What’s Wrong with Behrami and Saramati? Revisiting the Dichotomy between UN Peacekeeping and UN-authorized Operations in Terms of Attribution

2019 ◽  
Vol 24 (2) ◽  
pp. 343-371 ◽  
Author(s):  
Yohei Okada
Keyword(s):  
Human Rights ◽  
Effective Control ◽  
Control Test ◽  
Full Account ◽  
Un Peacekeeping ◽  
European Court ◽  
Domestic Courts ◽  
Harsh Criticism ◽  
The Uk ◽  
And Control

Abstract The Behrami and Saramati decision of the European Court of Human Rights (ECtHR) has invited severe censure for discarding the well-established dichotomy between UN peacekeeping and UN-authorized operations, and applying the ultimate authority and control test instead of the effective control test for the purpose of attribution in the context of the UN-authorized operation in Kosovo. Harsh criticism notwithstanding, in Serdar Mohammed and Kontic, the domestic courts in the UK have recently followed the Behrami and Saramati approach. In Kontic, nearly 10 years after the Behrami and Saramati decision, the court found that the approach taken by the ECtHR was ‘persuasive authority of the very weightiest kind’. Therefore, it is high time for Behrami and Saramati to be revisited. This study argues that the ECtHR did apply the effective control test along with the ultimate authority and control test in Behrami and Saramati, and that the UK courts aligned themselves with this approach. The Behrami and Saramati decision was not fundamentally wrong as a matter of interpretation and the conclusion reached by the ECtHR that the misconduct was not attributable to the respondent states was not manifestly absurd. Nevertheless, the decision was not without deficiency because it failed to take full account of the delicate equilibrium that the effective control test seeks. The present study aims to precisely identify what was wrong with the decision.

scholarly journals Apportioning Responsibility between the UN and Member States in UN Peace-Support Operations: An Inquiry into the Application of the ‘Effective Control’ Standard after Behrami

2012 ◽  
Vol 45 (1) ◽  
pp. 151-178 ◽  
Author(s):  
Cedric Ryngaert
Keyword(s):  
Human Rights ◽  
International Law ◽  
Effective Control ◽  
Member States ◽  
Customary International Law ◽  
European Court ◽  
Current Article ◽  
And Control ◽  
Court Of Appeal ◽  
Dutch Court

There is a tendency among the judiciary to apply the standard of ‘effective control’ as the applicable yardstick for apportioning responsibility for wrongful acts between the United Nations and the member states contributing troops to UN peace-support operations. This is evidenced by recent decisions in the cases of Srebrenica (Dutch Court of Appeal, 2011), Al Jedda (European Court of Human Rights, 2011) and Mukeshimana (Belgian First Instance Court, 2010), which appear to repudiate the ‘ultimate authority and control’ standard espoused by the European Court of Human Rights in Behrami (2007). This process may have been set in motion by (the current) Article 7 of the ILC's Draft Articles on the Responsibility of International Organizations, which may in due course reflect customary international law. From a policy perspective, the application of an ‘effective control’ standard is highly desirable, as it locates responsibility with the actor who is in a position to prevent the violation.

The Extraterritorial Application of International Human Rights Law

2018 ◽  
Author(s):  
Ian Park
Keyword(s):  
Human Rights ◽  
Armed Conflict ◽  
European Convention ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Right To Life ◽  
Lively Discussion ◽  
European Court ◽  
Domestic Courts ◽  
The Uk

Until recently, the UK conducted its litigation strategy on the basis that the European Convention on Human Rights had no, or very little, extraterritorial effect. As such, the UK contended that the Convention did not apply during armed conflict. In several judgments, both domestic courts and the European Court of Human Rights ruled to the contrary. That said, the exact contours of how a state’s right to life obligations function during an armed conflict overseas remain subject to lively discussion and debate. This chapter seeks to explore these issues and offers a view on the circumstances in which a state does have right to life obligations during an armed conflict overseas and those in which it does not.

Bringing RightsMoreHome: Can a Home-grown UK Bill of Rights Lessen the Influence of the European Court of Human Rights?

2014 ◽  
Vol 15 (3) ◽  
pp. 407-436 ◽  
Author(s):  
Sarah Lambrecht
Keyword(s):  
Human Rights ◽  
Separation Of Powers ◽  
Case Law ◽  
Bill Of Rights ◽  
European Court ◽  
Domestic Courts ◽  
International Obligations ◽  
Uk Supreme Court ◽  
The Uk ◽  
Mirror Principle

This article focuses on the strategy to replace the UK Human Rights Act 1998 (HRA) with a home-grown Bill of Rights to lessen the influence of the European Court of Human Rights' case law. Without attempting to disregard the national-specific elements, the discussion of these questions is very relevant for all States confronted with the influence of Strasbourg. The tension between coherence, efficiency and autonomy is overarching. The article therefore approaches the issue not only from an outsider's perspective but also, where relevant, from a comparative constitutional law perspective. Both perspectives seem to be largely absent from the current (academic) debate. Firstly, this article analyzes the current relationship between the UK Supreme Court and the Strasbourg Court, which reveals that the judicial arguments in support of a mirror principle are not so much based on section 2(1) HRA, as they are, in the domestic courts' relationship with Strasbourg, on concerns about international obligations, hierarchy, effectiveness of the Strasbourg Court, coherence and efficiency. Internally, judicial arguments are founded on concerns about separation of powers, limited jurisdiction, and accustomedness to the precedent system. In the second part, this article focuses on the potential impact of a home-grown Bill of Rights on the current relationship between both courts; concluding that a home-grown Bill of Rights will most likely cause domestic courts to receive less latitude by Strasbourg and will not absolve domestic judges from the duty of taking into account the Strasbourg case law.

18. Human Rights II: Emergent Principles

2021 ◽  
pp. 469-505
Author(s):  
Ian Loveland
Keyword(s):  
Human Rights ◽  
World War Ii ◽  
Freedom Of Expression ◽  
Common Law ◽  
Civil Liberties ◽  
Conservative Party ◽  
European Convention ◽  
European Court ◽  
Domestic Courts ◽  
The Uk

This chapter presents an overview of the European Convention on Human Rights, an International treaty originating in the reconstruction of Europe’s political order following World War II. The chapter is organised as follows. Section I discusses the main procedural and substantive features of the Convention itself, whilst Section II assesses its status and use in English law up until (approximately) the early-1990s. Section III examines the leading judgments of the European Court on Human Rights in the areas of privacy and freedom of expression. The chapter goes on to consider how the UK constitution’s approach to the issue of civil liberties and human started to change in the 1970s, 1980s, and 1990s. Discussion focuses initially on the ways in which domestic courts began to use common law ideas to give increasing effect to the Convention’s provisions. The chapter then examines emerging arguments as to the benefits that might result from Parliament enacting a statute giving Convention articles a superior status to common law rules. The chapter then discusses the re-emergence and consolidation of fundamental human rights as an indigenous principle within the common law, and concludes by analysing the so-called ‘judicial supremacism’ controversy of the early and mid-1990s in which the courts’ increasingly forceful assertion of human rights ideas provoked substantial criticism from Conservative party politicians.

International Human Rights Law and Blockade

2018 ◽  
Author(s):  
Phillip Drew
Keyword(s):  
Human Rights ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
European Court ◽  
Power And Control ◽  
International Human ◽  
Extraterritorial Jurisdiction ◽  
And Control

The years since the beginning of the twenty-first century have seen a significant incursion of international human rights law into the domain that had previously been the within the exclusive purview of international humanitarian law. The expansion of extraterritorial jurisdiction, particularly by the European Court of Human Rights, means that for many states, the exercise of physical power and control over an individual outside their territory may engage the jurisdiction of human rights obligations. Understanding the expansive tendencies of certain human rights tribunals, and the apparent disdain they have for any ambiguity respecting human rights, it is offered that the uncertain nature of the law surrounding humanitarian relief during blockades could leave blockading forces vulnerable to legal challenge under human rights legislation, particularly in cases in which starvation occurs as a result of a blockade.

The Journalist—Source Relationship in Context: A Comparative Review of US and English Law

2009 ◽  
Vol 38 (3) ◽  
pp. 268-294
Author(s):  
Stuart Wallace
Keyword(s):  
Human Rights ◽  
Legal Protection ◽  
State Level ◽  
Potential Threat ◽  
Shield Law ◽  
Special Procedure ◽  
European Court ◽  
Comparative Review ◽  
The Uk ◽  
The Impact

This paper analyses the legal protection of the journalist–source relationship from both sides and the underlying interests involved. The paper begins by analysing why the relationship deserves protection. The position of journalists at common law is analysed with a discussion of the application of the principle established in Norwich Pharmacal v Customs and Excise to journalists. The development of immunity from contempt in s. 10 of the Contempt of Court Act 1981 is examined to illustrate the ideological clash between the judiciary and journalists. The impact of the Human Rights Act and decisions of the European Court of Human Rights are analysed to assess whether this will lead to a change in attitudes in the UK. Finally, the potential threat to journalists posed by compelled evidentiary disclosure in criminal cases is reviewed, with a particular look at ‘special procedure’ material. The US section begins with an analysis of the law at federal level, the decisions of the Supreme Court, including the leading decision of Branzburg v Hayes, as well as the role the legislature has played. The paper then analyses protections provided at state level, with a case study of the California shield law and a review of Californian jurisprudence.

When interpreting domestic legislation courts must, so far as it is possible, read and give effect to such legislation in a way which is compatible with the Convention rights; see s3(1). Hence domestic courts are given a degree of latitude – reference to the jurisprudence of Strasbourg is mandatory – but it need only be taken into account. Legislation must be construed in a manner compatible with the Convention but only so far as is possible. Three points are particularly worth noting: • When applying the European Convention on Human Rights a domestic court should be prepared to take a generous view as to whether an activity falls within the protection afforded by the Convention’s articles. • The Convention is to be regarded as a ‘living’ or ‘dynamic’ instrument to be interpreted in the light of current conditions. More recent decisions of the European Court of Human Rights will be regarded as carrying more weight than earlier decisions. • Where an Article of the Convention permits some state interference with the enjoyment of a right, a court assessing the extent to which that interference is compatible with the Convention should consider (i) whether the interference is provided for by law; (ii) whether it serves a legitimate purpose; (iii) whether the interference is proportionate to the end to be achieved; (iv) whether it is necessary in a democratic society; (v) whether it is discriminatory in operation; and (vi) whether the state should be allowed a margin of appreciation in its compliance with the Convention – that is, be allowed to apply the Convention to suit national standards. The ‘quality of law test’

1996 ◽  
pp. 88-88
Keyword(s):  
Human Rights ◽  
National Standards ◽  
European Convention ◽  
Domestic Court ◽  
European Court ◽  
Margin Of Appreciation ◽  
Domestic Legislation ◽  
Domestic Courts ◽  
State Interference

The gypsy’s lot: myth and reality

2017 ◽  
Author(s):  
Robert Jago
Keyword(s):  
Human Rights ◽  
Legal System ◽  
Lived Experiences ◽  
European Court ◽  
The Law ◽  
The Uk ◽  
The Relationship

This chapter focuses on the lived experiences of gypsies (collectively referred to as gypsies rather than Roma or travellers). The author argues that the relationship between the legal system and the specific lifestyle of this group is itself causing many tensions which cannot be separated from the long-held myths about gypsies. Jago shows how the standing of gypsies in the UK legal system has, in turn, become the object of various myths. He demonstrates how judgements by the European Court of Human Rights in favour of gypsy claims created in many an image of the law being always on the side of the gypsy. A perception which Jago demonstrates is far from true. After addressing the nature and role of myths in general the author illustrates the tension between positive, romanticised myths about the freedom of gypsy lifestyle and three derogatory myths, namely gypsies as "child-snatchers", as thieves and as "land grabbers". Jago illustrates that these myths are linked to deep-rooted beliefs around property and its ownership.

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