed that the scope of inhuman or degrading treatment in Article 3 now extends to situations where there is an absence of requisite medical treatment in a state. The mere potential for a deportation to result in an applicant’s intense suffering or a substantial reduction in their life expectancy could be enough to establish a breach of Article 3. Critics of the decision may be concerned about the policy implications: the opening of floodgates in this area and the anticipated rise in the number of foreign nationals permitted to remain in the United Kingdom and receive medical treatment. It is widely known that the NHS faces severe budgetary constraints which may add to the perception held by some that requiring public authorities to provide free medical treatment to foreign nationals is too great a burden on the state’s resources. It is also thought that AM (Zimbabwe) could extend Article 3 protection to deportees at risk of suicide where the state’s removal process has contributed to compromising the deportee’s mental health.25 However, human rights activists will rejoice
24 Paposhvili [187]. 25 Shuyeb Muquit and Alex Bennie, “Bringing the mountain to Mohammed: Article 3 medical cases and suicide cases AM Zimbabwe v SSHD [2020] UKSC 17” (1MCB Chambers, 30 April
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[2020] BPP Human Rights Law Journal Vol. 9 that the UK’s internationally renowned public health service now provides an additional legal basis for preventing the removal of ill persons to countries where there is inferior availability and access to treatment. It has also been argued by Lourdes Peroni that Paposhvili did not leave behind the exceptional character and the high threshold of Article 3 in medical removal cases; rather, it opened up what has, in practice, resulted in a limited application of the high threshold.26
The future of Article 3 in medical removal cases It is now the responsibility of the lower courts to apply the Supreme Court’s interpretation of Paposhvili to the case facts in AM (Zimbabwe). It is also anticipated that the Grand Chamber of the ECtHR will shed more light on the new approach to Article 3 in medical removals when it rules on Savran v Denmark. 27 The case concerns a Turkish national suffering from paranoid schizophrenia who has received with several criminal convictions in Denmark and whom the Danish authorities are trying to deport. While the treatment required by the applicant exists in Turkey, there is not sufficient evidence to show that the level of follow-up care required would be accessible if he is deported. Although the Fourth Section of the ECtHR found a
2020)
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[2020] BPP Human Rights Law Journal Vol. 9 violation of Article 3 by the Danish authorities in 2019, there was a split judgment with dissenting judges arguing that the care available in the receiving state need only be sufficient and appropriate. 28 Savran has therefore illustrated the difficulties with applying Paposhvili. It is thought that the Grand Chamber’s ruling on Savran could decisively expand the scope of Article 3 to cover mental illness in addition to physical illness, which could open up Article 3 protections to include suicide risk cases in the future. The United Kingdom has applied for leave to intervene in the proceedings. The possible future expansion of the scope of Article 3 in medical removal cases therefore remains unsettled at present.
IMMIGRATION DETENTION: IS NOW THE TIME TO LOOK TO ALTERNATIVES?
Kerrina Gray
As of March 2020, there were 895 people in immigration detention1. Just three weeks later, the UK went into lockdown as the COVID-19 pandemic spread. It did not take long for the virus to reach an immigration detention centre. On March 22 it was confirmed that a woman in Yarl’s Wood had tested
28 ibid. 1 Home Office, How many people are detained or returned? (2020)
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[2020] BPP Human Rights Law Journal Vol. 9 positive. Bella Sankey, director of Detention Action, said at the time: “On the best scientific evidence, the Home Office is dangerously endangering life by keeping removal centres open and pretending it can operate a deportation system in a global pandemic.”2
The government had two immediate questions to answer. Was it putting immigration detainees at risk of COVID-19 by continuing to hold them in detention centres? And was it possible to continue to hold detainees in immigration detention if travel restrictions meant they had no reasonable hope of being removed within a reasonable time?
They perhaps also had a third question in the back of their minds: was the pandemic exposing immigration detention not to be the best way to run the system?
Legal basis: How long is too long? Though the Immigration and Social Security (EU Withdrawal) Bill is progressing through the House of Lords at the moment, immigration detention currently falls under statutory powers contained within the Immigration Act 1971 and the Immigration and Asylum Act 2002. These Acts state three reasons for which someone can be held in
2 May Bulman, ‘Woman in Yarl’s Wood tests positive for coronavirus in first confirmed case in UK removal centre’ The Independent (22 March 2020)
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[2020] BPP Human Rights Law Journal Vol. 9 immigration detention. They are: if it is necessary to maintain effective immigration control, if they need to establish a person’s identity or the basis of their immigration claim, or if there is reason to believe someone will not comply with any conditions attached to their immigration bail.
However, the common law goes further than that and has established some stricter parameters for when and how detention can be used for the purpose of future deportation. The Hardial Singh principles3, set out by Lord Woolf, have been approved on many occasions. They state: “(i) the Secretary of State must intend to deport the person and can only use the power to detain for that purpose; (ii) the deportee may only be detained for a period that is reasonable in all the circumstances; (iii) if, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention; (iv) the Secretary of State should act with reasonable diligence and expedition to effect removal.”4
Home Office guidance, complying with Article 5 of the European Convention of Human Rights (ECHR), adds to this and advises that “detention must be used sparingly, and for the shortest period necessary.”5 Though there is no fixed time limit on
3 R (Singh) v Governor of Durham Prison (1983) EWHC 1 (QB) 4 Lumba (WL) v Secretary of State for the Home Department (2011) UKSC 12 5 Home Office, Immigration detention (March 2019)
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[2020] BPP Human Rights Law Journal Vol. 9 immigration detention in the UK, detainees must be removed within a reasonable time.
A so-called ‘grace period' has been built on top of this, where detention is lawful while suitable arrangements are made for release. However, earlier this year6, the Court of Appeal warned that the grace period can only be short and the reasons for it will be closely scrutinised by the courts.
Legal basis: How do we identify someone at risk? The Home Office’s Adults at Risk in Immigration Detention (AAR) policy provides guidance for the identification of individuals who would be particularly vulnerable to harm if they were detained.7 Indicators of risk can include those who are suffering from a long-term condition or those who have experienced a traumatic event (such as trafficking, torture or sexual violence) that leave them particularly vulnerable to harm in detention. It can also include those who have serious physical health conditions and those aged 70 or over. These people should not be detained.
Detention centre GPs are instructed to follow the policy and identify those at risk. Rule 35 of the Detention Centre Rules 2001 is the current method
6 AC (Algeria) v Secretary of State for the Home Department (2020) EWCA Civ 36 7 Home Office, Immigration Act 2016: Guidance on adults at risk in immigration detention (July 2018)
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[2020] BPP Human Rights Law Journal Vol. 9 of categorising someone as at risk and ensuring they are removed from detention. It requires a report to be issued by the GP in three circumstances: if a detainee’s health is likely to be affected by continued detention or any conditions of detention, if a detainee has suicidal intentions, or if they suspect a detained person may have been the victim of torture.
Court challenges: As COVID-19 spread through the UK, it became less likely that people could be held for a reasonable time in detention and many new categories of people became vulnerable and potentially at risk from the virus if detained. On 18 March, charity Detention Action and Mikhail Ravin, an Estonian national subject to a deportation order, issued a challenge in the High Court petitioning for the release of all those in immigration detention who suffer from medical conditions which would put them at risk of harm if they contracted COVID-198.
The group quoted Richard Coker, Professor of Public Health, who concluded it was plausible that 60% of detainees could become infected. Detention of vulnerable immigrants would therefore be a breach of the AAR policy. This might also lead to breach of Articles 2 and 3 of the ECHR, which guarantees the right to life of citizens and prohibits torture, respectively.
8 R (Detention Action and Mikhail Ravin) v Secretary of State for the Home Department (2020) EWHC 732 (Admin)
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In response the Secretary of State issued public documents which set out guidance on hygiene practices and steps to reduce the number of people in immigration detention during the pandemic. It also included instructions not to detain those who were set to be removed to countries on the restricted travel list, unless the person is considered a high risk to the public. It was also noted that the AAR policy was now being applied to those who were in a group at identified risk to COVID-19.
Mr Justice Swift said that the combined effect of these measures showed the Secretary of State was acting to reduce numbers in immigration detention. He dismissed the petition to release all those who were not able to be released due to travel restrictions, stating that the Secretary of State is entitled to a short period to review detention of those concerned. He also dismissed the challenge on the grounds of Articles 2 and 3 of the ECHR, stating it was clear the measures put in place by the Secretary of State were sufficient.
Though the claim was dismissed, Detention Action celebrated the Home Office’s release of 350 people following the issuing of proceedings9.
9 Detention Action, ‘Over 350 released from immigration detention and all cases to be urgently reviewed’ (26 March 2020)
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Is the current system working? As Mr Justice Swift stated in the above case: “We must emphasise that it is the role of the court to assess the legality of the Secretary of State’s actions, not to second-guess legitimate operational choices.”10
Perhaps the judge was suggesting that now may be the time for government to look at the operational choices they make with regards to how detention is run. COVID-19 has brought the system into sharp focus, and there is evidence that the system has not been working effectively for some time.
In 2015 Stephen Shaw, the former prison ombudsman, concluded in his review of the UK’s detention system that “there is too much detention; detention is not a particularly effective means of ensuring that those with no right to remain do in fact leave the UK; and many practices and processes associated with detention are in urgent need of reform.”11
It seems, for example, that common law principles on length of detention may not go far enough. Of all those leaving detention from 2010 to 2019, one third
10 R (Detention Action and Mikhail Ravin) v Secretary of State for the Home Department (2020) EWHC 732 (Admin) 11 Stephen Shaw, Review into the Welfare in Detention of Vulnerable Persons: A report to the Home Office (January 2016) p 91
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[2020] BPP Human Rights Law Journal Vol. 9 are held in detention for longer than 28 days12. There is no certainty that detention will be short and the lack of a legal time limit leads to uncertainty which can risk detainees’ mental health. Indeed, the UK is the only European state that does not have a set limit on detention. It can, therefore, be argued that the current legal framework is vague and uncertain.
It also seems that Rule 35 may not be enough to identify those at risk. On 15 May 2020, Lewis Kett of Duncan Lewis Solicitors received a reply to a Freedom of Information request about the usage of Rule 3513. Though around 24,40014 people entered immigration detention in 2019, a GP reported risk of suicidal intentions only five times. It is very unlikely that only five detainees felt suicidal ideations in a one-year period. The numbers indicate that Rule 35 is not operating effectively; detention centre GPs may be systematically failing their Rule 35 reporting obligations.
12The University of Oxford, The Migration Observatory (20 May 2020)
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The British Medical Association (BMA) seems to agree 15 . It suggests doctors working in detention centres may face the challenge of “dual loyalty” to the detention centre and its purpose to detain and their professional purpose to protect the health and wellbeing of detainees. This concern from the professional body for doctors in the UK clearly suggests that there are not enough safeguards in place to ensure vulnerable detainees are identified. Rule 35 needs to be overhauled to ensure no one is put at risk.
Neither the common law principles nor Rule 35 seem to be working effectively, and the pandemic has also exposed that both do not stand up in a crisis either. When put under pressure, with more detainees at risk and less likely to be able to return home, the government’s answer was to release as many detainees as possible from detention.
But it is not just the lack of safeguards within the law that is the problem. The current system is also arguably expensive to run, can cause harm to detainees and can be ineffective too.
In the last quarter of 2019, the estimated average daily cost to hold someone in detention was
15 The British Medical Association, Locked up, locked out: health and human rights in immigration detention (2017) p 5
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£94.5616. On top of this, the courts can also order the Home Office to compensate those who have been unlawfully detained. Having no time limit to detention means the system can become exponentially expensive. Liberty and Cambridge Econometrics found that a 28-day time limit, for example, would save the taxpayer £35 million per year17 . Clearly current legal guidelines in the UK, which is the only European state with no time limit, is leading to increased expense.
Many have highlighted the ethical concerns around detention as well. Detention strongly resembles those held in custody for a criminal offence, which may lead local communities to ostracise immigrants later released. Detention may suggest a person has done something criminal or fundamentally wrong, which could be influencing both opinions of society in general, but also detainees’ own feelings about themselves. In addition, they are given no release date, unlike those who have been sentenced to a crime.
The BMA agrees that detention is inhumane, stating: “Evidence of the impact of detention on mental health and wellbeing warrants careful consideration
16 The University of Oxford, The Migration Observatory (20 May 2020)
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[2020] BPP Human Rights Law Journal Vol. 9 by the Home Office.” 18 They suggest aspects of detention which impact health include the indeterminate nature of immigration detention, retraumatisation in those who have experienced detention previously in their home country, loss of self-determination, and social isolation.19
It may not be effective either. Only 32% of detainees were returned from the UK to another country to year ending June 202020. This percentage has continued to fall in recent years, suggesting that detention, as a means to return immigrants who do not have leave to be in the UK, is not effective and is becoming increasingly less so. 66% later received bail, suggesting an alternative to detention would have been suitable for them. If these 66% can receive bail safely, it is clear that the Hardial Signs principles are not working, as statistics show that the Secretary of State cannot reasonably intend to deport all those who enter detention. He is routinely only deporting a third.
Just a month on from Detention Action’s case, the number of people held in UK detention centres had dropped by more than two thirds with more than 700
18 The British Medical Association, Locked up, locked out: health and human rights in immigration detention (2017) pp 4-5 19 The British Medical Association, Locked up, locked out: health and human rights in immigration detention (2017) pp 28-29 20 The Home Office , ‘Immigration statistics, year ending 2019’ (24 May 2019)
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[2020] BPP Human Rights Law Journal Vol. 9 people released between 16 March and 21 April.21 Yarl’s Wood, arguably the UK’s most famous detention centre, has been repurposed as of August 2020 and is now being used to house Channel migrants, with most former inhabitants released during the pandemic.22 This shows there are feasible alternatives to detention.
With all this cumulating, arguably now is the time for action. But what are the alternatives?
Alternative systems The Council of Europe has listed a number of ideas for alternatives to immigration detention in its report Practical Guidance on Alternatives to Immigration Detention: Fostering Effective Results23. To solve the current problems, it would be necessary to find a system that is cheaper, safer, kinder and more effective. A challenging task, but it appears there are researched options.
Council of Europe ideas include: registration with authorities, temporary authorisation, legal assistance and representation, family-based care, residential facilities, supervision, electronic
21 Jon Ironmonger, 'Coronavirus: UK detention centres 'emptied in weeks’' (7 May 2020)
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[2020] BPP Human Rights Law Journal Vol. 9 monitoring, and return counselling. Individually these ideas may put the effectiveness of the system at risk, but used in combination with each other, they would allow the UK to respect immigrants’ human rights, while also ensuring compliance with immigration procedure. They are also noted to be generally more cost-effective.24
There is evidence backing up many of these alternatives too. The International Detention Coalition has undertaken research to find valid alternatives across the globe that respect human rights, reduce costs and are equally effective to detention. They found over 250 examples from 60 countries. The UK would therefore not be trialling something unevidenced that could risk public safety or effective border control if they looked to an alternative method.25
The pandemic has also given the UK a chance to test run some of these ideas, producing their own evidence, with most of those released from detention returning to their families in the UK or to approved accommodation 26 . It’s been shown that these alternatives are quick and easy to implement.
24 Council of Europe, Alternatives to Immigration Detention: Fostering Effective Results (June 2019) p8 25 International Detention Coalition, There are Alternatives (2015) 26 Detention Action, ‘End indefinite detention joint letter from 20 organisations’ (30 June 2020)
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According to Drahoslav Štefánek, Special Representative of the Secretary General on Migration and Refugees in 2019: “Alternatives to immigration detention become more and more accepted because they have proven to be cost- effective, but above all, using alternatives, states can process efficiently the cases of children and families on the move, in a humane and a human-rights compliant environment.”27
But it is not just wider society that is exploring alternatives, Parliament also seems open to the idea. Two detention centres were closed in 201528. A number of pilot schemes are currently being run too, including one which launched in December 2018 and aims to manage vulnerable women in the community instead of in immigration detention 29 . And though David Davis MP’s amendment to the Immigration and Social Security (EU Withdrawal) Bill, which would have set a 28-day time limit on
27 Council of Europe, ‘Alternatives to immigration detention: Council of Europe and UNHCR launch new course’ (19 June 2020)
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[2020] BPP Human Rights Law Journal Vol. 9 detention, failed to pass, it did gain cross-party support30.
The huge and swift movement in immigration detention as the COVID-19 pandemic hit shows there is the possibility for an alternative moving forward. As the virus comes under control, will different systems form at least part of our new world order?
30 Ellen Teague, 'JRS disappointed by rejection of Immigration Bill amendments’ (13 July 2020)
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RAPE MYTHS IN THE UK CRIMINAL JUSTICE SYSTEM
Isabella De Re
Introduction Rape myths are defined as “descriptive or prescriptive beliefs about rape (about its causes, context, consequences, perpetrators, complainants and their interaction) that serve to deny, downplay or justify sexual violence”. 1 These entrenched misconceptions contribute to a criminal justice system which many rape complainants find retraumatising and ineffective. For the 2019-2020 period, the Crown Prosecution Service (“CPS”) boasted the highest conviction rate on record: out of 2,102 prosecutions completed, 68.5% of defendants were convicted.2 The figure is nothing to celebrate. More rape cases are dropped between police investigation and conviction than any other offence.3 Since 2017-2018, pre-charge convictions have
1 Gerd Gerger, Heike; Kley, Hanna; Bohner, ‘The Acceptance of Modern Myths about Sexual Aggression Scale: Development and Validation in German and English’ (2007) 33 Aggressive behavior 422, page 423. 2 CPS, ‘CPS Data Summary Quarter 4 2019-2020 ( The Crown Prosecution Service, 2020)’
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[2020] BPP Human Rights Law Journal Vol. 9 declined by 37%, while completed prosecutions have halved. 4 The conviction rate has increased because the evidential threshold for prosecuting rape cases was raised in 2016, in accordance with the CPS director’s controversial wish to take “weaker cases” out of the system.5 Given that the perceived strength or weakness of a case might be based on harmful rape myths rather than reason, the CPS has opted for impressive statistics at the expense of justice for complainants. This fuels concerns that rape is being decriminalised, and rape myths reinvigorated.6
In principle, rape complainants are protected under international conventions and treaties requiring states to act with due diligence to ensure a fair domestic legal system. In an attempt to address falling prosecution rates in accordance with this requirement, the CPS has launched a five-year blueprint – Rape and Serious Sexual Offences 2025 (“RASSO”) – aiming to reform guidance documentation, strengthen police responses,
4 CPS, ‘Annual Violence against Women and Girls Report Published (CPS, 12th September 2019)’
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[2020] BPP Human Rights Law Journal Vol. 9 provide training and raise awareness of rape myths.7 In the meantime, grave lacunas in the legal system persist, and rape myths are among the factors which deny complainants a fair trial.
The offence of rape in UK law In the UK, an individual commits rape if he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis, without B’s consent and without the reasonable belief that B consented. 8 Judges guide juries by referring to Section 74 SOA 2003, which states that “a person consents if he agrees by choice and has the freedom and capacity to make that choice”. 9 Reasonable belief is determined by considering all the circumstances, including steps taken by the accused to ascertain consent. Penetration is a continuing act, from entry to withdrawal, and consent can be revoked at any time.10
English law on rape operates on a consent-based model, often entailing a close examination of complainants’ actions. 11 Problems arise, and rape
7 ‘Rape and Serious Sexual Offences (RASSO) 2025 (CPS, 30 July 2020)’
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[2020] BPP Human Rights Law Journal Vol. 9 myths are more likely to have an impact, when the complainant did not verbally or physically express a clear lack of consent. New notions of consent have developed in domestic and international case law, reframing rape as a violation of sexual autonomy and removing the focus on physical resistance.12 MC v Bulgaria established that a state which refused to prosecute a rape based on insufficient evidence of physical force and active resistance had violated the complainant’s rights under article 3 and 8 of the European Convention of Human Rights (“ECHR”).13 The state had a duty to effectively enact and apply criminal laws, prohibiting all acts of non-consensual sex, and not just those involving physical violence. Nevertheless, judges and barristers in the UK continue to use the lack of physical resistance to cast suspicion on complainants. A study by Smith and Skinner found that barristers often “prioritised an examination of how victim/survivors removed consent instead of how accused men gained it”.14
In spite of developments in the case law, juries remain at risk of interpreting reasonable belief in consent based on evidence of resistance on the part of the complainant, rather than scrutinising what would have been reasonable for the defendant to believe in all the circumstances.
12 E Dowds ibid (n 13). 13 (Application no 39272/98) 4 December 2003. 14 O Smith and T Skinner, ‘How Rape Myths Are Used and Challenged in Rape and Sexual Assault Trials’ (2017) 26 Social and Legal Studies, p.451.
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Rape myths in the UK criminal justice system This article will survey the impact of a selection of rape myths on the UK’s criminal justice system, beginning with misconceptions about the prevalence of false allegations, before turning to erroneous beliefs about complainants, perpetrators and their interactions.
Just as greater scrutiny often focuses on the actions of complainants, false allegations of rape often receive greater media publicity. Although such cases can involve terrible miscarriages of justice, they are not representative. The most recent figures, from a 2013 CPS report, show that of 5,651 prosecutions for rape brought in 17 months, only 35 rape allegations were false.15 Nonetheless, a 2018 study revealed that police officers often believe the proportion of false claims to be much higher, with estimates varying widely from 5% to 90%. 16 The study indicated that officers assess the “weakness” of cases on the basis of supposed indicators of falsity which largely mirror myths and stereotypes surrounding rape.
15 Alison Levitt QC and Crown Prosecution Service Equality and Diversity, ‘Charging Perverting the Course of Justice and Wasting Police Time in Cases Involving Allegedly False and Domestic Violence Allegations’ (2013). 16 Lesley McMillan, 'Police officers’ perceptions of false allegations of rape', Journal of Gender Studies, vol. 27, no. 1, pp. 9-21. (2018) https://doi.org/10.1080/09589236.2016.1194260 accessed 22 September 2020.
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The first group of myths and stereotypes this article will address are those which blame complainants for causing the rape through provocative clothing, irresponsible conduct or past promiscuity.
The CPS has attempted to deter misconceptions that women provoke their own rape by “asking for it” or “advertising for sex”.17,18 Judges are supposed to direct juries based on the Crown Court Compendium’s non-exhaustive list of rape misconceptions, including that provocative clothing incites rape. 19 Nevertheless, a complainant who dresses provocatively or drinks excessively may still be vulnerable to negative stereotyping by judges, juries and barristers. Temkin, Gray & Barrett note one example in their 2016 rape trial observation study. 20 During cross-examination, the defence barrister referred nine times to the fact that the complainant, who was raped by a former partner after he turned up at her flat, “wore only a T-shirt and
17 Theresa L Lennon and others, ‘Is Clothing Probative of Attitude or Intent-Implications for Rape and Sexual Harassment Cases’, (1993) 11 Law & Inequality: A Journal of Theory and Practice 391
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[2020] BPP Human Rights Law Journal Vol. 9 no undergarments in bed”.21 Barristers who employ this approach distract juries from the fact that, as Theresa Lennon has emphasised, a reasonable belief that a complainant consents to sex does not depend on clothing, nor does clothing invite rape.22
Similarly, the idea that women who are “promiscuous” or have previously engaged in consensual intercourse with their alleged attacker are less likely to have withheld consent prevails. Section 41 of the Youth Justice and Criminal Evidence Act 1999 establishes a general prohibition against referring to a complainant’s sexual history with the defendant or third parties, both in evidence and cross-examination. 23 This aims to protect the jury’s perception of the complainant from distortion. Yet R v A established that evidence of a complainant’s previous sexual history could be admitted where relevant to consent, if its omission would affect the fairness of the trial.24 Lord Steyn relied on proportionality to prevent rape myth narratives being used against complainants, while ensuring a fair trial for defendants.25 However, the right balance is still not always struck. In R v Gabbai, for instance, the fact that the complainant had suffered previous rapes was arguably used to victim-
21 ibid (n 19), p12. 22 Lennon and others (n 30). 23 Ministry of Justice and Attorney General, Limiting the Use of Complainants’ Sexual History in Sex Cases (2017)
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[2020] BPP Human Rights Law Journal Vol. 9 blame her. Her experiences were described as a “pattern of sexual self-harm”, disregarding the fact that her rapists had done the harming.26 Emphasis was placed on the complainant’s asking, during a counselling session, whether she was responsible because she placed herself in “dangerous situations” like walking through the park at night.27 A double standard was evident: the complainant’s psychological records, including her self-blame for past rapes, were deemed admissible, but the fact that the defendant was accused by multiple women was not considered cross-admissible.
Again, this group of myths attaches greater importance to the complainant’s behaviour than the defendant’s actions. This encourages jurors to attribute blame to vulnerable complainants accused of foolishness, promiscuity or a propensity to take risks, instead of placing the blame squarely on perpetrators.
The second group of myths this article will address relates to the characteristics of perpetrators, and their interactions with complainants. The “real rape” myth – the misconception that rape is commonly committed by violent strangers – makes it more difficult for the majority of complainants, whose experiences do not conform to this stereotype, to prove their cases. Rape is most often committed by
26 R v Gabbai [2019] EWCA Crim 2287. 27 [2019] EWCA Crim 2287, para.50.
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[2020] BPP Human Rights Law Journal Vol. 9 a spouse, parent, family member or friend. 28 Nevertheless, as Elizabeth McDonald argues, “real rape” has become the benchmark against which all rapes are measured. 29 Similarly, although R v R legally recognised marital rape in 1991, the myth that husbands cannot rape their wives persists.30 In fact, a 2018 YouGov study found that ¼ of UK adults believed that “sex without consent in long-term relationships was usually not rape”.31 Some of these adults are called to be jurors, and their misconceptions can easily impact trials. Some may experience non-consensual sex with long-term partners but feel unable to identify their experience by its name: rape.
Earlier this year, the myth that rape is violent and results in physical injury to the complainant made a particularly egregious appearance in the case of JH v MF, a family court case concerning a mother’s allegations of domestic abuse and sexual assault by her child’s father. 32 At first appearance, Judge Tolson QC accepted that the sexual intercourse was not “at the time towards the mother’s taste or inclination”, but denied she had been raped because “no physical steps to encourage the father to desist”
28 Mcdonald (n 17). 29 Mcdonald ibid (n 17). 30 [1991] 3 WLR 767. 31 YouGov, ‘Public’s Attitudes to Sexual Consent (YouGov, 1st December 2018)’
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[2020] BPP Human Rights Law Journal Vol. 9 were taken.33 On appeal, Ms Justice Russell DBE was unequivocally critical of this attitude, stating the judgement was flawed for suggesting it was “acceptable for penetration to continue after the complainant has said no (by asking the perpetrator to stop) but also that a complainant must and should physically resist penetration, in order to establish a lack of consent”. 34 Similarly, in another of Temkin, Gray & Barrett’s trial observations, the defence barrister repeatedly referenced the complainant’s lack of injuries, emphasising in closing that “she had no injuries at all, no red marks”.35
These cases indicate that, as van der Bruggen and Grubb have already suggested, it is often the tangible evidence of resistance – ripped jeans, bruising and lacerations – that sway juries and judges on whether consent was given.36 Too often, not fighting back is seen as consent, rather than an attempt to avoid further injury. Not all complainants subjected to the trauma of an assault manage to fight, seek medical assistance, or immediately report to the police. But these omissions are sometimes given excess weight when considering the issue of consent. In other words, complainants and
33 JH v MF ibid (n 36). 34 JH v MF ibid (n 36). 35 Temkin, Gray and Barrett (n 19), p7. 36 Madeleine van der Bruggen and Amy Grubb, ‘A Review of the Literature Relating to Rape Victim Blaming: An Analysis of the Impact of Observer and Victim Characteristics on Attribution of Blame in Rape Cases’ (2014) 19 Aggression and Violent Behavior 523
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[2020] BPP Human Rights Law Journal Vol. 9 perpetrators who fail to fit the expected type are disadvantaged.
Among these supposedly “atypical” complainants are male victims, who are subject to a final damaging group of rape myths: men cannot be raped, men who experience erections during assault were not raped, and male rape is less traumatic.37 The CPS Violence Against Women and Girls (VAWG) policy and the RASSO 2025 toolkit for prosecutors extends attention to cases involving male complainants.38,39 However, misunderstandings of male rape are still widespread. Between 2018-2019 only 569 cases concerned a male complainant, even though an estimated 138,000 men experienced rape. 40 , 41 In Armstrong, under the old law of non-consensual buggery, the complainant was fondled, causing him to have an erection, and then anally raped in his
37 Philip NS Rumneya, ‘Gay Male Rape Victims: Law Enforcement, Social Attitudes and Barriers to Recognition’ (2006) 13 The International Journal of Human Rights 233. 38 Crown Prosecution Service, ‘Public Statement on Male Victims for Crimes Covered by the CPS Violence against Women and Girls (VAWG) Strategy’ (2020). 39 Crown Prosecution Service, ‘Same Sex Sexual Violence and Sexual Violence Involving a Trans Complainant or Suspect/Defendant - Toolkit for Prosecutors (CPS, 30 July 2020)’
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[2020] BPP Human Rights Law Journal Vol. 9 prison cell. 42 Due to his erection and failure to physically resist, lack of consent was not deemed to have been convincingly established. 43 The recent case of Reynhard Sinaga, who was sentenced to life imprisonment last year with a minimum term of 30 years for 136 counts of rape against young men, should dispel the notion that rape only happens to women.44 However, the fact that Sinaga was able to perpetrate crimes for more than a decade, and that the Attorney General referred his sentence to the Court of Appeal for being unduly lenient, suggests that male rape is still perceived as uncommon.45
Rape myths are not isolated stories. They are powerful networks of misconceptions that impact the way we interpret complainants of both genders, from all walks of life. It is little known, for example, that a man in England and Wales is 230 times more likely to be raped or assaulted by penetration than he is to be falsely accused of rape. 46 Until they are
42 Unreported, 10 April 1995, Weymouth and Doreset CC. 43 Philip NS Rumneya, ‘Male Rape in the Courtroom: Issues and Concerns’ [2001] Criminal law review 205. 44 Helen Pidd, ‘Reynhard Sinaga Jailed for Life for Raping Dozens of Men in Manchester (The Guardian, 6 January 2020)’
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[2020] BPP Human Rights Law Journal Vol. 9 eliminated, rape myths will continue to undermine the criminal justice system and deny complainants effective access to justice.
The UK’s duties under international law Until that happens, the UK is arguably falling short of its obligations under international law. The international framework against sexual violence includes the Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”) and the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (“the Istanbul Convention”). At present, the UK has ratified the CEDAW 47 and committed to ratifying the Istanbul Convention.48 The CEDAW compels states to implement appropriate measures to change laws and customs which discriminate against women. 49 This entails establishing investigation, prosecution and reparation apparatuses which hold non-state and state actors accountable for gender-based
47 ‘Status on Signing of Convention on the Elimination of All Forms of Discrimination Against Women', (Trieaties Collection, 30 July 2020)
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[2020] BPP Human Rights Law Journal Vol. 9 violence. 50 States are required to meet the international law benchmark of due diligence. 51 R(FNM) v DPP, a novel decision handed down by the Divisional Court earlier this year, indicates the benchmark is not always being met. 52 The court found that rape complainants have the right to a fair opportunity to make representations as to whether there should be a criminal prosecution. In circumstances where a complainant had been denied the opportunity to exercise that right, the decision not to prosecute was materially flawed. Such decisions uphold due process principles, meaning that the state is likely to fulfil its obligations towards complainants under domestic and international law. 53 This is vital when the CPS discards so many cases before they reach trial.
The Istanbul Convention obliges states to address rape myths by taking “the necessary measures to promote changes in the social and cultural patterns of behaviour of women and men with a view to eradicating prejudices”.54 In addition, Vertido v The Philippines established that all legal procedures involving rape need to be “impartial and fair, and not
50 ‘General Recommendation No. 19: Violence against Women’ (1993). 51 Yakın Ertürk, ‘The Due Diligence Standard as a Tool for the Elimination of Violence against Women. Report of the Special Rapporteur on Violence against Women, Its Causes and Consequences’ (2006), para 19. 52 [2020] EWHC 870 (Admin). 53 Yakın Ertürk ibid (n 56). 54 Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention), art 12.
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[2020] BPP Human Rights Law Journal Vol. 9 affected by prejudices or stereotypical gender notions”. 55 This can only be achieved through investment in education for barristers, judges, juries, and society at large.56 The Convention also requires states to provide adequate protection to complainants.57 Tentative improvements in this field include the use of pre-recorded cross-examinations to reduce the possibility of “judicial rape”.58 This term has been coined to describe the secondary victimisation experienced by complainants, who find the way that “a women’s reputation is put on trial by the court […] as humiliating as the actual rape.”59 Together with developments in domestic law, these international conventions have begun addressing rape myths. However, more needs to be done to promote a justice system which supports complainants instead of retraumatising them.
Conclusion Complainants in rape cases remain at a disadvantage in the criminal justice system, in part because rape myths continue to discredit them. RASSO 2025 is only the start of necessary reforms. It remains to be seen if the proposed practitioner training will be successful, and further investment in
55 Vertido v The Philippines CEDAW/C/46/D/18/2008. 56 ibid (n 60) 57 Istanbul Convention ibid (n 59), art 50. 58 Charles Hymas, ‘Rape Victims Could Pre-Record Evidence to Spare Intimidation in Court (Telegraph, 23rd August 2020)’
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[2020] BPP Human Rights Law Journal Vol. 9 education is needed to eradicate damaging stereotypes. Changes are necessary before the state can ensure a system in which complainants are believed at the police station, respected during trials, supported through sentencing, and provided with vital aftercare.
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TO CATCH A PREDATOR: PAEDOPHILE HUNTERS AND ARTICLE 8
Sutherland (Appellant) v Her Majesty’s Advocate (Respondent) (Scotland) [2020] UKSC 32
Gregory Turpin Introduction Judgment was given on 15 July 2020. The case was on appeal from the High Court of Justiciary, Scotland’s supreme criminal court.
The Supreme Court of the United Kingdom examined whether evidence obtained by a public ‘paedophile hunter’ group is admissible in a criminal trial and whether it is compatible with the appellant’s right to private life and correspondence under Article 8 of the European Convention on Human Rights. The Supreme Court dismissed the appeal and unanimously ruled that the gathering of evidence by paedophile hunters and the use of such evidence by public authorities did not interfere with the appellant’s rights under Article 8.
Lord Sales gave the judgment, with which all the members of the Court agreed.
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Facts A member of a paedophile hunter group masquerading as a child established communication with the appellant through the online dating app Grindr and the messaging platform WhatsApp. The appellant sent a sexual image and arranged to meet the decoy who he believed to be a 13 year old child. Upon arrival the appellant was confronted by members of the group who subsequently provided the police with the online communications.
The appellant faced charges on three counts as follows: 1. Attempting to cause an older child to look at a sexual image to gain sexual gratification; 2. Attempting to communicate indecently with an older child; and 3. Attempting to meet with a child to engage him in unlawful sexual activity.
The public prosecutor relied on the evidence provided by the paedophile hunters and the accused was convicted to 12 months’ imprisonment on each charge. The accused appealed against his conviction on the grounds that the evidence was inadmissible because it interfered with his Article 8 rights.
Legal Issue
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Was the evidence provided by the paedophile hunter group admissible or did it constitute a violation of the appellant’s Article 8 rights?
Judgment of the Court Article 8 provides: “1. Everyone has the right to respect for his private and family life, his home and his correspondence.” 1 The appellant raised two issues of compatibility in relation to Article 8: 1. That his Article 8 rights had been interfered with by the evidence supplied by the paedophile hunter group being used in a public prosecution. 2. That the prosecutor’s use of the evidence supplied by the paedophile hunter group was incompatible with the state’s obligation to protect his Article 8 rights.
The Supreme Court responded to each issue of compatibility.
Firstly, the Supreme Court reasoned that protection under Article 8 was not engaged as the interests of the child take priority over the interests of a paedophile participating in illegal conduct. On the facts, the Supreme Court established that the
1 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) Art. 8
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[2020] BPP Human Rights Law Journal Vol. 9 conduct was criminal in nature, not capable of respect and had the capacity to impact the child more immediately than the infringement upon the appellant’s rights. The Supreme Court held that the state had an obligation to deter future offences against children and to protect children’s rights under Article 8 by prosecuting paedophiles. Therefore, Article 8 was interpreted to entitle, and even oblige, the prosecutor to use the evidence in order to secure a prosecution.
Lord Sales stated that: “the appellant had no legitimate interest under the scheme of the ECHR, as against the decoy, to assert or maintain privacy in the communications he sent the decoy”.2
Secondly, the Supreme Court held that the appellant had no reasonable expectation of privacy. The lack of any long-standing prior relationship between the decoy and the appellant meant there was no reason to have an expectation of privacy. Moreover, the appellant willingly sent the communications directly to the decoy and encouraging the decoy not to share the communications did not make them confidential. Furthermore, as the appellant thought he was talking to a 13 year old it was foreseeable that a child would inform a responsible adult of such messages. Lord Sales described how:
2 Sutherland (Appellant) v Her Majesty’s Advocate (Respondent) (Scotland) [2020] UKSC 32 [50] (Sales SCJ)
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“he could not reasonably expect that, where his messages constituted evidence of criminal conduct on his part, the recipient would not pass them on to the police”.3 In his summary Lord Sales stated that the collection of evidence by the decoy and the use of that evidence by the prosecutor did not interfere with the appellant’s rights under Article 8. Further, he noted that the state had no obligation under Article 8 to protect the appellant’s interests and if Article 8 was applicable then the state’s obligation to bring a prosecution to deter sexual offences against children would take priority.
Lord Sales went on to say that even if the appeal had been successful then pursuant to Article 8(2) the use of the evidence would have been a necessary measure proportionate to the prevention of crime and the protection of the rights and freedoms of others.
There were no dissenting opinions from the other members of the Court.
Legal Significance The question of paedophile hunters’ interference with Article 8 rights may yet be taken to the European Court of Human Rights. However, for the time being paedophile hunters are entitled to
3 Ibid [58] (Sales SCJ)
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[2020] BPP Human Rights Law Journal Vol. 9 continue sting operations and provide evidence in criminal trials. The prominent role such groups play is undeniable since “almost half of the online grooming cases emanate from the activities of online child abuse activist groups”.4 Given the central role such groups play, any challenges to their legality, scope and compatibility with human rights will continue to be of particular significance.
British courts have expressed concern regarding the actions of paedophile hunter groups but have typically chosen to protect them, including by clearing them of assault. 5 Vigilantism is generally regarded as more problematic by members of law enforcement who maintain that such groups often exceed the boundaries of the law, divert police resources and put convictions at risk. However, as the public perception of these groups remains favourable and some senior members of the police have expressed a desire to foster better relationships with them it is likely that in the future these groups will expand in number and in terms of their standing.
4 HM Inspectorate of Constabulary in Scotland, ‘Strategic review of Police Scotland’s response to online child sexual abuse’ (ISBN, February 2020)
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ELGIZOULI V SECRETARY OF STATE FOR THE HOME DEPARTMENT [2020] UKSC 10: CASE SUMMARY AND ANALYSIS
Oskar Butcher
On 25 March 2020, seven Supreme Court Justices held unanimously that the UK government had acted unlawfully in its provision of Mutual Legal Assistance (‘MLA’) to the United States. MLA is a form of international cooperation whereby one state provides assistance to the investigation and/or prosecution of criminal offences at the request of another state where such proceedings are taking place. At the crux of this case was the death penalty: was the UK government’s provision of MLA to the US government lawful in the absence of assurances, from the latter, that such information would not be used to facilitate trials in which capital sentences might be imposed or carried out? Whilst the judgment contains an absorbing discussion of the evolution of the common law and its capacity to constrain prerogative power, the decision ultimately rested on the Home Secretary’s failure to fulfil his duties under the Data Protection Act 2018 (‘DPA’).
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Facts & Key Issues The MLA in question related to two individuals: Shafee El Sheik and Alexanda Kotey, suspected members of the so-called ISIS ‘Beatles’. It was undisputed that the crimes of which they stand accused, including the beheading of numerous Western hostages, were unspeakably heinous acts. With the CPS re-confirming in 2018 that the available evidence is insufficient to prosecute in the UK, it was determined that prosecution through the US federal system provided the only realistic prospect of securing convictions. However, this would rely critically on the provision of evidence held by the UK, through MLA, to the US authorities. Diplomatic engagements saw US officials applying pressure to minimise any restrictions tied to the provision of such evidence, including strong opposition to the UK government seeking death penalty assurances. Then-Home Secretary Sajid Javid ultimately acceded to the US’ formal MLA request without seeking such assurances for the men. In doing so, he broke with a long-standing and deeply embedded policy of successive UK governments.
Thus, the Home Secretary’s decision to knowingly facilitate US legal proceedings which could result in the death penalty, without seeking assurances that a capital sentence would not be imposed or carried out, was challenged through judicial review by the mother of Shafee El Sheik, Ms Maha Elgizouli. The Divisional Court dismissed Ms Elgizouli’s appeal on
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its merits, but certified two questions of law of public importance: 1. Whether it is unlawful for the Home Secretary, in the exercise of prerogative power, to provide MLA to a foreign state where doing so may facilitate the imposition of the death penalty on the individual to whom the evidence relates;
2. Whether under Part 3 of the DPA, interpreted in light of EU data protection law, it is lawful for the UK to transfer personal data to foreign law enforcement officials for use in capital criminal proceedings.
The Court was unanimous in holding that the Home Secretary’s decision was unlawful under the DPA. However, the majority considered that the common law had not developed to the point of prohibiting the disclosure of MLA that could facilitate the imposition of the death penalty.
Common Law: Decision and Ratio Considering whether the common law had evolved to the point of recognising a principle prohibiting the provision of MLA that could facilitate the imposition of the death penalty, the majority answered “no”.
In his leading judgment, however, Lord Kerr dissented on this point, considering the transfer unlawful at common law. He concluded that the
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[2020] BPP Human Rights Law Journal Vol. 9 common law has developed to recognise a principle whereby it is unlawful to facilitate any trial through MLA where doing so places the individual(s) concerned at risk of execution [142]. The only possible exception would be where such transfer is urgently required to save lives or protect the security of the nation [164].
In reaching this conclusion, Lord Kerr underscored the organic development of the common law, its ability to evolve to reflect societal values [102], and the need for it to do so [144]. He emphasised the long-standing opposition of UK governments to the death penalty “in all circumstances as a matter of principle” [63] amongst six key factors that, in his view, establish a common law prohibition of MLA in the absence of death penalty assurances. In full, these factors included [141.1-6]: the Bill of Rights 1688; contemporary British values; European Court of Human Rights jurisprudence; EU jurisprudence; the illogicality in prohibiting extradition where a capital sentence may be imposed yet allowing facilitation through MLA (without assurances) where the outcome would be the same; and Judicial Committee of the Privy Council jurisprudence.
For reasons outlined by Lord Reed and Lord Carnwath, the majority felt unable to agree. Lord Carnwath considered that the courts’ power to develop the common law should be exercised conservatively, and not beyond the European Convention on Human Rights (ECHR) as proposed
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[193]. He highlights s16 of the Crime (Overseas Production Orders) Act 2019, which prohibits the Home Secretary from providing intercepted communications without having sought death penalty assurances, to indicate, firstly, that Parliament remains active in this area, and secondly, that there is no prohibition where such assurances have not been received [195]. Additionally, Lord Carnwath considered that such a detailed data transfer regime as outlined by the DPA would be difficult to reconcile with an absolute common law prohibition [205].
Concurring, Lord Reed highlighted the need for incremental common law development to preserve legal certainty and maintain Parliament’s pre- eminent law-making role, and considered the proposed development excessive in this regard. Lord Reed highlighted the conflicting needs of ‘most anxious scrutiny’ where the right to life is at stake, and traditional judicial deference on ‘high foreign policy’ issues [179]. Finally, Lord Reed noted that an alternative challenge might have been raised on the common law requirement of rationality. Though declining to express a view, he raised queries regarding the government’s reasoning, including the “perplexing” [187] view expressed by the Home Secretary that the possibility of execution would be preferable to the possibility of detention in Guantanamo Bay.
DPA: Decision and Ratio
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In considering the Home Secretary’s decision in light of the DPA, the court unanimously held the decision to have been unlawful.
Lady Hale outlined the structure of the DPA [8-12], Part 3 of which provides for personal data to be processed for law enforcement purposes by competent national authorities. However, the data controller may not transfer data unless three conditions under s73(1)(a) are fulfilled. Firstly (s73(2)), that the transfer is strictly necessary for law enforcement purposes. Secondly (s73(3)(a-c)), that the transfer is (a) based on an adequacy decision of the EU; (b) if not based on an adequacy decision is based on the existence of appropriate safeguards; (c) if not based on an adequacy decision or appropriate safeguards, is based on special circumstances. As the transfer was not based on (a) or (b) (no safeguards were present [10]), legality hinged on special circumstances. Under s76(1) permissible transfer on the grounds of special circumstances must be strictly necessary for any of the five listed purposes. As this condition was unmet, the DPA had been breached.
Lady Hale went on to consider the provision under s76(2), whereby the special circumstances under s76(1) do not prevail where the data controller determines that “fundamental rights and freedoms of the data subject override the public interest in the transfer” [12]. As these rights include those enshrined in the ECHR, most fundamentally the right
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[2020] BPP Human Rights Law Journal Vol. 9 to life, this implies that the DPA itself precludes the transfer of personal data which might facilitate the imposition of the death penalty [12-14]. Noting one possible exception under recital (73) to the EU Law Enforcement Directive (2016/680) (where such transfer is urgently necessary to save life or prevent an imminent crime), Lady Hale would have been prepared to hold so, had these arguments been engaged [15].
Lord Carnwath also considered the lawfulness of the transfer determined by the ‘special circumstances’ gateway [221]. This requires specific consideration under s73 of the strict necessity test; however, no such assessment occurred [225]. Ultimately, he considered the decision unlawful as it was “based on political expediency, rather than strict necessity under the statutory criteria” [227]. Both Lord Hodge and Lord Carnwath saw the force in Lady Hale’s comments regarding the possible unlawfulness under s76(2), albeit ultimately reserving their positions.
Lord Kerr’s reasoning for holding the transfer unlawful under the DPA differed, and was founded in his conclusion that the transfer was contrary to the common law. As such, the first principles contained under s34 DPA, of lawfulness and fairness, were unmet in his view [152-153]. He concurred with the reasoning for the breach outlined by the other Justices under s73 [154-158].
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Comment The most immediately striking element of the judgment is the discussion on the development of the common law, its capacity to constrain prerogative power, and the conflicting interests between foreign policy deference and the ‘most anxious scrutiny’ regarding the right to life. Whilst for Lord Kerr a common law prohibition on MLA disclosure in the absence of death penalty assurances is a logical and incremental development, the majority considered that this crossed too far into the realms of judicial legislation. The question of where this line is to be drawn was ultimately the sticking point for the majority.
The six factors cited by Lord Kerr in support of his conclusion certainly provide a coherent rationale for his judgment. It appears to be the logical conclusion of the UK’s long-established opposition to the death penalty “in all circumstances as a matter of principle” [63] and the jurisprudence cited. This logical coherence was ultimately foregone by the majority out of deference to the division of parliamentary and judicial competencies. This was evident where the majority inferred against a requirement to obtain death penalty assurances from the s16 Crime (Overseas Production Orders) Act 2019 requirement to seek such assurances in that context. By contrast, Lord Kerr considered the provision only to indicate general parliamentary support for assurances when information is requested by foreign governments. Suspending the UK’s long-standing and absolute
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The court’s unanimous ruling of unlawfulness under the DPA is clear. The requirement of the Home Secretary to consciously consider the statutory test under the DPA is unambiguous; the absence of such consideration uncontested; and the duty could not sensibly be considered satisfied through ex post facto justification. In any event, the 73(1)(a) requirements were unfulfilled. As Oliver Butler has pointed out292, the most substantial aspect of the judgment may lie in Lady Hale’s discussion of s76(2) DPA.
In stating that she would have been prepared to hold the transfer unlawful under s76(2) DPA, on the basis that the fundamental rights of the data subject would override the public interest, the door is left ajar for an expansion of human rights protections under the DPA. Whereas the right to life is clearly fundamental, the application of this reasoning to other rights under the ECHR is a logical extension. How such rights are balanced against public interest would, in each instance, be the determining factor. This suggestion
292 O. Butler, ‘Elgizouli v Secretary of State for the Home Department: The Fundamental Rights and Freedoms of the Data Subject’, U.K. Constitutional Law Association, 17th April 2020. [https://ukconstitutionallaw.org/2020/04/17/].
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No doubt that, in due course, they will be.
Notes In August 2020, the US Attorney General wrote to the UK Home Secretary pledging not to pursue the death penalty against Shafee El Sheik and Alexanda Kotey in return for the UK’s cooperation through the provision of MLA. The Supreme Court subsequently released an order formally ending Ms. Elgizouli’s action, thereby removing the stay preventing the relevant intelligence from being shared. References in square brackets are to paragraphs in the judgment.
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