Conor Gearty

Principles of human rights adjudication

PART ONE: INTRODUCTION 1. MAKING SENSE OF THE HUMAN RIGHTS ACT 2. THE IMPOSSIBLE DEMAND: HUMAN RIGHTS AND REPRESENTATIVE DEMOCRACY PART TWO: THE CORE PRINCIPLES 3. THE PRINCIPLE OF RESPECT FOR CIVIL LIBERTIES 4. THE PRINCIPLE OF LEGALITY 5. THE PRINCIPLE OF HUMAN DIGNITY PART THREE: APPLYING THE CORE PRINCIPLES 6. THE ASPIRATION OF INSTITUTIONAL COMPETENCE 7. THE ASPIRATION OF PROPORTIONATE INTRUSION 8. THE ASPIRATION OF ANALYTICAL COHERENCE PART FOUR: CONCLUSION 8. JUDGING THE HUMAN RIGHTS ACT

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TORTURE IS WRONG AND INEFFECTIVE. SO HOW IS IT MAKING A COMEBACK?

The struggle for civil liberties: political freedom and the rule of law in Britain, 1914-1945

It is widely believed that there was a golden age in which political freedom in Britain was protected by the rule of law, and by judges developing the common law in favour of individual liberty. In an uncompromising and withering account based on a wide range of official and unofficial sources, this path-breaking study by two of the countrys leading civil liberties lawyers exposes the mythical nature of much of this traditional learning. The Struggle for Civil Liberties: Political Freedom and the Rule of Law in Britain, 1914-1945 traces the hostile response of the executive and judicial branches of government to the various groups and individuals who confronted the power of the State in the first half of the twentieth century: the wartime peace movements, the Communist Party of Great Britain, the striking trade unionists in 1926, the hunger marches, and the Irish Nationalists. In addressing these issues, the study has a loud contemporary resonance, by placing in a new and alarming historical context the struggles for civil liberties that have been and are being fought by radical groups in contemporary British Society, and during the Thatcher decade in particular. This book will change forever the way in which open-minded public lawyers think about their subject, and will require a fundamental re-examination of the foundations of the discipline.

The European Court of Human Rights and the Protection of Civil Liberties: an Overview

It is doubtful whether there is a more famous court in Europe than the European Court of Human Rights. The town in which it is located, Strasbourg, has become a rallying cry for disappointed litigants from Iceland to Istanbul. Through its application of the European Convention on Human Rights, the Court is seen to have played an important role in the protection of individual freedom in western Europe, and its case-law has ballooned dramatically in recent years. So successful has it been that the Courts jurisdiction is coveted by the newly emerging democracies in eastern and central Europe as a badge of legitimacy and a bulwark against future tyranny. Hungary, Czechoslovakia, Poland and Bulgaria already have judges on the Court and representatives from Estonia, Latvia and Lithuania are expected in the not too distant future. There is even talk of Russian membership. Moves are afoot to rationalise the Courts procedures, and to incorporate its law within the European Community. 1 Some- time in the next few years it will have a fine new building, designed by Sir Richard Rogers. All the signs are that its jurisprudence will continue to grow at a hectic pace. It is not improbable that the Court will emerge over time as a supreme court of Europe, at least so far as human rights are concerned.

The Cambridge companion to human rights law

The idea of human rights is rightly considered to be one of the very biggest of the big thoughts of the early twenty-first century. The object of this book is to capture a sense of the variety of the platforms within which human rights law is practised today and reflects the dynamic interrelationships that have grown up between these various levels. It also has a critical edge, where the chapters reflect on the way the subject has been handled in the authors sub-field, how it has achieved what has been expected (or has not) or produced unexpected side-effects, with judgments about the efficacy of human rights law (set against the standards of the field itself or some other goals) not being withheld where it is appropriate for these to be made. Written by world-class academics, this Companion will be essential reading for students and scholars of human rights law.

The Place of Private Nuisance in a Modern Law of Torts

It is forty years since Professor Newark wrote despairingly of nuisance that “the subject as commonly taught comprises a mass of material which proves so intractable to definition and analysis that it immediately betrays its mongrel origins.” The “truest dictum in the books” was that of Erle C.J., who had once said in answer to the question, what is a nuisance?, that it was “immersed in undefined uncertainty.” Little has changed since 1949. Public and private nuisance still face life together in the textbooks, the universities and the law reports, despite the convincing evidence all round, much of it gathered in Newarks article, that they have little in common except the accident of sharing the same name. Making hoax bomb calls, obstructing the highway and holding a badly organised pop festival are as vulnerable to a public nuisance action as are the more traditional occurrences of special damage from atmospheric, water and noise pollution. Private nuisance has, if anything, become even more confused and confusing. Its chapter lies neglected in the standard works, little changed over the years, its modest message overwhelmed by the excitements to be found elsewhere in tort. Any sense of direction which may have existed in the old days is long gone. The action now encompasses not only smelly oil depots, noisy speedboats and the like but also dangerous natural hazards on the land and the only slightly less natural “user of premises for prostitution and the perambulations of the prostitutes and their customers.” Sometimes negligence is essential to liability, sometimes it is quite irrelevant.

Second-generation rights as biopolitical rights

This chapter is a preliminary attempt to grapple with the implications posed by the proliferation of different regimes of human rights – commonly described as second- and third-generation human rights – to the concept of human rights itself, especially its normativity. One common argument is that the proliferation of different types of human rights attests to the genuinely infinite and open-ended normativity of human rights as an ideal project because it shows a prodigious capacity for accommodating multiple universalisms that contest and compete with each other. This would lead to a gradual refining of human rights so that they can attain the greatest degree of universality possible in a current historical conjuncture. In this chapter, I suggest that regimes of human rights that focus on positive duties to fulfill human needs radically put into question the rational–normative structure of human rights because it puts their juridical form into communication with something else – the biological or natural dimension of human life – that deforms and even explodes this juridical form. We see this deformation in some of the negative consequences that mark the implementation of second-generation rights. I suggest that we can better account for these consequences by understanding these rights in terms of biopolitics. Second-generation human rights: the mistaken opposition of sovereignty and human rights Despite the clear indication of the structural connection between universal human rights and positive law in the stipulation of the preamble of the Universal Declaration of Human Rights that “human rights should be protected by the rule of law,” the juridical form of modern human rights has often been called into question on the grounds that their normative validity is extra-legal and precedes and transcends sovereign states because they are “equal and inalienable rights of all members of the human family” that are grounded in “the inherent dignity” of all human beings. Accordingly, it is customary to point out that modern human rights are influenced by ideas about natural liberties from the modern philosophy of natural rights, whereby rights are liberties ( jus ) that are prior to laws ( lex ), which imply obligation and, therefore, coercion and compulsion from a sovereign authority.

In praise of awkwardness: Kadi in the CJEU

The European Court of Justice and the United Nations blacklisting regime - Background, case-law and conflict in relation to that regime - The Kadi II case - wider constitutional dimensions of the ruling - theoretical aspects of the dispute from rule of law perspective - the future

Situating International Human Rights Law in an Age of Counter-Terrorism

Youssef nada is a 77-year-old man, who lives in the tiny commune of Campione in Switzerland. He is not allowed to leave this commune. Nor can he access his financial accounts, despite being a senior figure in the world of banking. The problem Mr Nada faces is that his bank, the Al Taqwa bank, is associated with the Moslem Brotherhood and that Mr Nada—an Egyptian by birth—is also connected with this organisation. Among his adversaries is the Egyptian Government of Hosni Mubarak, which desires to get him back to Cairo, where it is clear his safety could by no means be guaranteed. After the attacks of 11 September 2001, Mr Nada also incurred the enmity of the US Government. He found himself placed on a UN sanctions black-list—hence the restrictions on his movement and financial dealings.

Human rights in an age of counter-terrorism

For many years I worried with all the other so-called ‘terrorism experts’ about the fact that there was no proper, objective definition of terrorism. I even abandoned a law textbook I planned on the subject on account of the inadequacy of my introductory chapter. In the end I wrote a book on terrorism that was more about language and the power of labels than it was about killing and kidnapping. This was because it had eventually dawned on me that the whole point of the subject of terrorism was that there was no definition. The importance of the subject, its utility to those who mattered, relied upon the impossibility of it ever being tied down. For the moment terrorism is given an objective meaning, one that can be commonly agreed, is a dangerous moment for the experts, a point in time when the term risks taking on a rational life of its own, and therefore being rendered capable of being ascribed to events beyond the experts’ power of categorisation. Take just as an example a straightforward definition, one that sees as terrorist violence, the intentional or reckless killing or injuring of non-combatants, or the doing of severe damage to their property, in order to communicate a political message. Expressed like this, it is clear that terrorism is a method of violence, and as such is one that can be used by any actor who has chosen to deploy violence in pursuit of this or that political goal. It can, it is true, be used by the kind of weak group that has few other military or political options in its locker: the Al Qaida’s and ETA’s of this world. But it can equally well be deployed as a method of violence by other, stronger forces, by guerrilla organisations for example that are able to muster other kinds of military action as well if the need arises, and by insurgent forces in a civil war situation where terror violence may be just one option among many. In failed states it is available, among other brutal techniques, to all the ambitious, power-hungry factions.