The Human Rights Law - Assignment Example

Running head: The Human Rights Law The Human Rights Law Human democracy, equality, freedom, human rights respect and rule of the law are the core values in the foundation of European Union. Since they have been embedded in the European Union treaty, their reinforcement was by the Fundamental Rights Charter. Countries that transact trade and have other agreements with the European Union have a mandate to respect human rights. The European Union has a commitment to defend the indivisible and universal human rights nature. It protects and promotes these within their border. The European Convention on human rights is a recognised international treaty with the mandate of protecting human rights and freedoms that are fundamental across Europe. A council of Europe, which was then newly formed, drafted it in 1950 but it was enacted in 1953. The European Court of Human Rights was established by this convention so that any person who felt their rights were violated could take the matter to that court. The States that were bound to violate the rights were executed (Barstow 2010). The establishment of such a court for individuals’ protection from violations of human rights is a feature of innovation for a convention on human rights that is international. It offers an international active role for an individual. Internationally, the European convention is ranked first in the provision of a high degree of protection to individuals. This is implemented by active and full partnership with international organisations, civil society, and member states of the European Union, partner countries and regional organisations (Weissbrodt & De La Vega 2007). From a historical perspective, the establishment of a Human Rights protection regional system across Europe was seen as a response to two concerns. The first concern was in the second world war aftermath, where the convention drew inspiration from Universal Declaration of Human Rights to be part and parcel of the broader response of Allied powers to deliver agendas on human rights, through which a notion was tabled that serious violations of human rights were rampant in the second world war and could be prevented in the future. The second concern was that, the convention in Europe was an opportunity and a response towards the growth and development of Eastern Europe Communism and. It was in the concern to grant protection to the members of state of the European Council from subversion of the communist. The democratic societies within the convention have the necessary principles and values as required of them even though such principles and values do not have a specific definition in the convention (Barstow 2010). The convention has three parts. Section 1 contains freedoms and main rights, Section 2 is about the setting up of the court and its operation rules and Section 3 has various provisions concluded. The convention was amended by protocol 11. Article 1 focuses on respecting human rights. In this article, the signatory parties are bound to secure rights under other Convention Articles that are within their jurisdiction. There are exceptional cases where jurisdiction is not within the confinement of the national territory of the Contracting State. In such cases, the obligation of securing the Convention rights is extended to foreign territory (Birkinshaw 2010). Article 2 is about protection of every person’s right to life. There is an exception for executions that are unlawful in the first paragraph of this Article although those exceptions are superseded by the 13 and 6 protocols. The death penalty imposition during peacetime is prohibited by protocol 6 whereas in protocol 13, prohibition is extended to all circumstances. In the second paragraph of the same Article, provisions are that, death arising from personal defence, fugitive or suspect’s arrest, or while suppressing insurrections or riots will not under any circumstance contravene the Article (Dickson 2010). The Convention’s Signatory States can derogate only from rights that are contained the Article for deaths that result from war lawful acts. With all the above in perspective, the human rights court ruling is that, under Article 2, states have the following three duties that are main; suspicious deaths investigation, refraining from killing unlawfully and prevention of loss of life that is foreseeable (Brüggemann 2010). Torture, degrading treatment or inhuman punishment prohibition is under Article 3. In this right, there are no limitations or exceptions. This provision also applies in cases of poor detention conditions and police violence that is severe. This prohibition is provided in absolute terms, irrespective of the conduct of the victim. States cannot extradite or deport individuals who may be subjected to degrading or inhuman punishment or treatment, or torture in recipient states. Subjecting an individual to noise that is intense, standing against walls with outstretched limbs for long and sleep deprivation is not classified as torture. The court is becoming more open while judging states guilty of inhumanity and torture because the Convention is more of a living instrument and in future classify degrading treatment as torture in the future. Article 4 of the Convention prohibits servitude, forced labour and slavery (Birkinshaw 2010). Labour is exempted if it is conducted as normal imprisonment requirement, if it is military work that is compulsory, if it is required done in a state of emergency and if it is part normal civic obligations required of a person. The right of a person to security and liberty is provided in article 5. The right to liberty is only subject to detention or lawful arrest under given circumstances like an arrest on crime suspicion. Under the Article, a person has a right to information regarding reasons about their arrest, a right to promptly access judicial proceedings in order to determine legality of their detention or arrest and a right for compensation in cases of detention and arrest in violation in violating this article (Brüggemann 2010). A fair trial right is provided for in Article 6. This includes a right to public hearing that is before an impartial and independent within a considerable period. There are other rights that are minimum for the charged and they include; adequacy of facilities and time in their defence preparation, legal representation accessibility and a right to have witnesses against them examined. Omissions and acts retrospective criminalisation is prohibited in Article 7. A person should not be punished if the act committed was not categorised as criminal then. A criminal offence, under the Article, is an act that is under either international or national law that would allow a party prosecute somebody for any crime that was legal as per the domestic law. The Article states that, a heavier penalty than the applicable when the crime was committed should not be imposed (Brüggemann 2010). Article 8 of the Convention gives a right to one’s family and private life respect, and the same to be accorded his/her correspondence and that of their homes. Under the Article, there is clear providence of a right to freedom from unlawful searches. Rights to religion, conscience and freedom of thought are provided under Article 9. There is freedom for religion or belief change, freedom to manifest belief or religion in an act of worship, practice, teaching and observance (Barstow 2010). Article 10 of the Convention provides for freedom of expression and opinions. It however has restrictions for the following; national security interests, disorder or crime prevention, public safety or territorial integrity, reputation protection, morals or health protection, prevention of confidential information disclosure and maintaining the judiciary’s impartiality and authority. Article 11provides for the protection of association and freedom of assembly rights together with the right to create trade unions. Men and women who have attained marriageable age have a right to marry and make family establishments under Article 12 of the Convention. However, the court has declined to apply this article’s protection to marriages of the same sex. Article 13 of the Convention provides a right to a remedy that is effective before the national authorities concerned with rights violation as stated in the convention. Prohibition of any discrimination is provided in Article 14. It broadly prohibits discrimination in potentially unlimited grounds. Prohibitions on discrimination are specifically based on; race, language, sex, colour, political, religion amongst others (Barke 2010). Article 15 allows for derogation of certain rights by contracting states during public emergency or war times. It is mandatory for permissible derogations to meet the following substantive conditions; a public emergency which is a threat to the nation’s life must be there, any measures that are taken in responding to such must be required strictly by the situation’s exigencies and the same measures must comply with other state’s obligations under the international law. These substantive requirements must be sound procedurally (Brüggemann 2010). States are allowed to restrict foreigner’s political activity. The ruling of the court is that member states of the European Union cannot consider other member states nationals as aliens. In the Convention’s 17th Article, people must not use guaranteed rights in purposes of seeking limitation or abolition of rights that are guaranteed in the Convention. Article 18 states that, the limitations must be only utilised for the right purpose as per the Convention’s provision (Birkinshaw 2010). With such critical analysis of the provisions, it is mandatory to mention that, as much as the European Union has good records regarding human rights, there is no complacency room. It supports measures to curb xenophobia, racism and other discriminations based on gender, disability, religion, age or sexual orientation. Of particular concern is the right regarding migration and asylum seeking. The European Union is viewed as a human rights’ global force since it is at the forefront for this noble course. Any agreements regarding trade and other co operations that are settled with countries that are not within the European Union have a clause that stipulates the essentiality of human rights in the relations. For human rights protection, European Union funds the human rights and democracy initiative. This initiative focuses on good governance, democratic strengthening and for rule of law which drums up support for free media, political pluralism and a sound system of justice. This initiative also abolishes existent death penalties. It combats and curbs torture by introducing preventive measures like educating and training police and stipulating punitive measures like establishing criminal courts and international tribunals. Discrimination and racism are eliminated by ensuring there is respect for civil and political rights (Barke 2010). Projects for children protection and gender equality are also funded by the same initiative. Other organisations that are in the forefront in defending human rights are supported by this initiative. Such organisations include, Council of Europe, Security and Cooperation Organisation in Europe, United Nations and the Red Cross International Committee. For a long time now, there has been a movement that is geared towards advocating for more open governing. A similar movement was present in the 1980s and 1990s when several acts were enacted such as the Official Secrets Act 1989. This Act was enacted on 1st March 1990. It replaced section two of 1911 Official Secret Act under which official information disclosure without appropriate authority was treated as criminal offence. Under the Act of 1989, disclosure of official information is termed criminal if it causes national interest damage or if the information was disclosed to six specific categories (Howard 2007). The 1989 Act applied to crown servants who include the police, government ministers, armed forces members and civil servants including diplomatic service members. The government contractors are included together with anyone employed or provide services and goods on behalf of a minister. Staff members and office holders of non-governmental organisations and are crown servants such as National Audit Office, British nuclear fuels plc, Parliamentary Commissioner for Administration Offices and UK Atomic Energy Authority are included. Members of public or others who are not government contractors or crown servants but have in their possession official information are included. Official information in this context refers to any article, information or document that is in possession of a government contractor or a crown servant in respect to their position. It is criminal for anyone to disclose accessibility to information that is under the Act’s protection. For current and former members of the intelligence and security services, it would be an offence for them to disclose any information that is official regarding intelligence or security. However, there are no damage tests (Barke 2010). Offences of disclosing official information without authority as per the Act might be tried on Sheriff or High court indictment or by a magistrates’ court in a Sheriff court summarily. Unlimited fine or two years’ imprisonment are the maximum penalties. Under the Act, it is also an offence for a government contractor, notified person or a crown servant to fail in taking reasonable care in preventing an unauthorised document or article disclosure. Another offence is if the same people retain such articles or documents contrary to their official duty (Dickson 2010). Official information that is protected by the Act is in six categories that are specified. They include defence, foreign confidences, intelligence and security, international relations, special investigative powers and information that can lead to crime commission. It is an offence to disclose information that is damaging in relation to intelligence or security, international relations or defence if it has been communicated confidentially to an international organisation or another state. It is the same scenario with information in a person’s possession without the organisation’s authority or that of the state (Howard 2007). The 1989 Security Service Act is responsible for providing protection to the UK against sabotage and terrorism, national security threats from espionage, actions whose intention is to undermine or overthrow democracy of the parliament by industrial, political or violence means and from activities of foreign power agencies. The service has the function of safeguarding the UK’s economic well-being against the threats that are posed by intentions or actions of people that are outside Britain. It will act in support of National Criminal Intelligence Service activities, National Crime Squad, police forces’ activities and other agencies enforcing law in the detection and prevention of serious crimes. A Director-General who is an appointee of the Secretary of State shall control the operations and activities of the service. The Director-General has the responsibility of ensuring there are proper arrangements for the co-ordination of activities of the service and that the information the Service obtains is for discharging its functions properly (Merris 2006). The Intelligence Services Act 1994 was introduced to provide information about the Government Communications Headquarters and Secret Intelligence Service. It was also required to avail provisions for the authorisations and warrants issuance that enable certain actions to be enacted. It was also supposed to give provisions about the warrants that are issued upon Security Service applications. The service should further provide an established procedure for complaints investigations about Government Communications Headquarters and Secret Intelligence Service (Greer 2006). The 1985 Interception of Communications Act became operational on April 1986. It created the offence of intercepting communications unlawfully sent by a public telecommunications system or by post and the guilty victims was liable to imprisonment or a fine on conviction. It availed provisions for a warrants’ system for legal interception permission. Cases of where interception would be conducted lawfully were laid down and it was stated that, on believable grounds that the involved party gave consent to the interception would be a defence. A complaints tribunal was established under the Act and a post of an Interception of Communications Commissioner was created to review works of the act (Howard 2007). The Regulatory of Investigatory Powers Act of 2000 is a UK’s Parliament that regulates public bodies’ powers for carrying out investigation and surveillance and covering of communications interception. It was established to take accountability of technological changes like the internet growth and encryption strength. RIPA can therefore be invoked by the officials in the government specified under the Act on national security ground and for other purposes like public safety, detecting crime, protection of public health, preventing disorder or in the UK’s economic well-being (Barke 2010). Regulatory of Investigatory Powers Act has the mandate to regulate the way in which other public bodies might access and conduct surveillance on electronic communications of a person. The act therefore enables specific bodies in the public sector to demand provision of a customer’s secret communications accessibility by an ISP. The mass surveillance of the communications that is in transit is enabled (Weissbrodt & De La Vega 2007). The Act also enables certain pubic parties to ask ISPs to fit equipments for facilitating surveillance. It enables monitoring of peoples’ activities in the internet by certain public entities. It prevents interception warrants existence and any other data in their possession to be revealed in court. There is some degree of riskiness with decisions on disclosure that are arrived at by the harm test application justifiably, and are not necessarily consistent with the interest of the public. The practice code states that, there should be considerations whether any prejudice or harm that arises from disclosure is by far outweighed by interests of the public in the availability of the information. There is no factor that can constitute interests of the public and no interest test can be predictable in advance (Merris 2006). With some guiding rules in perspective, the public authorities seek to emphasize that the decisions, which are under FOI, do safeguard the interests of the public. The first rule is to ensure the consistency of the decision with the other legislation that is relevant. The other is that, the process of deciding if the disclosure is relevant or not, resulting from harm test that is substantial is not perverse. The third rule is that, public authorities must ensure the appropriateness of the decision in relation to the Act’s overall purpose (Merris 2006). The freedom of information campaign proposition is that, the Act’s purpose should be further specified perhaps by introducing a clause on purpose under the Act. This could be similar in laws that apply for information freedom in other issues jurisdiction. Suggestions are that the Act should include; the accountability of public authorities regarding their acts through scrutiny that is effective. Another suggestion is that there is a need to avail sufficient information regarding a decision in advance, so that it can fully discussed and influenced. An addition of conventional law of public interest test is also suggested. It is applied if danger or misconduct to the environment or the public has been there. In such scenarios, the courts’ judge if confidential information disclosure is justifiable in relation to the interests of the public. The Act should have a clearer exposition on what the constituents of public interest are. This is important give a general overview to the Information Commissioner and other departments. It should not only cover accountability and openness but should include possible dangers regarding the environment, waste or wrongdoing, serious injustice or inefficient public service (Greer 2006). The accountability and openness might be contradicted by the need of testing the disclosure’s consistency with the other legislation. The government has concerns about preserving the Official Secrets Act effectiveness and a need might arise in certain cases that decisions taken under FOI Act will not force any disclosure that can lead to harm test breach, which prohibit any disclosure under Official Secret Act (Hoffman & Rowe 2010). If by any chance the Official Secret Act becomes the determining factor in the making of decisions under the Information freedom, it might become the hideout, where public authorities will cover up and hide their mistakes. The test of public interest is designed to make sure that decisions made are in line with the Act’s overall purpose. It encourages the government in terms of accountability and openness. A disclosure that would result in damages to various interests that are protected as per the Official Secret Act is a justifiable and clear reason as to why a Commissioner of Information would uphold in principle (Weissbrodt & De La Vega 2007). Unauthorised disclosures are a cause of concern to the Official Secret Act. For any disclosure that is under the Information Freedom Act, it will need proper authorisation at a level that is appropriate. Unauthorised disclosures constitute grounds for prosecution as per the mandate of Official Secret Act. Arguments however arise regarding reasons as to why some disclosures are categorised as offences under the Act due their unauthorised status other than being categorised depending on the actual damages they cause. Recommendations are that, interests under the Official Secret Act’s protection should not prevent or curb disclosure if the disclosure is incapable of being curbed or prevented be it under public interest test or harm test (Hoffman & Rowe 2010). The Information Freedom Act creates a right to the public of accessing information held by public authorities. Before the introduction this Act, the general public had no right to access the government information. The Acts creates statutory rights for information access in relation with the bodies that conduct public nature functions. Three types of bodies are highlighted in the Act and they are; public authorities, designated bodies and companies that are publicly owned (Hoffman and Rowe 2010). For purposes of promoting good governance, the Act should be utilised accordingly. Information handling should be critical and handling it should be of absolute certainty. References Barstow, D.T., 2010. The Freedom of Information Act and the Press. Obstruction or Transparency. 77(3), pp.805-810. Birkinshaw, P., 2010. Freedom of information and its impact in the United Kingdom, Government Information Quarterly, 27(4), pp.312-321. Weissbrodt, D.S. & De La Vega, C., 2007. International Human Rights Law. University of Pennsylvania Press, Pennsylvania Brüggemann, M., 2010. Information policy and the public sphere: EU communications and the Promises of dialogue and transparency, Javnost, 17(1), pp. 5-22. Barke, N.C., 2010. Freedom of Information: the law, the practice and the ideal, Cambridge: Cambridge University Press, Dickson, B., 2010. The European Convention on Human Rights. Oxford University Press, Oxford Greer, S.C., 2006. The European Convention on Human Rights. Cambridge University Press, London Howard, D., 2007. Human Rights Law. Oxford University Press, Oxford Hoffman, D. & Rowe, J., 2010. Human Rights in the UK. Longman, London Merris, A., 2006. Human Rights Law. Hart Publishing, NY Read More