Human Rights: Challenges and Pressures

This Guest Blog was written by Kristie Best, Principle Lecturer in Law at the University of Northampton. A special thank you to Ms. Best for supporting our mission to help Canadian law students succeed!

Human rights are a deceptively simple area of law. They provide a conceptual and legal framework for regulating the exercise (and sometimes excesses) of State sovereignty and by placing both negative and positive obligations on States to promote and protect human rights also provide a way for States to protect individuals and groups from the actions of non-State actors. So far, so good – the power of States is controlled through international legal standards which they have consented to (through membership of the United Nations and other supra-national organisations) and which are based on shared ideas of morality and justice. Vulnerable individuals and groups, whose persecution provided the catalyst for the development of modern human rights law, are protected.

However, as we find out from studying and researching human rights, it’s not so straight-forward. The national, regional and international law which recognises and protects human rights isn’t static but is subject to political pressure caused by changing circumstances and priorities within and without States. The extent to which human rights can then effectively fulfil its purpose in protecting vulnerable individuals and groups may be compromised.

Over the Christmas vacation there were a number of stories in the British press which highlighted these tensions in relation to human rights in the United Kingdom (UK).

In the UK, parents who are recognised under the Children Act 1989 as having ‘parental responsibility’ are allowed to smack their children. Until 2004 if a parent was prosecuted for hitting their child (and they very rarely were where this was in the context of physically disciplining the child) they could claim a defence of ‘reasonable chastisement’. The limits to this were only vaguely defined by common law so for the most part parents had a wide discretion to use whatever force they deemed reasonable. This was clarified somewhat in the Children Act 2004 which, to paraphrase, allows a parent to smack their child provided that they don’t leave a mark. This raises interesting and unresolved issues about the differential protection the law then provides to children who, for example, have a darker skin tone. In this context the Children’s Commissioner for England has suggested that a complete ban on smacking should be introduced bringing UK law in line with its international legal commitments such as Article 19 of the United Nations Convention on the Rights of the Child. A ban would certainly provide clearer protection to children who, by virtue of their size and lack of cognitive development, are vulnerable to abuse particularly within the closed environment of the home. Will this proposal receive parliamentary and governmental support? Without the latter, a change to the law is highly unlikely but with only 18 months to go before the next general election a government without a strong electoral base would be brave to introduce a change to parental ‘rights’ which opinion polls on the matter consistently suggest that parents would oppose. Furthermore, the Conservatives (who make up the majority in the current coalition government) would be ideologically opposed to introducing further regulation into this sensitive private sphere.

This influence of public opinion (and also political ideology) is also shown in current debates over the Human Rights Act 1998. This legislation incorporated the European Convention on Human Rights into UK law. In ‘Bringing rights home’ (as the then Labour government expressed it), the idea was that domestic courts would be able to adjudicate on human rights based claims and give a particularly ‘common law’ interpretation to these rights. The popular press has however been increasingly critical of judicial decisions which are seen as unduly favouring unpopular groups, such as foreign nationals suspected or convicted of terrorism and other criminal offences. Deportation of such individuals is lawful on the broad grounds that it is ‘conducive to the public good’. The courts have blocked deportation orders on human rights grounds, including where there is a real risk of torture in the receiving State or where the deportee has a well-established family life in the UK. This has led to arguments in certain newspapers about the 1998 Act being a ‘criminal’s charter’ and that UK judges are being unduly influenced by European legal standards. In this context the Conservatives are proposing various reforms to the Act if they win the next election, including repeal and the introduction of a ‘British Bill of Rights’ (an interesting development given the significant influence that the UK had on the drafting and subsequent development of the European Convention).

These are the sort of issues that we cover in modules on human rights law and also in dissertations, with undergraduates and postgraduates. The even greater complexities of international human rights law (which we also cover) may have to be discussed in a separate blog!

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Get Real: ‘Human Rights’ Court ‘Oks’ Torture

This Guest Blog was written by Dr Michael Kearney, Lecturer in Law at the University of Sussex. A special thank you to Dr Kearney and the University of Sussex for supporting our mission to help Canadian law students succeed!

It’s been a few more bad weeks on the torture front.  On 20th January a report compiled by several former war crimes prosecutors alleged “direct evidence” of the “systematic torture and killing” of thousands of men, thought to be victims of the Syrian government’s security agencies. On the 27th, Robert Fisk used his Independent column to raise the plight of Abdullah al-Qahtani, a Saudi national on death row in Iraq, whose case has been taken up by Amnesty International, and who has been subject to the torture typical of Iraqi detention centres.

If such conduct in Iraq and Syria can be tolerated or explained away by the environment of war, violence, and impunity in which they occurred, what then, as to how the UK is dealing with torture? Another report on systematic torture in Iraq, was, in January, submitted to the Office of the Prosecutor of the International Criminal Court. Compiled by Public Interest Lawyers and the European Centre for Constitutional and Human Rights, the report details both the commission of torture by British soldiers and the failure of the British state to properly investigate and prosecute the actions of its citizens.

I’ll return to this Report over the coming weeks, but here I want to comment on the judgment of the European Court of Human Rights in Jones & Ors v United Kingdom, which was delivered 14th January 2014. The Court upheld the House of Lords’ 2006 decision which ruled that British citizens could not seek redress through the Courts for the torture to which they were subjected to, during detention, by named Saudi police officers, including incidents allegedly authorized by a Saudi minister.

The ECtHR judgment reads like a sorry positivist textbook, and is devoid of any reference to actually existing human rights. Instead, the judges appear to have read the sources of law in such a way that the principles of public international law, rules around treaty interpretation, and specifically the norm of sovereign immunity, are elevated to a higher plane than any consideration of the progressive development of human rights jurisprudence.

It might be hard to assert that the outcome of the case could have been very different, given that the prevailing case law, notably the 2012 decision of the International Court of Justice in the Germany v Italy (Immunities) judgment, confirms that states remain immune from suit in the courts of other countries, even when the most serious violations of human rights, those of a supposedly jus cogens nature, have been accepted as fact, and where no other avenue for compensation or redress exists.

That week’s public international law seminar was on immunities, so with minimum notice we took the new judgment as the point of discussion. The response, particularly from students familiar with the ECtHR, was unanimously grim. The blunt dismissal of the applicants’ claims (four in total, with one having died since the Lords’ judgment), with no effort on the part of the Court to even attempt to balance the rights of the individual to redress for torture, is quite disheartening.

In holding that the applicants’ article 6 right (to a fair trial and to redress for violations) had been justifiably restricted, the Court found the UK’s actions to be both legitimate and proportionate (paras 188-9). The legitimate aim was that of the promotion ‘of comity and good relations between states’ by respecting sovereignty, while the restriction on the applicants, since it reflected ‘rules of public international law on state immunity cannot in principle’, have been disproportionate.

With respect the human rights against which such considerations should have been balanced, the Court failed to go into much detail, the only notable exception being that the judgment did give space to consideration of various statements from the UN’s Committee Against Torture, urging the necessity that states give torture victims the possibility of taking such civil claims. Rather than side with their counterparts (policy wise, if not formal) the Court deferred to Bingham’s dismissal of the Committee’s pronouncements as being only ‘of slight legal authority’, on the grounds that the International Court of Justice has yet to make an equivalent assertion.

Very frustrating in the Court’s judgment is this circular use of sources: national courts are asserting that they do not have the power to override international law’s respect for sovereignty by declaring exceptions to immunity not identified by international tribunals. In turn the international courts justify their subjugation of accountability to sovereignty by reference to the lack of domestic jurisprudence categorising such exceptions.

What’s particularly galling is that there is but one substantive dissent, that of Judge Kalaydjieva, who stated that she ‘not only share[s] the doubts of some of the numerous dissenting judges in the case of Al-Adsani, but also find[s] it difficult to accept that this Court had no difficulties in waiving the automatic application of State immunity and finding violations of the right of access to court concerning disputes over employment […] but not concerning redress for torture – as in the present case.’

Judge Antonio Trinidade

This is in sharp contrast to the judges of the International Court of Justice in the 2012 Immunities case where Bennouna, Yusuf, and Trindade J each gave scathing dissents. Trindade concluded a powerful 100 page dissent by stating that ‘my firm position is that there is no State immunity for international crimes, for grave violations of human rights and of international humanitarian law. In my understanding, this is what the International Court of Justiceshould have decided in the present Judgment.’ [His emphasis.]

In a statement that directly reflects the facts in Jones, Bennouna stated that ‘it is only in exceptional circumstances — when a State presumed to be the author of unlawful acts rejects any engagement of its responsibility, in whatever form — that a State could lose the benefit of its immunity before the courts of the forum State. The right of the individuals concerned to have access to justice in their own country would then take precedence, where the State in question had refused to submit to the fundamental principles of law — on which, moreover, it was itself relying.’

Judge Mohamed Bennouna

One should expect that a human rights court would have at least taken some of these dissents into consideration. On this record it looks like the ICJ is the court to which human rights activists should be looking for support, while the European Court of Human Rights [my emphasis], is withdrawing into a dull public international law realm of Westphalian obeisance. In response to the judgment, one of the applicants’ lawyers contextualized the decision with the claim that ‘Strasbourg is increasingly reluctant to rule against the UK Government because of Westminster’s “hostility” to the European Court of Human Rights’.

For now I want to briefly stress some of the key problems that this judgment leaves us with. The first concerns the notion of ‘jus cogens’. At para 93 the Court claimed that there is ‘no conflict’ between jus cogens laws, such as the prohibition of torture, and the rules of state immunity. This is absurd. Of course there’s a conflict. If there weren’t a conflict then we wouldn’t have needed a judgment to figure out which rule of international law trumps which. As to whether jus cogens actually means anything in practice, other than being a fancy label, it’s difficult to figure it out but it doesn’t appear to bring anything substantial to the meaning of the prohibition of torture.

The Court, at para 176, noted the UK government’s argument that, ‘the rule of State immunity did not authorise or condone torture and was therefore not incompatible with the prohibition of torture’ on the grounds that  ‘It merely diverted any breach to a different method of settlement.’ This brings us to a second problem. There is ‘no different method’ in existence. The European Court is the court of last resort.

Finally, at para 187 the Court, in setting out its stall on the assessment of the case, notes that it would be inconsistent ‘with the rule of law in a democratic society or with the basic principle underlying Article 6 § 1 – namely that civil claims must be capable of being submitted to a judge for adjudication – if a State could, without restraint or control by the Convention enforcement bodies, remove from the jurisdiction of the courts a whole range of civil claims or confer immunities from civil liability on categories of persons.’ The judgment then proceeds to remove from the jurisdiction not just of national courts, but of the European Court itself, the whole range of civil claims on torture committed in other countries by state officials, and does indeed confer immunity from civil liability on the entirety of that category of persons. This is rationalized by reference to public international law, to which the ‘Convention enforcement bodies’, have hereby decided that they are subservient to, and which they claim they can neither restrain nor control.

—–

In recent weeks, colleagues in Ireland had been pressing for a Ministerial led corporate trade mission to the Gulf to raise issues of human rights concern, including around torture and fair trial. The Minister concerned, Richard Bruton (Jobs, Enterprise and Innovation), took to the paper of record to pen a response to the naive, the blind, and the deaf, explaining that to raise such concerns with the Sheikhs would serve no purpose other than to sabotage our capitalists’ plans for profit. On 23rd January he wrote: ‘These people need to get real. To do as they suggest would seriously undermine our basic objective on these missions. Either we are serious about delivering the exports and investment we need to provide employment for our people or we are not.’

I’ve referring to this spat since it seems to mirror the attitude that has been shown by the European Court in Jones. My reading of this judgment is that the Court has, in light of the British government’s threats to withdraw from the Convention framework, told human rights activists, and torture victims, that they too need to ‘get real’, since to do as they suggest, and push for accountability, would serve only to antagonize the British political elite, and to undermine the objectives (the existence?) of the Court itself.

In the current edition (232) of Viz, one of the stalwart characters, Roger Mellie – The Man on The Telly, is shown on his return to Fulchester, having premiered his Road Show gig in Dubai. The punch line has Roger in the shower at the gym, his back bloody and lacerated, after having been whipped by the Emirati’s police.

Torture in the Middle-East, whether perpetrated by British soldiers, or against British citizens, has been normalised, tolerated, and to a great extent removed from the sphere of law. Given the failure of our judicial institutions to strive for progress on the problem of impunity for torture, its lucky we still have Viz then, reminding the rest of us, as has been its wont, to ‘Get Real’.

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Environmental Organised Crime

This Guest Blog was written by Dr Simon Sneddon, Senior Lecturer in Law at the University of Northampton. A special thank you to Dr Sneddon and the University of Northampton for supporting our mission to help Canadian law students succeed!

There has been a great deal written around the topic of “what is organised crime” and the short answer is that there is no universally agreed definition. Klaus von Lampe (www.organized-crime.de/organizedcrimedefinitions.htm) has collected more than 170 different definitions of “organized crime” from across the world and his list, which is well worth a look, does not even include the various definitions for “organized crime group.”

The starting point for any discussion of this type is usually the UN Convention against Transnational Organised Crime (“UN TOC”), which was opened for signature in December 2000, and entered into force in September 2003. Article 2 sets out a series of definitions which lay out quite precisely what an Organised Criminal Group (“OCG”) is, though it should be noted that there is no direct definition for Organised Crime itself. The UN TOC definition therefore is at the heart of the global fight against Organised Crime.

Article 2. Use of Terms

(a)     “Organized criminal group” shall mean a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit;

(b)     “Serious crime” shall mean conduct constituting an offence punishable by a maximum deprivation of liberty of at least four years or a more serious penalty.

On the surface, this looks relatively detailed and clear, but with further investigation, the gaps in their coverage become apparent. The definition requires an OCG to act “in concert with the aim of committing one or more serious crimes or offences” in other words those with a maximum punishment of at least four years imprisonment.

In England and Wales, s142 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, inserted the new offence of “Threatening with an offensive weapon in public” into the Prevention of Crime Act 1953. This new offence would make an offender liable, “on conviction on indictment to imprisonment for a term not exceeding 4 years or to a fine, or to both.”  This then, would come within the boundaries outlined by the UN TOC

However, in France Article 431—5 of the Penal Code states that “wilful participation in an unlawful assembly whilst carrying a weapon is punished by three years’ imprisonment and a fine of €45,000.”  Whilst not an exact match, this is a very similar offence to that in England and Wales, but one which would fall below the UN TOC 4-year threshold for seriousness.

Organised Environmental Crime poses even more of a definitional problem, as there is no globally agreed definition for “the environment” either, but it is generally accepted to be crimes committed by OCGs which have a direct impact on the environment – things ranging from the illegal export (from the EU) of waste electronic and electrical equipment to the smuggling of endangered species of animals and plants (as evidenced by the record CAN$385,000 fine imposed on a New Brunswick man in October 2013 for smuggling narwhal tusks to the USA).

My particular area of interest is wildlife smuggling, which is covered internationally by the Convention on the Illegal Trade in Endangered Species of Flora and Fauna (CITES), which was signed just over 40 years ago, in December 1973. The big issue for enforcement on CITES is the sums of money that can be made from the trade – there are various estimates that have been made, ranging from US$5bn to US$20bn a year, but clearly no-one knows the exact figure. There are several key things to factor in to this:

The origin of many of the high-value species (elephant, tiger, rhino) is in the developing world;

The market for many of the species is in wealthier countries (ivory and tiger products in China, rhino horn in the Middle East); and

The budget given to enforcement is paltry in comparison to the money that can be made by the traffickers.

Example:

UK House of Commons Environmental Audit Committee (2012): Ivory on sale in Guangzhou province in China at equivalent of US$6,839 per kilo.

WWF (2012) , “The government of Gabon, home to more than half of Africa’s forest elephants, estimates that poachers killed over 11,000 elephants in and around Minkébé national park rainforest between 2004 and 2012.”

Gabon’s average GDP per capita in 2010 was under US$15,000, which makes in comparatively wealthy in the region, but with huge disparity between rich and poor (the World Bank says the annual minimum wage was US$2,000 in 2010).

A poacher can get paid US$300 a kilo for ivory, so one elephant will net around US$7,000, which is close to 6 months’ average wages, or over three years’ minimum wage.

Within my modules, at undergraduate and postgraduate level, we explore the ramifications of these types of offences, and the relative successes of attempts that have been made to tackle them. Because my teaching covers both Organised Crime and Environmental Law, we are able to consider the problem from both perspectives.

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Regulating the Rock Stars

This blog was produced as part of The University of Law’s ‘Law in the News’ series. These articles are produced by students of the University and provide a good example of how students are encouraged to consider the law within a wider context. 

Article by Kelsey Bell (who studied for the Graduate Diploma in Law), looks at the regulation of intellectual property rights in the context of music piracy.

The global phenomenon ‘Harlem Shake’ was the biggest viral hit since ‘Gangnam Style,’ but the producer behind the track may have used samples from two artists without their permission.[1] Baauer is now facing a potential copyright violation, as Hector Delgado and Jayson Musson seek compensation for the unauthorised use of their vocals.

This recent case shows just how complicated the management of intellectual property rights can be when music is distributed online, even across legitimate platforms and websites. The very difficulty associated with obtaining the necessary permissions from various rights holders has caused major problems, as users are often blocked from accessing media online. Europe’s lack of a cohesive intellectual property rights regime has exacerbated this issue. When attempting to watch a music or news video, it’s not uncommon to see an error message reading: ‘unfortunately, this video is not available as it may contain content which is blocked in your country on copyright grounds.’ While the rampant problem of piracy and illegal downloads has been splashed across headlines for years, popular providers such as YouTube and Spotify face legal obstacles of their own.

The Single Market project is one of the most ambitious policies of the European Union, and guarantees the free movement of goods, persons, capital and services. Unfortunately, there is a substantial lack of cohesive policy concerning the free movement of digital content. The issue becomes convoluted however when considering the internal market within the EU, and transactions crossing the invisible borders of cyber space.

With more than 300 legal music services available online in the European Union, we have access to stream more than 13 million tracks – a figure which is growing each day.[2] But as intellectual property rights are not standardised across Europe, access to MP3s and music videos varies from one Member State to the next. By comparison, despite having a population 160% the size of the United States, the EU’s digital market is only 33% of that found in America, which benefits from a single copyright regime.

European Union

In the creative industries, musicians and studio labels hold rights to their songs. To effectively generate revenue on a mass scale, collecting societies issue licenses to restaurants, clubs, radio stations and other platforms to play or sell songs. To play or provide music therefore, businesses and online services such as Spotify must go to great lengths to avoid copyright infringement.

Without a EU-wide framework, they must obtain multiple licences from multiple countries, from each of the song’s respective copyright holder. When one song alone can have upwards of 10 separate rights holders or legal owners, obtaining copyright permission from multiple sources across multiple countries may be cost prohibitive. Despite a growing repertoire available online, music videos and MP3s can still be blocked within Europe if and when the service provider is unable to secure the appropriate permissions.

Clearly, the collection of copyright fees is big business. According to a European Union Commission Press release last summer, £4.7 billion in revenue is generated each year in European copyrights. Collecting societies have traditionally granted only territorial licences, which stipulate what rights are applicable and where, for their own domestic repertoire.[3] Spotify alone adds 10,000 new tracks each day, and its website boasts that it would ‘take more than 80 years of non-stop listening’ to get through their current catalogue of digital tracks. While the company remains quiet about exact figures, it is estimated that 15 to 17.5 million people use Spotify each month. With 3 to 4 million paying subscribers, the service has paid out approximately £160 million to their respective copyright owners.[4]

Impact on the British Music Industry

These restrictions have a considerable impact on British industry, as some UK-based artists are blocked on the continent. The UK is a primary net exporter of music in the global market. ‘In per capita terms, the UK remains one of the top three recorded music markets in the world, towering above the US market.’[5] In fact, the United Kingdom generates more revenue for the music industry from copyright collection than anywhere else in Europe.

To respond to this issue, the Department for Business Innovation & Skills’ Intellectual Property Office has plans to make the copyright framework more flexible and appropriate for a modern, digital society. In December of last year, Business Secretary Vince Cable announced a new government strategy, which will include 10 major changes to intellectual property rights.

For example, uploading a legally purchased CD onto a laptop – a practice known as ‘format shifting’ – is actually illegal under current law. The new regulations will permit people to transfer content privately. With aims of improving both consumer and corporate benefit, the Government hope to make the IP framework fit the 21st century. A new digital copyright exchange, which will make it easier to get clearance for the use of copyrighted content, will also be included.

While at present the relationship between the London and Brussels may be complicated at best, new British regulations may at least make access to music a bit easier at home. 

 

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Disclaimer: The views expressed by the author above are his alone and do not represent the views of the University of Law or its employees or Future Project or its employees. Neither Future Project nor The University of Law are responsible for the accuracy of any information contained therein.


[1] ‘Harlem Shake’ Facing Copyright Claims http://www.mtv.com/news/articles/1703415/harlem-shake-copyright-claims.jhtml

[2] IFPI (2012a). Online Music Market in Europe — New Business Models and Consumer Choice.

[3] European Commission. Commission Staff Working Document Impact Assessment Accompanying the document Proposal for a Directive of the European Parliament and of the Council on collective management of copyright and related rights and multi- territorial licensing of rights in musical works for online uses in the internal market. SWD(2012) 204 final. Brussels, 11 July 2012

[4] Evolver.fm: 3 Apr 2012

[5] PRS for Music (2011). Adding up the UK Music Industry 2010. Economic Insight Issue 23. 4 August 2011.

Why The University of Law is a great option for Canadians

The University of Law is the world’s leading professional law school and, as a ‘law only’ institution, offers a number of courses that attract law students from Canada (and from around the world). In addition to a choice of course, ULaw has 8 centres throughout England which also gives you a choice of where you would like to study.

All courses are designed so that you learn the law by use of scenarios based on real life client problems. By applying the law to real life scenarios you start to develop the skills a lawyer must have in today’s legal services market – simply knowing the law is not enough, your client wants commercial solutions.

This type of teaching cannot be done effectively in large groups. As such at The University of Law most of the teaching is done in small workshop groups consisting of around 20 students. Here you will be able to hone your skills and get direct feedback from our tutors.

So regardless of course or location you will get expert training from our teaching staff, all of which are lawyers and have first-hand experience of life working in the legal services industry.

 

What do current students think of ULaw?

‘I have had a great experience on the LL.B so far; the programme is very good, the tutors are excellent and really knowledgeable. I like the practical approach of the course and the way it is split over three terms, with exams following each one, is ideal.’ – Sheron O’Connor, current LL.B student from Canada

‘The one-to-one appointments, arranged by my tutor at certain points in the term, were a perfect way for us to discuss my learning and to make sure I was getting the most out of my LL.B course.’ – Kauvsegan Ehamparam, current LL.B student from Canada

 

What programs are offer at The University of Law?

LL.B programs

ULaw  offers a 2 and 3-year LL.B programs. Both of which are Qualify Law Degrees and as such will be recognized by the National Committee on Accreditation (NCA) when you return to Canada.

With the LL.B program ULaw provides student sessions on employability, which give you guidance on how to best use your qualifications to land the legal job of your dreams.

LPC (Legal Practice Course)

The LPC is the exam taken by students wishing to qualify as a solicitor in England and Wales. Many Canadian students take this course which again can be used toward qualification in Canada. If you study your LPC with The University of Law, you can also receive a Masters upon successful completion of your LPC course and practice-focused dissertation – for no extra cost!

GDL (Graduate Diploma in Law)

The GDL is taken by students who do not have a law degree but wish to transfer over to a legal career. As such a GDL is taken after a first (non-law) program. Many Canadian students take this course and then go on to take additional examinations to qualify in Canada.

 

The world leading academics teaching within The University of Law

The University of Law is different from many universities in the UK. For example, it was once part of the professional body that governs lawyers in the UK. Since this time it has developed to a stand-alone institution with its own degree awarding powers, but given its past, still maintains a very close relationship to the legal profession in the UK (and around the world). Indeed, many of the world’s leading law firms (such as Clifford Chance and Linklaters) send their students to The University of Law to study for their professional exams.

This history has a marked impact on how law is taught. For example, ULaw does not employ academics  – all the teaching staff are lawyers. This gives you the chance to learn the law and skills from people who have ‘been there and done that’.

 

Notable ULaw Faculty

Penny Hayhurst (LL.B Course Leader)

Penny is the LL.B Course Leader at our London Bloomsbury centre and has been teaching at the University since 2003. Penny is a qualified solicitor (lawyer) and worked in the City of London with leading shipping firm Clyde & Co, before moving to work as an assistant solicitor at American law firm Squire Sanders & Dempsey. During her time at Squire Sanders & Dempsey she was seconded to British Sky Broadcasting (part of News Corp, formerly News International) as an in-house employment lawyer.

Dan Hill (Lawyer and Associate Professor at The University of Law)

Dan joined the University in 2000 and has been Head of Undergraduate and Graduate Programmes since 2012. He trained at leading international law firm Slaughter and May and worked subsequently in Oxford, specialising in professional negligence and commercial litigation. Dan has particular experience of legal education in Africa, having trained judges and lawyers in Rwanda. He is also a visiting lecturer at the Institute for Legal Practice and Development in Nyanza, Rwanda and has written about his experiences there in a range of legal journals.

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Torture, etc: beyond the ‘ticking bomb’ scenario

A bomb has been planted in a busy metropolitan area; the whereabouts of this bomb are unknown to the authorities; the authorities have captured the person who has planted the bomb; should the authorities torture the captive to obtain the information necessary to save dozens, hundreds, or even thousands of lives? The right not to be subjected to torture or inhuman or degrading treatment or punishment manifests itself in similar form across a vast number of national constitutions and laws as well as regional and international human rights instruments. Torture has, of course, been a ‘hot’ topic in public discourse following 9/11 and the more recent exposure of a number of States, including the USA and the UK, as having been involved in the torture of individuals in the so-called war against terror. It has also occupied a central position in the philosophy classroom, and increasingly the public domain, in the form of the hypothetical ‘ticking bomb’ scenario and attendant dilemma outlined above. These are topics of enormous interest and significance, and form the subject of both teaching and research at undergraduate and postgraduate level here at Queen’s University Belfast (QUB).

Yet the sensational nature of these questions can sometimes cast an undue shadow over issues of remarkable significance beyond those immediately apparent at hearing the catchword ‘torture’. My research aims to contribute to and promote more critical engagement on such issues.

My doctoral research has focused on the meaning and implications of an ‘absolute right’ at law, as concretised in Article 3 of the European Convention on Human Rights (ECHR), which provides that ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’. This enabled me to examine in depth the meaning of an absolute entitlement not to be made subject to inhuman treatment, inhuman punishment, degrading treatment or degrading punishment, terms which are often the ‘etc’ of torture. These aspects of Article 3 of the ECHR touch upon a vast range of areas, including: police violence in custody, demonstrations, arrests and other contexts; prison conditions; corporal punishment; criminal justice and sentencing; immigration and asylum; healthcare; and others.

To provide an illustration of a topical issue emanating from the right not to be subjected to inhuman or degrading treatment or punishment, the European Court of Human Rights (ECtHR) has recently held, in a judgment against the UK, that whole life terms of imprisonment without parole (that is, without an opportunity to be considered for release) contravene the prohibition on inhuman and degrading punishment under Article 3 ECHR. Central to the ECtHR’s analysis was an emphasis on dignity, which necessitated the possibility of release – or, in other words, the right to hope. The judgment has prompted the UK government to suggest 100-year prison terms for those considered to have committed particularly heinous crimes. Are such proposals compatible with the ECtHR’s judgment? What is your view on the ECtHR’s position to begin with, and how does it relate to the approach in your home country? Such questions require informed, critical engagement and debate, and students are key participants in this endeavour here at QUB.

In addition, beyond the rendition context readily associated with torture in the so-called ‘war on terror’, the right not to be subjected to torture or inhuman or degrading treatment or punishment has sweeping consequences in relation to immigration and asylum. The ECtHR has established that expelling an individual to a State where they face a real risk of any of the proscribed ill-treatment is contrary to Article 3 ECHR and absolutely prohibited (note that this is different from the Canadian position on this issue following Suresh v Canada). This has meant that a number of people cannot legally be sent back to their home countries if they face a real risk of proscribed ill-treatment there – an implication which has stirred significant controversy. The issue gains added controversy – and complexity – with regard to proposed extraditions of individuals to countries such as the USA to face particularly harsh penal practices and prison regimes. What should a European Court’s stance be in assessing the humanity or lack thereof of non-European States’ practices? What issues does the Court’s position raise on a global level? These are questions of legal as well as of political and moral significance.

QUB provides a unique environment for exploring cutting edge questions on human rights and criminal justice, and to do so from national, transnational, regional and international perspectives. It is not only an academic hub of people with a stellar publication record on these subjects and other fields, but also a major platform for legal, political and cultural engagement within Northern Ireland and the UK. Joining QUB has meant that all this is at my fingertips.

Natasa Mavronicola

Lecturer in Law

Queen’s University Belfast

(n.mavronicola@qub.ac.uk)