57 research outputs found
Alison L Young, Parliamentary Sovereignty and the Human Rights Act
No full textIn this chapter, Hélène Tyrrell and Conall Mallory assess the significance of Alison Young's Parliamentary Sovereignty and the Human Rights Act. They reflect not just on the importance of the book as a substantial piece of scholarship in its own right but also assess the importance of its timing. The book looked at the changes wrought to constitutional principles by the burst of constitutional modernisation in the late 1990s. This modernisation has arguably been overtaken by a subsequent retreat to traditional Diceyan orthodoxies.<br/
I. European Court of Human Rights Al-Skeini and Others v. United Kingdom (Application no. 55721/07) Judgement of July 7 2011
No full textStates who sign the European Convention on Human Rights agree to ‘secure to everyone within their jurisdiction the rights and freedoms defined’ within the treaty (Article 1). For over fifty years the Strasbourg Bodies of the European Court and Commission of Human Rights have struggled to define the exact limitations of a State’s jurisdiction, particularly when such jurisdiction arises beyond a Contracting Party’s territorial borders.
Within the past decade the European Court of Human Rights has been asked to consider the limits of jurisdiction under Article 1 on a number of occasions. Previously the Strasbourg Bodies had maintained a flexible approach in finding jurisdiction, but in the Banković decision of December 2001 the Court gave a restrictive interpretation of jurisdiction, defining it as ‘primarily territorial’. Since then the Court has oscillated between the restrictive Banković approach and its more expansive early jurisprudence, leading the Law Lords of the UK to state that the European Court’s jurisprudence on this issue does “not speak with one voice”.
This piece critically comments upon July 2011 Al-Skeini and Others v United Kingdom decision where the Grand Chamber of the European Court of Human Rights had the opportunity to take a decisive stance on the understanding of jurisdiction under Article 1
The individual voice in a collective court: Insights from judicial lectures
No full textIn 2012, Rackley wrote ‘once we accept that who the judge is matters, then it matters who our judges are’.1 Indeed, this is central to the call for increased diversity in the UK Supreme Court (UKSC). Diversity in this context typically centres on overt diversity, but there is increasing recognition of the importance of cognitive diversity which is central to high quality decision making. Social identity theory suggests that recruitment of diverse candidate to the bench requires an institution to display both. The UKSC espouses a commitment to diversity, yet we know very little about the diversity of the individuals who populate the bench. It is characterised as a collegiate court and the practices of the Court have resulted in a consistent decline in the number of single author judgments, as such increasingly judicial individuality is slipping from view. In this context, the judicial public lecture offers one of the few opportunities to hear an individual judicial voice in this collective court. This chapter draws on a dataset of 80 public lectures delivered by the UK Supreme Court Justices in the first four years of the presidency of Lord Reed (July 2020 and January 2025). The analysis provides an opportunity to reflect on how the court displays overt diversity, through who represents the court and the audience they choose. Within the constraints of the judicial office, the content of the lectures provides an insight into the individual Justices and offers an opportunity to reflect on the individual within the institution and evidence cognitive differences including the norms, values, and experiences of the decision makers. Despite the limited overt diversity on the UKSC bench, analysis of the content of the lectures provides evidence of differences, but also the presence of dominant narratives, principles and values. It is argued that the significant turn away from the individual to focus on the collective court, may embed the dominant norms, values and experiences and in doing so, mask and silence difference and thus limit the potential for diversity on the bench
Beside the bench: education, outreach and the role of judicial assistants in extrajudicial discourse
No full textA brief history of (controversial) extrajudicial communication
No full textThis chapter presents a historical survey of controversial extrajudicial discourse in the area in which it arguably comes under greatest scrutiny, namely, discourse that relates to the political views, activities, and affiliation of judges. The chapter focuses on six judges who held office between the early modern period and the present day - Ellesmere, Coke, Hardwicke, Diplock, Denning, and Dilhorne - all of whom were active in extra-judicial discourse on politically sensitive or contested issues. It uses published and unpublished records of their activity to analyse how and why they engaged extrajudicially on controversial matters. I suggest that their extrajudicial communication falls into three broad types of activity which I term lobbying, evangelising, and problem-solving. The chapter concludes by arguing that the nature of the judicial role in the UK makes extrajudicial communication inevitable, including on controversial matters. History demonstrates that while this can raise genuine concerns, it can also be fundamental to the effective development of the legal system. The task for law is to manage the tensions created by the judiciary’s extrajudicial role, rather than seeking to avoid it altogether
‘Civis Romanus Sum’ and the Legal Protection of Nationals Abroad
No full textIn the first century AD a Roman Citizen could proudly declare ‘Civis Romanus Sum’ anywhere in the world in order to assert the rights and protections which were owed to them by their powerful city state. The phrase was emphatically repeated by Lord Palmerston in 1850 in a call that, even when abroad, every British citizen should receive the state’s protection. For both Roman and Briton, the shared sentiment was that regardless of geographic location they would be protected by their government. The modern day protection offered to the citizen abroad is of a more subtle manner and much less intrusive than before, yet it is arguably more necessary than ever. The effects of globalization, specifically cross-border tourist travel and mass emigration, have generated renewed calls for clarity of the extent to which citizens will receive protection from their home state when outside its territorial borders. This paper explores this legal relationship between a citizen and state through a comparative analysis of the extraterritorial protections offered to nationals of Britain, Canada, South Africa and the United States of America
The ‘Deterrent Argument’ and the Responsibility to Protect
No full textStates have presented a range of arguments against the expansion of human rights law into the extra-territorial military sphere. This article focuses on one argument in particular – the ‘deterrent argument’. This is the idea that if States are expected to uphold human rights obligations during extra-territorial military operations, it will deter them from contributing troops to UN peace support missions, which would naturally include those sanctioned under the Responsibility to Protect doctrine. This article considers how the ECtHR’s jurisprudence could actually apply to such military operations in practice and whether States should logically be deterred from participating in such missions. We argue that the involvement of the UN and the types of missions undertaken under R2P should not deter States from participation, but rather that UN involvement neutralises or mitigates many of the negative issues States fear in this area, reducing the likelihood of human rights liability for States
Membership and the UN Human Rights Council
No full textEstablished in March 2006 by General Assembly Resolution 60/251 to replace the discredited Commission on Human Rights, the Human Rights Council carries the heavy burden of restoring credibility to the United Nations’ principal human rights institution. This article examines one aspect of this restoration process - the Council’s specific membership provisions.
Beginning with a detailed synopsis of the downfall of the Commission this article aims to answer whether the provisions included at the Council’s creation are rigorous enough to prevent criticisms of its membership similar to those which effectively crippled its predecessor. Through analysis of the structure and rules enacted at the Council’s creation, pre-election provisions and election process it will be seen that the current provisions have thus far yielded only moderate success. This article concludes with a series of suggestions for how the current membership framework could be improved for the underlying intention of GA 60/251 to be fulfilled
Human Rights Obligations on Consular Agents in Capital Punishment cases
No full textIt has been a long established principle of International Law that Consular Officials have the right to visit, communicate with and assist their nationals who are detained abroad. International litigation has highlighted the particular importance of this access in the context of nationals sentenced to death in a foreign country. Previously there has been a tendency to approach discourse in this area by analysing the obligations on the forum state along with the rights of the sending state. This paper will instead focus on the individual’s rights while in detention and facing the death penalty, and the extent to which the sending state is under a human rights obligation to ensure and secure the rights of their nationals detained abroad.
Through consideration of the jurisprudence of both international and regional human rights treaty monitoring bodies, as well as relevant domestic court decisions, this paper will construct a framework for when a sending state’s obligations begin and end with regard to their nationals facing capital punishment charges abroad
Defining the Edge of Protection: The State Agent Authority Exception in Article 1 of the European Convention on Human Rights
No full textEmbodied in Article 1 of the European Convention on Human Rights is the requirement that States ‘secure to everyone within their jurisdiction the rights and freedoms defined’ within the treaty. This provision limits the human rights obligations upon States, and thus the protection of individuals, to events occurring within the jurisdiction of Contracting Parties to the Convention.
In recent years the European Court of Human Rights has established a strong presumption that jurisdiction is almost exclusively territorial in nature, apart from the exceptional situations when a State has effective control of an area outside its territorial borders and when a State’s agent exercises authority and control over an individual so as to bring them within the jurisdiction of the Contracting Party. The Court has appeared most willing to use this second exception of ‘State Agent Authority’ to widen the definition of jurisdiction within the meaning of Article 1.
This paper will analyse the limits of the State Agent Authority exception. Focusing on the origins of the exception within the jurisprudence of the Court the paper will map how its continued expansion has led to a wide understanding of jurisdiction. Through analysis of the Court’s reasoning in recent cases the paper will then define the current limits of its possible application and ask whether its reach can be extended any further
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