Human Rights

FOREWORD

          In keeping with the assertion postulated as subject of discourse in this essay, this Writer intends to pursue a path of thought-process guided by what is perceived as a radical-sounding claim by Mark R. Amstutz, a Professor of Political Science at Wheaton College, Illinois, USA.  Allegedly, Professor Mark R. Amstutz claimed that Human Rights are “Subversive” to the International Status Quo – The current state of a “Society of States”.

          Whether or not Amstutz really made such a claim, and if he did, is he serious?  He must have concrete and well-founded bases in saying so.

          For the purpose of this essay, I would like to be directed in my discussion by the following questions: 1) What does Amstutz mean in his alleged claim?; 2) Am I agreeable to it?; 3) Either way, what is my stand?; 4) Is the alleged potential subversion a good thing or not?

AMSTUTZ’S PROFESSIONAL PROFILE

          In his book, The Healing of Nations: The Promise and Limits of Political Forgiveness (Rowman & Littlefield Publishers, 2005), Professor Mark R. Amstutz posed a challenge to the International Community which to him would tend to focus  their efforts mostly on imputing retributive justice and punitive actions to past political offenses.  And in carrying out their strategies, they would use their resources and exhaust efforts in a course of action that would only aggravate, widen, and worsen even   more the gap between the offended and the offending parties.  To Amstutz, the   appropriate, effective, and lasting approach should be by way of restorative justice.

Simply put, what Amstutz appears to mean is to break the barrier and bridge the gap by   giving allowances and offering of incentives to offenders, while motivating them to come out of their belligerent stance  and return into orderliness and peaceful co-existence with   the rest of the freedom-loving populace.

          Professor Amstutz’s central contention in his book as quoted by Eric Brahm (Conflict Research Consortium, 2005) is that “The most expeditious and effective way of reckoning with past collective offenses is by intentionally seeking to foster political healing through reconciliation based on moral rehabilitation of antagonists”.  With that contention,  Amstutz, a Political Scientist, exhibits an image of being a Moralist, too. Furthermore, Amstutz is not only resourceful as a Political Scientist and a dedicated Moralist, he also appears to be a Minister of Gospel Truth.  In his thesis, Human Rights and the Promise of Political Forgiveness (Wheaton College, IL, 2004), he wrote, “Forgiveness addresses serious wrongs by calling on transgressors to confront and acknowledge moral culpability and to repent through the implicit promise of not repeating the evil action again.  For their part, victims refrain from vengeance and release debtors from some or all  of the deserved punishment.  By encouraging such actions, forgiveness fosters a context that encourages the moral renewal of persons and the transformation of enmity into communal solidarity”.

ON HUMAN RIGHTS

          Now, why would Amstutz qualify Human Rights as “Subversive” to the current state of “Society of States”?  My intelligent guess is that his understanding on the meaning and sense of what Human Rights means, is a world different from the common people’s conception.  For sure, there are as many definitions of Human Rights as there   are various advocates fighting for their respective rights, be it male, female, third sex, minors, juniors, senior citizens, black, white, brown, yellow race, etc.

          For a  better understanding of Human Rights in its practical sense, today’s common people can learn from the statements of the two candidates for US Presidency.  Senator  John McCain is quoted as saying, “We are Americans.  We hold ourselves to humane standard of treatment no matter how terribly evil or awful they may be…We stand for a lot more than that in the world: a moral mission, one of freedom and democracy, and   human rights at home and abroad.  We are better than the terrorists, and we will win…

The enemy we fight has no respect for human life or human rights…These are values that   distinguish us from our enemies”(Human Rights First, July 25, 2005).

         For his part, Senator Barack Obama said, “To build a better, freer world, we must first behave in ways that reflect the decency and aspirations of the American People.  This means ending the practices of shipping away prisoners in the dead of night to be tortured in far-off countries, of detaining thousands without charge or trial, of maintaining a network of secret prisons to jail people beyond the reach of law”(“Renewing American Leadership”, July/August, 2007).

AFTERWORD

          In light of the common conception of Human Rights as reflected through the statements of the two presidentiables, McCain and Obama, I see no clear reason to call Human Rights as subversive, no matter how qualified the term may be.   Although Human Rights may not be as perfect with reference to the standard of the Moralist and Evangelist in Amstutz, but there is almost no doubt, theirs is one of complementary role in the common aspiration of people in all walks of life to co-exist in peace and to live a life grounded on the Principles of The Golden Rule.

References:

The Healing of Nations: The Promise and Limits of Political Forgiveness by Mark R.

          Amstutz, Lanham, MD: Rowman & Littlefield Publishers, 2005

Human Rights and the Promise of Political Forgiveness, by Mark R. Amstutz, Wheaton

          College, Illinois, 2004

Universal Declaration of Human Rights, U.N., December 10, 1948

Human Rights First Web Site: How to End Torture and Cruel Treatment, a blueprint for

           the next US Administration, Oct. 2008

Introduction
Essentially there can be no doubt as to the significance that Member States and the Treaties attach to fundamental rights. It is declared that the Union is founded inter alia on “the respect for human rights and fundamental freedoms”. It also provides that the Union must respect fundamental rights, as guaranteed by the European Convention on Human Rights (ECHR) and as they result from the constitutional traditions common to the Member States. They are general principles of Community law. Under Article 7, a “serious and persistent breach” of fundamental rights by a Member State may result in the suspension of rights derived from the Treaty, including voting rights. In practice, the pursuit of respect for fundamental rights in the context of the Union has far-reaching internal and external dimensions and concerns. This essay seeks to demonstrate that concerns only reinforce the undeniable necessity for a consummated policy of human rights protection within the EU. A stronger commitment to safeguard respect for fundamental human rights would provide the EU with the ethical foundations which have accrued due to its origins as a common market. This is reinforced on the grounds that the 2007 Reform Treaty confers legally binding status to the Charter of Fundamental Rights and authorises the EU to acquire international legal personality. This allows for EU accession to the ECHR, which would ensure consistency in the interpretation and application of human rights, whilst strengthening and legitimising their place within EU law.

The European Court of Justice (ECJ) has progressively developed unwritten general principles of Community law regarding human rights. In Internationale Handelsgesellschaft, the ECJ declared that respect for fundamental rights forms an integral part of the general principles of law protected by the Court, and that this protection must be ensured within the framework of the structure and objectives of the Community. In Nold v Commission this notion was extended by maintaining that, in safeguarding fundamental rights, it would be inspired by the constitutional traditions common to the Member States as well as the guidelines provided by international treaties for the protection of human rights. Therefore, rights prescribed in treaties such as the ECHR would be considered as part of the general principles of EC law.

The ECJ’s developments in the sphere of human rights were bolstered by the amendments introduced by the Treaty of Maastricht and the Treaty of Amsterdam. This is demonstrated by Article 6(2) TEU, which provided that the Union would respect the fundamental rights guaranteed by the ECHR and by national constitutional traditions. The Amsterdam Treaty went further to affirm that the Union is founded on the principles of liberty, democracy, and respect for human rights and fundamental freedoms. Furthermore, the new Article 7 allowed the Council to suspend some of the rights of a Member State responsible for a serious and continual breach of the fundamental principles of Article 6. These treaty developments irrefutably signified an important political shift for the EU in order to institute the role of fundamental human rights within the Union.

Although promulgated in order to give greater visibility to the protection of fundamental rights, the Charter of Fundamental Rights includes several innovations, such as the prohibition on reproductive human cloning, guarantees on data protection and on good and transparent administration.As with the ECHR, the Charter contains civil and political rights, but it also includes economic and social rights and certain third generation rights. The Charter has acutely drawn inspiration from the ECHR, yet it has attempted to modify the ECHR with the intention of rendering it simpler, more up-to-date, and expansive. The scope of the protection to be afforded by the Charter is therefore not entirely equal to that afforded by the Convention.

Although the protection of fundamental human rights has occupied a progressively notable status within the European Union, its development within the framework of EU law has been subject to a number of criticisms. Firstly there are two significant gaps which against that background are consternating and which need to be filled. The first is the absence of enumeration of fundamental rights in the Treaties even though the Treaties themselves have, in the words of the ECJ, acquired the status of a “constitutional charter”. The second is the fact that neither the EU nor the Communities are party to the ECHR or to any other international human rights instrument. The proposal for a Charter of Fundamental Rights underscores both these anomalies. A degree of scepticism exists regarding the European Court of Justice’s capability to implement an acceptable system of human rights protection within an entity primarily established as an economic institution. The ECJ has been condemned for attempting to act as another Human Rights Court, when the Strasbourg Court was already created with an express human rights jurisdiction. Similarly, it is contended that the ECJ has attempted to widen Community competences “through the back-door” by manipulating the rhetorical force of human rights to advance the commercial goals of the common market.

A shared dedication to human rights is a potentially unifying force and can provide a common foundation for the EU legal system. In Bosphorus v Ireland, the Strasbourg Court analysed the system of protection of fundamental rights within the EU and was satisfied with the system of observance of Convention rights under EC law. The Court held that State action taken in compliance with the obligations flowing from membership of an international institution is justified “as long as” fundamental rights are protected in the spirit at least equivalent to that for which the Convention itself provides. In this way, although its objectives came into existence from considerations of economic integration, the development of the Community demonstrates the existence of moral and social considerations that extend beyond their economic significance. The Lisbon Treaty aims to implement the reforms necessary to bring the EU closer to this ideal, by giving legally binding status to the Charter, as well as allowing the EU to acquire legal personality so that it can become a signatory to the ECHR. It follows that the EU’s accession to the Convention is of a high political and legal significance.

From the perspective of the citizens, accession will guarantee that any person claiming to be a victim of a violation of the Convention by an institution or body of the Union can bring a complaint against the Union before the Strasbourg Court under the same conditions as those applying to complaints brought against Member State In political terms, accession signifies that the European Union reasserts the pivotal role played by the Convention system for the protection of human rights in Europe, beyond the borders of the 27 Member States. By acceding to the Convention, the European Union itself embeds its weight behind the Strasbourg system of external judicial control in the area of fundamental rights by integrating its legal order absolutely and formally to that control system. This will amplify the credibility both internally and externally of the EU’s strong commitment to fundamental rights.

Concern has been expressed that the Charter contributes to conflicts in the Courts’ interpretations, and thus subverts existing protection by creating the risk of inconsistency and arbitrariness. The legal advantage of accession will be important in three respects: First, it complements the introduction of a legally binding Charter of Fundamental rights. Accession to the Convention will warrant that the case-law of both Courts i.e. the Court in Strasbourg and our own “Constitutional Court” in Luxembourg, evolves in stride. It is therefore an opportunity to develop a coherent system of fundamental rights protection throughout the continent, with a robust assurance for a Europe truly united by law and values. Subsequently, it is argued that an effective way of reconciling the issues regarding fundamental human rights within the EU would be the accession of the Union to the ECHR.

Accession has been titled as “the key” to securing the requisite consistency in the interpretation and application of human rights, as it would provide a clearly defined constitutional bedrock for the protection of those rights. Article 52(3) deals with the potential overlap of rights by providing that where rights in the Charter correspond to rights in the Convention, the meaning and scope of those rights shall be uniform to those entrenched in the ECHR. However, this does not guarantee that the Charter will not oppose the jurisprudence of the ECtHR. Even when the wording of the Charter and the Convention is indistinguishable, it is possible that the two Courts may interpret the same right divergently. This concern is further reinforced in that the new Treaty of Lisbon explicitly recognises the legal value of the Charter.

Accession by the Union and Communities would thus render their institutions and activities subject to the same degree of administration as those of the Member States. This would have the undeniable capacity to fill the substantive gap in the protection of fundamental rights. There would no longer be a need, where an individual sought to rely on a provision of the ECHR before the Community Courts, to depend on the “prediction” of fundamental rights as “general principles” of Community law. Accession to the ECHR would contribute to the further advantage that the Strasbourg Court would be commissioned to act as an external control on the jurisprudence of ECJ, as it already does in the case of the Member States. This would guarantee the status of the ECHR as the primary medium for the protection of human rights in Europe.Furthermore, if the Treaty is ratified, the acts of the institutions of the EU and of Member States would now be susceptible to judicial review by the ECJ for compatibility with the legally binding Charter. If a divergence in interpretation between the ECJ and the ECtHR were to emerge, Member States would face a conflict between complying with their obligations under EU law, as well as those under the ECHR.

As a result, the suitability of a parallel jurisdiction being exercised by the ECJ is called into question by the very existence of the Strasbourg Court because it administers a system which is specifically tailored to the protection of human rights. As Von Bogdandyobserves, “There are doubts whether the Union’s institutions are deeply enough embedded in the public discourses, and whether they wield enough political and moral clout in order to devise and implement such policies”. The ECJ and the ECtHR share no formal link to ensure corresponding interpretations. The ECtHR interprets and applies the Convention with the sole consideration of human rights, whereas, the ECJ, in furthering the objectives of the Community, interprets fundamental rights in conjunction with largely economic considerations. Consequently, the same issue may appear before both courts, but their respective approaches and objectives may result in different conclusions.

This point is aptly demonstrated by the cases of Grogan and Open Doors. The cases appeared simultaneously before the ECJ and the ECtHR respectively, and concerned the publication and distribution of information about the availability of legal abortions in the United Kingdom. The ECJ addressed the issue in relation to the economic freedom to provide services under Article 49 TEU, and, as a result, the ruling was narrowly based on the fact that there was no commercial link between the providers of the abortion service in one Member State and the providers of the information in the other Member State. Therefore, the ECJ simply could not address the issues of freedom of expression and the freedom to receive and impart information. Conversely, the ECtHR considered that there had been a violation of Article 10 ECHR as the absolute nature of the injunction was disproportionate.

Coppel and O’Neill have severely criticised the ECJ’s approach in Grogan: “The high rhetoric of human rights protection can be seen as no more than a vehicle for the court to extend the scope and impact of European law”, displaying a clear bias towards market rights instead of ensuring the protection of fundamental human rights. As a result, there is concern that human rights protection within the EU entails the extension of Community competences over areas which should remain the privilege of the Member States. Maduro contends that the Charter reflects diametrically opposing perspectives: for some, it reinforces limits on the power of the EU and reasserts the control of States; while for others, the Charter is the starting point of a “truly constitutional deliberative process and the construction of a European political identity”. The original declaration of the Charter outside the framework of the Treaties reflected this tension as to the role of human rights in the Union legal order. While there is a general consensus among Member States on core human rights, there is disparity on certain areas. With the rapid geographical expansion of the Union to include countries without well-evolved internal human rights protection, the EU faces an obstinate challenge in imposing uniformity of human rights standards across Member States, particularly given their political, cultural, and ideological diversity.

The consequence of accession is that the ECJ would therefore have an external scrutiny in the field of fundamental human rights. Thus if the ECJ unsatisfactorily interpreted the Convention or avoided a particular human rights issue, the ECtHR could find a violation and give a correct interpretation of the Convention. Accession would therefore underpin the achievements of the ECtHR, whilst strengthening the system of human rights protection within the EU, and preventing inconsistencies in the substance and interpretation of rights.

These concerns nevertheless only reinforce the notion that a solid commitment to the protection of fundamental human rights is essential within the framework of EU law. Far beyond accumulating the power of the Union and the ECJ, a codified, fully-fledged human rights policy could potentially act as a constraint on that power. The uncertainty of the EU’s human rights standards and the open-ended competences of the ECJ could be significantly constrained by a coherent system of human rights protection within the EU.

Secondly, accession gives leeway to the Strasbourg Court to attribute acts adopted by the institutions or bodies of the Union directly to the Union instead of attributing them, albeit implicitly, to 27 Member States collectively. The Union’s specificity as a distinct legal entity vested with autonomous powers will then be adequately reflected in proceedings before the Strasbourg Court.

Thirdly, the Union will have at its disposal all rights that the Convention awards to the Contracting Parties to defend the human rights conformity of its acts before the Strasbourg Court. The Union will also be able to be represented in the Strasbourg Court with an EU judge.

Protocol Nr. 8 to the Lisbon Treaty requires a certain number of substantive guarantees necessary in an agreement relating to the accession so that the specific characteristics of EU law will be preserved. The Recommendation to the Council, which the European Commission adopted, takes these requirements into full account. Two have been reflected in the draft report of the Honourable Member of Parliament Mr Ramon Jauregui:

It is clear that the Union’s competences and the powers of its institutions as defined in the Treaties may not be affected by the accession. A provision in the accession agreement will reaffirm this. Likewise the accession of the European Union may not affect either the situation of individual Member States in relation to the ECHR, to the Protocols thereto and to reservations. The negotiations should therefore ensure that the Accession Agreement creates obligations under the substantive provisions of the Convention only with regard to acts and measures adopted by institutions or bodies of the Union.

This essay has sought to demonstrate that the EU has evolved into a sophisticated legal and political entity of which human and social rights protection is an essential element. A firm dedication to the protection of fundamental rights has provided the EU with the ethical basis it initially lacked, allowing the ECJ to work towards uniting not only our common economic interest, but also our common humanity. Accession to the ECHR would be a crucial step towards this unity, strengthening and legitimising EU human rights protection, whilst resolving any potential conflict with the ECtHR. However, accession should not be seen as the final step – the protection of human rights within the EU will inevitably continue to be a topic of live debate and discussion, and it is certain that the Lisbon Treaty will only further reinforce the development of a fully-fledged human rights policy within the framework of EU law.

BIBLIOGRAPHY:

Bosphorus v Ireland App. 45036/98.

Coppel, J. and O’Neill, A. (1992) The European Court of Justice: Taking Rights Seriously 29 C.M.L.Rev. 669.

De Witte, B. (2009). The Lisbon Treaty and National Constitutions. More or Less EuropeanisationIn C. Closa (ed) The Lisbon Treaty and National Constitutions Europeanisation and Democratic implications. Blindern: ARENA Report Series.

Fundamental Charter of Human Rights 2000.

Goldsmith, L. (2001), A charter of rights, freedoms and principles. 38 CMLRev, pp 1201 et seqq.

Herm.-J, Blanke. (2006) Protection of Fundamental Rights Afforded by the European Court of Justice in Luxembourg in Governing Europe Under a constitution. Heidelberg: Springer, pp 265 – 278.

House of Lords: European Union – Eighth Report

http://www.parliament.the-stationery-office.co.uk/pa/ld199900/ldselect/ldeucom/67/6707.htm

Internationale Handelsgesellschaft v Einfuhr Case 11/70 [1970] ECR 1125.

Kuhnert, K., (2006) Bosphorous – Double standards in European Human Rights ProtectionUtrecht Law Review, pp 178 – 189.

Maduro, J. E.L. Rev. 2004, 29(2), 282-283.

Miller, V., (2011), EU accession to the European Convention on Human Rights, House of Commons. www.parliament.uk/briefing-papers/SN05914.pdf

Nold v Commission Case 4/73 [1974] ECR 491.

Open Door Counselling and Dublin Well Woman v Ireland (1993) 15 EHRR 244.

Opinion 1/91 [1991] ECR I-6079.

SPUC v Grogan, Case C-159/90 [1991] ECR I-4685.

Treaty of the European Union 1992.

Why the EU should accede to the European Convention on Human Rights, http://www.euractiv.com/en/future-eu/eu-accede-european-convention-human-rights/article-117174

Von Bogdandy, A. (2000) The European Union as a Human Rights OrganisationHuman Rights and the Core of the European Union (2000) 37 CMLRev. 1307 at 1317.

Introduction

Human rights have roots deep in the mists of time yet the term itself dates back barely sixty years to the international discussions preceding the founding of the United Nations. Since 1945, the scope of human rights has been elaborated and the concept now permeates the fabric of international society.

Although human rights issues continue to be debated and contested, the longer history of human rights is often unexamined and even forgotten. Human rights, rather than being a 20th century phenomenon, marks both a culmination of and a transition from the Western natural law and natural rights traditions.

Human rights are rights possessed by people simply as, and because they are human beings. The term has only come into common currency during the 20th century. Rights are not the same thing as standards of behaviour punishable or required by rules, which can be fundamentally unfair to individuals, or used to oppress minority interests.

Human rights are rights and freedomsto which all humans are entitled. Proponents of the concept usually assert that everyone is endowed with certain entitlements merely by reason of being human. Human rights are thus conceived in a universalist and egalitarian fashion. However, there is no consensus as to the precise nature of what in particular should or should not be regarded as a human right in any of the preceding senses, and the abstract concept of human rights has been a subject of intense philosophical debate and criticism.

Natural law has objective, external existence. It follows from the ESS (evolutionary stable strategy) for the use of force that is natural for humans and similar animals. The ability to make moral judgments, the capacity to know good and evil, has immediate evolutionary benefits. It evolved in the same way, for the same straightforward and uncomplicated reasons, as our ability to throw rocks accurately.

Donald looks at the meaning of natural law from four perspectives. The medieval/legal definition: Natural law cannot be defined in the way that positive law is defined, and to attempt to do so plays into the hands of the enemies of freedom. Natural law is best defined by pointing at particular examples, as a biologist defines a species by pointing at a particular animal, a type specimen preserved in formalin. The historical state of nature definition: Natural law is that law which corresponds to a spontaneous order in the absence of a state and which is enforced, in the absence of better methods, by individual unorganised violence, in particular the law that historically existed, in so far as any law existed, during the dark ages among the mingled barbarians that overran the Roman Empire. The medieval / philosophical definition: Natural law is that law, which it is proper to uphold by unorganised individual violence, whether a state is present or absent, and for which, in the absence of orderly society, it is proper to punish violators by unorganized individual violence. The scientific/ socio-biological/ game theoretic/ evolutionary definition: Natural law is, or follows from, an ESS for the use of force: Conduct which violates natural law is conduct such that, if a man were to use individual unorganised violence to prevent such conduct, or, in the absence of orderly society, use individual unorganised violence to punish such conduct, then such violence would not indicate that the person using such violence, is a danger to a reasonable man.

The concept of natural rights arises from the belief that there is an instinctive human ability to distinguish right from wrong. Hugo Grotius believed that people have a ‘right reason’ for doing things. Thomas Hobbes, John Locke and Immanuel Kant were supporters of natural rights theories, suggesting that we have basic fundamental rights because we are born human. Natural law thinkers see rights as universal and inalienable. Natural rights theories have been the inspiration behind ideas and democratic struggles, forcing politics to protect the rights of citizens. Natural rights theories imply that all human beings are equal and should be treated equally. The demand for equality before the law in individual states is synonymous with the development of international human rights law.It is therefore correct assertion to point out to the fact that human rights have evolved from natural rights as depicted by natural law theories.

This paper will trace the changes and continuities of debates and claims about rights throughout the late medieval and early modern periods in order to explore how rights

are historically asserted, justified, and defended. It will also delve into the transformation of rights, from natural to human.

Human Rights and the Legal Theories

The origins of international human rights lie in philosophical discussions evolved through the centuries.

The theories of both Locke and Rousseau suffer from their failure to explain how the supreme right of the majority can go together with the inalienable rights of the individual. (Read the fact that legal theories fail to come down on the side of either democratic or autocratic principles of the government.)

Historically, the assertion of natural rights has often been linked with a revolt against state, authority and a humanitarian belief in the equality and dignity of all men. This is true of the legal philosophy of Stoics or of Kant. (The idea of equality of men often causes democrats to be internationalists.)

The history of natural law is a tale of the search of mankind for absolute justice and of its failure. Again and again, in its course of the last 2500 years, the idea of natural law has appeared, in some form of the other, as an expression of the search for an ideal higher than positive law after having been rejected and derided in the interval. With changing social and political conditions the notions about natural law have changed. The only thing that has remained constant is the appeal to something higher than positive law. The object of that appeal has been as often the justification of existing authority as a revolt against it.

Natural law has fulfilled many functions. It has been the principle instrument in the transformation of the old civil law of the Romans into a broad and cosmopolitan system; it has been a weapon used by both sides in the fight between the medieval church and the German emperors; in its name the validity of international law has been asserted, and the appeal for freedom of the individual against absolutism launched. Again it was by appeal to principles of natural law that American judges, professing to interpret the constitution, resisted the attempt of state legislation to modify and restrict the unfettered economic freedom of the individual.

Natural law has, at different times, been used to support almost any ideology; but the most important and lasting theories of natural law have undoubtedly been inspired by the two ideas, of a universal order governing all men, and the inalienable rights of the individual.

Greeks

Greeks were more interested in the philosophical foundations of law rather than its technical development. Though there were bodies of fundamental laws in the classical period, little attention was paid to the idea of universal law. Plato laid the foundations for much of subsequent speculation on natural law though he had nothing to say as such on natural law. His republic was based on substitution for law of the philosopher-king

which partook of the divine wisdom but remained uncommunicable to lesser mortals. Aristotle was also not interested in natural law. Natural law as a universal system in Greek World came into the fore with the decline of the city state and the rise of large empires and kingdoms. For this stoic philosophers were responsible. They stressed the ideas of individual worth, moral duty and universal brotherhood Stoicism passed over and influenced over to and influenced Roman thought especially Cicero who defined natural (true) law as “right reason in agreement with nature”.

Medieval Period

The existence of a body of basic rights can be traced back to the early thirteenth century in Europe and has featured predominantly in different schools of thought since then. Its origins basically lie in the philosophical discourse with concepts such as liberty and even “rights”.

This was a period when theology of the Catholic Church set the tone and pattern of all speculative thought. The theology was bedevilled by the notion that law and human domination were rooted in sin until Aquinas in the 13thCentury. Aquinas admits that human law, which derives its validity from natural law changes with human circumstances and human reason.

Human rights are linked to the rule of law, a concept that imposes inherent limitations on the exercise of absolute power by a sovereign. The rule of law in turn links to the theories of natural law and to an extent religious doctrines.

The right to expect rulers to be fair and reasonable, with limited authority in respect to the private lives and of their subjects, translating to the rule of law was first enshrined in paper in England in what is referred to as the Magna Carta of 1215. It enshrined a number of principles which now fall within the broad ambit of human rights, including the principle of equality before the law, a right to property and an element of religious freedom, albeit such rights extended only to nobles.

The Declaration of Arbroath in Scotland in 132o, unlike the Magna Carta spoke of the profound right to liberty, rating it above glory, honour, and riches.

Renaissance, Reformation and Counter-Reformation

The renaissance led to an emphasis on the individual and free will and human liberty and a rejection of the universal collective society of medieval Europe in favour of independent national states, and, where the reformation followed, separate national churches. The 16th century also saw the revival of Thomism, a revival of crucial importance for the development of modern natural law theory of the state led by Victoria and Suarez. They took their way of thinking from Aquinas; it was not possible to neglect the law of nature since all men from beginning of creation have been subject to it.

The social contract ideologies associated with Hobbes, Locke, and Rousseau are also traced to the 16th century.

Secularisation of Natural Law

The secularisation of natural law is usually held to begin with Grotius. He inaugurated a new era in natural law thinking by his assertion that natural law would subsist even if God did not exist.His main concern was to establish a system of international law to regulate the affairs and warfare of the rising nation states.

Natural Law and Social Contract

In Hobbes, the social contract is used in defence of absolutism while in Locke in support of limited constitutionalism. Natural law does not loom large in Hobbe’s thinking, except for the fact that he expressed the main precept of natural law in terms of man’s right to self preservation. To Locke the state of nature that preceded the social contact was not, as conceived by Hobbes, one of brutal horror, but rather a golden age, an Eden before the fall. Rousseau’s political theory has weak links to natural law. The general will has come almost to replace the higher law standard that natural law has typically represented.

The emergence of human rights as part of modern domestic law therefore dates back at least to John Locke’s Two Treatises on Civil Government. In 1690, Locke argued that governments were bound in a covenant with the governed to protect an individual’s natural rights to life, liberty, and property.

The 1688 Bill of Rights of England and Wales

In 1688, the Bill of Rights of England and Wales mentioned minimal rights though with little substance. Whatever the case, these early documents connect as to the evolution of human rights. They show that the thinking of the masses then was directed towards human rights as much as ours is today.

The 18th & 19th Centuries: Revolutions and Rights

Though Vico, Herder and Montesquieu, refuted the idea of a universal natural law common to all mankind due to increase in secularism and rationalism, it is during these two centuries that many philosophers and thinkers focussed on the idea of natural rights, rights which should be enjoyed by all humans. A corpus of basic rights to be afforded to all mankind was an obvious result of such thinking. That corpus found legal expression at the close of the 18th Century. The United States and France adopted statements on rights when proclaiming the independence of the former British North American colonies and when establishing the first French Republic following the 1789 revolution.

The United States Declaration of Independence and Bill of Rights, the first ten amendments which were ratified on December 1791, were a big leap into realisation of human rights. The American Bill of Rights refers to freedom of religion, due process and fair trial,and freedom of person and property.

The French Declaration was inspired by the United States Declaration of Independence, though predates the Bill of Rights. It begins by stating that me nare born free and are equal in rights. Liberty is defined as being able to do anything that does not harm others. It also touches on rule of law issues such as a fair trial process.Others to be expounded are right to free communication and taxation issues.

The rights enumerated by the American Bill of Rights and the French Declaration have modern equivalents in human rights instruments. This was another major step in conversion of human rights from theories and thoughts into real legal instruments that could be enforced and followed.

It is arguable that 18th century developments as pertains development of human rights were better those of the 19thcentury where the influential theory of positivism meant that only states had rights in the international arena because of their legal status as subjects of international law rather than individuals whowere viewed as objects of international law.

Challenges of Universality of Human Rights

How can different countries and cultures have the same problems and valuesThis is the main contention to opponents of universality of human rights.
The objections to natural law as a basis for rights are long-standing. It is not difficult, of course, to demonstrate that all human beings share certain characteristics. But finding those that constitute the “essence” of being human and are of sufficient import to serve as a rationale for rights is a bit harder.

Universality is one of the key essentials of human rights. All human beings are holders of human rights, independent from what they do, where they come from, where they live and from their inter alia, national citizenship, and their community. The universality of human rights is embedded in and also influenced by the other characteristics of human rights: human rights are categorical, egalitarian, individual, fundamental and indivisible.

Kirchschlaeger,asserts that human rights struggle with particular interests. States claim the priority of their sovereignty over the universality of human rights and the private sector claims self-regulating approaches and uses this to define its sphere ofinfluence within certain limits. This challenge is part of the political and legal dimension of human rights and as a consequence of the moral dimension of human rights as well. In this regard, one can recognize a positive tendency of acceptance of human rights by states, a growth of an international institutionalization for the protection of human rights and a progress of the mechanisms for monitoring human rights performances by states to respect the universality of human rights and some small steps by the corporate world. At the same time, it has to be stated that the implementation of human rights is not yet there where it should be, and that the vast majority of human beings are still victims of violations of their human rights. The universality is still a claim, not reality.

Human rights are challenged by cultural diversity as well. This challenge is taking place in the moral dimension of human rights. Although the UN Conference in Vienna 1993 reconfirmed the validity of the universality of human rights, the universality faced critics from different quarters because of its alleged western origin.

Countries like China, Venezuela and those in the Arab world human rights as too westernized. Currently, an ongoing case against some Kenyan politicians at the International Criminal Court has added to the rant. In seeking a referral of the case by the Security Council, Kenya has the Support of China, Russia and the African countries but the US, UK and France who wield veto powers do not support the bid. This has been seen as a western effort to intrude into Kenyan sovereignty using human rights as a disguise.

Religions, cultures, traditions, world views and beliefs benefit indirectly from the human right to freedom of religions and belief. This right enables and enhances the authentic practice of an individual and so the peaceful coexistence of religions, cultures, traditions and world views and the dialogue between them. It is an achievement of humanity to protect this variety. A show of universality of human rights was when the UN Security Council, announced a no flying zone in Libya and with the support of the Arab League, France, US and the UK moved to avert deaths of Libyan civilians by bombing strategic points to immobilize Gaddafi troops.

Nickel, observes that the achievements of the human rights movement in have shown both that the optimistic beliefs of proponents of universality were not entirely without foundation and how difficult it is to create genuine international agreement about how governments should behave. Globalization promotes joint ventures between people from different and sharing of ideas or views, thus promoting the development of shared standards.

Toespraak views the criticism of universality with skeptism. He argues that although sometimes the concerns are sincere, sometimes they are simply being abused to hide domestic shortcomings or they serve opportunistic political agendas. Recent initiatives at the UN, both in the General Assembly and in the Human Rights Council, such as the Russian initiative to promote the concept of traditional values, the Cuban initiative on cultural diversity, and the Pakistani proposals on interreligious dialogue, are slow but inhis view sure attempts to weaken the fundaments of universal rights. Some states have argued for a classification based on differences in culture, religion and development In the Universal Periodic Review process. This is all reason for growing concern according to him

Period after World War II and Development of International Law

World War II gave impetus to the modern development of basic principles of human rights and to the general acceptance of the idea that the human rights practices of individual countries toward their own citizens are legitimate matters of international concern. The 1945 United Nations Charter included a general commitment to respect for human rights, but it was the Universal Declaration of Human Rights, 1948 that provided the basic statement of what have become widely accepted international human rights standards.

After World War II, the term human rights came into wide use replacing the earlier phrase “natural rights,” which had been associated with the Greco-Roman concept of natural law since the end of the Middle Ages. As understood today, human rights refer to a wide variety of values and capabilities reflecting the diversity of human circumstances and history. They are conceived of as universal, applying to all human beings everywhere, and as fundamental, referring to essential or basic human needs.

Modern international conceptions of human rights can be traced to the aftermath of World War II and the foundation of the United Nations. The rights espoused in the UN charter would be codified in the International Bill of Human Rights, composing the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights

The Universal Declaration was bifurcated into treaties, a Covenant on Civil and Political Rights and another on social, economic, and cultural rights, due to questions about the relevance and propriety of economic and social provisions in covenants on human rights. The covenants provide for the right to self-determination and to sovereignty over natural resources.

The drafters of the Covenants initially intended only one instrument. The original drafts included only political and civil rights, but economic and social rights were also proposed. The disagreement over which rights were basic human rights resulted in there being two covenants. The debate was whether economic and social rights are aspirational, as contrasted with basic human rights which all people possess purely by being human, because economic and social rights depend on wealth and the availability of resources. In addition, which social and economic rights should be recognised depends on ideology or economic theories, in contrast to basic human rights, which are defined purely by the nature (mental and physical abilities) of human beings. It was debated whether economic rights were appropriate subjects for binding obligations and whether the lack of consensus over such rights would dilute the strength of political-civil

rights. There was wide agreement and clear recognition that the means required to enforce or induce compliance with socio-economic undertakings were different from the means required for civil-political rights.

From what I have discussed above, we can say that human rights have been classified historically in terms of the notion of three “generations” of human rights. The first generation of civil and political rights, associated with the Enlightenment and the English, American, and French revolutions, includes the rights to life and liberty and the rights to freedom of speech and worship. The second generation of economic, social, and cultural rights, associated with revolts against the predations of unregulated capitalism from the mid-19th century, includes the right to work and the right to an education. Finally, the third generation of solidarity rights, associated with the political and economic aspirations of developing and newly decolonized countries after World War II, includes the collective rights to political self-determination and economic development.

Since then numerous other treaties have been offered at the international level. They are generally known as human rights instruments. Some of the most significant are:

• Convention on the Elimination of All Forms of Racial Discrimination
• Convention on the Elimination of All Forms of Discrimination Against Women
• United Nations Convention Against Torture
• Convention on the Rights of the Child
• International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families

There are also regional human rights instruments such as the African Charter on Human and Peoples’ Rights, the American Convention on Human Rights and the European Convention on Human Rights.

Human rights principles, policy, and practices became an increased focus of popular and public attention during the last quarter of the twentieth century. Several influential nongovernmental organizations were formed during this period to monitor and report on human rights matters.

In the late 20th century ad hoc international criminal tribunals were convened to prosecute serious human rights violations and other crimes in the former Yugoslavia and Rwanda. The International Criminal Court, which came into existence in 2002, is empowered to prosecute crimes against humanity, crimes of genocide, and war crimes.

Conclusion

From the foregoing, it can be concluded that, Human laws are subordinate to natural law; some need more guidance to achieve a virtuous life than others; these people can only be compelled to behave well through human law; reason can be good, but it may be used to exploit base desires and cruelty – linking human law to natural law and natural law is used as a set of general first principles under which human law is made using reason. Using natural reason leads to creation of good human law to deal with the needs of practical situations not expressly covered by natural law.

Human rights have come a long way to not only receive recognition by individual states, but also at the international arena .Universal validity of human rights norms under the current state of international law, does not permit a denial of the universal character of the human rights laws. When implementing human rights, within the context of the principle of universality, there is room for interpretation. The international community should define the scope or variations. Supervision of the implementation of human rights should be conducted by impartial, independent international bodies and not by individual states, as each state has its own particular views on fundamental rights and freedoms which are shaped by different historical developments.

Another major development in the field of human rights is the general acceptance of the principle that human rights are no longer an exclusive domestic affair of states but a legitimate concern of the international community. This principle also reinforces the principle of universality. It is incorporated in the Declaration of the Vienna Conference which was adopted by consensus.

With the 21st century bringing in more in the spheres of technological developments and unified world, we can only wait and see to what level human rights can be pushed.

As Haule puts it, although human rights have their origin from natural law, it took a system of positive law to provide a definite and systematic statement of the actual rights which people possessed.

Bibliography
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The Origin of Human Rights and the Challenge of Universality, excerpted from the book, Tainted Legacy 9/11 and the Ruin of Human Rights by William Schulz Thunder’s Mouth Press, 2003, paper. Sourced from http://www.thirdworldtraveler.com/Human_Rights/Origin_Human%20Rights_TL.html, accessed on 21st March 2011.
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Introduction

“No person shall be denied the right to education” (European Convention 1950, First protocol Article 2)

“Discrimination against any person on the basis of disability is a violation of the inherent dignity and worth of the human person”

“States parties recognize the right of persons with disabilities to education” (Article 26) (Convention on the Rights of Persons with Disabilities 2006)

Education must be for all, without exceptions. The last years, the issue of disability and the different ways in which different communities try to approach it, have started to interest science and especially social sciences. Eventually, four models of disability were created and each one of them has an effect on both the public opinion and the legislation. Thus, human rights in education and special education were affected, when they were formed, by one or more models of disability. In this essay, I will try to show the way in which human rights are linked to the models of disability. Firstly, I will examine and analyze each one of the models and their origins, and parallel to this, there will be a brief comparison between some issues of some specific models. Secondly, I will analyze and connect the terms of citizenship and inclusive education. Thirdly, I will discuss disability and special education. And finally, in the first part I will discuss the Salamanca statement and framework for action on special needs education and with which model of disability it is connected. In the second part I will refer to how things are in Greece as far as special education is concerned, according to the ministry of education and based on my personal experience.

What is Disability?

According to the WHO (World Health Organization)which has been used as the basis for two national studies of disability in Britain (Harris, 1971; Martin, Meltzer and Eliot, 1988), the definition of impairment is: in the context of health experience, an impairment is any loss or abnormality of psychological, physiological or anatomical structure or function. Moreover, the definition of disability is: in the context of health experience, disability is any restriction or lack (resulting from an impairment) of ability to perform an activity in the manner or within the range which is considered normal for a human being. On the other hand, the definition that DPI (Disabled People’s International) gives for impairment is: impairment is the functional limitation within the individual caused by physical, mental or sensory impairment. And the definition for disability is: the loss or limitation of opportunities to take part in the normal life of the community on an equal level with others due to physical and social barriers (DPI, 1982).

In today’s world, that we are living, disability has begun to be considered as something universal, a global experience. Through disability, we study especially the values and the position of the people towards disability, and as a consequence, we study how each society treats its members, including disabled people.

The interest for disabilities is a combination of the academic interest, in explaining what disability truly is and its effects on all the fields of society, of the activists and the universal character that disability takes (Chard et al. 1999; Blendon and Benson, 2001)

Disability is a usual term, but practically it refers to people with some kind of bodily or mental-intellectual incapacity and because of that they cannot participate in sundry activities. There are people who claim that this inability of disabled people to participate is a consequence of the barriers which are raised by the majority of “normal” people. It is a socially constructed attitude towards people with impairments. However, disability is not just attitudes which result in discrimination, but also institutionalized practices. What is considered to be “normal” for abled-bodied is not for disabled one, such as the capacity to walk up and down stairs or to cross the road.

Disability does not only concern the person itself who is disabled but it affects the whole world too, and it also has economic, cultural and political ramifications to each society. With the interference of disabled activists and organizations, in the 60’s a lot of national governments included policies in legislation through which the rights of disabled people are protected and secured. A big change was made back in 1981 by the United Nations where the responsibility of the government to provide equal rights to people with any kind of disability was recognized. In 1980 the majority of the academics were interested almost entirely in the medical explanation of disability (Barnes, Oliver, Barton, 2002). A very obvious example was Talcott Parsons (1951) who applied sociological methods and concepts to the understanding of health and illness, and medicine in general, in their social context.

Medical model

The medical model of disability focuses on the groups that are formed, the disabled and the non-disabled. Someone’s disability is his personal problem that requires a medical solution and there are not any problems or any barriers which are caused by society. The focus is not on the integration of the disabled person, but on the disability of the person and either the cure (if there is one), or a specific assistance to overcome the effects of that impairment (Indiana Law Journal, vol 83).

For Parsons every form of sickness diverges from the norm. In the upcoming decades, there was a major concentration on ‘mental illness’ through the sociological perspective (Journal of Health and Social Behavior, vol 17). Additionally, Foucault (1975, 1979) argued that mental illness and all the forms of acts that diverge are something more than the social constructs made by the dominant group.

All studies relevant to mental illness refer to economic or social problems and their consequences but neither of them really look into the meaning of what is called “individual” or “medical” as a form of disability. No one extended the theories from mental illness to any other physical disability or other impairments, and as a consequence, disabled people were socially and economically deprived (Segall, A. 1976)

Charity model

The second model of disability is the “charity model”. In this model we examine the voluntary agencies. There are organizations that have been shaped for people who are disabled and they are run by “normal” people and these organizations are completely different from the organizations of disabled people (which are run by the disabled people) (Barton, 1996).

The tradition of charities is very old and particularly for Britain it goes back into the Industrial Revolution. These charities had a wide range of occupations and they were present in a lot of social activities such as religion, entertainment, education and many more. Our concern focuses there, where the charities assumed the role of social welfare; when they had transformed their interests according to the different forms of diseases. As far as Britain is concerned, disabled people started to be gradually excluded from work, when the time of industrialization and the machinery came. This happened because the work was made for able-bodied people and as a result of this, disabled people were condemned to depend on others to make a living (Finkelstein, 1981b).

At first, church and poorhouses where those who were helping disabled people to live and after a while the organized charity was added as well. But progressively, as the state took the role of the social welfare, disabled people began to have some economic benefits from the social system and additionally we have the creation of some centers where they could stay, such as day centers (Barnes, 1990; Brenton, 1985; Handy, 1988).

The flourish of charities was in the twentieth century. There were many people who were occupied there, some of them were volunteers and some others were salaried staff of professionals (Brandon, 1988). In fact, even though some agencies occupied volunteers and called themselves as voluntary, they were not, actually they were non-governmental and they did not have any profit from the charity and their only aim was to help (Drake, 1994). Most of the charities endorsed the medical model and they emphasized on the treatment of the individual (example: the cure) or they intervened in some other ways, for example, since they knew that the use of public transportation was too difficult for the disabled people, they provided minibuses to those who needed it. But the most fascinating thing was that the disabled people did not prefer this means of transportation because of the fact that they were only for disabled andthis was exactly the ‘problem’. It was something that made a distinction between the able-bodied and the disabled. Here lies the difference between the organizations which are run by the disabled people; their focus was on campaigns and proposals for redesigning the form of public vehicles. The society of the disabled criticized the traditional charities mostly because of their philosophy, which did not unite them with the majority but separated them (Barton, 1996).

Administrative model

The third model of disability is the administrative model. Finkelstein, one of the founders of the social model, criticizes the explanatory ability of the social model as far as the position of disabled people in modern societies is concerned. He argues (1993) that the administrative model of disability is the only model which combines all the forms that a helping service can take, even if they come from the state or from voluntaries. “The cure and the care forms of intervention are administered within the rehabilitation and personal-care services respectively” (Finkelstein, 1993:37). The administrative model is some kind of dichotomous and it has some impact on the legislation. This model refers to specific fields such as education. An aspect of this model is that if someone ‘deserves’, depending on one’s impairment, to be called disabled he has, as a result of this, access to some benefits. It is a sad fact that disabled people have to pass specific tests in order to “prove” their impairment. In fact, there have been some cases of people with severe disabilities who although they deserved the benefits, they were deprived of them, for the reason that they did not fit into the “boxes” which are provided by the administrative model. So, sometimes it seems to be unfair towards a specific group of disabled people, if they do not fulfill the conditions which are set legally (French, 1994).

Social model

The fourth and last model is the social. Back to the nineteenth century we have the rising of activist organizations motivated by people with disabilities. There have been many protests in many countries such as the U.S. and Canada, for the discrimination that they have encountered. But the case of Britain was something special and important, because a new and more radical approach was embedded to theories, so now they refer to, as “the social model of disability”.

The organizations run by disabled people (for example the Upias) made the ground fertile for many disabled activists to rethink the whole idea around disability. By contrast, the social interpretation of disability argues that people with accredited or perceived impairments, regardless of the cause, are disabled by society’s failure to accommodate their needs. The social model concentrates on the social inability to incorporate the disabled with whichever disability that they might have. Because disability does not connote someone’s failure; this approach focuses on the various obstacles like social, economic or political created against impairment.

Disability studies were initially approached by medical sociology and some perspectives were raised. There has been a lot of research motivated by practical medical and other services of health concerns. For example, in Britain, despite the sociological aspects of the social model, it was a team from the Open University (1975), which developed the first studies for disability. This course was developed with the aid of a South African clinical psychologist named Vic Finkelstein and a lot of people from the U.K. who were either disabled or disadvantaged by the educational system, were attracted. Through this course, named “The Handicapped Person in the Community”, people focused on the improvement of their skills, so as to help in a better way the handicapped people to do their best help in a better way, as far as their autonomy is concerned.

The social model of disability offered the “big idea” (Hasler, 1993), to people who were disabled. But it took some time before it found acceptance from the universities of the UK, as far as sociology departments are concerned. By contrast, in the U.S. and Canada disability entered the universities in the ‘70s. And again we have a combination of activism and academy as well.

During the last years we have a more radical perspective, in which supporters were a small group of disabled scholars who were related to cultural or human studies, especially in Australasia and North America. As a consequence of that, there was a development of a more critical field of research focused on the link between socio-political position and the approach of the social model (Rioux and Bach, 1994; Davis, 1995; Linton, 1998; Albrecht et al., 2001). All of these premises created a common interest between research and academic studies and at the same time signified the rising of the interest in socio-political approach, where British writers first shed light on.

In 1970, in Britain, the term “disability” began to change from a purely medical point of view to a more sociological perspective, because people began to see disability as a form of social segregation and exclusion. There was an organization which followed this movement, the UPIAS (Union of the Physically Impaired Against Segregation), for which disability is seen as an obstacle that social organizations put to people with any kind of impairment, excluding them from some social activities. Thomas Carol argues that UPIAS statement is that disability comes into light when activities of disabled people are restricted by specific social structures. So disability, he claims, is not synonym to the restriction or the lack of activity as it is in the ICIDH argument. It is not that impairment does not go with limitations of activities, but this does not constitute disability (Thomas, 1999).

According to the disability movement which included the organizations that were run by disabled people argues that for disabled people, reconstruction of the society can be the cure for their disability problems. This movement dissociates itself from the mental model and it has to do with the social model (Cole, 2000)

By contrast to the social model, in biomedicine the focus is on the deviations of the bodies and minds from the social norms of each individual. This “medical model” relies on the fast growing genetic science, to eradicate the diseases. So, according to this model, disability is equated with impairment.

From the perspective of rehabilitation science, the focus shifts to a different area, it seems to be very important to help the disabled to adapt and adjust a more “normal” life. It’s a strong belief that a lot of difficulties are caused inevitably by the impairment. And this combination of belief, that on the one hand, exclusions and limitations in different forms of activities are caused by impairment and on the other hand the social barriers that are raised against disability, turns into ICIDH (International Classification of Impairments Disabilities and Handicaps). In 1970, we have the development of an organization the ICIDH, organized by Philip Wood, Elizabeth Bradley and Mike Bury. ICIDH, wanted to move further, so it tried to explain what disability is but not from a purely bio-medical perspective. For ICIDH, disability is any kind of deficiency or restriction of ability to do an activity in a specific way which is considered normal for a human being. So, ICIDH does not equate disability with impairment, there is a serious possibility that some social factors can influence some restrictions of activities (Bury, 1997, 2000).

Citizenship

An additional term that I would like to add because it is important to examine, is the term of citizenship. It is a definition which according to Barbalet (1988:1) defines who is and who is not a member of society. To be called citizen, it means the ability to participate in the decisions that frame his/her society. Additionally, it is the ability of someone to have access to work, travel, leisure, and generally, it is the political, civil and social rights of people (Marshall, 1950).So we must consider in what way we “see” and approach disabled people.

In my opinion, education is a fundamental human right. Education can set an individual free and give him/her power. However, there are a lot of people (adults and children) who are deprived of education, and one of the many reasons can be some particular special need that an individual may have.

Disability and special education

In the 19th century, we had schools in which elementary education was provided for all. The system, on which schools based their education, was not very helpful for disabled children, because it was based on memory tests and learning by heart. This was a very negative factor for children who lacked specific abilities. As a result, it began to be clear that the degree of difficulty was increased as much as the growing inability of the child was increased too (Cole, 2000). It was only after 1921 and after a lot of pressure that some categories of impairment were recognized as such (epilepsy, deafness, blindness, mental defectiveness and physical defectiveness). So, creating special schools or special classes within regular schools began to be considered and children who were labeled as disabled could go and be educated there. Gradually, more categories were added in the term of disablement. After 1950, a lot of special schools were created and children, who were labeled as ineducable, according to Mental Deficiency Act (1913), had the right to be educated in those schools (Cole, 2000). In my opinion, this was a very cruel way of discrimination against those children who were labeled as ineducable and it was something that followed them throughout their life.

After 1975, the idea of a more inclusive education entered the stage. Despite the economic cost, many regular schools were forced to accept disabled children in an effort to integrate them. But still, there are many problems in regular schools that make the life of disabled children difficult. As long as there are special schools, regular schools will not change their strategies dramatically so as to integrate children with impairment (Collin, 2000).

Salamanca Statement

There have been a lot of efforts to support inclusive education. One of these efforts is the “Salamanca statement and framework for action” (1994), which took place in Spain and it was organized by UNESCO and the Spanish government, in which 92 governments took part and they tried to find policies which promote inclusive education and prepare all the schools to embrace all the individuals no matter what impairment is and to support their right to learn.

Special education must be included in the mainstream schools and not be considered as an isolated issue (Salamanca, 1994). “The challenge confronting the inclusive school is that of developing a child- centred pedagogy capable of successfully educating all children, including those who have serious disadvantages and disabilities” (Salamanca,1991:6). As we can assume after reading the Salamanca statement, the policies are based on the social model. Because after understanding the several social barriers which exist, there is an effort to bring those barriers down through some policies and cooperation from all (governments-schools-citizens). For example, in the statement it is referred that “ we believe and proclaim that: “… education systems should be designed and educational programs implemented to take into account the wide diversity of these characteristics and needs… those with special educational needs must have access to regular schools which accommodate them within a child-centred pedagogy capable of meeting these needs”. And “we call upon all governments and urge them to:

1. give the highest policy and budgetary priority to improve their education systems to enable them to include all children regardless of individual differences or difficulties;
2. encourage and facilitate the participation of parents, communities and organization of persons with disabilities in the planning and decision-making processes concerning provision for special educational needs;
3. invest greater effort in early identification and intervention strategies, as well as in vocational aspects of inclusive education”.

We can assume that the statement forces the states to do whatever it takes so as to integrate all the disabled people in the educational system. They seek to have regular schools but with inclusive orientation so as not to have discrimination between humans.

Inclusive education

Inclusive education is when all children no matter what kind of impairment they have, are able to go to their local schools to be educated, and, for local schools to be able and appropriately prepared to provide all the facilities that children may need. There has to be a transformation of the curriculum in that way, so all children can be educated in the same way, without some pupils having special benefits against others. It is also important, through collaborative learning or through specific reading books or images to aid children without disabilities to learn how to coexist and cooperate with disabled children. This is a process which is helpful and all the children can learn and benefit from it. The learning support in each classroom, it would be very effective. Generally, we have to create activities which promote the collaboration of all children, to give opportunity to all disabled children to present themselves and to build up their self-esteem. Additionally, parental consulting is promoted, because it is good for children to be encouraged by their parents to feel more independent. There are a lot of other school policies which are based on the social model of disability (CSIE, 1996, 2000).

About Greece

In Greece, the education is compulsory and provides primary and secondary education and there is post-compulsory secondary education. According to the reform of 1997, it consists of two types of schools: the unified upper secondary schools and the technical vocational educational schools. Together with the mainstream schools, we also have special schools of all the educational stages, which admit students with special educational needs, such as special school for deaf people or special school for blind people. A child can go to a mainstream school which has integration classes or can go to a special school, depending on the impairment that the child may have. The decision, on which school a child will go to, is made through special education advisers and the Center of Diagnostic Evaluation and support, so as to diagnose the educational special needs of the child. Then, they choose the most appropriate school unit that will contribute to the better integration of the child.

The progress of the child is evaluated from time to time. From the division of Special Education and the proceedings report of 2004-2007 we can see that a great amount of integration classes were created in the mainstream schools at all levels of the educational system. On the one hand, there are some special schools for example, for deaf or blind children and there is still no policy to include those children in the mainstream schools, so as not to create any kind of discrimination. But on the other hand, those schools specialize in some specific impairments, so they can focus only on those children with the specific disability. The right of education for all and inclusive education is a little bit contradictory in that case, because the mainstream schools in Greece, for example, cannot admit deaf children in the same class with children who can hear.

In Greece, there is an effort to include children with specific impairments, such as learning difficulties or mild forms of mental retardation, by educating the teachers to be able to deal with those children’s requirements. A very interesting thing is that, even though the curriculum is the same for all the children whichever the school is and focuses on the equality of learning, if someone does not speak the same language there will be a serious problem because he will not be able to keep up with the rest of the students. So, there are some predetermined qualifications for someone to be able to have the same education with the others. In some circumstances, such as the immigrant’s children, if they do not know the language at all, it will be very difficult for them to catch up with the rest of the students, and maybe those children will be excluded because they do not fit in this model of requirements. But even though, there are some multicultural schools, which are very helpful for children who do not know the language very well. As far as special education is concerned, the special schools are based on the segregation of the children and their base is the medical model of disability, because they categorize children on the basis of their impairment, however, their disability does not make impossible for people to learn and be educated, so it is sort of coming into the social model.

All kinds of children, either the disabled or the immigrants, require a specific kind of education. At this time, Greece is not ready to include all the children in a mainstream school. It would be perfect if we could have a mainstream school which could admit all the children no matter their impairment or their lack, but this is a project which requires a lot of time. And after all, this is the direction that we should all be oriented to.

Conclusion

To sum up, in this essay we examined the four models of disability and how they consider impairment and disability. Each one of these has its own point of view as far as disability and treatment of disabled people are concerned. All of the models have those who support their theories and those who criticize them. And through this process we can examine the weaknesses of each one. Basically, the human rights, in the last years, are based on the social model of disability, because they declare that everyone has the right to be educated no matter what impairment they may have, and taking into consideration the several social barriers that exist in the societies, they try to resolve the problems and through some new policies on schools to integrate all the children.

Additionally, about the different legislations that societies have, we can note that they may have been affected by more than one models of disability. For example, in Greece, disabled people still have some economic benefits from the welfare state (which is a characteristic of the charity model). Furthermore, the administrative model has some impacts on the legislation, because, for example entering a special school or attending integration classes, the child has to pass through some tests which are predetermined and if the child fits in the characteristics that the legislation has given about disability or special needs. Then the child can officially go to a special school or to integrate in a mainstream school and attend integration classes.

Moreover, the social model has its effects on the legislations, because there is an effort to recreate schools by embedding several policies in a way to integrate all children, as human rights declare. As far as special schools and mainstream schools are concerned, in my view, it would be perfect if we had one school so well prepared that could accept any child, regardless of its impairment. This would be done in an effort to achieve inclusive education. Special schools are not necessarily negative, but I think that these schools must accept only some very severely disabled children, that may be dangerous for the rest of the pupils. Any less severe impairment, with the appropriate preparation from the side of schools, would be good to be included in mainstream schools.

Abstract

It is vital that all individuals are afforded sufficient protection of their human rights under the European Convention of Human Rights (ECHR). However, much difficulty occurs when such rights are being protected at the expense of national security. Accordingly, whilst it is felt that the protection of the public should prevail on the one hand, it is argued on the other that individual rights should always be upheld. Essentially, violations of human rights should only be made in extreme circumstances. Whether suspected terrorism should fall within the ambit of one of these exceptions is arguable, especially when there has been a threat of torture as it will be for the courts to strike a balance between the two competing interests. It will be discussed in this assignment whether the threat of the use of torture is an acceptable practice that is capable of being employed by the police during an interrogation or whether it is actually a violation of the ECHR.

Introduction

It will be critically discussed whether the interrogation of the suspect and the threat of the use of force will amount to a violation of the suspects rights under the European Convention of Human Rights. In doing so, Article 3 will be given consideration followed by a review as to whether the interests of national security should also be given consideration in light of the fact that there was an impending terrorist attack.

European Convention on Human Rights and Torture

The European Convention on Human Rights (ECHR) was established in 1950 by the Council of Europe. The main objective of the Convention is to ensure that adequate protection for individual’s human rights and fundamental freedoms is being provided. Ensuing from the Convention was the European Court of Human Rights (ECtHR), which was set up in order to provide individuals with the ability to take their case to court if they felt that their rights were undermined. Article 3 of the ECHR imposes a strict prohibition against torture and “inhuman or degrading treatment or punishment.” Accordingly, this is one of the strictest Articles that exist under the Convention as there are no available exceptions to it and as is stated in the Convention; the prohibitions are made in the strictest terms irrespective of the victims conduct., Whilst this Article generally applies to any cases involving torture, unjustified deportations and degrading treatment, it is those cases involving police violence and poor detention conditions that frequently seek protection (Kamau, 2006: 15). Article 3 is thus of significant importance in preserving the interests of individuals and States must ensure that such treatment does not occur within their territory. It is questionable how effective Article 3 is in preventing such treatment being inflicted upon individuals, nonetheless, given the many cases that come before the courts. Regardless, the ECtHR will make great attempts to rectify any injustice that occurs, yet they have made clear that the level of torture that is being inflicted must be of such a level so as to enable it to fall within the ambit of Article 3; McCallum v The United Kingdom, Report of 4 May 1989, Series A no. 183, p. 29. It is questionable whether the threat of use of torture by the police in this scenario does actually fall under Article 3 since it cannot be said whether the level of the threat was significant.

It is often difficult to determine whether a cause of actions will fall within the ambit of Article 3 since not all treatment that is considered punitive will amount to torture for the purposes of the ECHR. Essentially, the courts have made it clear in numerous cases that the level of seriousness will need to be high in order for their rights under the Convention to be activated. Because of this threshold it has often been extremely difficult for victims to establish their case as demonstrated in the Ireland v The United Kingdom, 18 January 1978, Series A no. 25. Here, it was made clear by the Court of Appeal that the assessment as to what the minimum level shall be will be dependent upon the individual circumstances of the case. Hence, the factors for the court to take into account when determining the seriousness of the treatment include the victims; age, sex, physical and mental effects and health. It was further evidenced by the court in Soering v The United Kingdom, judgement of 7 July 1989, Series A no. 161; “the severity will depend on all if the circumstances of the case, such as nature and context of the treatment or punishment and the manner and method of its execution.” The determination as to whether treatment or punishment will be deemed to be torture for the purposes of Article 3 may also differ from place to place given that different countries have different perceptions of torture. There has been an attempt to achieve co-operation between States in order to ensure that there is some consistency within this area, yet complexities still arise. In Greek Case, 5 November 1969, YB XII, p. 501, the European Commission of Human Rights noted the following; “it is plain that there may be treatment to which all of these descriptions apply, for all torture must be inhuman and degrading treatment and inhuman treatment also degrading.” It cannot be said that the suspect in this instance has suffered from inhuman or degrading treatment since he was merely threatened with the use of force if he did not inform the police of the bomb’s location.

Article 3 is one of the most important protections that is provided under the Convention as its sole purpose is to “protect a person’s dignity and physical integrity” (Reidy, 2002: 19). This is why the courts are unable to take into account the victims conduct since individuals should be provided with the ultimate protection against torture. The fact that the victim in this case is a suspect of an impending terrorist attack with the use of a bomb will be insufficient when determining whether the actions of the police will fall under Article 3 or not. Regardless of this, however, the courts will take into account the difficulties associated with the maintenance of national security. Therefore, although the conduct of the victim will not be capable of being considered by the court, the fact that the police were trying to prevent a bomb from exploding will be as the police will be found to have been acting in the interests of national security; Tomais v France, Judgement of 27 August 1992, Series A no. 241. In the case of Ilhan v Turkey the applicant had been severely beaten at the time of his arrest and was refused medical treatment for a significant amount of time. The court found that the victim had been subjected to torture in this instance. Accordingly, it will thus depend upon the type of interrogation the victim suffers, which is unclear from the facts of this case. In Assenov v Bulgaria, Judgement of 28 October 1998, Reports 1998-VIII it was held that as a result of the interrogation the victim suffered from torture even though it was unclear who actually caused the injuries sustained by the victim. Again, this demonstrates that provided that the victim has suffered from serious injuries, it is likely that protection will be afforded under Article 3. This is also exemplified in Rehbock v Slovenia where the use of force was considered unjustifiable on the grounds that the authorities could not provide any valid justification for why the injuries were so serious. If the authorities cannot justify the threat of the use of force, then it is likely that a breach of the ECHR will be found.

Arguably, if the injuries sustained by the victim during the course of the interrogation are significant, then this will trigger the protection under Article 3. In deciding whether the conduct of the police will amount to torture, it will first need to be considered what actions will be considered to be of a torturous nature. There have been various definitions as to what torture consists of since it can be applied to a varying degree of situations. Regardless, it is evident that torture occurs in situations where an individual is subjected to “severe pain and suffering” as provided in the United Nations Convention against Torture. However, it will not be enough in this case to shown that the suspect was subjected to “severe pain and suffering.” Instead the whole context of the situation will need to be considered. In doing so, a review as to whether the interrogation techniques used by the Police were acceptable will need to be made. Whether this will be easy to determine is unlikely since it is questionable what will amount to acceptable interrogation techniques and as put by Amnesty International (2009: 417); “Torture and other cruel, inhuman or degrading treatment can never be justified. They are never legal. Even in a state of emergency, there can be no exemption from this obligation and there is no such thing as torture perpetrated in “good faith” or “reasonable” circumstances.” Arguably, it is evident that Amnesty International does not agree with interrogation regardless as to the situation. Nevertheless, the suspect may be able to rely on the nemo tenetur seipsum accusare principle which means; “no man has to accuse himself.” This principle could effectively act as a safeguard by preventing inappropriate methods of interrogation from being used. It could be deemed inappropriate to threaten suspects with the threat of the use of force, yet based on the circumstances this appear unlikely given the impending bomb explosion.

This was identified by Chiesa (2009: 2) when he pointed out that; “the nemo tenetur principle should be understood as a safeguard against the use of unacceptable methods of police interrogation.” It is questionable whether this principle will act as a safeguard, however, since it is very difficult to determine when torture has taken place as “it is not clear in the present laws” (IBN, 2010: 3). Because of this, there are often what is considered to be ‘borderline’ cases where it is difficult to see if torture has actually occurred. As a result, it cannot be said that Article 3 ECHR does actually protect individuals from torture in every situation. Accordingly, it has been said that the police routinely engage in interrogating behaviour when trying to extract confessions from individuals, yet this is generally not considered to amount to torture (Chair, 2004: 68). In view of this, it is clear that the distinction between police brutality and torture cannot be easily ascertained and as noted by Spicer (2007: 157) “the definition of torture and its distinction from inhuman or degrading treatment is problematic and has generated a mass of case law in the ECHR.” It is thus difficult to distinguish torture from inhuman and degrading treatment, which is why cases are frequently coming before the courts involving police brutality. This is completely unacceptable and there ought to be some protection available to individuals in preventing them from being subjected to torture: “the government should investigate, discipline those found to be implicated, and train officers to interrogate suspects without coercion” (Human Rights Watch, 2010: 1). In order to clarify the position within this area, however, the United Nations have attempted to define torture by stating under Article 1 that “torture means any act which by severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession.”

Consequently, it would appear as though the police have inflicted torture upon the suspect because although they have not physically harmed him, they have in fact made threats against him. Thus, given that mental suffering is contained within the definition of torture as provided for under Article 1, it is likely that this type of behaviour will be considered a violation of the ECHR. Despite this, it could also be argued that because the police have arrested the suspect on suspicion of an impending terrorist attack, and have made such interrogations so as to prevent the attack from taking place, that the torture is reasonable. This is because, the police need to find out where the bomb is in order to protect society from harm and given that they only have only a few hours before the bomb explodes, it is integral that they obtain as much information out of the suspect as possible. Consequently, it could be said that the threat of the use of torture in interrogating the suspect is appropriate based on the individual facts. In Binyam Mohamed Secretary of State for Foreign and Commonwealth Affairs [2010] EWCA Civ 65; [2010] WLR (D) 31 it was expressed that torture will amount to a violation of Article 3 as this will generally be considered unacceptable behaviour. Clearly, this illustrates that some protection will be afforded to individuals subject to the use of torture, yet it is questionable whether this applies to the current situation given that only a threat was made. As noted by Johns (2005: 16), however; “no human being is without protection under international law and in every circumstance, every human being has some forms of protection under human rights law.” Therefore, where torture, or the threat of torture, is carried out individuals should have some form of protection available to them, yet it is debatable whether this protection is adequate since the interest of national security may outweigh the interests of the individual.

The Binyam case has been the subject of much critique as the US made great attempts to prevent evidence of torture from being disclosed. This led many to also question the practices of the UK who work closely with the US in the fight against terrorism (Smith, 2009: 9) and there was a strong debate as to whether national security would be damaged if the detainee’s human rights were to be protected. This resulted in difficulty as it had to be determined whether the interests of national security or the interests of the individual were to prevail. Applying this to the instant situation, the question to be asked is whether national security would be affected, if the rights of the suspect were protected by the ECHR. Given that a bomb is about to explode, it is necessary for the police to obtain the relevant information from the suspect so that they can locate the bomb in order to protect the public from harm. Given that human rights took precedent over national security in the Binyam case, the same could also apply here. However, as put by Burke-White (2004: 17) the interests of the two are in fact mutually exclusive “promote human rights at the expense of national security or protect national security while overlooking international human rights.” Therefore, it will be difficult to determine what interests ought to be preserved in any given case as the factors to be taken into consideration will differ largely from case to case. Furthermore, not all agreed with the decision in the case and many argued that the interests of national security should have been given greater prominence: “which is more important, the human rights of a suspected al-Qaeda operative, or protecting the British people from terror attacks?” (Coughlin, 2010: 1). The interests of national security are clearly at stake since the bomb explosion could lead to serious harm. It is questionable whether the interests of the suspect should therefore be given greater consideration given the fact that a large proportion of the population may be subjected to harm.

It is questionable why the protection of the majority did not prevail in Binyam and seems to illustrate that the human rights of the suspect in the instant case may also be preserved. Rather than demonstrating a victory for the protection of human rights principles, the case has been viewed with much dismay at the way in which the government handled the case (Londras, 2010: 17). Because of the significant interest that surrounded the case it seems as though the government would have been under much scrutiny had a different decision been made. In accordance with this, it is not certain that the human rights of the suspect in the instant situation will be protected since the suspect has been subjected to a threat of torture on the basis of the imminent bomb explosion. Thus, it is extremely difficult for the judiciary to protect individual liberties and rights when the government plays the national security card (Robson, 2010: 174). This is further evidenced by the continuance references that were made to open justice in the Binyam case: “the principle of open justice represents an element of democratic accountability and the vigorous manifestation of the principle of freedom of expression which ultimately supports the rule of law itself” (per Lord Chief Justice). Consequently, it became apparent that the judges were cautious when making their decision and as a result it is evident that human rights will not always be protected over the interests of national security as it will again depend entirely upon the individual circumstances of the case. It is clear from the decision that there is a conflict between the protections of individual human rights with the protections of national security. However, it is still extremely difficult to determine which interest is the most important and more likely to be successful in the instant case.

Simply because human rights came out on top in the Binyam case does not illustrate they will come out on top in all other cases. This is especially so given that the court appeared under pressure by the Minister of the Crown to reach this decision. Hence, it is argued on the one hand that human rights should always succeed, yet on the other that the interests of national security should also be given recognition (Salomon, 2007: 5). However, in ensuring that individuals are free from torture, a strict prohibition against the use of torture must be effectuated. This is because if individuals were not being given sufficient protection against torture, national authorities would be capable of abusing their powers and inflicting harm and degrading treatment upon individuals suspected of a crime (Churcher, 2009: 1). Given that the majority are protected from terrorism, whilst the minority are protected from torture it seems as though greater emphasis ought to be placed upon individual rights in order to ensure that their interests provided by the ECHR are being preserved. It is arguable whether this can be justified, however, because as Woodward (2010: 19) argues; “the need to feel safer is a need that has in large part been manufactured by those eager to capitalize on the economic value of fear.” Therefore, it is integral that national security is also being preserved, which is why it will be very difficult to decide on a reasonable outcome in cases where human rights and national security conflicts. In Dushka v Ukraine, Judgement of ECHR, February 02, 2011 it was found by the Court that the unlawful detention and questioning of a 17 year old amounted to torture and was thus a violation of Article 3. Thus, it was stated by the court that given the applicant’s vulnerable age, the practice being employed did qualify as inhuman and degrading treatment regardless as to the applicant’s conduct. In light of this decision it could be said that the treatment being imposed upon the suspect will also amount to inhuman and degrading treatment although the courts will determine the circumstances of the case as a whole taking into account the fact that a bomb was about to explode.

The Anti-terrorism, Crime and Security Act (ATCSA) 2001 and the Prevention of Terrorism Act 2005 do, however, appear to conflict with the ECHR because of the fact that authorities are now provided with greater powers when it comes to the elimination of terrorism. As stated by Herron (2011: 1); “whilst the new powers avoided the directly discriminatory nature of executive detention in so-doing they broadened the potential applicability of other of its rights-infringing characteristics, which were retained within the new regime.” The provisions that have been provided for under these acts appear largely detrimental to individual rights and freedoms, yet this is deemed necessary in protecting individuals against the threat of terrorism can; R (on the Application of BB) v Special Immigration Appeals Commission [2011] All ER 210. Here, the court highlighted the importance of preserving the interests of national security was. Nevertheless, it is still evident that whilst the human rights of individuals are to be maintained, the rights of ordinary citizens also need to be given consideration. A balancing act between the two competing interests is therefore required, yet as has been discussed this is proving to be rather problematic. Ames (2005: 2) believes that “any restriction on rights must be imposed with reference to the rule of law and be subject to proper safeguards, such as judicial scrutiny.” Therefore, it must be ensured that any restrictions placed upon the rights of individuals and citizens are in accordance with the rule of law to prevent unlawful infringement from occurring. This was clearly reflected in the Binyam case since it became apparent that the rule of law was not capable of being departed from regardless as to whether the person seeking protection was a terrorist or not.

This has been criticised by many since it is believed that the government used the national security card when undertaking activity that would usually be considered unlawful: “under cover of “national security” and “protecting the public” governments can embark on actions that might be unpopular, even unjust, and hope not to be called to account” (Robson, 2010: 200). This is unacceptable and unless the rule of law is continuously upheld in, democratic governance will be threatened. Essentially, it is thereby palpable that the interrogation the suspect has suffered by the Police is unlawful and contrary to the provisions of Article 3, yet the authorities may still be able to rely upon the national security defence when putting forward there reasons. This will make it much more difficult for the suspect to argue that there has been a violation of their rights under the ECHR as the police may be able to demonstrate that national security was at risk. This is because the interests of society as a whole will usually be afforded greater protection than individual interests.

Conclusion

Overall, it does appear as though the treatment the suspect has received from the police is a violation of his rights under the ECHR. However, given the complexity of the case, it is likely that there will be much difficulty when trying to determine whether such rights should be enforced over the interests of national security. Accordingly, the case will involve a balancing act by the courts to establish whether the interests of the suspect ought to prevail given that the public was at risk of harm. This will be extremely difficult to determine, although in light of recent cases such as Binyam, it is likely that the courts will find the interests of the suspect will prevail.

References

Ames, J. (2005) ‘News: 90-day Detention Plans Shelved’ 3 Law Society Gazette 2, Issue 45.

Amnesty International. (2009) Impunity for CIA Torture is Incompatible with USA’s International Obligations, [Online] Available at: http://www.amnesty.org/en/news-and-updates/obama-accused-quotcondoning-torturequot-20090417 [15 December 2013].

Burke-White, W. W. (2004) ‘Human Rights and National: Security: The Strategic Correlation’, Harvard Human Rights Journal, Volume 17, [Online] Available: http://www.law.harvard.edu/students/orgs/hrj/iss17/burke-white.shtml [16 December 2013].

Chair, J. (2004) Torture: A Collection, Oxford University Press, Political Science.

Chiesa, L. E. (2009) Beyond Torture: The Nemo Tenetur Principle in Borderline Cases, PACE Law Faculty Publications, PACE University, (2009), Available [Online] at: http://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1642&context=lawfaculty [16 December 2013].

Churcher, J. (2010) UK intelligence knew of terror suspects torture, The Independent UK, (24 November, 2009), [Online] Available: http://www.independent.co.uk/news/uk/home-news/uk-intelligence-knew-of-terror-suspects-torture-1826634.html [16 December 2013].

Coughlin, C. (2010) Binyam Mohamed: choose human rights or Britain’s protection?, The Daily Telegraph, [Online] Available: http://www.telegraph.co.uk/news/uknews/terrorism-in-the-uk/7206832/Binyam-Mohamed-choose-human-rights-or-Britains-protection.html [16 December 2013].

de Londras, F. (2010) ‘Human Rights Lexicon: Security v Rights and the Case of Binyam Mohamed’, Human Rights in Ireland, [Online] Available: http://www.humanrights.ie/index.php/2010/03/17/human-rights-lexicon-security-v-rights-and-the-case-of-binyam-mohamed/ [16 December 2013].

Herron, R. (2011) ‘Counter-Terrorism, Rights and the Rule of Law: How Far Have we Come Since Executive Detention?’ Human Rights in Ireland, [Online] Available: http://www.humanrights.ie/index.php/2011/09/07/counter-terrorism-rights-and-the-rule-of-law-how-far-have-we-come-since-executive-detention/ [16 December 2013].Human Rights Watch. (2010) Zambia: Police Brutality, Torture Rife, [Online] Available at: http://www.hrw.org/en/news/2010/09/03/zambia-police-brutality-torture-rife [16 December 2013].

IBN, Prevention of Torture Bill: Par panel to consider suggestions, (22 September, 2010), [Online] Available at: http://ibnlive.in.com/generalnewsfeed/news/prevention-of-torture-bill-par-panel-to-consider-suggestions/343857.html [16 December 2013].

Johns, F. (2005) Guantanamo Bay and the Annihilation of the Exception, European Journal of International Law, EJIL 2005 16 (613), Issue 4.

Kamau, E. (2006) The Police, The People, The Politics: Police Accountability in Tanzania, Commonwealth Human Rights Initiative, CHRI.

Reidy, A. (2002) The Prohibition of Torture; A Guide to the Implementation of Article 3 of the European Convention on Human Rights, Human Rights Handbook, [Online] Available: http://www.coe.int/t/dgi/publications/hrhandbooks/HRHAND-06(2003)_en.pdf [14 December 2013].

Robson, G. (2010) ‘In the Balance’, Criminal Law & Justice Weekly, Essential Resource for Professionals Serving the Criminal Courts Since 1837, Issue 14, (2010) 174 JPN 200.

Salomon, S. E. (2007) Global Responsibility for Human Rights: World Poverty and the Development of International Law, OUP Oxford.

Smith, R. (2009) ‘Columnist: Rights and Wrongs – Winning Hearts and Minds’, Law Society Gazette, (2009) LS Gaz, 19 Mar, 8, Issue 11, (19 March, 2009).

Spicer, R. (2007) No Torture; no debate, New Law Journal, 157 NLJ 1761, Issue 7301.

Woodward, P. (2010) ‘America’s National Security Protection Racket’ War in Context, [Online] Available: http://warincontext.org/2010/07/19/americas-national-security-protection-racket/ accessed [16 December 2013].

Introduction

‘The International Bill of Human Rights is a promissory note to recognize, promote and protect the inherent dignity of individuals. However, justice must sometimes defer to amnesty following gross violations of human rights in a State.’ Critically examine this statement.

The International Bill of Human Rights comprises the Universal Declaration of Human Rights 1950, International Covenant on Civil and Political Rights 1966 (ICCPR) (with its two Optional Protocols) and the International Covenant on Economic, Social and Cultural Rights 1966, all adopted by the United Nations. The ideas inherent in these declarations/protocols are directed at recognising, promoting and protecting the inherent dignity of individuals. However, these ideas may come into conflict with a range of other principles, including amnesty laws enacted by individual states. Amnesty may be defined as a pardon given by a government to a group of people who have not yet been convicted. By its very nature amnesty presupposes the complete obliteration of past offences of individuals.

Currently, in the age of accountability, there is a prohibition on amnesties for serious crimes under international law[1], and many argue that this trend is likely to continue. For example, the Inter-American Court of Human Rights bans any amnesty provision which is capable of eliminating responsibility for a serious crime under the Convention. The ‘new’ UN position on amnesties also emphasises the denial of amnesty for the perpetrators of serious crimes involving gross human rights violations. However, as Orentlicher argues, it is not clear whether all amnesties should be held unlawful, (1991:80).

This essay will first provide a criticism of the statement above and then outline weaknesses behind that criticism, arguing that justice must sometimes defer to amnesty following gross violations of the state, despite the wording of the International Bill of Rights. It will then provide concrete arguments in support of the statement and conclude that, despite all the injustices inherent in the idea of granting amnesty for gross violations of human rights, it is sometimes the only available measure in the circumstances and, therefore, is completely justified by necessity.

There are a number of arguments against the idea that justice must defer to amnesty when there is a gross violation of human rights, and most of these arguments, as Orentlicher points out, stem from the legal, moral and political duties of a state to hold the perpetrators of gross human rights violations accountable (1991:43).

Firstly, it could be argued that although there is no treaty explicitly prohibiting amnesty, the International Bill of Human Rights presupposes such a prohibition. For example, Article 2 (3) of the ICCPR provides for a right to an effective remedy, which may be understood as requiring states to ensure that punishment of human rights offenders is carried out.[2] Moreover, the UN Human Rights Committee states in 1992 that “amnesties are generally incompatible with the duty of states to investigate [acts of torture]”[3]…to guarantee freedom from such actions” and “to ensure that they do not occur in the future”.[4] In this respect, any amnesty provision can potentially appear to be in a direct conflict with the wording and spirit of the Covenant, especially since it can potentially deny persons from seeking compensation through court. This means that a person’s right to access to court is also denied. Moreover, the body of jurisprudence of such organs as the UN and Inter-American systems points to the conclusion that amnesties should be seen as incompatible with basic human rights obligations of states, (Robinson, 2003:486).

However, as Freeman points out, the right to a remedy is not as broad as it is often thought to be (2009:40), and there is no right available to people to force a prosecution. The right to remedy only places an obligation on the state to conduct an effective investigation which may lead to the capture and punishment of offenders. Also, international law does not state that states must prosecute every human rights violation in every case. The UN has also been seen as supporting amnesty measures which were related to international crimes and which were necessary to end military deadlock, (Naqvi, 2003:34).

It could also be argued that perhaps the key word in the UN Human Rights Committee’s General Comment of 1992 is ‘generally’ and the inclusion/use of an amnesty provision may sometimes be justified in the circumstances. Moreover, as Robinson (2009:489) argues, “to impose a duty to prosecute on some states is simply to impose too much burden on them, as some democracies are too fragile and if they start prosecuting, it may lead to their destruction”.

It may also be impossible to prosecute all the offenders if the scale of human rights violations is very large in a country. Although to this one may reply that governments may choose to prosecute leaders of gross human rights violations instead, this may also be undesirable in certain circumstances. Leaders may have close attachments to their community, and their prosecution may lead to further revolts and bloodshed. Alston and Goodman (2012:1391) argue on similar lines, stating that if one denies the participation of former leaders (who are also the perpetrators of past offences) in a present government, it may effectively “obstruct social integration and political stability”. By way of example, Alston and Goodman refer to the undesirable consequences of prosecuting major organisations who were involved in the apartheid regime in South Africa, (2012: 1392).

Perhaps the most powerful argument against amnesties involves victims’ rights and tolerance of impunity. Protesters of amnesty measures argue that amnesty infringes states’ obligations to make sure that victims receive means to achieve justice, and seek out the truth in their cases (Mallinder, 2008:7). By imposing an amnesty measure, the perpetrators’ crimes are effectively denied, causing victims to feel alienated from society, which, in turn, increases the likelihood of vigilantism on their part (Mallinder, 2008:10).

There are not many who would deny the negative impact that amnesty has on victims and/or their families, and the argument here is that such a negative impact cannot be avoided if one is to achieve common good for the society as a whole.

Another point against the statement that justice must sometimes defer to amnesty following gross violations of human rights is that such a deferral, by its very nature, prevents the achievement of the aims of criminal justice, such as prosecution, retribution, stigmatisation and deterrence (Freeman, 2009: 20). Aston and Goodman take this view and point out that trials can be very important in the promotion of “norms and expectations of punishment” in the country, (Alston and Goodman, 2012:1392). Moreover, as Freeman points out, the deferral of justice to amnesty in spite of the International Bill of Human Rights’ promissory note, undermines public confidence in the rule of law, (Freeman, 2009: 33).

However, even assuming that amnesty is capable of preventing the realisation of some of the criminal justice’s goals, it should not be forgotten that an amnesty measure can take many forms. Freeman states that, more often than not, an amnesty measure would be accompanied by other provisions, such a reparation programme, which may lessen the harm caused by an amnesty, and an amnesty’s potential harm caused is always overestimated, (2009:25). Another argument is that there are many conditional amnesties in existence, which may encompass some of the aims of the criminal justice process, for example, Freeman enumerates a number of temporal and provisions amnesties, (2009:93).

Even if one takes into account the need for a trial and all its benefits, it is not altogether clear that a trial or its threat may lead to beneficial results in every case, because as Freeman argues, a threat of a trial may lead to the perpetrators destroying the vital evidence needed in the future for the victims or their relatives to find out the truth about a crime, (2009:24). In support of this argument Alston and Goodman also state that any attempts at prosecution in a state which undergoes the transition from an authoritarian past may threaten a delicate peace-conflict balance between different groups, (2012:1391). Mallinder makes a similar argument when she states that although the trial of leaders may benefit the society by asserting the supremacy of democratic values (as argued by Scharf), there may not be enough evidence to put those leaders on trial in the first place, (2008:18).

Here, it is interesting to point out an illuminating point made by Mallinder that there could be an instance where the distinction between victims and perpetrators is not clear, for example, in the case of child soldiers who are part of a rebel group in Uganda, and, therefore, the prosecution and punishment may have to take a back seat, (Mallinder, 2009: 34).

Clark also questions the belief that the promotion of individual criminal responsibility is always desirable, (in Lessa and Payne, 2012:13). He draws attention to the criminal prosecutions in Rwanda and Uganda, and argues that by insisting on the prosecutions, the international organisations overlooked “the specific context and dynamics of these countries”, for example, the absence of legal procedures and institutions to carry out an effective judicial process, (2012:14). This means that even though the countries may be the signatories of the International Bill of Human Rights, their specific contexts should be taken into account, and may be used to justify the imposition of conditional amnesties.

One of other widespread arguments against the idea that amnesty should be granted is that doing so only creates a culture of impunity, encouraging future violence, and prevents accountability. This view has a widespread support from many governments around the world, for example, from the government of Sri Lanka.[5] When academics make this argument they often refer to the offenders who continue violate human rights, and are only stopped when amnesty is granted to them. The clear example of this is Ugandan rebel group ‘The Lord Resistance Army’s public statement that they will only stop the violence if amnesty is granted to its members. Nevertheless, to these arguments it can be replied that it is not necessarily the case that amnesty will produce further violence, and in fact, there may be situations where one must choose a lesser of two evils and invoke an amnesty provision. Freeman supports this argument.

Therefore, it seems that although the case for the abolition of amnesty is a strong one, it is not without its weaknesses, and despite the promissory note of the International Bill of Human Rights, there may be circumstances where the imposition of an amnesty provision is not a truly unthinkable course of action.

It is clear that there are obvious discrepancies between the theoretical foundations of the International Bill of Human Rights and the practical application of the Bill. There inevitably will be circumstances where it is unwise to follow the literal meaning of the Bill. The reality of an international/domestic political scene is that sometimes compromises must be made in order to safeguard peace in a country and prevent further conflict. In the same vein, Snyder and Vinjamuri maintain that in order to prevent future violations of rights and reinforce the respect for the rule of law it is often necessary to “strike politically expedient bargains that create effective coalitions to contain the power of potential perpetrators of abuses,” (Snyder and Vinjamuri, 2003:17).

Thus, one of the main arguments for the proposition that justice must sometimes defer to amnesty following gross violations of human rights is that such deferral of justice is likely to foster reconciliation and may be necessary to achieve peace in terms of promoting political settlement. Linked to this is an argument that amnesties are needed so that a state can make a break from its past and start from a ‘clean slate’, (Mallinder, 2008:13). Governments often use these reasons to justify the imposition of amnesties when it is necessary to end violence. However, this view is becoming more controversial as the states-signatories to the International Bill of Human Rights move to the implementation of more mechanisms of accountability, and this view is not shared by everyone. For example, in 2007 the ICC Prosecutor, Lois Moreno-Ocampo termed the demands of amnesty made by combatants as being nothing less than pure blackmail. Moreover, the offering of amnesty may appear as though a state is showing signs of weakness, which may, in turn, encourage more violations of human rights, (Mallinder, 2008:12).

However, despite this, Freeman supports the view that amnesties may sometimes be necessary to achieve peace in a state, (2009:11). He contends that there may not be any other choice for societies which have gone through mass violence and genocide, (2009:7). Freeman asserts that he is against the idea of impunity for serious crime, but he states that there may be situations where the desire for peace and security should stand above any impunity which may result from granting amnesty (2009:6). In particular, he states that if we look at such countries as Burma and Somalia and their particular contexts, one may be forgiven for wishing any kind of amnesty in order to ensure the survival of people by lessening daily violent conflicts, even though this leads to impunity, (2009:24).

Another argument against the view that amnesties are needed to achieve peace in a country, and to ensure a smooth transition from an authoritarian regime to a democratic one, is provided by Robinson when he draws on an example of Sierra Leone, (Robinson, 2003:490). In that country, unconditional amnesties were granted to ensure that peace would follow only to discover that the culture of impunity was reinforced and gross violations of human rights continued.

However, in reply to all this, it can be pointed out that, regarding the International Bill of Rights in particular, amnesties can be used, because the International Bill encompasses a wide variety of rights, and unlike the Rome Statute, is not primarily concerned with the protection against gross human rights violations.

Freeman also makes a relatively convincing argument that amnesties are rarely granted without the imposition of other orders or qualifications, such as a reparation programme or an institutional reform measure, (2009:14). Truth Commissions, which are primarily set up to investigate the causes of death/injury unlawfully perpetrated, often play an important role in offsetting the damage done by amnesty. However, it is questionable whether they are, in fact, as successful as they were initially perceived to be. For example, again using the Sierra Leone example, the Lome Accord 1999 was designed to provide both an amnesty provision and a Truth Commission investigation, but was unsuccessful in its implementation (Alston and Goodman, 2012:1452).

Nevertheless, a broad conception of justice usually agrees with the idea that there could be a Truth Commission and a limited amnesty in place to satisfy “the essential purpose of the right to justice”, (Naqvi, 2003:34). Dugard seems to be of the same view when he states that even though unconditional amnesties should not be permitted, a Truth Commission should still be capable to grant amnesty after an investigation, provided that amnesty contributes to the achievement of peace and justice, and is more effective than prosecution, (Dugard, 1999:1020). Arguably, South Africa’s imposition of a conditional amnesty showed that it was possible to combine an amnesty with an accountability process which culminated in the achievement of truth and social healing.

Another argument, which is linked to the argument about the right to remedy discussed above, and which is put forward by Freeman and Pensky (in Lessa and Payne, 2012), is that an amnesty measure will not necessary infringe international law in every instance. This argument rests on the well-known fact that the status of amnesties in international law is unclear, and the practice of its imposition still persists in many countries, including Rwanda, Cambodia, El Salvador and South Africa. This point is supported by Laplante, who argued that the status of an “outright prohibition on amnesty remains unclear”, (Laplante, 2009:920). To illustrate the point, Mallinder discovered in her research that the number of amnesties which includes different kinds of crimes has increased, and this casts doubt on the proposition that we are living in the age of accountability (Mallinder in Lassa and Payne, 2012:95). Mallinder concludes that this means that there is still a belief that an amnesty measure may be deemed necessary where there is some exceptional situation, (Mallinder in Lassa and Payne, 2012: 96)

Liked to this is the idea that amnesties do not necessarily stand in opposition to the spirit of the International Bill of Human Rights, and, in fact, can fulfil some of its provisions by balancing competing goals, and facilitating long-term peace and security in the nation. One particular example is where a political activist-offender is integrated into a society anew, preventing further disputes.

The final point is that some defendants are unlikely to come within the scope of criminal prosecution as defined by the Rome Statute, and some countries’ legal systems may not be sufficiently evolved to prosecute such defendants. In these cases, it may be argued that amnesty could be granted to alleviate the political tension in the country if it exists. Moreover, even the Rome Statute could be said to presuppose the use of amnesties as it gives discretionary powers to prosecutors/judges to take account ‘the interests of justice’, particularly for those defendants which are unlikely to come within the scope of the International Criminal Court’s prosecution.[6]

Thus, it seems that it may not be correct to treat all amnesties as being in the opposition to the principles of justice and truth, and the specific context of a country must be taken into account. Even though amnesties violate the victim’s rights and can potentially create a culture of impunity, it is important to recognise that some amnesties, in some circumstances, may be an effective measure directed at achieving peace and security in a country. This is especially true since it is wrong to think of amnesties as either granting complete impunity or achieving long-term peace. This view fails to take into account the sheer diversity of amnesty measures which a state can employ, and which can be combined with the variety of accountability measures, (Mallinder, 2008:8). Moreover, as Freeman points out, justice may sometimes defer to amnesty because such practice is virtually unavoidable, although it should be maintained as a practice of the last resort (2009:4). Moreover, oncloser examination, the granting of an amnesty may not be in the direct conflict with the spirit of the International Bill of Human Rights and, therefore, it is fair to say that justice must sometimes defer to amnesty following gross violations of human rights in a state.

Word count: 3,228.

Bibliography

Books/Academic Articles

Alston, P. and Goodman, R. (2012) International Human Rights, New York: Oxford University Press
Cassese, A. (2008) International Criminal Law, New York: Oxford University Press
Cassese, A. (2004) International Law, 2nd Edition, Oxford: Oxford University Press
Dugard, J. (1999) ‘Dealing with Crimes of a Past Regime: Is Amnesty Still an Option?’, Leiden Journal of International Law, 12, No. 4, at p. 1001
Freeman, F. (2009) Necessary Evils: Amnesty and the Search for Justice, 1st Edition, New York: Cambridge University Press
Griffey, B. (2011) ‘The ‘Reasonableness’ Test: Assessing Violations of State Obligations under the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights’, Human Rights Review, Vol. 11, No. 2
Harris, D., Moeckli, S. and Sivakumaran, S. (2010) International Human Rights Law, 1st Edition, Oxford: Oxford University Press

8. Joyce, D. (2010) ‘Human Rights and the Mediatization of International Law’, Leiden Journal of International Law, Vol. 23, Issue 3, pp. 507-527

Laplante, L. (2009) ‘Outlawing Amnesty: The Return of Criminal Justice in Transitional Justice Schemes’, Virginia Journal of International Law, 49, at p. 915
Lessa, F. and Payne, L. (2012) Amnesty in the Age of Human Rights Accountability, New York: Cambridge University Press
Loucaides, L. (2003) ‘TheDeveloping Case Law of the Inter–American Court of Human Rights’, Human Rights Law Review, Vol. 3, No. 1, pp. 1-25
Mallinder, L. (2010) ‘Law, Politics and Fact-Finding: Assessing the Impact of Human Rights Reports’, Journal of Human Rights Practice, 1, No. 4
Mallinder, L. (2009) ‘The Role of Amnesties in Conflict Transformation’, in Ryngaert, C. (ed.) The Effectiveness of International Criminal Justice, Intersentia Publishers
Mallinder, L. (2008) Amnesty, Human Rights and Political Transitions: Bridging the Peace and Justice Divide, Hart Publishing
Meisenberg, S. (2004) ‘Legality of Amnesties in International Humanitarian Law. The Lome Amnesty Decision of the Special Court for Sierra Leone’, International Law Review of the Red Cross, 86, No. 856
Naqvi, Y. (2003) ‘Amnesty for War Crimes: Defining International Recognition’, International Law Review of the Red Cross, Vol. 85, pp. 583-560 (2003); Available: http://www.mkkk.org/eng/assets/files/other/irrc_851_naqvi.pdf [10 Dec 2013]
Orentlicher, D. (1991) ‘Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime’, The Yale Law Journal, Vol. 100, at p. 2537
Robinson, D. (2003) ‘Serving the Interests of Justice: Amnesties, Truth Commissions and the International Criminal Court’ European Journal of International Law, Vol. 14, No. 3, pp. 481-500
Snyder, J. and Vinjamuri, L. (2003) ‘Trials and Errors: Principle and Pragmatism in Strategies of International Justice’, International Security, Vol. 28, No. 3, pp. 5-44; Available: http://belfercenter.hks.harvard.edu/publication/343/trials_and_errors.html [ 9 Dec 2013]
Weissbrodt, D. Ni Aolain, F., Fitzpatrick, J. and Newman, F. (2009) International Human Rights: Law, Policy, and Process, LexisNexis Publishing; Available: http://www1.umn.edu/humanrts/intlhr2006/chapters/chapter8.html [ 7 Dec 2013]

Reports

United Nations (2011) Report of the Secretary General’s Panel of Experts on Accountability in Sri Lanka, New York: United Nations Publications; Available: http://www.un.org/News/dh/infocus/Sri_Lanka/POE_Report_Full.pdf [10 Dec 2013]

Web Materials

The International Centre for Transitional Justice (2009) Justice, Truth, Dignity: Amnesty Must Not Equal Impunity [Online]; Available: http://ictj.org/publication/amnesty-must-not-equal-impunity [8 Dec 2013]

Introduction

First of all, much debate in the United Kingdom amongst commentators and some judges in relation to the human rights are currently being generated.

The amalgamation of the European convention on human rights was introduced by Tony Blair (prime minister of the United Kingdom from the 2nd of May to the 27th June 2007) who led the government in 1998, and more importantly it was known as Human Right Act 1998.

The EuropeanCourtofHumanRightsin Strasbourg is a national court, formed by the European Convention on Human Rights, which provides legal remedy of final alternative for persons who feel that their human rights have been desecrated by a contracting party to the Convention.

In addition, I would like to state that it is against the law for public authorities to act contrary to the convention rights. Parliamentary Sovereignty which has however been elemental to the constitution of England and Wales since the 17th century had an important role when it came to the realization of the incorporation of the European Court of Human Right (ECHR) into the United Kingdom law but the convention rights come into force through an Act of Parliament.

Second of all, The Human Right Act section 6 also states that public authorities including courts must take actions attuned with definite Convention Rights as enforced in the European Court of Human Rights (ECHR). Meanwhile, the Human Rights Act empowers the judiciary courts to interpret both delegated and primary legislations which is very well incompatible with the Convention Rights.

Incompatibility under section 4 of the European Court of Human Right only comes in place when the domestic legislation is in conflict with the ECHR, interestingly it does not affect the validity of the legislation and the right to legislate contrary to the human rights are kept because no one can override any law at all which is made by the parliament, for an incompatible legislation to be set aside and stop to exist some amendments have to e made by the parliament.

Incompatible legislation will have to go through the parliament for amendment and scrutiny. There would have been a massive entrenchment on the citizens’ individual human rights because protective mechanism would not have taken place within this period as was in the case of GC & C v Commissioner of Police for Metropolis. This is an arbitrary policy which fails to permit consideration of personal factors and it as well permits imprecise custody of samples received in state of affairs where neither of the claimants have been accused of any offence or convicted of any offence.

Although section 54 of the Police and Criminal Justice Act 2001 Section 82, which was amended states that fingerprints and DNA samples can be retained and used for the purposes related to the prevention and detention of crime investigating offences or conducting persecutions.

Furthermore, Public authorities have a defence if legislation requires them to act the way they did in section 6(2), this was shown in the GC & C v Commissioner of Police for the Metropolis [2010] EWHC 2225, through the policy which the Chief Constable of police officers adopted, in cognizance to retain biometric samples, DNA and fingerprints for an unlimited period like was explained above, and it infringes individual rights.

Lastly, the introduction of the Human Rights Act is a development which is very well welcome because of its protection of individual convention rights. European Court of Human Right laws are not merged automatically into the United Kingdoms’ law simply because the United Kingdom is a dualist state unlike many continental European countries, which are ‘monist’. In dualist states a treaty ratified by the Government does not change the laws of the state except and until it is incorporated into national law by legislation. Until incorporating legislation is put to force, the national courts have no authority to put into effect treaty rights and obligations both on behalf of the Government or a private human being.

Parties agree to secure these rights and freedoms to everyone within their jurisdiction. The Convention also establishes international enforcement machinery. To ensure the observance of the activities undertaken by the Parties, the European Court of Human Rights in Strasbourg has been set up; it deals with individual and inter-State petitions. At the demand of the Committee of Ministers of the Council of Europe, the Court may also give advisory opinions with reference to or pertaining the interpretation of the Conventions and the protocols thereto.

Under the European Communities Act 1972 (ECA) Parliament willingly gave effect to the United Kingdoms’ obligations and duties under the previous Community and now European Union Treaties in national law. The European Community Act (ECA) defines the legitimately certified or legal relationship amid the two if not separate spheres of law, and exclusive of it European Union law could not become part of national law.

Most of the Contracting Parties to the European Convention on Human Rights have included the Convention into their own national legal orders, either through constitutional provision, statute or judicial decision. Coupled with the access of force of Protocol No. 11, has radically improved the status of Convention rights, and the impact of the case law of European Court of Human Rights.

In conclusion, the laws cannot be changed because of GC & C v Commissioner of Police for Metropolis because a law made is a law to be kept and followed. It cannot be made flexible or easily amended at any given time because if it did there would not be any respect for the law and that would make the law be easily influenced which is not good for a country or state.

Human Rights in the United Kingdom are not being fully protected but despite that fact the court has however being able to protect individual rights just like in the case of R v The Head Teacher and Governors of Denbigh High School [2006] UKHL 15, where the Court of Appeal and the House of Lords was In favour with shabina Begum.

Bibliography:

Le Sueur, A., Sunkin, M., Murkens, J.E.K., ‘Public Law: Text, Cases and Materials’, (Oxford University Press: New York 2010)

Le Sueur, A. & Sunkin, M., ‘Public Law’, (Addison Wesley Longman Limited: New York, 1997)