Category: english

KJ, SK. Group 9

This section opens with a detailed account of the Lustig- Prean and Beckett case that came before the European Court of Human Rights.

These two British nationals complained that investigations into their homosexuality their discharge from the Royal Navy on the sole ground that they are homosexual violated Article 8 of the European convention.
Article 8 reads:

1) Everyone has the right to respect for his private life…

2) There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security…for the prevention of disorder.

Lustig-Prean had been working in the Royal navy since 1982 and through various recommendations and evaluations were promoted to lieutenant commander. Early in 1994, the Royal Navy Special Investigation Branch had anonymously been given an allegation of his homosexuality. In December of the same year, Lustig-Prean was discharged on grounds of his sexual orientation.

A homosexuality Policy Assessment Team( HPAT) was established by the Ministry of defense to make an internal assessment of the armed forces policy. It was considered that any problems would lie in the difficulties which integration of declared homosexuals would pose to the military system which was largely staffed by heterosexuals. The assessment centered around the notion “that it was considered well established that the presence of known or strongly suspected homosexuals in the armed forces would produce certain behavioral and emotional responses and problems which would affect the morale and in turn significantly and negatively affect the fighting power of the armed forces.”

The matter was debated in the House of Commons and the majority rejected any change to the existing policy. ( 188 votes to 120)

Taking into consideration article 8, the Court could consider the investigation into the private lives of these two officials in the Royal navy justified if the second paragraph’s inferences of “in accordance with the law” and “ necessary in a democratic society” could be disputed.

The Government emphasized that this was indeed a special case as it was ultimately linked to the nation’s security. While not denying the member of the armed forces the right to the convention’s protection they claimed that stricter rules applied in this special case of national security. Furthermore, the government’s core argument in support of the policy was that the presence of open or suspected homosexuals in the armed forces would have a substantial or negative effect on morale and on the fighting power and effectiveness of the armed forces.
The court of the other hand noted the lack of concrete evidence to substantiate the alleged damage to morale and fighting power that any change in policy would entail. The Court found that neither the investigation conducted into the applicants sexual orientation, nor their discharge on the grounds of their homosexuality were justified under article 8 section 2.

Comment on blasphemy cases.

This section evaluates the issues of conflicts between the rights of freedom of expression found in Article 10 and the rights freedom of religion found in Article 9. The cases of Otto-Preminger-Institut v. Austria and Wingrove v. United Kingdom are used to illustrate the problems that arise. In both cases films were made that were considered religiously offensive by the state portraying biblical characters malign and sultry. In the first case the film was seized and forfeited by the state under claims that it infringed upon the rights of others to freedom of religion by disrespecting other’s religious feelings. The creators of the film argued that their rights to freedom of expression had been violated by the state. Similarly, the director of the other film in the second case claimed that his rights to freedom of expression had also been violated by the United Kingdom when they would not grant him a distribution certificate for his video. In both cases the Court decided that there was no violation of article 10 due to the fact that the states actions were merited and “necessary in a democratic society”. (note that in the first case three judges dissented due to the efforts of the association that created the film to prevent offence to viewers)

The margin of Appreciation:
“One analysis of the European court asserts that this concept lies at the heart of virtually all major cases.” Definitions of this concept and its impact of court decision varies.

The margin of appreciation as described by Paul Mahoney an interpretation tool that is needed to draw the line between what is properly a matter for each community to decide at a local level and what is so fundamental that it entails the same requirement for all countries whatever the variations in tradition and culture

Another view, by Franz Matscher is that the theory of the margin or appreciation is the expression of a realistic judicial self-restraint.
Questions:

1)Taking into consideration the special context of living conditions of Royal Navy members, should there be an exception of this type of discrimination based on sexual orientation. ( note comments made by Judge Loucdaides) pg 831.

2) If the Royal Navy was not allowed to discriminated based sexual orientation, and thus allowed homosexuals to be in the navy, is making special provisions as they do for women an option? How would implementing this plan of action be problematic?

3) Is the margin of appreciation a confusing concept that does not necessarily add to the court’s decision? Would it be better if the European court handled issues based on whether state-imposed limitations on the right of freedom can be viewed as “necessary in a democratic society, or is there a needed space for this concept?

Monday, October 27. Group 8: AT, AW, Yongho Kim
Response to the European Convention and the Case of Homosexuality

The European Convention for the Protection of Human Rights and Fundamental Freedoms System constitutes a model and a standard of its own in terms of effectiveness in enforcing Human Rights among its members. The Convention was signed in 1950 and entered into force in 1953. It gives the de facto unity between European members and the “common heritage of political traditions” as reasons for which a universal and effective enforcement of human rights is possible through the Convention. (1423)

Adequacy of a Regional System

The Convention is a place of convergence of several sources of tension in the international human rights movement. The UN was not fond of a competing organization, at least while the UN lacked a comparable treaty on Human Rights (ICCPR and ICESCR). Eastern European states are strongly opposed to the creation of regional systems on the basis that human rights cannot be “regionalized”, applied differently in distinct areas of the world, for it would betray the notion of universal human rights, and because the creation of an organization already being overseen by another – the UN Human Rights Commission – would create problems of consistency and inadequate use of financial resources (783). Western European states argue that a regional enterprise takes away energy from the two global covenants of higher importance.

Claude reflects in the issue pointing out that each problem should be considered to determine if it belongs to a regional or a global realm, but also warns that no single regional human rights issue may escape global impact. He also shows the sensible issue of delineating states into definite regional categories, which has the potential to surpass its purely administrative purpose to hold economic nuances in the geopolitical configuration of the region. The most pressing warning, however, is that regional states may closely collaborate to systematically ignore some specific human rights issue. (782) He concludes indicating that a global organization is always in the best position to mediate international conflicts and that, according to the UN Charter, the “United Nations should be supreme.”

Institutional Enforcement

Three regional organizations hold relationships with the monitoring and enforcement of the Convention. (789) The Council of Europe is the creator of the Convention and upholds democracy, the rule of law and human rights; states wishing to enjoy trade benefits through the European Union normally join the Council of Europe first. The European Union, which can be historically traced back to another economic treaty in 1952, has developed into a comprehensive political and economic unit which encompasses the abiding of human rights as one of its side concerns. The Organization for Security and Co-operation in Europe (OSCE) is a political organization created in the midst of cold war (1975) as a result of negotiations between the Soviet Union and the NATO bloc; its highlight is the High Commissioner on National Minorities who works on “issues of ethnic tensions that threaten peace and stability”. (793)

Section II of the Convention (Art. 19-51) establishes the European Court of Human Rights, which oversees and enforces cases of violations of human rights. ICCPR HRC and the Inter-American Court often refer to decisions of the European Court (808) and the Court itself recalls its own decisions in justifying rulings, indicating a high degree of authority enjoyed by the European Court.(810) The strongest support for the Convention comes from its binding force. Article 46, Paragraph 1 (not 53, as in p.809) states that “The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.” (1431). Additionally, the Convention fashions the highest authority in matters of human rights opinions, a highly developed judiciary, and the implicit benefit of economic and political integration as incentive.

Questions:

1. What are the overlapping (can they work hand in hand on a functional basis) and potentially conflicting (do they go against each other) areas between the national, regional and global legal systems?
2. If many Eastern European countries sign onto the ECHR as a ‘homework’ for joining the EU, what other incentives can be utilized in other regions of the world where the economic/ political motives are not applicable?

The issue of morals and homosexuality

Two related rulings throw light into the judicial proceedings of the European Court. One is the case of Handyside, in which the Court supported the decision of the UK Magistrate’s Court in censoring “The Little Red Schoolbook”, a reference book for children with liberally permissive contents on matters of sexual behavior, contraception and prevention of venereal diseases. Handyside claimed a breach of the right to Freedom of Expression (Art.10), to which the UK replied that it would “corrupt and deprave” children, appealing the protection of morals stated in Paragraph 2 of the same article. The European Court stated that it was not possible to find “a uniform European conception of morals”, and that therefore it was up to the state to settle the issue, bringing up the notion of “margin of appreciation”, an judicial space in which the state was to exercise discretion. (812)

The next case, Norris v. Ireland, has been presented along with the U.S. Supreme Court’s ruling on another similar case (Bowers v. Hardwick), and deserves close inspection.

Norris v. Ireland United States
Antecedent Ireland is party to the European Convention. Hardwick was arrested immediately after engaging in oral sex act by a surveilling police.
Relevant local legislation 1. Person Act (1861) sec.62: indecent assault upon a male person… subject to prison sentence not exceeding ten years
2. Criminal Law Amendment Act (1885) sec.11: act of gross indecency with another male… imprisonment not exceeding two years.
3. Constitution Art.29(6): no international agreement shall be part of the domestic law 1. Georgia statute: “any sex act involving the sex organs of one person and the mouth or anus of another” is a crime of sodomy.
2. US Constitution, Amendment 14: sec.1. …No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.

Accusation The law against homosexuality leads to: 1. Depression because of likely criminal persecution upon overt expression of sexuality. 2. Fear of prosecution. 3. Laws are no in accordance to the European Convention 1. Statute condemning oral or anal sex act is unconstitutional based on Due Process clause of the 14th amendment. (Prior decisions related to procreation, family and abortion relied on an implicit right of privacy)
Local ruling High Court: dismissed, although depression is possible. Accuser appealed directly to Supreme Court.

Supreme court ruling & reasons 1. Argument for European Convention rejected: Laws do not need to be in accordance. (Const.29)

2. Christian nature of Irish state is consistent with lack of privacy encompassing homosexuality, which is:

a. is against Christian teachings and nature. (moral) b. can lead to depression, despair and suicide. (psycho-clinical) c. has resulted in venereal diseases. (public health) 1. Constitution should not confer rights to homosexuals when many States are already involved in illegalizing it: a. Family and homosexual activity are unrelated. b. When the 14th Amendment was ratified, 86% of U.S. states had criminal sodomy laws. (Thus 14th Amendment was not understood as upholding homosexuality.) c. Law is based in morality. d. Court does not have time to bother with new interpretations of existing laws. (Justice White)
2. Traditions of western civilization, Christianity, and morals all have historically interfered with homosexuality. (Justice Burger)
Other legal recourse 1. European Convention Art.8. (1) Everyone has the right to respect to his private and family life … (2) except such as is in accordance with the law and is necessary in a democratic society with interests of national security, public safety or economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or …rights and freedoms of others.
2. EHRC ruling on Dudgeon Case (1981) Apparently no other legal recourse.

Reference – South African Constitution (1996) Art.9 (3): The State may not unfairly discriminate directly or indirectly … race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

Support for Accusation European Court: 1. interference is in accordance with [local] law, but is not enough of a basis since there has not been a public demand for enforcement of anti-homosexual law. (39,40,41,46) 2. A similar case previously ruled in favor of private sexual practice in Dudgeon. (44) 3. The issue deals with a highly intimate portion of private life, thus arguments for interfering should be serious; arguments based merely in morals are not sufficient. (46) 1. Dissenting opinions (Justice Blackmun, Brennan, Marshall and Stevens): 1. Philosophy underlying the U.S. constitution is not grounded in morals, but in the interest of the individual; and sexuality is a matter of individual bonds. 2. A legislation failing to justify itself on non-religious grounds is either illegitimate or non-secular. 3. The public realm is not affected when homosexuality is practiced in private space.
2. The government should not have been able to know of Hardwick engaging in oral sex act in the first place. (Tribe)

Questions:

1. Is a “European (or other regional) moral system” impossible to define? If yes, is it conducive to giving the state ‘margin of appreciation’ ?

CH, JM. Discussion Group 7

What kinds of complaints are brought before the ICCPR? How does it differ from other treaty regimes?

One of the components of the ICCPR Human Rights Committee is an optional protocol (ratified by 95 of the 144 states as of March 2000), with a critical provision stating that communications must be ‘from individuals…who claim to be victims of a violation’ by a state party to the Protocol ‘of any rights set forth in the Covenant’. The Committee then evaluates these individual communications, granted that the matter is ‘not being examined under another procedure of international investigation or settlement’, in closed meetings that take all written information available into account. These proceedings are a) meant to be distinct from any current judicial proceedings in the state where the dispute originated, b) do not need to address systematic violations of human rights, c) are written only, d) are closed to the public, and e) the ‘views’ agreed upon, which are ultimately made available to each party involved, are not binding.

While the Committee often comes to the conclusion that specific human rights have been violated, and sometimes provides recommendations to the parties committing violations, the Committee has no binding legal jurisdiction. And while the Committee urges the State party to submit ‘information about the measures taken to give effect to the Committee’s view’ within ninety days after the ‘view’ is disclosed, the Protocol does not enforce this wish. Only about thirty percent of the replies received are considered satisfactory, and many states do not even submit information. Therefore, the case can be considered closed as soon as the report has been forwarded to the parties. The Committee also faces an increasing number of caseloads (due to rising public awareness of the procedure and more state parties involved) and dwindling resources. Thus, the committee can unfortunately only formulate about thirty ‘views’ per year.

Does the Committee seem to be effective? Some things to consider: 1) The fact that the concentration of complaints among states seems paradoxical, since aside from Uruguay and Jamaica (which comprise half of the cases about which the Committee submitted ‘views’) the states that the Committee is examining most often are also the states whose citizens seem to enjoy freedom under the rule of law and the protection of human rights. This discrepancy may be attributed to a citizen’s fear to submit information to the committee, a general lack of awareness of the existence of the Committee in some states, insufficient resources (a citizen in some states may not be able to contact or pay for a lawyer), or perhaps because the person thinks that submitting a report to the ICCPR Committee would be useless given the state of the government in which he/she lives. 2) The fact that some decisions are made by a process of consensus (which can maintain a cooperative approach and anonymity of decision, but can also limit and undermine separate opinions). 3) The fact that the monitoring of human rights violations through the Protocol becomes a secondary function, and that therefore a better alternative may be to build and strengthen regional complaints systems. 4) The nature of the Committee as a nonbinding international organization often means that the Committee’s desires are not meant. Some states, such as Sierra Leone and the United States (in the Breard case) have not responded to requests of the Committee, by not postpone sentences of capital punishment.

Many issues have arisen as to how the Committee should function. The second section details several of these issues of procedure. One of these concerns is centered on the issue of hate speech and the difficult choice between the right to freedom of speech and the right to not be threatened by this hate speech. This issue was brought up in the case of a Danish reporter who did a television program on white supremacist groups that included an interview with several members of an organization that expounded these views. The much-edited interview played on TV, and inspired wrath in the groups attacked by the views that were expressed. Does the media have the right to report on offensive groups and ideas or should it edit out hateful content? Is there a middle ground (i.e. a statement saying that these views are not socially acceptable or valid)? Does this middle ground take away from the media’s ability to be unbiased and non-judgmental? A case was also made that hate speech in the media is dangerous and should not be carefully guarded against by looking at Rwandan propaganda efforts by the media during the Rwandan genocide. This argument stated that the Rwandan media’s efforts led peasant Hutus to slaughter Tutsis. Does the extreme power and control of the expression of opinion possessed by the media make more stringent controls on hate speech necessary?

A second issue raised is the issue of the committee’s ability to challenge standards between different countries. The conflict portrayed was between the governments of the U.S. and Canada. Canada was asked by the U.S. to extradite a man who had committed a series of murders in California so that he could be tried and, if found guilty, possibly be put to death in the gas chamber. Canada does not have the institution of capital punishment, but interpreted the ICCPR as saying that unless death by gas asphyxiation had been declared a human rights offense by the international community, it was okay to extradite the man. The man challenged this choice, claiming that gas asphyxiation was a cruel form of capital punishment, so Canada could not extradite him. This raises issues of the ability of the committee to enforce standards on a very precise and contentious issue within various cultural and legal frameworks. Should the committee be allowed to decide what constitutes a humane form of capital punishment in a country that has democratically established criteria for what is humane and what is inhumane? Should an authoritarian-style government be treated differently?

The second section of the reading concludes with an opinion about the proper role of the Committee. The authors argue that the most important role for the committee is to provide an area of dialogue for the various actors in the human rights system rather than actually impose judgments on certain cases. To this end, the authors argue that the Committee’s procedures should be more open, with accessible, easy-to-read decisions and a discretionary jurisdiction (similar to the U.S. Supreme Court) rather than a mandatory jurisdiction. They feel this would allow the court to do a better job of solving the more contentious issues rather than focusing on individual cases. This raises a few simple questions. What should the role of the Committee be? Is a mandatory jurisdiction or discretionary jurisdiction better?

In addition to the ICCPR Committee, five other treaty bodies have been formed to implement the treaty or monitor state conduct. They are the Committee on Economic, Social and Cultural Rights, The Committee on the Elimination of Racial Discrimination, the Committee on the Elimination of Discrimination against Women, the Committee against Torture, and the Committee on the Rights of the Child.
Primary activity is the consideration of states reports (many of these treaties function similarly, with similar rules to the ICCPR treaty)

The third section of the reading deals with the reporting and complaints structures of the various international human rights treaties. One of the major forms of this is the states’ reports. States have to file reports within the first two years of becoming party to a treaty and then every 5 years after that. These reports have caused certain problems to arise, which have effected certain reforms. One such reform is the practice of allowing states to send representatives to work with the Committee in processing the report. A second is the procedure of examining states who don’t file reports to make sure that the treaties are being followed. A third reform is the growing NGO involvement in the process, as they attempt to monitor governments. However, certain problems remain pressing to this day. For example, Non-reporting is still rampant, as is the practice of superficial reporting. Countries have also increasingly had problems with the many treaty bodies, finding it difficult to satisfy the many different criteria of each treaty body. Some possible solutions to this include reducing the number of treaty committees, filing a single report to all committees or breaking up the report process into individual reporting on specific issues. Are there any other solutions to these problems?

A second institution is that of on-site visits. The Convention against Torture provides a way in which the committee can ask for reports or even visit a country on a specific issue that has raised some concern outside of the normal report schedule. Other treaties include similar provisions for a more intrusive monitoring of participating countries. Do these visits conflict with national sovereignty? How so?

A third sections deals with the outdated practice of interstate complaints. This was originally intended to allow states to file complaints against other states that violated international norms. However, this process has never been used, and thus is not an important piece of the international human rights reporting procedures.

The reading also talks about individual complaints against a country. This allows individuals within countries a way to ensure that states do not break rules set by treaties. These complaints play an important part in ensuring that countries do not secretly break rules because individual citizens can make the international community aware of these violations.