Keyu v. Secretary of State for Foreign and Commonwealth Affairs (U.K. Sup. Ct.)

2016 ◽  
Vol 55 (3) ◽  
pp. 525-581
Author(s):  
Christina M. Cerna
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
The State ◽  
Foreign Affairs ◽  
European Convention ◽  
The Past ◽  
Secretary Of State ◽  
Public Inquiry

On November 25, 2015, the U.K. Supreme Court dismissed a case in which the British Secretaries of State for Foreign Affairs and Defense failed to hold a public inquiry into an atrocity committed in 1948 by British troops in the British protectorate of Malaya, today Malaysia. The case is of particular interest because it concerns the obligations of states for atrocities committed in the past, before their obligations under the European Convention on Human Rights (European Convention) or a comparable treaty, entered into force. Whereas the principle of the nonretroactivity of treaties protects a state from responsibility for acts committed before the human rights treaty entered into force for that state, the issue in this case was whether the state nonetheless had an obligation to investigate the crimes of the past.

The State of the Netherlands v. Urgenda (Neth. Sup. Ct.)

2020 ◽  
Vol 59 (5) ◽  
pp. 811-848
Author(s):  
André Nollkaemper ◽  
Laura Burgers
Keyword(s):  
Climate Change ◽  
Human Rights ◽  
The Netherlands ◽  
Supreme Court ◽  
International Law ◽  
Greenhouse Gas ◽  
Ghg Emissions ◽  
The State ◽  
European Convention ◽  
The Supreme Court

On December 20, 2019, the Supreme Court of the Netherlands published its judgment in The State of the Netherlands v. Urgenda. The judgment is largely a discussion of questions of Dutch law, but contains several conclusions that are relevant from an international law perspective. In particular, the Court held that on the basis of the European Convention on Human Rights (ECHR), the Netherlands has a positive obligation to take measures for the prevention of climate change and that it was required to reduce its greenhouse gas (GHG) emissions by at least 25 percent by the end of 2020, compared with 1990 levels.

Does the Injunction Gap Violate Implementers’ Fair Trial Rights Under the ECHR?

2020 ◽  
Author(s):  
Léon E Dijkman
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fair Trial ◽  
European Convention ◽  
The Past ◽  
European Court ◽  
The Subject ◽  
The Right ◽  
Federal Supreme ◽  
Validity Of A Patent

Abstract Germany is one of few jurisdictions with a bifurcated patent system, under which infringement and validity of a patent are established in separate proceedings. Because validity proceedings normally take longer to conclude, it can occur that remedies for infringement are imposed before a decision on the patent’s validity is available. This phenomenon is colloquially known as the ‘injunction gap’ and has been the subject of increasing criticism over the past years. In this article, I examine the injunction gap from the perspective of the right to a fair trial enshrined in Art. 6 of the European Convention on Human Rights. I find that the case law of the European Court of Human Rights interpreting this provision supports criticism of the injunction gap, because imposing infringement remedies with potentially far-reaching consequences before the validity of a patent has been established by a court of law arguably violates defendants’ right to be heard. Such reliance on the patent office’s grant decision is no longer warranted in the light of contemporary invalidation rates. I conclude that the proliferation of the injunction gap should be curbed by an approach to a stay of proceedings which is in line with the test for stays as formulated by Germany’s Federal Supreme Court. Under this test, courts should stay infringement proceedings until the Federal Patent Court or the EPO’s Board of Appeal have ruled on the validity of a patent whenever it is more likely than not that it will be invalidated.

scholarly journals The European Convention on Human Rights Act 2003 – Ten Years On

2014 ◽  
Vol 3 (1) ◽  
pp. 61-96
Author(s):  
Ronagh JA McQuigg
Keyword(s):  
Human Rights ◽  
The State ◽  
European Convention ◽  
General Level ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Impact ◽  
The Relationship

The European Convention on Human Rights Act 2003 has now been in force in Ireland for ten years. This article analyses the Act itself and the impact which it has had on the Irish courts during the first decade of its operation. The use of the European Convention on Human Rights in the Irish courts prior to the enactment of the legislation is discussed, as are the reasons for the passing of the Act. The relationship between the Act and the Irish Constitution is examined, as is the jurisprudence of the Irish courts towards the interpretative obligation found in section 2(1), and the duty placed upon organs of the State by section 3(1). The article ends with a number of observations regarding the impact which the Act has had on the Irish courts at a more general level. Comparisons will be drawn with the uk’s Human Rights Act 1998 throughout the discussion.

scholarly journals Looking at the past

2018 ◽  
pp. 139-168
Author(s):  
Oleksandr Bozhko
Keyword(s):  
Presidential Elections ◽  
The State ◽  
Foreign Affairs ◽  
Self Determination ◽  
Political Crisis ◽  
State Of Emergency ◽  
Bureaucratic Corruption ◽  
The Past ◽  
Political Analysis

The article describes the reminiscences of Oleksnadr Bozhko, Ambassador Extraordinary and Plenipotentiary of Ukraine to Armenia. Having arrived to Yerevan as the first Ambassador of independent Ukraine, the author became a witness to the events that initially led to a long-lasting political crisis, and subsequently to the unconstitutional change of Armenian government. The article analyses the tumultuous events that Ukrainian Embassy faced immediately after its opening in September 1996. At that time, the Armenian society, which for years had been patiently overcoming numerous abuses of power, the arbitrariness of oligarchs, bureaucratic corruption and bribery at courts, broke out with a riot of peaceful disobedience. It was the time when the reminiscences of the fierce Armenian-Azerbaijani War for Nagorno-Karabakh of 1991–1994 were still in minds of people when society had been drawn into an exhaustible internal political confrontation on the eve of the presidential elections. The more electoral confrontation grew, the more dissatisfying was the population with the leadership of the state. Eventually the state of emergency was introduced in the country. These factors affected further activities of Ukrainian diplomats. It was important to quickly find premises suitable for a diplomatic mission and to carry out the diplomatic procedures necessary for the launch of Embassy’s activities. The author states with sorrow that the Ministry of Foreign Affairs of Armenia did not even find money to fuel a car and bring Ukrainian delegation to Yerevan. Shattered roads that have long been unrepaired, queues near bakeries and kerosene selling points, semi-empty store shelves and even faded eyes of those, with whom the author communicated, – those were sad realities of the Armenian life in the mid-nineties. The formation of the diplomatic services in both countries was carried out under difficult conditions, likewise the maintenance of diplomats’ activity in Ukraine was similarly poor then. The article also describes that the stumbling point in Ukrainian-Armenian relations was an issue of Nagorno-Karabakh. The principle of territorial integrity was one of the fundamental in security sphere of Ukraine, whereas Armenia, which acted as guarantor of Nagorno-Karabakh security, adhered to the principle of self-determination of the nation. In this respect, Armenian politicians considered everything related to the Nagorno-Karabakh issue. This dramatic problem was originated from 1921, when Nagorno-Karabakh was included to the Azerbaijani SSR. The policy of displacing the Armenians from their ancestral lands, which was deliberately carried out by the authorities of Soviet Azerbaijan, caused frustration of Armenians, dozens of thousands of whom had lived in that territory for centuries. The author analyses the cooperation with the Directorate for Political Analysis and Planning of the Ministry of Foreign Affairs of Ukraine regarding the defining Ukraine’s possible position in the Armenian-Azerbaijani conflict. The author emphasizes that the article is not just a diplomatic memoirs but also an attempt to comprehend what has happened to us over the past two decades, looking back at the past experience. Keywords: Armenia, Embassy of Ukraine, Nagorno-Karabakh, Ukrainian-Armenian relations.

scholarly journals From special powers to legislating the lockdown: the Health Protection (Coronavirus, Restrictions) Regulations (Northern Ireland) 2020

2021 ◽  
Vol 72 (S1) ◽  
pp. 37-61
Author(s):  
Daniel Holder
Keyword(s):  
Human Rights ◽  
Northern Ireland ◽  
Health Protection ◽  
Care Homes ◽  
European Convention ◽  
Legal Certainty ◽  
Police Service ◽  
Frontline Workers ◽  
The Past ◽  
Accessible Information

The Health Protection (Coronavirus, Restrictions) Regulations (Northern Ireland) 2020 were made through temporarily inserted provisions by Westminster’s vast and rushed Coronavirus Act 2020. This itself limits duties to notify deaths to the coroner, despite Article 2 European Convention on Human Rights duties being particularly relevant to deaths in care homes and of frontline workers. The regularly amended March 2020 Northern Ireland regulations have themselves raised ‘legal certainty’ issues. Until June, official websites carried no accessible information as to their scope. Initial concerns on lack of clarity over matters such as driving for exercise gave way to greater controversy regarding the application of the regulations to the Black Lives Matter protests on 6 June 2020 through Police Service of Northern Ireland powers that had only been extended through an eleventh hour amendment the night before. The enforcement powers themselves are so widely drafted that they are reminiscent of the Special Powers Acts of the past. These issues are explored in this article.

Freedom of Religion in the Workplace

2021 ◽  
pp. 1-21
Author(s):  
Nedim Begović
Keyword(s):  
Human Rights ◽  
Bosnia And Herzegovina ◽  
Case Law ◽  
Legal Framework ◽  
The State ◽  
European Convention ◽  
Freedom Of Religion ◽  
European Court

Abstract The article analyses the case law of the European Court of Human Rights on accommodation of Islamic observances in the workplace. The author argues that the Court has not hitherto provided adequate incentives to the states party to the European Convention on Human Rights to accommodate the religious needs of Muslim employees in the workplace. Given this finding, the author proposes that the accommodation of Islam in the workplace should, as a matter of priority, be provided within a national legal framework. In Bosnia and Herzegovina, this could be achieved through an instrument of contracting agreement between the state and the Islamic Community in Bosnia and Herzegovina.

R v Secretary of State for the Home Department, ex parte Brind [1991] UKHL 4, House of Lords

2021 ◽  
Author(s):  
Thomas E. Webb
Keyword(s):  
Human Rights ◽  
United Kingdom ◽  
European Convention ◽  
The United Kingdom ◽  
Secretary Of State ◽  
House Of Lords ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Home Department ◽  
Editorial Decisions

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in R v Secretary of State for the Home Department, ex parte Brind [1991] UKHL 4, House of Lords. The case considered whether the Secretary of State could restrict the editorial decisions of broadcasters as regards the way in which messages from spokespersons for proscribed organizations were broadcast. The United Kingdom was a signatory to the European Convention on Human Rights (ECHR) when the case was heard, but the case also predates the passage of the Human Rights Act 1998. There is discussion of the legal position of the ECHR under the common law in the United Kingdom, and the concept of proportionality in United Kingdom’s domestic jurisprudence. The document also includes supporting commentary from author Thomas Webb.

21. Applications: prisoners’ rights

2021 ◽  
pp. 433-447
Author(s):  
Howard Davis
Keyword(s):  
Human Rights ◽  
The State ◽  
European Convention ◽  
Legal Knowledge ◽  
Key Points ◽  
Self Test ◽  
The Uk ◽  
Article 5 ◽  
The Impact ◽  
Domestic Law

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. It discusses European Convention law and relates it to domestic law under the HRA. Questions, discussion points, and thinking points help readers to engage fully with each subject and check their understanding as they progress and knowledge can be tested by self-test questions and exam questions at the chapter end. This chapter considers the application of Convention rights in the field of prisoners’ rights; the impact of Convention rights on prisoners in the UK is considered. Prisoners remain within the protection of the European Convention on Human Rights, though the application of these rights will take their position into account. Prisoners’ rights include not only rights to the non-arbitrary loss of liberty (Article 5) and rights to fair procedures (Articles 5 and 6), but also not to be disproportionately denied the rights and freedoms in Articles 8–11. Imprisonment deprives individuals of their liberty and, therefore, is a public function for which the state is responsible under the Convention. The controversy over prisoners’ right to vote is discussed in Chapter 25.

R v Secretary of State for the Home Department, ex parte Simms [1999] UKHL 33, in the House of Lords

2021 ◽  
Author(s):  
Thomas E. Webb
Keyword(s):  
Human Rights ◽  
Public Law ◽  
European Convention ◽  
Secretary Of State ◽  
Parliamentary Sovereignty ◽  
House Of Lords ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Home Department ◽  
The Relationship

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in R v Secretary of State for the Home Department, ex parte Simms [1999] UKHL 33, House of Lords. The case considered whether the Secretary of State, and prison governors, could restrict prisoners’ access to journalists investigating alleged miscarriages of justice. In addition to the European Convention on Human Rights (ECHR) Article 10 issues this raises, Lord Hoffmann also in obiter dicta discussed the relationship between the Human Rights Act 1998, parliamentary sovereignty, and the concept of legality. The document also includes supporting commentary from author Thomas Webb.

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