Category Archives: International law

Angela Patrick: Suing the state: judicial competence, restraint and redress in Belhadj

AngelaThe coverage of last week’s Court of Appeal’s decision in Belhadj & Or. v Straw & Ors [2014] EWCA Civ 1394 has thus far generated more political heat than legal light. When a claim involves the suit of named officials and former Ministers for their alleged role in the rendition of a major political figure in the new Libya and his family to face torture under the Gaddafi regime, this is perhaps understandable. In a week where the Government – in the context of this claim – has conceded that it must disclose certain of its policies on surveillance and legal professional privilege, it is unsurprising that the press has had little time to digest the detail of this judgment.

Yet, in overturning the decision of Mr Justice Simon to strike out the major part of the claim, the carefully reasoned Court of Appeal (Lord Dyson MR, Lloyd Jones and Sharp LLJ) judgment raises a number of interesting questions for constitutional law scholars and political commentators alike about the function of domestic courts, the place of international comity in the law and the right of individuals to redress for violations of rights guaranteed in domestic and international law.

Suing the state: the role of domestic judges

The Respondents argued that both state immunity and the foreign act of state doctrine precluded the domestic courts from hearing the case. At first instance, they failed on the former but succeeded on the latter point. The Court of Appeal rejected their arguments on both counts.

State immunity

First, agreeing with Simon J, the Court of Appeal finds that the law of state immunity has no application in this case (see [32] – [50]). In reliance on the language of the UN Convention on Jurisdictional Immunities of States and their Property (a Convention not yet in force), and a broad interpretation of existing jurisprudence, the Respondents argued for an interpretation of the domestic law of state immunity which would prevent the court from exercising jurisdiction in any case which might affect the broad “rights” or “interests” of a third state or where the decision of the court would necessarily involve “findings of illegality in respect of acts on the part of officials of foreign states for which they could claim immunity had they been sued directly” [37].   In this case, the Appellants’ claim related to their treatment in China, Thailand and Malaysia and in Libya, the actions of those Governments and their agents and the activities of the United States. The Court of Appeal concludes that this argument on indirect impleading would be an “unprecedented extension” of the law on state immunity [39], which “lacks any foundation in law” [49].

Act of state doctrine

The second issue – the scope and application of the ‘foreign act of state doctrine’ is at the heart of this case. Simon J expressed his own discomfort in striking out the claim on this basis:

residual concern…that what appears to be a potentially well-founded claim that the UK authorities were directly implicated in the extraordinary rendition of the claimants, will not be determined in any domestic court; and that Parliamentary oversight and criminal investigations are not adequate substitutes for access to and a decision by, the Court (at [51]).

The Court of Appeal expressly shares this unease. It concludes that while the doctrine is engaged, significant limitations apply to prevent a strike out. The court confirms that the doctrine is subject to a geographical limitation, generally applicable only to the activities of a third state within its jurisdiction. So, the activities or interests of the US could not affect the role of the domestic court in this case. In any event, a broad policy exception to the rule operates in claims with its foundation in international human rights law.

In light of the stark conclusion of the lower court that an inquiry into the contested evidence in the case would be damaging to the national interest (see [26]), close examination of the Court of Appeal decision is warranted.

a)  The nature of “act of state” doctrine:  Long-standing arguments about the impact of the act of state doctrine are best understood in context. Although used to preclude the jurisdiction of domestic judges, the doctrine is not a creature of statute, nor required by the international legal framework. It has evolved in parallel and distinct from the law on state immunity. As a creature of Anglo-American common law – finding no direct parallel in civil law countries – its scope and the rationale for its existence has varied across the years and its application in either the US or the UK. Its foundation in this jurisdiction is found in Buttes Gas and Oil Co v Hammer (Nos 2 and 3) [1982] AC 888, a case where the courts refused to exercise jurisdiction over a claim involving questions about the lawfulness of an international settlement agreed by four sovereign states. In the UK, the doctrine has been relied upon in such varied circumstances as the seizure of aircraft (Kuwait Airways v Iraqi Airways (Nos 4 and 5) [2002] 2 AC 883) and the determination of claims in connection with intellectual property (Lucasfilm v Ainsworth [2012] 1 AC 208).

The Court of Appeal in Belhadj conducts a considered review of the historical development of the doctrine in its analysis of its application to this claim. It draws a key distinction between the narrow class of claims which may bar a court’s jurisdiction, based on judicial competence (as in Buttes) and the wider rule of law, based on judicial restraint “which may result in a refusal by the English courts to permit the vindication of rights in certain situations in which the validity or legality of certain acts of foreign states and their agents are directly challenged” [68] (recognised in Yukos v OSJC Rosneft Oil (No. 2) [2014] QB 458) .   It rejects the Claimants’ suggestion that the doctrine must be confined to cases engaging questions of competency ([Shergill v Khaira [2014] UKSC 33 (at [41] – [43]).

The foundation of the “act of state” doctrine lies in the sovereign equality of states and the principle of international comity [67]. Thus the Court of Appeal finds that restraint may yet be required in cases where there is no constitutional question about the competence of the court. However, following, Yukos, the Court of Appeal holds that the modern incarnation of the principle must start from its limits, with:

the doctrine…defined, like a silhouette, by its limitations, rather than to regard it as occupying the whole ground save as to the extent that an exception can be imposed [54].

The Court accepted that there was a limitation applicable when the facts of a case would not require the validity of the acts of a foreign sovereign state to be called into question (the Kirkpatrick limitation). However, the Court rejects the Claimants’ contention that this limitation would apply in this claim [76]. The two key limitations in this case were grounded in human rights and territoriality.

b)   The human rights ‘limitation’: The Court recognises a broad public policy limitation to the common law doctrine “where there is a violation of international law or a grave infringement of fundamental human rights” [81] (see also Kuwait Corpn v. Iraqi Airways (Nos 4 and 5) [2002] 2 AC 883). Considering the treatment of this limitation in existing jurisprudence – including in Yukos and Kuwait Airways – the Court concludes that this policy limitation must also apply even when the court must undertake some degree of legal or factual investigation in order to determine whether a violation of international law or a grave infringement of fundamental rights has occurred [89]. The Court explained:

 i.  “Judges in this jurisdiction are now frequently required to determine and rule on such conduct and, in particular, whether it is compliant with international law and international standards of human rights” [91]. Such assessments are conducted in asylum and extradition cases, and in the consideration of whether evidence has been obtained through torture and in cases where it is alleged a person has unlawfully been brought before the court from another jurisdiction. The Courts have acknowledged in commercial cases that the Court is entirely well placed to consider a claim despite reaching conclusions on the acts of state officials (see Lucasfilm v Ainsworth [2012] 1 AC 208).

 ii.  “When it is necessary to do so for the vindication of justiciable rights, courts in this jurisdiction will be under an obligation to decide issues of public international law” [92], citing Abbasi v Secretary of State for Foreign Affairs [2002] EWCA Civ 1598 and again, Shergill v Khaira [2014] UKSC 33.

iii.  Comparative case law supports this conclusion. In Habib v Commonwealth of Australia [2010] FCAFC 12, although the constitutional context was different, the human rights limitation had been determinative. The Court of Appeal reasoned: “In this way, a senior court in another common law jurisdiction has concluded, on facts which bear a striking resemblance to those in the present case, that the limitation of act of state doctrine may be applied notwithstanding the need to investigate the conduct and to rule on the legality of the conduct of foreign states [102].

iv. The Court of Appeal gave consideration of the evidence of the Respondents that this issue would be damaging to the UK’s relationship with the US (and to a lesser extent, with the other countries involved in the claim) and harmful to the national interest. The Court notes that the evolution of the doctrine in the US has led the courts there to afford a significant degree of weight – and deference – to the opinion of the executive [112]. It concludes however: “while an approach based on deference to executive suggestion as to the likely consequences for foreign relations of the exercise of jurisdiction, capable of varying according to the issues raised or the foreign state concerned, may well be suited to the very different constitutional arrangements in the US, it has played no part in the development of the act of state doctrine in this jurisdiction” [113].

In this context, the Court is keen to stress that while evidence of damage to the national interest is relevant, national embarrassment would not be a proper justification for restricting the jurisdiction of the domestic courts [111] (see also [66]).

 v.  There were strong policy justifications for the court to hear this case:

a.  The increasing role of international law in the protection of the individual and the recognition of that system as one which includes the regulation of human rights by international law, a system of which individuals are rightly considered to be subjects. A corresponding shift in international public policy has taken place [115]

b. The allegations in this case were of particularly grave human rights violation:So far as unlawful rendition is concerned, this too must occupy a position high in the scale of grave violations of human rights and international law, involving as it does arbitrary deprivation of liberty and enforced disappearance” (the court having already considered the nature of the international prohibition on torture) [116]

c. The respondents in this case were officials of the UK, not otherwise entitled to immunity: there is a compelling public interest in the investigation by the English courts of these very grave allegations”. [117]

d. The applicable principles of both international law and English law to be applied are well established [118].

e. “[U]nless the English courts are able to exercise jurisdiction in this case, these very grave allegations against the executive will never be subjected to judicial investigation…As a result, these very grave allegations would go uninvestigated and the appellants would be left without any legal recourse or remedy” [119].

 vi. The case should be heard: “despite the risk of displeasing our allies or offending other states, and even the risk of consequences of varying severity which it is said are likely to follow, cannot justify our declining jurisdiction on ground of act of state over what is a properly justiciable claim” [120].

 c) The ‘territorial’ limitation: The Court emphasised that the strike out in Khan v Secretary of State for Foreign and Commonwealth Affairs [2014] EWCA Civ 24 could not assist the Respondents. The territorial limitation had not been considered in that case [132].

Although it took a definitive view on the application of the territorial principle in this case, the Court of Appeal expressed some doubt as to whether the limitation might apply in cases which might more closely engage questions of judicial competence, for example, in connection with the transactions between states:

Indeed in the case of such activities it may often be difficult to locate with precision where different elements of the transactions took place. However, in the present case we are concerned with allegations relating to the way in which officials of one state have acted towards nationals of other states and therefore with the narrower principle of act of state. [131]

d) Article 6 ECHR:   The Court of Appeal considers the relevance of the doctrine for the purposes of securing the right of access to a fair hearing guaranteed by Article 6 ECHR. (The Court also considered Article 14 UNCAT, but did not consider it necessary to reach any firm conclusion [124] – [126].)

While its primary conclusions are grounded in the common law, the Court of Appeal thus considers that the same conclusion would be required under the Human Rights Act 1998 and the ECHR. The application of the doctrine, largely confined to Anglo-American jurisprudence, is not required by international law ([51]). Thus, Jones v UK and earlier domestic case law on state immunity is distinguished. The Court of Appeal considers that while the act of state doctrine may be applied consistently with Article 6 ECHR, in this case, its application would be disproportionate and would undermine the Appellants’ right to access the court guaranteed by the Convention [123].   Thus, as in its common law analysis, for Convention purposes, the doctrine of act of state will remain a live point for argument in these cases, with its scope, relevance and application determined on a case by case basis.

Comment

The Respondents have been granted permission to appeal the application of the act of state doctrine. A few points of note can be drawn from the Court of Appeal’s analysis.

The evidence before the Court on the risk posed by the litigation to the UK’s relationship with the United States and to our security was considered at some length. The arguments raised are very familiar to those who followed the passage of the Justice and Security Act 2013. The introduction of closed material procedures (“CMP”) into ordinary civil litigation was justified to Parliament by Government as a means to ensure that litigation of precisely this kind might proceed. The proper scope and function of CMP even under the Act remains open to argument and it is very likely that should this case proceed to trial, the Respondents may seek to rely on the Act. However, the strike-out application in this case and the albeit limited engagement of the “act of state” doctrine serves as a reminder that CMP is not the only tool in the Government’s litigation strategy in dealing with cases which raise concerns about national security or the wider public interests of the UK. Despite the case made for the extension of CMP, a pick-and-mix approach to strike-out, public interest immunity (“PII”) and CMP is likely to prevail, at least as and until the scope of the law is clarified.

An outstanding question is whether the availability of alternative means to address concerns about national interest – such as PII or CMP – may affect the courts’ consideration of the weight of evidence presented to justify an argument on strike-out based on an “act of state” doctrine based on a public policy argument for restraint, rather than a constitutional question of competence. While not considered expressly by the Court of Appeal, its analysis, and its approach to deference suggest that this should be a relevant issue for consideration by any judge considering a claim for strike-out of any otherwise valid claim [see 211].

The Court of Appeal stresses that the Supreme Court in Shergill v Khaira [2014] UKSC 33 (at [41] – [43]) did not intend to limit “act of state” doctrine to cases of non-justiciability on the grounds of competence [67].   Yet, the Court of Appeal in this case does appear to draw distinctions in the law on “act of state” between cases based on competence and restraint. It is clear – particularly in its treatment of territoriality – it envisages that the consideration of the limitations applied may be different where questions of competence may arise.   The Court of Appeal’s analysis places the Yukos “silhouette” approach on a clearer foundation. If the English doctrine of “act of state” is based on judicial restraint rather than constitutional competence, the case for the application of the doctrine should be subject to close scrutiny and its limitations drawn broadly.   Yet, if this approach stands, argument on the boundaries of competence and restraint is likely in future cases, and on the precise scope of the limitations in play.

The practical implications of the Respondents’ arguments in this case – for the extension of protection for the state under both state immunity and “act of state” doctrine – would be to shield individual states and their institutions from scrutiny in many cases where they act unlawfully but in unison or in parallel with other states, circumscribing the ability of individuals to secure redress.

The expansion of immunities to limit the right of individuals to a remedy for violations of rights acknowledged by the international community, as is the case with redress in cases of torture, must begin as an international dialogue.   The expansion of state immunity – or the creation of de facto common law immunities – by way of the unilateral development of domestic rules of jurisdiction or deference would undermine the long-term effectiveness not only of the international framework for the protection of human rights but the agreed minimum standards for state immunity.

Angela Patrick is the Director of Human Rights Policy at JUSTICE. JUSTICE, together with the International Commission of Jurists, REDRESS and Amnesty International intervened in Belhadj v Straw & Ors by way of written submissions. A copy of the submission is available, here.

 

Suggested citation: A. Patrick, ‘Suing the state: judicial competence, restraint and redress in Belhadj(7th November 2014) (available at http://ukconstitutionallaw.org).

 

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Alison Young: Horizontality and the EU Charter

young_alison-l2Concerns are often raised as to the impact of EU’s human rights provisions in English law, particularly concerning the impact of the EU’s Charter of Fundamental Rights and Freedoms. How far does the Charter apply and, in particular, can this be used in purely horizontal situations – i.e. where a dispute arises between two private parties and EU law is sought to be used, in and of itself, to impose an obligation on an individual they would not otherwise have but for the effect of EU law? The UK government is currently carrying out a review on the balance of competences between the EU and its Member States. Unfortunately the call for submissions on the EU and human rights closed before the decision of the Grand Chamber of the Court of Justice of the European Union in C-176/12 Association de médiation sociale v Union locale des syndicats CGT (AMS) was delivered on 15 January. Whilst the decision does provide some answers to the complex nature of the application of the Charter in national law, it raises more questions than it resolves.

 AMS concerned the appointment of Mr Laboudi as the local CGT union representative at AMS. AMS is an association in Marseille that implements social mediation measures and measures for the prevention of crime in Marseille. The French law implementing Directive 2002/14, which establishes a framework for informing and consulting with employees, required Unions to designate a representative for firms with 50 or more employees. However, in calculating the number of employees, the French law did not take account of apprentices.  AMS employed 11 full time members of staff and employed between 120 and 170 individuals on ‘accompanied employment contracts’.  AMS argued that those employed on ‘accompanied employment contracts’ were apprentices. Therefore, it had less than 50 employees and CGT were not able to insist on the appointment of a Union representative at AMS. CGT argued that the French law was contrary to the Directive and Article 27 and that they were able to insist on the appointment of Mr Laboudi as their representative. Two questions arose. First, does Directive 2002/14, either by itself or as interpreted in line with Article 27 of the Charter require that those employed on ‘accompanied employment contracts’ be counted as employees for the purposes of the Directive? Second, could the Directive, interpreted in line with the Charter, be used in a dispute between private parties so as to exclude national law?

The first issue was relatively straightforward. The court concluded that the Directive does not permit Member States to exclude certain categories of employees from its provisions. The second issue was more complicated. The provision of the Directive was sufficiently clear and precise to have direct effect. But, as a Directive, it was not capable of having horizontal direct effect: As the union and AMS were both private parties, the Directive could not be relied on. Nor was it possible to interpret the French law in line with the Directive. Any duty to interpret national law in line with Directives reaches its limit when it would require a contra legem interpretation, as would be the case here. The question remains, however, whether Article 27 of the Charter, protecting the worker’s right to information and consultation, could nevertheless apply to this dispute between two individuals.

For the Charter to apply, two hurdles need to be cleared. First, as established in C-617/10 Åkerberg Fransson, it has to be demonstrated that the situation before the court is ‘governed by European Union law’ as the Court of Justice of the European Union ‘has no power to examine the compatibility with the Charter of national legislation lying outside the scope of European Union law’. [paragraph 19, Fransson]. As the French law in question was designed to implement Directive 2002/14, then the case clearly was one that was governed by European Union law. Second, it needs to be established whether the Charter was able to have horizontal direct effect. The answer given is ‘yes – but not always and not in this specific case’. Article 27 requires that ‘[w]orkers or their representatives must, at the appropriate levels, be guaranteed information and consultation in good time in the cases and under the conditions provided for by Community law and national laws and practices.’. The Court concluded that ‘for this article to be fully effective, it must be given more specific expression in European Union or national law’. [AMS paragraph 45]. Therefore, the Charter could not be invoked in this instance to exclude the operation of national law in a dispute between parties. Nor could the Charter and the Directive operate together to grant horizontal direct effect to the Charter provision and exclude the operation of national law in a dispute between private parties. If the Charter did not have the ability to apply in this manner in and of itself, then it could not acquire this ability by being combined with the Directive [AMS paragraph 49]. So, the only remedy available to the applicant is to invoke the principle of state liability, established in C-6/90 Francovich, to claim damages from the French state for its failure to implement the provisions of the Directive. What is important here is what is not said. At no point did the Grand Chamber state that the provisions of the Charter, like Directives, cannot have horizontal direct effect. This leaves open the possibility that the Charter could be used in and of itself to exclude the application of national law in a dispute between private parties when the Charter provision did not need to be given more specific expression in European or national law.

Which Charter provisions can have horizontal direct effect?

The judgment leaves open more questions than it answers: although we know that the Charter can exclude the application of national law in a dispute between parties, it is hard to know which Charter rights will do so. What we do know from the judgment is that Article 27 is an example of a Charter provision that does not have horizontal effect, whereas Article 21(1) of the Charter, as applied in C-555/07 Kücükdeveci is provided as an example Charter right that is capable of having such an effect [see AMS paragraph 49].

Article 21(1) of the Charter states:

Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.

Article 27 of the Charter states:

Workers or their representatives must, at the appropriate levels, be guaranteed information and consultation in good time in the cases and under the conditions provided for by Community law and national laws and practices

There are two obvious differences between the two Articles. First, Article 21(1) specifically prohibits certain conduct, whereas Article 27 guarantees information and consultation as provided for by Community law or national laws and practices. Second, the Articles are in different Chapters of the Charter. Article 21(1) is in the Equality Chapter and Article 27 is in the Solidarity Chapter. It could be argued that these differences point to the greater clarity and precision to be found in Article 21 as contrasted with Article 27. However it is hard to conclude that clarity is the sole distinguishing feature. Whilst Article 21 may be clearer in that it provides for the protection of a particular right – the right not to be discriminated against on the grounds lists in the Article – there is still uncertainty surrounding its scope. Does it extend to a protection against indirect and direct discrimination and how do we distinguish between these two concepts? Would it be breached if the discrimination occurred because of positive action – e.g. a policy making it easier for people of a particular social origin to enter University courses? How does the law determine the relative comparator to ensure that discrimination does not occur? The difference is perhaps better understood not as turning on the relative clarity of the Charter provisions, but, instead, as to whether the clarification of the scope of the right is regarded as better suited to the judiciary or better suited to the legislature or executive. There may also be a secondary factor of whether the right is one where there should be greater or lesser area of discretionary judgment granted to the national courts as opposed to the European Union. This stems perhaps from Article 27’s reference to ‘national laws and practices’.

Cruz Villalón AG, in his opinion, drew on the distinction between rights and principles to help determine which Charter provisions could have horizontal direct effect. Whilst Charter rights are meant to have the same legal effect as Treaty provisions, principles, according to Article 52(5) of the Charter, ‘may be implemented’ by legislative or executive acts of the Union institutions, or of the Member States when implementing European Union law and are ‘judicially cognisable only in the interpretation of such Acts and in the ruling on their legality’. However, although the Charter draws this distinction, and provides a few examples in the Explanations to the Charter, there is no precise account of this difference. Cruz Villalón AG starts his analysis by remarking that Article 27, as a social right, was a ‘right’ by virtue of its subject matter, but a ‘principle’ by virtue of its operation [paragraph 45]. He was influenced, first, by a similar distinction drawn in the constitutional documents of some of the Member States – Ireland, Spain, France, Austria and Poland – as well as concerns regarding the protection of social and economic rights, which could lead to the judicialisation of public policy. Second, referring to the language of the Charter, he argues that principles impose obligations on public authorities, whereas rights are designed to protect individuals in defined legal situations. Action is needed by the public authority to transform the principle into a defined legal right (paragraphs 50-51]. The wording of Article 27 demonstrates that it is designed to impose an obligation on public authorities. This is confirmed by its content, which is too vague to provide for the specification of a particular Act. Moreover, there were examples of this specification of Article 27 in EU legislation prior to the enactment of the current version of the Charter – including in Directive 2002/14. [paragraphs 54 and 55]. In addition, the Charter provision is found in the ‘Solidarity’ Chapter, classifying it as a social right, which leads to the presumption that the provision is a principle and not a right.  All three factors led Cruz Villalón AG to conclude that Article 27 was best understood as a principle and not as a right.

It is hard to know how much of this analysis of the AG was endorsed by the Grand Chamber. The Grand Chamber makes no reference at all in its judgment to the distinction between rights and principles. Moreover, the Court of Justice reaches an opposite conclusion to Cruz Villalón AG, who advised that Directive 2002/14 could be regarded as the specification of Article 27 by a public authority and that its provisions could then be relied upon in a dispute between private parties, in a manner similar to Kücükdeveci. Yet, despite the differences as to outcome, and the lack of reference to principles, both the court and the AG recognise that Charter rights appear to be more likely to apply to a dispute between private parties if they:

(i)              Are clear and precise enough to give rise to individual rights in and of themselves without the need for legislative intervention/intervention by a public authority

(ii)            Can be understood as the expression of a right that can be relied upon by an individual as opposed to an expression of an obligation to be imposed on a public authority

(iii)           Are not social or economic rights

It is not clear how far any of these criteria are necessary or sufficient to determine the of horizontal application of a Charter provision. They are probably best understood as indications or guidelines.

How should the court make this assessment?

Even if we can provide some clarity as to what may influence the classification of a Charter right as one that can or cannot have horizontal direct effect, it is not clear whether these issues are discussed in the abstract or in relation to the specific facts of the case before the court. Article 27 of the Charter guaranteed worker information and consultation. Article 3 of Directive 2002/14 provides that Member States have a choice between whether the provisions of the Directive apply to firms with more than 50 employees in one Member State, or to firms with more than 20 employees in more than one Member State, and that it is for the Member States to determine how these employee numbers are to be calculated. Consequently, nothing in Article 27 or in Directive 2002/14 provided a clear answer to the factual issue before the court. In the words of the Grand Chamber:

It is not possible to infer from the wording of Article 27 of the Charter or from the explanatory notes to that article that Article 3(1) of Directive 2002/14, as a directly applicable rule of law, lays down and addresses to the Member States a prohibition on excluding from the calculation of the staff numbers in an undertaking a specific category of employees initially included in the group of persons to be taken into account in that calculation. [paragraph 46]

This can be contrasted with the situation in Kücükdeveci

 as the principle of non‑discrimination on grounds of age at issue in that case, (author’s emphasis) laid down in Article 21(1) of the Charter, is sufficient in itself to confer on individuals an individual right which they may invoke as such. [paragraph 47]

                  This reading of the judgment of the Grand Chamber also provides an explanation for the different conclusions of the Court of Justice and Cruz Villalón AG. This, in turn, suggests that the decision of the Grand Chamber may have a wider application than at first appears. Cruz Villalón AG concluded that the Charter could have horizontal direct effect, despite its classification as a principle, because it had been given substance by the Directive. The court concluded that, given that Article 27 did not have horizontal direct effect in and of itself, it could not have horizontal direct effect when applied in combination with Directive 2002/14 [paragraph 49]. This would appear to imply that, for the Grand Chamber, a Charter provision that is not sufficiently clear and precise can never have horizontal direct effect in and of itself. Even if a Directive were enacted to implement an unclear Charter provision, the Charter, in combination with the Directive, could not have horizontal direct effect.  However, if we interpret the Grand Chamber’s comments as relating to the specific issue before the court, a different conclusion is reached. If a Directive were to add to an unclear Charter right in a manner that did provide an answer to the specific question before the court, even if the Directive did not clarify all applications of the unspecific Charter right, then it may be that the Charter as applied through the Directive can have horizontal direct effect in a manner similar to Kücükdeveci. Therefore there may be two situations in which the Grand Chamber would grant horizontal direct effect to a Charter provision:

(i)              When the Charter provision is sufficiently clear and precise

(ii)            When the Charter provision is not sufficiently clear and precise, but nevertheless the Charter in addition to a Directive related to the Charter provision provides an answer to the specific question before the court.

Is ‘clarity’ enough?

The judgment of the Grand Chamber appears to focus predominantly on whether the Charter right is sufficiently clear and precise to have horizontal direct effect. Yet, this question is relevant not just to horizontal direct effect, but to direct effect more generally. Any provision of European Union law needs to be sufficiently clear, precise and unconditional if it is to have direct effect at all. This need not mean that an assessment of whether a Charter provision can have horizontal direct effect adds nothing to our assessment of whether it can have direct effect. But it does lend further grist to the mill in support of reading the decision of the Grand Chamber as one that distinguishes between Charter provisions that require specification from further legislative acts as opposed to merely focusing on their clarity and specificity. However, there is still one assessment missing from the Grand Chamber’s assessment that is present in the opinion of Cruz Villalón AG – whether the Charter provision is one that is suitable for application between private parties. For Cruz Villalón AG this was the case for Article 27 of the Charter. Article 27 refers to worker’s rights. Therefore it is clearly suitable for horizontal application. The objective of the Article would not be achieved if private employers were not meant to be subject to its obligations, once these were fleshed out by the action of public authorities of the EU or the Member States.

This issue of ‘suitability’ for horizontal application should be a necessary, albeit not a sufficient, component of the assessment of whether a Charter provision should have horizontal direct effect. Horizontal direct effect operates to impose obligations on private individuals. It is precisely this element that creates concerns as to the horizontal application of human rights. To impose an obligation on an individual in this manner may be problematic if the individual herself has human rights that could potentially conflict with her obligation to uphold the human right of another. This is not to argue generally against horizontal direct effect of Charter provisions. Nor is it an argument against the horizontal direct effect of Charter provisions that could give rise to conflicts between different human rights. However, it is an argument for further assessment of the need for care when assessing whether a Charter provision should have horizontal direct effect. Where the imposition of obligations on individuals could give rise to human rights conflicts there may be a greater need to ensure that these potential human rights conflicts have been taken into account through the specification of particular duties on private individuals by the legislature of the EU or by the legislature or judiciary of Member States that may be more aware of the relative importance of different human rights in their particular Member State.

Conclusion

The decision of the Grand Chamber in AMS paves the way for the potential horizontal application of Charter provisions, with the possible disapplication of national laws in disputes between private parties when these disputes occur within the sphere of European Union law. It is not clear from the decision whether this will apply to the vast majority, or merely a minority of Charter provisions. I would argue that Charter provisions should be capable of having horizontal direct effect, but that this should be limited to Charter provisions that:

(i)              are suited to imposing obligations on private parties, and

(ii)            are clear and precise enough to give rise to individual rights in and of themselves without the need for legislative intervention/intervention by a public authority, or

(iii)           are sufficiently clear and precise when applied in combination with a Directive to provide a clear answer to the specific issue before the court

It remains to be seen how far the decision in AMS will be applied in the future; but the case does illustrate the potential for the Charter to play a more important role in the protection of human rights than the Human Rights Act 1998, in particular as the former may provide for the disapplication of legislation whereas the latter does not. Whether this will occur in practice remains to be seen.

Alison Young is a Fellow and Tutor in law at Hertford College, University of Oxford.

(Suggested Citation: A. Young, ‘Horizontality and the EU Charter’  U.K. Const. L. Blog (29 January 2014) (available at http://ukconstitutionallaw.org).

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David Feldman: The European Court of Human Rights and the UK – Why Should Strasbourg Decide On Our Human Rights?

DFeldmanThe date set for publication of the report of the Commission on a Bill of Rights  approaches.  The Commission was established to consider whether the UK should have a Bill of Rights, and, if so, what it should contain and how it should relate to the Convention for the Protection of Human Rights and Fundamental Freedoms (or ECHR).  The spur for establishing the Commission was perplexity among some people at the ability of the European Court of Human Rights, an international tribunal, to make authoritative, binding judgments about the compatibility of UK legislation with rights under the ECHR.

People’s attention is thus distracted from the merits of issues, such as when prisoners should be deprived of their right to vote, towards procedural matters, such as whether the UK should be required to accept the assessment of a body with four suspicious characteristics: the judges are nearly all foreigners; the Court operates within a European organisation, the Council of Europe (albeit quite different from the EU, a fact which is often not understood); the judges are mistakenly thought to be unelected (untrue: they are elected by the Parliamentary Assembly of the Council of Europe, a body composed of parliamentarians from the 47 member states of the Council of Europe), and some of them have been—horror!—academics; and they are applying rules which have not been laid down by the Queen in Parliament.

Many of these matters have been incisively addressed by Colm O’Cinneide, Human Rights and the UK Constitution  (London: British Academy Policy Centre, 2012) and others (see for example Conor Gearty, ‘Strasbourg has spoken, the case of prisoner voting is closed’.   Here, I shall merely explain why the Court’s judgments bind the UK, and why this does not infringe the UK’s national sovereignty or the legislative supremacy of the Queen in Parliament.

The reason is simple: the Court decides because the UK (among other states) has instructed it to do so, not just once but on many occasions.

The ECHR is an international treaty between (now) 47 states.  The UK signed and ratified the original version over 60 years ago.  It therefore binds the UK in international law.  The UK did not immediately accept the jurisdiction of the Court (and originally the European Commission of Human Rights) over applications by individuals who complain that a state has violated their rights under the ECHR.  That was at first optional.  It was 1965 before a British government declared, under what was then Article 25 of the ECHR, that it would accept the jurisdiction of the Court in relation to individual complaints.  That carefully considered decision was temporary.  Successive UK governments had to decide whether to renew it, and did renew it, every five years until the 1990s.

At that point, a new treaty, Protocol No. 11 to the ECHR, thoroughly renovated the ECHR’s procedural rules.  When negotiating this treaty, the UK agreed with all the other states which were parties to the ECHR that states should all accept, permanently, the jurisdiction of the Court over cases brought against the states by individuals.  The UK’s government signed and ratified Protocol No. 11, which came into operation in 1998.  By virtue of that, the UK as a High Contracting Party voluntarily accepted what became Article 34 of the ECHR:

‘The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto.  The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.’

As a High Contracting Party to the ECHR, the UK also voluntarily accepted what are now Article 44, providing that a judgment of a Chamber of the Court becomes final after three months if not referred to the Grand Chamber (earlier if the respondent state indicates that it will not seek to refer the case to the Grand Chamber), and that judgments of the Grand Chamber are always final, and Article 46.1: ‘The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.’

This makes four points clear.

First, the Court decides cases against the UK because the UK (among other High Contracting Parties) told it to do so.

Secondly, the Court’s judgments bind the UK in international law because the UK (together with other High Contracting Parties) decided that they should be binding.

Thirdly, this came about as a direct result of an exercise by the UK of its state sovereignty in international law.  It is no more (but no less) a limitation of that sovereignty than any other set of treaty obligations which the UK voluntarily assumes.

Fourthly, it has nothing to do with the legislative sovereignty of the Queen in Parliament.  That is a principle of national, constitutional law, which is of no interest to international law as long as it does not breach, or prevent the UK from meeting, its international legal obligations.  Treaty-making in the UK is a prerogative of the Crown, exercised by (typically) ministers.  They are accountable to Parliament for their actions, and sometimes an Act of Parliament may be needed in order to discharge the obligations which arise from treaties, but ministers’ authority to make treaties does not depend on parliament.  That is one reason why constitutional law in the UK does not allow treaty provisions to create rights or obligations in domestic law without legislation: see Jeffrey Jowell and Dawn Oliver (eds), The Changing Constitution 7th edn (Oxford: Oxford University Press, 2011), ch. 5.  By the same token, nothing contained in an Act of Parliament can affect the obligations which bind the UK in public international law.

David Feldman is Rouse Ball Professor of English Law, University of Cambridge, and a Fellow of Downing College, Cambridge

Suggested citation: D. Feldman, ‘The European Court of Human Rights and the UK – Why Should Strasbourg Decide On Our Human Rights?’ UK Const. L. Blog (7th December 2012)(available at http://ukconstitutionallaw.org).

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Colin Harvey: Who ‘Deserves’ to be a Refugee?

harveylargecroppedDoes ‘status’ really matter? In the global age of human rights it seems that being a ‘person’ is all that should count.  Human rights apply to everyone. As we know, from recent political debates in the UK (noted here by Gavin Phillipson), this includes terrorist suspects. Successive UK governments, and Prime Ministers, have expressed frustration about the implications of human rights law for deportation. Often portrayed as the example of the excesses of rights-talk, it is in fact frequently little more than the result of fairly conservative institutions (national and European courts) consistently applying mundane and accepted legal principles. You would not think it.

Has the cosmopolitan, post-national human rights era thus arrived? A glance reveals that categories still determine our lives. Who you are, where you live, and where you are from matters; labels will dictate your treatment by states and by others. Even on the move, we remain situated selves. In a world where human displacement is the norm, the reality of need is often presented through refugee movements. Here, the ‘humanity’ in human rights arises in several senses. The obvious one is the plight of those effectively stripped of the notional embrace of the citizen-state bond – human persons seeking asylum. Recognising ‘humanity’ also carries something more: the complexities and agency of real people. Those in flight may be doing so precisely because of their active political involvement and deliberate actions elsewhere – another dimension of ‘being fully human’. The tricky part for some is holding to the position that the behaviour, conduct or actions of the person are irrelevant to the assessment of the application of a particular right – no one (jurisdictionally included) is, for example, ‘undeserving’ of the rights contained in Article 3 of the European Convention. Governmental disbelief that the behaviour of the person cannot be ‘factored in’ is not disguised; on this thinking perhaps some are less deserving that others of the guarantee of non-refoulement?

International refugee law is a bit different. An international regime of protection emerged based around the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (with international institutional support from the UN High Commissioner for Refugees). It is a system that balances the instrumental needs of states (how could it not?), with the humanitarian imperatives of international refugee protection. It does so by defining refugee status (well-founded fear of being persecuted for a Convention reason), and including a range of protections for refugees. The ‘inclusion clause’ of refugee law also comes with provisions for ‘exclusion’; practically incorporating the notion of ‘deserving’ and ‘undeserving’. Now, compare this with the much discussed implications of Article 3 of the European Convention, noted above.  From Chahal v UK to Saadi v Italy to Ramzy v the Netherlands and beyond, the European Court of Human Rights (much to the irritation of several governments, including the UK) consistently holds to the ‘absolute’ nature of the Convention’s non-refoulement guarantee, even in national security cases. The sole issue – for Article 3 purposes only – is whether there are substantial grounds to believe there is a real risk of ill-treatment, irrespective of the individual’s conduct, actions or behaviour. No one is thus excluded for those reasons. Plus, there is no need to demonstrate that the ill-treatment must be feared for any specific reason, as in refugee law. So, is refugee law redundant? Not quite. Although other forms of humanitarian protection have arisen, in recognition of these developments in human rights law, it still tends to matter substantively whether a person is a refugee or not. Being granted refugee status brings more robust guarantees with it – thus exclusion remains meaningful.

The Supreme Court recently addressed this in Al-Sirri v Secretary of State for the Home Department; DD (Afghanistan) v Secretary of State for the Home Department. The exclusion clauses of refugee law are found in Article 1F of the 1951 Convention:

 ‘The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

 (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.’

Article 1F(c) was at issue in both these cases (it was already accepted that return was not an option for human rights reasons), and they must be viewed in the context of the provisions of the EU Qualification Directive, and the linkage to ‘terrorism’ made in s.54 of the Immigration, Asylum and Nationality Act 2006.

In Al-Sirri the essential questions related to this connection to ‘terrorism’, and the standard of proof to be applied in Article 1F cases (his asylum claim in the UK was refused for Article 1F(c) reasons due to alleged involvement in terrorism). Are all actions defined as ‘terrorism’ in domestic law automatically contrary to the purposes and principles of the UN?  Does the international condemnation of terrorism (but absence of an agreed international definition) mean that states have discretion – for refugee law purposes – to interpret these provisions as they wish, or do the terms  have a ‘true’ and autonomous meaning tied to international peace and security?  If the exclusion clauses are simply equated with expansive notions of ‘terrorism’ will they be co-opted into a worrying global counter-terrorism framework to the detriment of international refugee protection?

Following closely the approach outlined by UNHCR, the Supreme Court here attempted to ensure that the imperatives of international refugee protection are respected in these assessments by requiring a narrow interpretation and applying it restrictively. It did so by insisting that although not ‘war crimes’ or ‘crimes against humanity’ (as in Article1F(a)) the acts must be similarly serious, states are not free to adopt their own definitions, and while there is no international adjudicative body for refugee law, UNHCR views should be given ‘considerable weight’. UNHCR’s Guidance was expressly endorsed, the link to international peace, security and peaceful relations between states underlined, and the Supreme Court noted (following Sedley LJ in the Court of Appeal) that the adoption of the ‘terrorism’ definition in s. 54(2) of the 2006 Act should be read down to ensure it remains within the confines of Article 12 of the Qualification Directive (reflecting and elaborating on Article 1F). However, although referencing the lack of an agreed international definition, the Court stated:

 ‘[39]. The essence of terrorism is the commission, organisation, incitement or threat of serious acts of violence against persons or property for the purpose of intimidating a population or compelling a government or international organisation to act or not to act in a particular way…it is, it seems to us, very likely that inducing terror in the civilian population or putting such extreme pressures upon a government will also have the international repercussions referred to by the UNHCR’.

The Supreme Court stressed that not all acts which sought to destabilise another country would fall within this clause. Again, this should be context dependent and should ‘have the requisite serious effect upon international peace, security and peaceful relations between states [40].’

The term ‘serious reasons for considering’ governs the standard to be applied in Article 1F cases. What does it mean? Should we think about this in domestic criminal or civil terms?  Again following Sedley LJ in the Court of Appeal, the Supreme Court rejected the domestic analogies, expressly noting that the criminal standard does not apply. The favoured approach is to use the words of the Convention, with the guidance that ‘serious reasons’ are stronger than ‘reasonable grounds’, the evidence must be ‘clear and credible’ or ‘strong’ and that ‘considering’ is stronger than ‘suspecting’ or ‘believing’. This was of especial concern in Al-Sirri because criminal charges of conspiracy to murder had been dismissed against him, yet the Asylum and Immigration Tribunal had concluded there were serious reasons for considering he had been engaged in activity which fell within Article 1F(c).

In DD the issue was an armed insurrection in Afghanistan against the International  Security Assistance Force (ISAF), and whether such action would be ‘contrary to the purposes and principles of the UN’. Holding again to the independent interpretation of the refugee law provisions, and rejecting the argument that this would only apply to attacks on the UN Assistance Mission in Afghanistan and not ISAF, the Court held that the exclusion clause would apply to such acts.  Even the narrow and restrictive reading endorsed by the Supreme Court thus had its evident limits.

For refugee law purposes, status continues to matter. Who is a ‘refugee’ is contested in case law around the world, and the law insists that – however narrowly or restrictively interpreted – there will be some who will not merit ‘refugee status’, even if a well-founded fear of persecution exists. This does not mean return is permissible – human rights law may well rule it out – but it will impact on the standard of treatment the person can expect.

In cases such as Al-Sirri and DD we see a judicial attempt to ensure a careful, contextual, case-by-case assessment; one that resists excessive and blanket approaches that would enlist the exclusion clauses within an ill-defined global counter-terrorism policy. As is apparent from both cases, it still leaves room for their considered application. As states urge more and more interpretative flexibility in national security contexts, there is always a real risk that the ambitions and ‘logic’ of counter-terrorism policy will colonise other fields of humanitarian protection. International refugee law accommodates the national security concerns of states amply; too much in fact for many. Further erosion of refugee rights through an overly inclusive reading of the exclusion clauses – pressed hard by government here – would be unwelcome, and the Supreme Court has evidently rejected this route.

Perhaps these cases should draw our attention once again not simply to the ongoing and at times obsessive focus on return, but exactly what guarantees we should expect for all those who ‘enjoy’ various forms of international protection or who join the ranks of ‘non-returnable persons’?

Colin Harvey is Professor of Human Rights Law, Queen’s University Belfast

Suggested citation: C. Harvey, ‘Who ‘Deserves’ to be a Refugee?’ UK Const. L. Blog (30th November 2012) (available at http://ukconstitutionallaw.org).

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Andrew Le Sueur: Have you heard the one about Jimmy Carr, ‘The Guardian’ and a small British island?

There aren’t many good jokes about constitutions. In fact, I’m not sure there are any jokes about constitutions. Be that as it may, British comedian Jimmy Carr has  sparked a debate about the constitutional future of a small British island off the coast of France. Carr isn’t my cup of tea. I sat next to him on a flight to Jersey once; we didn’t talk and I find his humour too close to the snide and oily end of the comedy spectrum. But clearly my view’s not widely shared as he’s made lots of money and put some  into a tax avoidance scheme in Jersey. The prime minister said it was immoral, Jimmy’s been contrite, and Guardian readers are being asked in an online poll ‘Should Jersey have constitutional independence from the UK?’ At the time of writing (the poll is still open) 62.3 per cent of respondents say ‘yes’. Judging by readers’ comments, most would add ‘… and good riddance’.

What’s puzzling is that while independence talk is fast and frequent in the north of the Kingdom, in the southernmost part of the ‘British Islands’ (a legal term of art: see theInterpretation Act 1978, schedule 1) it’s sporadic and peripheral.

There aren’t many buses serving the rural parish in Jersey where my family has lived in since the 14th century, but I suspect a straw poll on the No.4 would reveal four reactions and an overall picture completely at odds with the Guardian poll.

(1) Don’t be silly! How can a 46 square mile island with a population of 100,000 become a sovereign state? That would be like ‘Passport to Pimlico’.

(2) No independence please, we’re British! There’s no doubt that Jersey is British, even if names of people and places are often in French (and these days, Portuguese and Polish). Some people fear that independence would undermine cultural, family and economic ties with the UK.

(3) That would be bad for business! Jersey’s economy is dominated by the finance sector. There are frequent skirmishes – OECD initiatives on harmful tax competition, EU pressures on ‘zero-ten’ tax policy, VAT low value consignment relief, Jimmy Carr. It is an industry that sells, among other things, the allure of constitutional stability and talk of change risks deterring customers.

(4) We don’t trust Jersey politicians and ‘the Establishment’! Some people argue that independence would remove the safety net of UK government’s longstop ‘good governance’ oversight of the island’s internal affairs.

It wouldn’t surprise me if nobody on the bus were in favour of independence. But times change and constitutional ideas that in one era are marginal can gain traction.

A Crown dependency

What is the current position? Jersey, along with the entirely separate island jurisdictions of Guernsey and the Isle of Man, are constitutionally speaking ‘Crown dependencies’. They enjoy (and have done for centuries) something along the lines of ‘devo max’ proposed for Scotland: the islands have full fiscal autonomy and are for almost all purposes internally self-governing. They have never been part of the UK. The Queen formally makes some senior appointments and the Crown is represented by a Lieutenant Governor, which many people think lends an air of dignity and ceremony to island life. From the island’s point of view, another benefit of the current set-up is that there is no need for any defence provision, diplomats, or other apparatus of statehood.

The Crown dependency relationship is not set in aspic. In recent years, the islands have collectively and individually asserted greater autonomy. In an interconnected world, the previous internal (leave it to the islands)/external (leave it to the UK) dichotomy doesn’t work as well as it did.

The islands were given a place at the table of the British-Irish Council (without much consultation I suspect) in 1999. The preamble to the States of Jersey Law 2005 captures the direction of travel as it recites ‘WHEREAS it is recognized that Jersey has autonomous capacity in domestic affairs; AND WHEREAS it is further recognized that there is an increasing need for Jersey to participate in matters of international affairs …’.  In 2007, the Jersey and the UK governments agreed a concordat (Framework for developing the international identity of Jersey). Jersey has been allowed sufficient international legal personality to sign international agreements with other countries (on double taxation and tax information exchanges). In 2010, the all-party UK House of Commons Justice Committee in their inquiry into Crown dependencies was supportive of greater autonomy and critical of meddling by the UK Ministry of Justice. Jersey and Guernsey have opened a representative office in Brussels and another is planned forLondon.

Against this background – which many in the island would see as the best of both worlds – there has been little appetite for independence. A few years ago, advised on constitutional issues by Sir Jeffrey Jowell QC, the Jersey government carried out a feasibility study about what independence would entail and how much it would cost, but this was presented as prudent contingency planning.

Sir Philip Bailhache (Jersey’s former Bailiff who stepped down from judicial office to stand in the 2011 election election, and who is now ‘foreign minister’) has shown tenacity in putting the idea of independence on the agenda of elite circles of lawyers and financiers – who listen politely but whom I sense are unconvinced of either the desirability or practicality of independence. Notwithstanding Guardian headlines, he says that he not advocating independence but rather calling for the continued evolution of Jersey’s relationship with the UK Government.

Constitutional politics of independence

It is difficult to know what ordinary people in Jersey think. Certainly, there is no grass roots independence movement. The politics of independence are strange. Unlike Scotland and Wales, nobody with left or green leanings in Jersey seems to have spotted the opportunities that severing the apron strings from London civil servants and UK ministers would bring. Most members of Jersey’s disorganised centre-right government in the party-less States, would probably rather the ‘I word’ was not used in public. Instead, the talk is of developing an international personality (described above) and standing up to the UK (whatever that means). Despite difficult economic times, the finance industry is doing well in Jersey at the moment (in 2011 there was a reported upturn in profits of just under £1.1 billion). With both the progressives and the pro-finance industry establishment politicians against independence, it’s unlikely we’ll ever find out what people on the No.4 to Trinity think.

The direction of travel

Evolution rather than revolution therefore seems to be the most likely course. I have two suggestions for further change to core aspects of constitution – the legislative process and arrangements for appointing judges – that are likely to irk both progressive and establishment thinking in Jersey (so they must be about right).

First: the grant of royal assent to legislation passed by the assembly of the States of Jersey should be patriated to the island. Currently, Laws are subject to a vetting process by a team (in these straitened times, probably of one) in the Ministry of Justice before being cleared for royal assent through the Privy Council. In its 2010 inquiry, the UK House of Commons Justice Committee was satisfied that the Law Officers’ Department in Jersey was more than capable of carrying out human rights audits of proposed new laws. Although I gather there’s subsequently been some streamline of processes in London, a more radical solution is needed: get rid of the London add-on to Jersey’s legislative process. The price to be paid for this, however, is that Jersey’s elected representatives would need to up their game and take an interest in ensuring that they are satisfied with ministers’ and law officers’ assurances on human rights compatibility are credible. Former Deputy Bob Hill failed in his attempts to involve Jersey’s parliamentarians in reviewing legislation through an official human rights scrutiny committee. This would need to be revisited.

Second: responsibility for appointing judges and the law officers of the Crown should be patriated. The UK Ministy of Justice currently has the final say on appointments of the most senior judiciary, and on their removal (the Home Secretary, the minister then responsible for Crown dependencies, removed Deputy Bailiff Vernon Tomes from office in 1992). What Jersey should have, in my view, is an independent judicial appointments commission (consisting of locals and expert outsiders) responsible for all judicial appointments. As well as signifying the autonomy of the island’s legal system, a judicial appointments commission would solve two problems. It is wrong as a matter of constitutional principle for one judge to appoint another: I would therefore remove the Bailiff’s power to appoint magistrates. On constitutional principle, I am also against judicial selection by election: jurats (the senior lay judges of fact in the Royal Court) are chosen by an electoral college of politicians and the legal profession in secret ballot.

À la préchaine.

Andrew Le Sueur is co-convenor of the UK Constitutional Law Group.

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Noreen O’Meara: Reforming the European Court of Human Rights: The Draft Brighton Declaration

Efforts to reform the European Court of Human Rights are defining the UK’s chairmanship of the Council of Europe, a six-month term which comes “once in a generation”.  With the docket and adjudicatory problems affecting the Strasbourg court well-known, the UK is seeking to build on previous recent efforts to streamline practices at the Court, most notably measures agreed at high-level conferences at Interlaken (2010) and Izmir (2011).

In contrast with the public and sound-bite infused speech in which Prime Minister David Cameron outlined the UK’s motivations for using its chairmanship to advance reform of the European Court of Human Rights last month, the Draft Brighton Declaration was finally leaked yesterday (first in French, later in English), following its transmission to High Contracting Parties last week.  The Draft Declaration will be subject to intense negotiations in the lead-up to the Brighton Ministerial Conference on 18-20 April 2012.  Indeed, there will be much to discuss: the draft, informed by discussions within the Council of Europe, puts (almost) everything in relation to the Court’s adjudicatory role, and national courts’ relationship with it, on the table.  A sign, perhaps, that the government appreciates the limited prospects of securing unanimous agreement on many of the aspects covered by the Draft.  Nevertheless, the proposals raised by the Draft Declaration make interesting reading, particularly in light of the ECtHR’s Preliminary Opinion of the European Court of Human Rights adopted on 20 February 2012.  This post focuses on a select few.

Proposals on subsidiarity?

The most prominent feature of the Draft Declaration is its emphasis on ‘subsidiarity’.  In his recent speech, David Cameron emphasised strengthening subsidiarity, promising proposals “pushing responsibility to the national system” in order to “free up the Court to focus on the worst, most flagrant human rights violations”.

The Draft seeks to do this via a range of methods.  First, paragraph 19(b) calls for the enhancement of the principles of subsidiarity and the margin of appreciation “by their express inclusion in the Convention”.  As Antoine Buyse has noted, it is unclear what impact, if any, including these principles would have in practice.  It would be trite to recount the extensive case law showing that the Strasbourg judges are conscious of and respect the principle of subsidiarity.  Most recently, and in the UK context, the Grand Chamber’s judgment in Al-Khawaja on the use of hearsay evidence showed a clear example of dialogue in action between the UK Supreme Court and ECtHR.  Interestingly, the Draft mentions a range of ways in which this dialogue could be enhanced, though judgments, the work of the Steering Committee for Human Rights and though Government influence on amending Rules of Procedure of the Court.

Secondly, a raft of measures are suggested in Section A aimed at strengthening national systems through their implementation of the Convention.  Some proposals are laudable (internal checks on compatibility of legislation with the ECHR (para 12(c)(i) and (ii)); new domestic remedies where appropriate (para 12(c)(iv); greater training for public officials (para 12 (c)(vii) and (viii)).  There is much scope for rationalising domestic human rights adjudication in the jurisdictions of High Contracting Parties.  However, it is surprising that more is not made of the remedies point (perhaps being a subtle reference to the inappropriate “small claims court” sound-bite in Cameron’s speech).  Making better provision for remedies at the national level may well avoid recourse to Strasbourg for many claimants.  But what about the appropriateness of remedies awarded by Strasbourg?  Is ‘just satisfaction’ just?  The absence of a consideration of remedies at both national and ECtHR levels is an odd omission—deferred for future consideration in the longer-term (para 42(e)(iii)).

Thirdly, measures which tie subsidiarity in with jurisdiction and docket control.  The Draft’s proposed ‘advisory opinion’ mechanism (para 19(d)) would allow highest national courts to refer questions to Strasbourg, and allow national courts to apply the opinions provided to the facts of the case. Presumably modelled on the preliminary reference system in the EU legal order, this human rights version looks, at first glance, a neat way of clarifying “the respective roles of the Court and national judicial systems” (the UK government’s express motivation – para 19(d)) and of engaging highest national courts even more deeply in a human rights dialogue with Strasbourg.  However, the mechanism is couched in language which could harm both comity and access to justice.  Its terms are currently loose: the mechanism itself would be an opt-in; highest national courts would have (seemingly) unfettered discretion to refer; advisory opinions delivered by Strasbourg would be non-binding; and above all, litigants would “not ordinarily” have recourse to the ECtHR in the same proceedings following a national court’s application of an opinion to the facts.  This initiative may prove workable (with more robust terms) but would do little to alleviate the Court’s docket.  Transposing a version of the preliminary reference mechanism to a purely human rights context requires more thought.  As such, the ECtHR has indicated that it will issue a ‘reflection paper’ on the merits of an advisory opinion mechanism in due course.

Taking a sledgehammer to crack admissibility?

The measures which may attract debate in inverse proportion to their likelihood of being accepted are the Draft’s proposals on admissibility.  The Draft attacks the admissibility problem two-fold.  The first suggestion would reduce the deadline for making an application to the ECtHR from six months to either two/three/four months from the date domestic remedies have been exhausted.  The sledgehammer approach may not impact litigants in a jurisdiction where they are likely to be promptly advised of the merits or otherwise of making an application to Strasbourg, and where support from NGOs may be forthcoming.  Across the High Contracting Parties, this is not the norm.  Moreover, simply cutting the deadline to two, three or four months is easier than enquiring into the working practices at the Court in terms of its handling of admissibility (see Ben Jones’ assessment and Andrew Tickell on mythbusting admissibility).  On this specific point, however, the ECtHR will prove welcoming: its latest observations indicating that it may be possible to reduce the six-month time limit “considerably” having regard to time-limits in place in national jurisdictions.

Perhaps most controversially, the Draft proposes rendering applications stemming from cases considered by national courts inadmissible unless (i) the national court “erred” in interpreting Convention rights; or (ii) the application “raises a serious question” relating to the interpretation or application of the Convention (para 23(c)).  This stretches far beyond simply making efficiency changes in Strasbourg, or efforts to transform the relationship between national courts and the European Court of Human Rights.  This could change the character of the Strasbourg court, and potentially strikes at the heart of what the court is meant to offer and achieve: access to justice for the adjudication of human rights violations.  Reforms adopted must not indirectly dilute the accountability of states.  There are possible risks to judicial comity and access to justice in the proposals as currently framed.  However, this is a debate the Strasbourg court rightly wants to have – its observations expressly encourage the High Contracting Parties to “identify solutions” relating to admissibility and docket control.

Overall impression

Whilst certain other reform measures (particularly those relating to the appointment of judges, and support for the Council of Europe’s work in implementation of the Convention) are logical and may have mileage, the overall impression at this early stage of negotiations is somewhat underwhelming.  Opportunities to make recommendations regarding resources, and address remedies (comprehensively) appear to have been missed.  Given the enthusiasm for reforming the court—and reaffirming support for the strong ECtHR which citizens need—it is a shame that many of the suggestions, at least in their draft form, either lack rigour or appear misplaced.  To that end, the ECtHR’s own pre-Brighton observations adopted on 20February also offer some pragmatic suggestions tailored to specific types of cases.

Notwithstanding some shortcomings, this is a varied road-map for reform: its thematic range and hard-line attitude in favour of promoting human rights adjudication in national courts may do no harm in shaking up the debate on the future role and practice of the European Court of Human Rights.  It’s a debate which, building on agreements at Interlaken and Izmir, may finally be maturing.  It will be interesting to see how much of the Draft Declaration survives April’s Brighton Conference, and how the current proposals will evolve.

Noreen O’Meara – Lecturer in Law, University of Surrey; Doctoral researcher, Queen Mary, University of London

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Christian Djeffal: Constitutional paths not taken: Germany vs. Italy before the ICJ

On 3 February 2012 the International Court of Justice (ICJ) gave the eagerly awaited judgment in the case Jurisdictional Immunities of the State. It held that Italy violated its international obligations towards Germany in three instances. Firstly, civil claims based on violations of humanitarian law during the Second World War were allowed before Italian courts. Secondly, measures of constraint were taken against German state property, namely the ‘Villa Vigoni’. Thirdly, judgments based on violations of humanitarian law in Greece during the Second World War were declared enforceable in Italy. The issue before the court concerned several hundred thousand Italian soldiers that were detained by the German army after Italy declared war on Germany, deported to Germany and German occupied territories and forced to work without remuneration. These internees did not qualify for German schemes that aimed to compensate victims for different reasons. Although the Italian state received compensation for outstanding claims of natural and legal persons it did not compensate the former internees.

At the heart of the case lied the question whether Germany could invoke state immunity or whether there existed an exception to the immunity so that Italian courts could establish their jurisdiction. Using Joe Weiler’s metaphor of the geology of international law, one could say that the law of state immunity is rooted deep in the lower layers of public international law where maxims like par in parem non habet imperium of Bartolus de Sassoferato played an important role in justifying that one state has no jurisdiction over the other.

Have new strata changed the nature of the law on state immunity? To answer this question, the court had to apply customary international law as all attempts of codification on the regional or international level failed to attain universal consent of the states.

The ICJ employed a positivistic and source oriented approach. Whereas the court has in several instances been criticised for not providing enough evidence of state practice or opinio juris or being unclear how the two categories interrelate, the case at hand will find its way into all relevant textbooks and articles on the matter as the court approached the questions systematically and thoroughly.

The big question was whether there were any exceptions to state immunity that could be invoked by Italy. Of the several reasons brought forward by Italy the ‘ius cogens exception’ was most controversially debated in the last twenty years. This discussion was triggered by an innovative essay of three American law students arguing that states should not be allowed to claim immunity if they violated ius cogens norms. This fresh take on the matter found some support in American and European academia. Before the judgments of Italian courts, there were no precedents holding that the violation of ius cogens norms trumps state immunity although in the Al-Adsani case before the ECHR it was only a very slim majority of 9 to 8 judges that rejected the theory.

The opinion of the ICJ is, however, deeply rooted in the traditional layers of public international law. It regards the law of state immunity as a procedural matter as opposed to the substantive question of lawfulness. Pointing to its jurisprudence as well as to the jurisprudence of national courts it substantiated this distinction. These are, of course, sound arguments. Another decision might have opened the floodgates of domestic proceedings all over the world and disrupted the smooth course of diplomatic relations. Unique places for cross-cultural encounter like the Villa Vigoni might have been endangered.

But the court knew the price for upholding state immunity: although there was an undisputed and flagrant violation of fundamental norms of international law, the victims were left without compensation. The ICJ mentioned that the states still had the possibility to put things right through negotiations. But these parts of the judgment show the uneasiness of the court facing this kafkaesque situation in which people stand before the law that is made for them but are kept outside by the doorkeeper named state immunity.

One might argue that the norms of ius cogens are higher law and could be termed as constitutional norms. While one might detect a process of ‘constitutionalisation’ in international law, the case at hand clearly shows that there might be constitutional norms but yet no constitutional courts.

Legal history has seen many acts of judicial self-empowerment in which courts have asserted their capacity to effectuate the normative hierarchy. These judicial revolutions like in Marbury vs. Madison or Costa/E.N.E.L. were based on the premise that hierarchy had to become effective in legal reality and justified by teleological arguments.

The ICJ might have asked whether the ratio of state immunity, the protection of sovereign equality, also applies to the protection of community interests. Whether one more exception to state immunity would really have uprooted the system of public international law. Whether fundamental norms can really be isolated from procedural norms in such a rigid way. Recent scholarship has tried to reconceptualise the role national courts play in international law. The ICJ could have changed its perception of national courts as being solely organs of the state and moved more towards perceiving them also as agents of international law.

But it did decided to play it safe and confine its arguments to state practice and precedents. As previously mentioned, it can be said that the ICJ had good reasons for the decision. If there ever was a development towards another exception to state immunity, this judgment will have frozen it for the years to come. While Judges Yusuf and Cançado Trindade dissented on the question, even the Italian Judge ad hoc Gaja and Judge Simma, being a leading human rights lawyer at the court, were in line with the court’s solution with regard to ius cogens. So there seems to be little indication that international lawyers will take another path. So it seems that the doorkeeper will stay before the law.

Christian Djeffal is research assistant at Humboldt University Berlin and works on evolutive interpretation of treaties in international law.

 

This post originally appeared on the Verfassungsblog, and is reposted with thanks.

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