The struggle against torture

1998 ◽  
Vol 38 (324) ◽  
pp. 433-444 ◽  
Author(s):  
Walter Kälin

Over the past fifty years, the struggle against torture has become a central concern of human rights law. The first international legal text specifically outlawing “torture” was the 1948 Universal Declaration of Human Rights (Article 5). The first treaty prohibiting torture — the European Convention on human rights (Article 3) — was adopted soon afterwards, in 1950. In 1984, the United Nations Convention against torture became the first binding international instrument exclusively dedicated to the struggle against one of the most serious and pervasive human rights violations of our time.

2021 ◽  
Vol 194 ◽  
pp. 531-680

531Human rights — Rights of women in Northern Ireland — Pregnant women and girls — Autonomy and bodily integrity — Right to respect for private and family life — Rights of persons with disabilities — Right not to be subjected to torture or inhuman or degrading treatment or punishment — Abortion law in Northern Ireland — Prohibition on abortion in cases of serious malformation of foetus, rape and incest — Balancing of rights — Whether moral and political issues relevant — Role of courts and Parliament — Whether abortion law incompatible with Articles 3 and 8 of European Convention on Human Rights, 1950 — Whether declaration of incompatibility should be madeHuman rights — Right to respect for private and family life — Qualified right — Abortion law in Northern Ireland — Prohibition on abortion in cases of serious malformation of foetus, rape and incest — Interference with right to respect for private and family life under Article 8 of European Convention on Human Rights, 1950 — Whether interference justified — Whether interference prescribed by law — Whether having legitimate aim — Whether necessary in democratic society — Whether proportionate — In case of fatal foetal abnormality — In case of rape — In case of incest — In case of serious foetal abnormality — Balancing of rights — European Court of Human Rights — Margin of appreciation accorded to United Kingdom represented by Northern Ireland Assembly — Whether legislative situation in Northern Ireland tenable — Role of legislature and courts — Whether Northern Ireland abortion law incompatible with Article 8 of European Convention on Human Rights, 1950 — Whether declaration of incompatibility should be madeHuman rights — Rights of persons with disabilities — Treaties — United Nations Convention on the Rights of Persons with Disabilities, 2006 — Northern Ireland abortion law prohibiting abortion in cases of serious malformation of the foetus — Foetus having potential to develop into child with disability in cases of serious foetal abnormality — Value of life with and without disability — Whether life having equal worth — United Nations Committee on the Rights of Persons with Disabilities recommending States amend abortion laws so as to value equally the life of a person with disabilities — Whether Northern Ireland abortion law disproportionate in cases of serious foetal abnormality — Whether abortion law in Northern Ireland incompatible with Article 8 of European Convention on Human Rights, 1950 — Whether declaration of incompatibility should be made532Human rights — Right not to be subjected to torture or inhuman or degrading treatment or punishment — Article 3 of European Convention on Human Rights, 1950 — Rights of girls and women in Northern Ireland pregnant with foetuses with fatal abnormality or due to rape or incest — Article 3 absolute right — Effect on victim — Whether mothers continuing against their will with fatal foetal abnormality pregnancies or pregnancies due to rape or incest, or having to travel to England for an abortion, likely to suffer inhuman and degrading treatment — Whether any ill-treatment under Article 3 reaching minimum level of severity — Obligations owed by the State under Article 3 of European Convention — Vulnerability of women — Personal autonomy — Whether abortion law in Northern Ireland incompatible with Article 3 of European Convention — Whether declaration of incompatibility should be madeRelationship of international law and municipal law — Treaties — Implementation — Interpretation — Effect in domestic law — International treaties to which United Kingdom a party — European Convention on Human Rights, 1950 — Human Rights Act 1998 — United Nations Convention on the Elimination of All Forms of Discrimination against Women, 1979 — United Nations Convention on the Rights of Persons with Disabilities, 2006 — Whether moral and political issues relevant — Balancing of rights — Northern Ireland abortion law interfering with right under Article 8 of European Convention on Human Rights, 1950 — Whether interference justified — Whether prescribed by law — Whether having legitimate aim — Whether necessary in democratic society — Whether proportionate — Relevance of moral and political views — Role of courts and Parliament in abortion debate — Whether pregnant women and girls subjected to inhuman or degrading treatment — Whether reaching minimum level of severity for breach of Article 3 of European Convention — Whether Northern Ireland abortion law incompatible with Articles 3 and 8 of European Convention on Human Rights, 1950 Convention — Whether declaration of incompatibility should be madeRelationship of international law and municipal law — Treaties — European Convention on Human Rights, 1950 — Effect in domestic law — Abortion law in Northern Ireland — Sections 58 and 59 of the Offences against the Person Act 1861 — Section 25(1) of the Criminal Justice Act (NI) 1945 — Right to respect for private and family life — Right not to be subjected to torture or inhuman or degrading treatment or punishment — Whether abortion law in 533Northern Ireland incompatible with Article 8 of European Convention — Balancing of rights — Whether abortion law justified — Whether moral and political values relevant — Margin of appreciation accorded to States by European Court of Human Rights — Whether abortion law in Northern Ireland incompatible with Articles 3 and 8 of European Convention — Whether declaration of incompatibility should be madeTreaties — Interpretation — Implementation — Application — Effect in domestic law — European Convention on Human Rights, 1950 — Interpreting European Convention in light of other international treaties to which United Kingdom a party — United Nations Convention on the Elimination of All Forms of Discrimination against Women, 1979 — United Nations Convention on the Rights of Persons with Disabilities, 2006 — Relevance of unincorporated international treaties when applying European Convention via Human Rights Act 1998 — The law of the United Kingdom


2020 ◽  
Vol 7 (1) ◽  
Author(s):  
Jonathan Pugh

Abstract In response to the SARS-CoV-2 coronavirus pandemic the UK government has passed the Coronavirus Act 2020 (CA). Among other things, this act extends existing statutory powers to impose restrictions of liberty for public health purposes. The extension of such powers naturally raises concerns about whether their use will be compatible with human rights law. In particular, it is unclear whether their use will fall within the public heath exception to the Article 5 right to liberty and security of the person in the European Convention of Human Rights. In this paper, I outline key features of the CA, and briefly consider how the European Court of Human Rights has interpreted the public health exception to Article 5 rights. This analysis suggests two grounds on which restrictions of liberty enforced some under the CA might be vulnerable to claims of Article 5 rights violations. First, the absence of specified time limits on certain restrictions of liberty means that they may fail the requirement of legal certainty championed by the European Court in its interpretation of the public health exception. Second, the Coronavirus Act’s extension of powers to individuals lacking public health expertise may undermine the extent to which the act will ensure that deprivations of liberty are necessary and proportionate.


2009 ◽  
pp. 125-160
Author(s):  
David Jenkins

This article takes the European Court of Human Rights’ decision in Saadi v. Italy and uses it as an opportunity to re-examine the Canadian case of Suresh v. Canada (Minister of Citizenship and Immigration). The author argues that the national security exception in Suresh is no longer tenable in light of subsequent developments in both international and Canadian law. The author concludes that the Supreme Court of Canada should reject the Suresh exception at its first opportunity and adopt an approach to review of refoulement cases similar to that under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the European Convention for the Protection of Human Rights and Fundamental Freedoms.


2018 ◽  
Vol 7 (2) ◽  
pp. 199-224 ◽  
Author(s):  
Andrea Broderick

The traditional dichotomy of rights between civil and political rights, on the one hand, and economic, social and cultural rights, on the other hand, has been increasingly eroded in scholarly and judicial discourse. The interdependence of the two sets of rights is a fundamental tenet of international human rights law. Nowhere is this interdependence more evident than in the context of the United Nations Convention on the Rights of Persons with Disabilities (CRPD or UN Convention). This article examines the indivisibility and interdependence of rights in the CRPD and, specifically, the positive obligations imposed on States Parties to the UN Convention, in particular the reasonable accommodation duty. The aim of the paper is to analyse, from a disability perspective, the approach adopted by the European Court of Human Rights (ECtHR or ‘Strasbourg Court’) in developing the social dimension of certain civil and political rights in the European Convention on Human Rights (ECHR), namely Articles 2 and 3 (on the right to life and the prohibition on torture, inhuman and degrading treatment, respectively), Article 8 (on the right to private and family life) and Article 14 ECHR (on non-discrimination). Ultimately, this paper examines the influence of the CRPD on the interpretation by the Strasbourg Court of the rights of persons with disabilities under the ECHR. It argues that, while the Court is building some bridges to the CRPD, the incremental and often fragmented approach adopted by the Court could be moulded into a more principled approach, guided by the CRPD.


2019 ◽  
Author(s):  
Bríd Ní Ghráinne ◽  
Aisling McMahon

ABSTRACT In contrast to the United Nations Human Rights Committee, the European Court of Human Rights (ECtHR) has not yet found that a prohibition of abortion in cases of fatal foetal abnormality violates the prohibition of torture or inhuman or degrading treatment under Article 3 of the European Convention on Human Rights. We argue that the ECtHR is on the verge of aligning itself with the Committee because, first, recent ECtHR jurisprudence is broadening its interpretation of rights within the abortion context; second, the ECtHR frequently uses international law as an interpretative tool; and, third, moving in the direction of the Committee would not be as controversial as it may have been in the past. More broadly, we view the proliferation of international and regional human rights' treaty regimes as a positive aspect of international human rights law and demonstrate how a body established to adjudicate on human rights disputes can, with some ingenuity, broaden its approach on sensitive topics by engaging with views of other human rights courts and treaty monitoring bodies.


2015 ◽  
Vol 54 (1) ◽  
pp. 83-129 ◽  
Author(s):  
Elizabeth Stubbins Bates

On September 16, 2014, the Grand Chamber of the European Court of Human Rights (the Court) gave its judgment in the case of Hassan v. United Kingdom.This is the Court’s first explicit engagement with the co-applicability of international humanitarian law and international human rights law in relation to detention in international armed conflicts. The judgment is significant for its rejection of the government’s argument that international humanitarian law operates as lex specialis to displace international human rights law entirely during the “active hostilities phase of an international armed conflict.” It is also noteworthy for the majority’s ruling that provisions on detention of prisoners of war and the internment of protected persons in the Third and Fourth Geneva Conventions of 1949 could be read into Article 5 (right to liberty and security) of the European Convention on Human Rights (the European Convention), creating a new ground for detention under Article 5(1) in international armed conflicts and modifying the procedural guarantees in Article 5(4).


2002 ◽  
Vol 51 (2) ◽  
pp. 365-383 ◽  
Author(s):  
Malcolm D Evans

In October 2000 an informal working group of the United Nations Commission on Human Rights met to discuss the latest drafts of an Optional Protocol to the 1984 United Nations Convention against Torture. The Working Group itself met for its 9th session in February 2001 and its 10th session was held in January 2002.2 The primary purpose of this Optional Protocol is to create a new international mechanism that will have a preventive role and which would operate by conducting visits to states and to places of detention within states and, in the light of such visits, enter into a ‘dialogue’ with the state concerned in order to help them ensure that torture does not occur. The origins of this initiative lie in a proposal formally tabled in the early 1980s during the negotiations that led up to the adoption of the UNCAT itself but at that time it was clear that so radical a move as the establishment of an international body with an automatic right of entry into any place of detention would be unacceptable within the broader international community.3 However, the idea was taken up on a regional level within Europe and in 1987 the Council of Europe adopted the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment which established the European Committee of the same name (known as the CPT), very much by way of an example to the rest of the world, or so it was thought.4


2011 ◽  
Vol 80 (2) ◽  
pp. 193-218
Author(s):  
Peter Langford ◽  
Ian Bryan

AbstractThis article evaluates the protections against 'arbitrary' and 'unlawful' detention aff orded to nonnationals on having entered the territory of a State party to the European Convention on Human Rights (ECHR). Focussing on Article 5 ECHR and the various permissible exceptions therein, the article examines leading decisions of the European Court of Human Rights (ECtHR) and, in so doing, illuminates and explores tensions arising from the juncture at which Contracting States' capacity to detain entry-seeking non-nationals, without criminal charge or trial, intersects with the requisites of Article 5(1)(f ) ECHR, as construed by the ECtHR. It argues that the ECtHR's interpretative standpoint regarding the 'lawful' administrative detention of 'unauthorised' non-nationals gives disproportionate preference to Contracting States' interest in managing migration flows. It also argues that in consequence States' obligations in international human rights law, the strictures of Article 5 ECHR and the credibility of the Strasbourg Court itself are enfeebled.


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