Dominic McGoldrick

Sustainable Development and Human Rights: An Integrated Conception

This article seeks to present an integrated conception of sustainable development, with particular emphasis on the contribution of international human rights law and theory. Part II considers a structural conception of sustainable development. Part III considers parallels between sustainable development and self-determination. Part IV provides some general reflections on international environmental law and international human rights law in terms of analogous concepts, principles and systems. What similarities are there and what differences? Part V considers the progress made towards recognition of a “human right to the environment”. Part VI considers how international environmental claims could be brought within the existing international human rights complaint systems. Part VII analyses the judgment of the European Court of Human Rights in the Lopez Ostra case (1994), the leading case on environmental claims to have reached that Court.

I. Global Warming and the Kyoto Protocol

The Third Conference of the Parties to the United Nations Framework Convention on Climate Change (Climate Change Convention) was held from 1 to 11 December 1997 at Kyoto, Japan. Significantly the States Parties to the Convention adopted a protocol (Kyoto Protocol) on 11 December 1997 under which industrialised countries have agreed to reduce their collective emissions of six greenhouse gases by at least 5 per cent by 2008–2012. Ambassador Raul Estrada-Oyuela, who had chaired the Committee of the Whole established by the Conference to facilitate the negotiation of a Protocol text, expressed the view that: “This agreement will have a real impact on the problem of greenhouse gas emissions. Today should be remembered as the Day of the Atmosphere.” This note seeks to outline in brief the science of climate change, and international activity to combat global warming prior to the Kyoto conference. It then attempts to analyse the terms of the Kyoto Protocol and to draw some conclusions on its significance.

The Pinochet Case No. 3

The decision of the Appellate Committee of the House of Lords, given on 24 March 1999, 1 confirms, by the impressive vote of 6 to 1, the earlier majority ruling that a former head of state enjoys no immunity in extradition or criminal proceedings brought in the United Kingdom in respect of the international crime of torture.

I. The Northern Ireland Peace Agreement, Minority Rights and Self-Determination

The Northern Ireland Peace Agreement 1 was concluded following multi-party negotiations on Good Friday, 10 April 1998. It received 71 per cent approval in Northern Ireland and 95 per cent approval in the Republic of Ireland in the subsequent referenda held on Friday 22 May, the day after Ascension. To some, it must have seemed that the timing was singularly appropriate following 30 years of “The Troubles”, which were perceived as being between a “Catholic minority” and a “Protestant majority”. While there are some minority groups identified by their religious affiliation that do require rights relating only to their religion, such as the right to worship in community, 2 to practise and profess their religion, 3 to legal recognition as a church, 4 to hold property 5 and to determine its own membership, 6 some minority groups identified by their religious affiliation are properly national or ethnic minorities–religion is merely one factor which distinguishes them from the other groups, including the majority, in the population. One example of the latter situation is to be seen in (Northern) Ireland where there is, in fact, untypically, a double minority: the Catholic-nationalist community is a minority in Northern Ireland, but the Protestant-unionist population is a minority in the island of Ireland as a whole. 7 The territory of Northern Ireland is geographically separate from the rest of the United Kingdom. The recent peace agreement addresses a whole range of issues for Northern Ireland, but included are, on the one hand, rights for the populations based on their religious affiliation, their culture and their language and, on the other, rights with respect to their political participation up to the point of external self-determination. It is a holistic approach. Like any good minority rights agreement, 8 it deals with both standards and their implementation and, like any good minority rights agreement, it is not a minority rights agreement but, rather, a peace settlement.

THE BOUNDARIES OF JUSTICIABILITY

This article examines the application of the principle of justiciability principally where it has been invoked in the context of claims in the UK courts related to foreign affairs or public international law. It is submitted that the modern judicial trend is to find that issues are justiciable and focus instead on the degree and intensity of the review exercised. The trend is directed and supported by the growing importance of human rights and the rule of law.

Human Rights and Humanitarian Law in the UK Courts

This article considers how arguments relating to the principle of joint applicability of international human rights law (IHR) and international humanitarian law (IHL) are playing out in the United Kingdoms courts. The core of the article is a case study of the decisions of the Divisional Court, the Court of Appeal and the House of Lords in Al Skeini v. Secretary of State for Defence. The central issues of the case concerned the application of the UKs European Convention on Human Rights (ECHR) obligations in the context of its activities in Iraq, and the extraterritorial application of the Human Rights Act, 1998. This case study of the domestic application of the principle is particularly useful for considering (i) its practical implications on the specific facts of particular cases; (ii) the argumentation used by the UK government and judges; (iii) the difficulties of national courts in analyzing the IHR and IHL rights jurisprudence; and (iv) the significant differences between IHR and IHL in terms of positive obligations and domestic remedies.

II. State Immunity, Diplomatic Immunity and Act of State: A Triple Protection Against Legal Action?

The relationship between State immunity and diplomatic immunity has always been a rather complex one. The two concepts undoubtedly have a common juridical background in the form of the concepts of sovereignty, independence and dignity.1 On the other hand, recent developments in both fields have seen a move towards a more functional-based approach. Thus, in relation to diplomatic immunity, the dominant theoretical basis is that of functional necessity.2 As regards State immunity, recent developments in both international law3 and, more particularly, in UK law4, from absolute to restrictive State immunity, have resulted in a more functionally orientated approach, that is, a shift of emphasis in matters of State immunity from immunity ratione personae to immunity ratione materiae.5 Now two recent cases in the United Kingdom have raised the possibility that, in the case of diplomats at least, the two concepts may be combined to provide a double immunity for diplomatic agents against civil suit. More controversially, the cases have raised the possibility of a third type of protection based upon immunity ratione personae in what could be said to amount to a modified act of State doctrine. The cases in question are Propend Finance Pty Ltd. v. Alan Sing and The Commissioner of the Australian Federal Police6 and Re P (Diplomatic Immunity: Jurisdiction).7

A DEFENCE OF THE MARGIN OF APPRECIATION AND AN ARGUMENT FOR ITS APPLICATION BY THE HUMAN RIGHTS COMMITTEE

The margin of appreciation (MoA) has become the central conceptual doctrine in the institutional and jurisprudential architecture of the European Convention on Human Rights (ECHR). This article critiques the existence and operation of the MoA within the ECHR system and defends its use. It is submitted that as each of the central justifications for the MoA under the ECHR applies equally to the International Covenant on Civil and Political Rights (ICCPR), so the doctrine should be applied by the Human Rights Committee.

III. ASSASSINATION AND TARGETED KILLING—THE KILLING OF OSAMA BIN LADEN

Osama Bin Laden was killed on 2 May 2011 in the course of an operation by US special forces (Navy Seals) in Abbottabad, Pakistan. 1 The US forces were flown by helicopter from neighbouring Afghanistan. The death of Bin Laden renewed questions about the legality of such operations during armed conflicts and during peacetime. 2 The potentially applicable law includes international humanitarian law, international human rights law, jus ad bellum and the domestic law of the US and Pakistan. 3

II. Ex parte Pinochet : Lacuna or Leap?

The Lords were not lost in admiration of section 20 of the State Immunity Act 1978. Lord Browne-Wilkinson described it as “strange” and “baffling”. It is certainly true that (as Lord Browne-Wilkinson continued) “Parliament cannot have intended to give heads of state and former heads of state greater rights than they already enjoyed under international law”. 1 Nor was it intended that their rights should be inadvertently curtailed. The State Immunity Bill originally introduced into the House of Lords in 1977 would, by reflecting in UK statute law the European Convention on State Immunity 2 make huge inroads into absolute sovereign immunity—tottering but not yet demolished through the repeated onslaughts of Lord Denning. The European Convention was however “essentially concerned with ‘private law’ disputes between individuals and States”. 3 It was not intended to have any application to criminal proceedings—in so far as lawyers in 1977 even contemplated criminal proceedings in domestic courts against foreign States in their public capacity. It did not deal with the personal privileges or immunities of heads of state. There were no ready-made treaty rules on heads of state and no clear customary rules either. 4