By: Fiona Parker,
on 11/10/2015
Human rights law has had a long and tortuous history in the UK, defined by some of the most fascinating cases in legal memory. The case of John Wilkes was a milestone in establishing the right of free speech. In 1763, Wilkes wrote a scathing attack on a speech delivered by King George III when he opened Parliament.
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By: Fiona Parker,
on 11/3/2015
Our legal history stretches back well over eight centuries. But however long this history may be, it is not one of which we can be universally proud, and the freedoms which we enjoy today have had to be hard won over the centuries.
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By: Kirsty,
on 7/12/2011
Last week the European Court of Human Rights produced a landmark decision in Al-Skeini v. UK, a case dealing with the extraterritorial application of the European Convention on Human Rights (ECHR). What a mouthful of legalese this is, you might think – so let me try to clarify things a bit. The main purpose of human rights treaties like the ECHR is to require the states that sign up to them, say the UK, France or Turkey, to respect such things as the right to life and legal due process, and prohibit the torture, of people living within the UK, France or Turkey.
But what happens when the US detains foreigners on foreign soil (Guantanamo), or kills people in Yemen, Pakistan, and Afghanistan with unmanned drones, or a former Russian spy is poisoned in London ostensibly at the orders or with the collusion of the Kremlin? The question that then arises is whether all these individuals have rights under human rights treaties against the US, the UK or Russia, even though the alleged violations of their rights did not take place in the US, the UK or Russia.
This question might appear to be counterintuitive. Human rights are, after all, supposed to be universal—why should it matter whether a state violates a person’s rights by acting within its territory or outside it? At the legal level however it is a matter of treaty interpretation. The scope of application of many major human rights treaties, including the ECHR, is defined by a very similar clause: the persons concerned must fall within the state’s jurisdiction for that person to be able to raise his or her rights against the state.
Courts both international and domestic have produced mounds of conflicting case law on how this is different from the state’s territory, with two main strands of decisions defining ‘jurisdiction’ either in spatial terms, as state control over territory, or in personal terms, as control over individuals, with a number of deviations from these two models in between. These contradictions flow partly from the vagueness of the legal concepts, but, also more importantly from conflicting policy considerations. On one hand, courts want to follow their human rights-friendly impulse and protect the individual affected by extraterritorial state action. On the other, courts fear political fallout, and therefore choose to unduly restrict the extraterritorial application of human rights instruments, often on seemingly completely arbitrary grounds.
The Al-Skeini case with which I started this post is a perfect example of this tension. It concerned six individuals, all killed by British troops in Basra, in UK-occupied southern Iraq. One of them, Baha Mousa, was killed while in custody in a British detention facility after much mistreatment. The five others were killed in varying circumstances by British troops on patrol. Some may even have been killed in justifiable or at least excusable circumstances, but their families wanted the UK to conduct an ECHR-compliant effective investigation into their killings. They thus brought proceedings before the UK courts under the Human Rights Act, claiming that the ECHR applied to the killing of their relatives in Iraq. The House of Lords (now rebranded as the UK Supreme Court) held that only Baha Mousa was protected by the ECHR, as his killing took place in a UK military prison, which (I kid you not) was somehow analogous to an embassy (more on that here). As for the other five, they were held not to have been within the UK’s jurisdiction as the ECHR could generally not apply outside the
Which books have changed the world? Given our news today, one might expect that books no longer have as great an impact on it. ISIS has Syria in turmoil and refugees are making their way to Europe; the United States is gearing up for an election that may determine the future for many others around the globe; China is changing in rapid and unexpected ways, with political and economic consequences rippling around the world.
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