International Law: Text, Cases, and Materials - Essay Example

?Assignment The British court has struggled in its role of upholding the law and protection of human rights. This paper seeks to analyze, using a case study on Chahal v United Kingdom, how exactly the British Court achieved its role and how this was vital and caused controversial issues as far as the British constitution is concerned. In the case involving Chahal and UK1, the four applicants were members of the same kin and are Sikhs. The very first applicant comes into the United Kingdom illegally in the year 1971 in hunt of employment. To regularize his stay, he applied to the Home Office and was given indefinite leave to stay in regard to the terms of an amnesty given to illegal entrants who had arrived prior to 1 January 19732. From 16 August 1990 he had been detained in Bedford prison for the reason of deportation3. The second applicant had come to UK on 12 September 1975 as a result of her marriage to the case`s first applicant back in India, and she presently lives in Luton together with the two kids of the family, who are also the 3rd and 4th applicants. Home Secretary of the day resolved that the claimant needed to be deported from British since his continued presence in UK was never conducive for the public good citing reasons that were political in nature, that is, the international fight against terrorism. However, the claimant stood a real risk if deported to India since he would be tortured or killed by security forces. He resorted to applying an asylum. However, the UK court did not provide an asylum seeker the proper chance to argue the case. In establishing whether it has been substantiated that indeed there is a factual risk that the claimant, if expelled to India, was to be exposed to treatment that is contrary to Article 3, the British Court assessed all the material positioned before it. The role of the court here was to uphold the law and protect human rights, and so it had to trade carefully in this case. The expedient of the appointing security-cleared counsel, directed by the court, who was to cross-examine witnesses and in general help the court to investigate the strength of the case of State, served to demonstrate that there are techniques that can be applied which accommodate legitimate security concerns regarding the nature and intelligence information sources and yet accord the person a considerable measure of procedural justice. Enshrined in Article 3 is among the most fundamental values of a democratic society4. The British Court is much aware of the immense obstacles faced by States in the modern times concerning shielding their communities from the violence of terrorist. However, even under these circumstances, the court, as stipulated in British constitution, still uphold the law and hold high the dignity of human rights. The Convention outlawed in absolute terms, inhuman, torture, degrading treatment or punishment, regardless of the victim’s conduct. Contrasting many of the substantive clauses in the Convention and in Protocols Nos. 4 and 1, Article 3 creates no provision for exceptions5. Moreover, no derogation originating from it is permissible according to Article 15 even if a public emergency arises that threaten the life of the nation. The legality of the detention of an individual with an aim of deportation did not rely on whether the underlying decision of deportation could be justified, and that the appellants had never dared to challenge his detention independently as opposed to a decision to deport him. The court held that expelling the claimant might engage the responsibility of the State, as stipulated in Article 3 where substantial justification are shown for believing that there would be factual risk on the deportee of torture, inhuman, punishment or degrading treatment in the receiving country. Clause in Article 3 offers a complete prohibition of torture in the expulsion cases. The deportee`s conduct can never be a material consideration for British court in a situation where substantial grounds indicate that the deportee would definitely be at risk6. Therefore, the question as to whether if Chahal was deported would subject him to treatment outlawed by Article 3 remained controversial as far as the court`s role of upholding the law and protecting human rights is concerned. The Court held that because the claimant has not been deported yet, the material point in time requires being that of Court's consideration of case. British government proposed to take back the first applicant (claimant) to an airport of his choice in India7. The proof relating to the destiny of Sikh militants outside Punjab state was therefore of particular significance. The evidence corroborated from various objective sources persuaded the court that until mid 1994,Punjab police`s elements were accustomed to take action regardless of human rights of alleged Sikh militants, including going after them outside the home state8. No evidence of change of regime of the Punjab police was revealed. Despite the current improvement in the situation of human rights in Punjab as well as the efforts of the authorities in India to bring in a reform, troubles persisted in regard to the observance of the human rights by some members of Punjab` security forces in and elsewhere in India. Going by this background, the Indian Government assurances were undoubtedly inadequate guarantee of the safety of the claimant. The high-profile of the applicant was probably going to make him the target of the hard-line elements in the security forces. Therefore, the British Court concluded that to implement the decision to deport the claimant to India would definitely violate Article 3. Here the Court performed its role of upholding the law as well as protecting human right. In regard to Article 5, the Court observed that all that is required in Article 5(1)(f) is that `action is indeed being taken with an aim to deportation'. It`s therefore irrelevant whether the detention of applicant can be sensibly considered necessary or whether underlying decision to expel the applicant was justified. However, the Court noted that if the deportation proceedings had not been prosecuted with suitable diligence, then detention will actually cease to be permissible. The domestic proceedings of the case commenced on 16 August 1990 and finished on 3 March 19949. Going by the exceptional circumstances as well as the detailed consideration needed by the Court and the executive, the period of the case was not excessive. However, the Court administered justice to the applicant and upheld the rule of law. The domestic court was not given the information relating to the national security and thus, was unable to review if the decision to detain applicant was justified or not. Given the procedural challenges of the advisory panel, it was difficult to be considered as the `court' for purposes of the Article 5(4). The Court accepted that the utilization of confidential material might be unavoidable in a case where national security is threatened. However, national authorities can never be liberated from effective judicial control if they opt to assert that the national security is involved. This technique can be adopted which both bring on board the legitimate security concerns concerning the nature and also the sources of intelligence information while according the individual procedural justice. The British Court viewed that neither of the proceedings for habeas corpus as well as for judicial review of a decision to detain the claimant satisfied Article 5(4)`s requirements. This implied there had actually been violation of this provision. Going by the finding of the violation of Article 3, necessity to decide on the hypothetical question of whether there would be violation of Article 8 if expulsion of applicant to India was implemented become warranted. The advisory panel procedure and judicial review were insufficient remedies for Article 3 complaint because they were unable to review the decision to expel with reference solely to a question of risk to applicant, letting aside national security considerations. The Court established that there was actually no need to consider complaints of infringements of Articles 8 and 5 in conjunction with the Article 13, so as to establish that Article 5(4) was indeed violated and that Article 8 complaint was actually hypothetical. The fact remained; there was a violation of Article 3 as revealed by the Court findings. Note on the case Introduction The case in question in this paper is Chahal v United Kingdom10, which had a great legal significance and shaped the British legal system as far as protection of human right is concerned. In the case, the Court decided that there is total prohibition on torture, degrading treatment, and inhuman act and so the state will never deport individuals to their country where they will face real risk of torture regardless of the level of security risk these people pose to the UK. This principle was a serious restriction on the capability of UK to deport convicted criminals and suspected terrorists, implying that even foreign nationals with appalling criminal record can never be deported if there is a real risk of facing torture or being killed in their home country. This was a controversial issue which arose in the case since they are faced with choosing between the country`s security and the individual`s human rights. This decision has always been often criticized by politicians and the press. Facts: The claimant is a Sikh who unlawfully entered United Kingdom. Later, his stay in the United Kingdom was regularized as per the general amnesty for some illegal entrants. The applicant had been active politically in Sikh community in United Kingdom and played a vital role in the organization and foundation of the ISF (International Sikh Youth Federation). He was apprehended without conviction for conspiring to murder the then Prime Minister of India. However, he was later convicted because of an assault and affray. Unfortunately, the conviction was put aside. His deportation order was issued as a result of his political activities and also criminal investigations that were taken against him. He was detained up to the time of the Court ruling. The applicant had claimed that his deportation back to India would undeniably result into real risk of inhuman treatment, torture, or degrading treatment that would violate the British constitution. He also claimed that deportation would violate his right to freedom guaranteed by article 5. Decision: The Court found a violation certain articles of the British constitution such article 3, article 4 and article 13, but article 5 was not violated11. The Court further decided that since Article 5(4) offers a lex specialis in regard to the general requirements of the Article 13, it must consider it first. Significance of the case: Article 3 entailed a guarantee that is absolute in expulsion court cases so the United Kingdom could not just rely on the possible threat to its national security to justify the applicant`s deportation. This case had outlined a roadmap that is very useful in the fight against and defense of human rights in the entire Europe. Human rights remain indispensible. This case insinuated that nothing matters than upholding the rule of law as well as protection of human rights. Like in this case, the applicant would be facing a real risk of every sort of ill treatment were he to be deported to India. The assertion of any national security interest need not to free national authorities from efficient control by national courts. Bibliography Reif, L. C. The ombudsman, good governance and the international human rights System. 1st Edition, Faber and Faber, London, 2004. Abass, A. International law: Text, cases, and materials. 3rd Edition, Oxford: Oxford University Press, 2012. Kempees, P. A systematic guide to the case-law of the European Court of Human Rights: 4th Edition, The Hague, 2000. Dashwood, A. & Ward, A. The Cambridge yearbook of European legal studies: 1st Edition, Oxford: Hart, 1999. Read More