Vol 11 No 4 Autumn (II) 2000
  • 1. European Union to have Charter of Fundamental Rights

    When we think of the European Union, human rights may not be the first things that come to mind. Farming regulations, blue Customs zones and cherry coloured passports might be more appropriate images. But those Euro-passports symbolise our rights to move freely within the EU, to work and to study. In a system where the free flow of goods, materials and labour are paramount, certain human rights are inevitably protected.Some of Europe's earliest gains for women's rights were made in member states' courts, because EU law has direct effect, helped at times by European Court of Justice. This is because the European Union views discrimination as giving an unfair competitive advantage. The compulsory retirement of female flight attendants at the age of forty, the payment of greater salaries to men performing work of equal value and the refusal to admit women to a company pension scheme until the age of twenty-five have all been successfully challenged.

    The European Court of Justice in Luxembourg has also concerned itself with the broad protection of human rights. It has long held that Member States would not surrender part of their sovereignty to an entity authorised to run roughshod over the individual rights of their citizens. Thus, for the Luxembourg Court, human rights have always provided an implied constraint on EU organs. The Court has had to undertake a lengthy exploration to ascertain which rights are contained in the constitutional traditions of EU member states, although it long ago recognised that human rights treaties to which Member States have acceded provide guidance. (Case 4/73 Nold v. Commission [1974] ECR 491)In interpreting rights, it has tended to follow the findings of European Court of Human Rights in Strasbourg. This is just as well,because were the Strasbourg and Luxembourg Courts to reach differing interpretations, the obligations and benefits of European rights would become less clear.

    The European Union recently agreed to codify the human rights of its citizens in a new Charter of Fundamental Rights. In so doing, it seeks to set out the existing rights, rather than enunciate new ones. The draft Charter contains both civil and political as well as economic and social rights. It was authorised by the European Council's June 1999 meeting, and a final draft should be completed for the December 2000 meeting in Nice.

    The drafting body consists of 15 representatives of heads of state or government, 30 members of national parliaments, an EU Commissioner and 16 members of the European Parliament. This is the first time that MEPs have been involved in a constitutional decision. The draft is available on the Internet, as is a report on the proposed Charter by Britain's House of Lords Select Committee, published on May 16, 2000.

    The Charter's drafting has been a transparent process, and there have been suggestions and comments by human rights organisations, by representatives of businesses and by the UN Committee on Economic, Social and Cultural Rights. It has not yet been determined whether the Charter will be declaratory or justiciable. Certainly, future litigants will be able to refer to it as a source of EU law.

    The Charter is needed at this time because of the EU's growing involvement in human rights. The 1997 Amsterdam Treaty opens EU membership to European states who, among other things, respect human rights as reflected in the European Convention for the Protection of Human Rights and Fundamental Freedoms and the constitutional traditions common to member states. A persistent breach by a member could lead to the suspension of its voting rights. In addition, the EU routinely includes a standard human rights clause in its trade and aid agreements with non-members. A violation can lead to a suspension of the agreement. Clearly, to make respect for human rights a condition of membership or of trade and aid, demands some indication of how human rights are defined and promoted within the EU.

    Critics of the draft Charter complain that the wording of some sections,such as that dealing with the right to a healthy living environment, are too loose, but this is an area which must allow for developing knowledge. Others claim that a prohibition of slavery has no relevance in modern Europe; but accounts by former sex workers suggest otherwise. There have been difficulties in resolving the conflicting demands of employers and employees in such areas as information disclosure, consultation and bargaining. Failure to resolve these may result in the familiar compromise wording "in accordance with national laws or practices".

    Some observers suggest that the EU should ratify the European Convention on Human Rights (ECHR) and drop the idea of its own Charter. The difficulty with that proposal is that the ECHR only covers civil and political rights and not the Charter's economic, social or cultural rights, such as the right to health. A better idea might be to adopt the Charter, but strengthen the civil and political rights protections by adhering to the ECHR. This would preempt competition between Strasbourg and Luxembourg. Ratification may not be an easy process. In 1996 the European Court of Justice provided an advisory opinion on EU accession to the ECHR (Opinion 2/94 Accession by the Community to ECHR [1996] ECRI-1759). It concluded that the Treaty of European Union contained no express or implied power to accede, and that to do so would have constitutional significance. This means that there would need to be a wholehearted desire by the member states as the EU would be effectively altering its constitution.

    A further obstacle to ratification lies in the question of whether the EU has the legal personality to join an international organisation. It could be argued that the 1997 Treaty of Amsterdam's second pillar, on a common foreign and security policy, provides such a personality. A further argument would be based on the International Court of Justice advisory opinion on the capacity of the UN, that a legal personality may exist although a founding statute does not expressly provide it (Reparation case, ICJ Reports 1949).

    Although not specifically mentioned in the founding treaties of the 1950s, human rights are referred to in the Preamble of the 1987 Single European Act, as well as the 1993 Treaty on European Union, and substantively in the 1997 Treaty of Amsterdam. There is a demonstrable need for the European Union to possess a Charter of Fundamental Rights. This would assist the European Court of Justice in adducing what human rights European citizens possess, and stimulate thinking on what outsiders might aspire to. To avoid two competing regional sets of human rights jurisprudence it is possible that a way will eventually be found for the EU to accede to the ECHR which has 50 years‚ experience of interpreting civil and political rights.

  • 2. Pinochet effect

    Reed Brody, Advocacy Director of Human Rights Watch, has a map of the world in his office, into which are stuck 34 pins. Each pin represents the whereabouts of a former dictator who would put himself at risk of arrest were he to travel abroad. For instance the Ethiopian dictator Mengistu Haile Mariam lives under the protection of President Mugabe in Zimbabwe. Idi Amin fled to Saudi Arabia where they justify their inaction as being due to ‘Bedouin hospitality’, and former Haitian strongman Jean-Claude Duvalier retired to the south of France. Last year South Africa fluffed an opportunity to seize Mengistu when he travelled there for medical treatment .

    An apparently more vulnerably placed ex-dictator was Hissene Habre who ruled Chad between 1982 until he was deposed in 1990. His reign was exceptionally brutal - according to Associated Press, a commission established by the government of Chad's current president, has accused Habre's regime of 40,000 political murders and 200,000 cases of torture. When Habre fled he retired to the West African nation of Senegal to live off his ill gotten gains. In February he was indicted on torture charges by Investigating Judge Demba Kandji but the charges were dismissed in September, after the Conseil superieur de la magistrature, headed by President Abdoulaye Wade and his Minister of Justice, removed Judge Kandji from the case. A Court then dismissed the charges against Mr. Habre, stating that he could not be prosecuted in Senegal because his alleged crimes had not been committed there – this despite Senegal having ratified the Convention against Torture in 1986. The ruling is contrary to international law because the Convention imposes a legal obligation on Senegal to prosecute any person suspected of committing torture and who is in its territory.

    There is little doubt that it was the 16 months Pinochet spent under arrest in the UK, fighting extradition to Madrid for a trial on his regime's crimes, that changed the perceptions of his countrymen. His long absence from his homeland gave Chileans a political and psychological space within which to reconsider the legitimacy and necessity of the amnesty he enjoyed. On August 8th, the Chilean Supreme Court announced that he was to be stripped of his immunity from prosecution‚ removing the shield that has made him untouchable since stepping down after 17-years of rule in 1990. He faces more than 100 individual criminal and civil complaints, and his lawyers have fallen back on the ploy that allowed him to leave the UK - that he is not fit to stand trial. On 25 September Judge Juan Guzman required that he be examined by state doctors within 30 days. Pinochet's lawyers insist his ailments are physical, not mental. Chile's law does not exempt ill people from legal responsibility unless they are officially declared mad or demented. It is reported that after the medical assessment, Pinochet will still have opportunities to drag out the legal process. As a retired army general, he has the right to refuse being questioned in person and respond only in writing, which lawyers say would slow the trial down.

    Meanwhile former President Suharto’s trial is taking on a very Pinochet like complexion. An Indonesian judge has ordered that he undergo an independent medical examination by doctors from the health ministry, the Indonesian Doctors' Association and three major universities He is accused of using a network of charities under his control to embezzle $570m of state funds during his 32 years in power in Indonesia. His doctors have consistently argued that the 79-year-old former president is unfit to stand trial because of brain damage caused by a series of strokes and that a trial may prove dangerous by triggering another stroke which could be fatal. He is said to have suffered three strokes which had damaged his sight and speech and is said to have hypertension, kidney stones, heart problems and diabetes.

  • 3. Britian's new human rights culture

    The UK media's silly season saw some fun with the Human Rights Act this summer, repeating stories that schools must not prevent their pupils from cross-dressing or confiscate their cigarettes. It has even been described as Brussels-backed folly submitting British law to foreign diktat.

    In fact, the reverse is closer to the truth. The Human Rights Act incorporates the European Convention on Human Rights (ECHR), which is administered in Strasbourg by the Council of Europe. It is not an EU institution. The idea was Winston Churchill's and Sir David Maxwell Fyfe, one of Britain's prosecutors at Nuremberg, first drafted the Convention. Based on the 1948 Universal Declaration of Human Rights, the ECHR protects civil and political rights. It was adopted in 1950, Britain ratified it in 1951 and it came into force in 1953. Unlike some other states, Britain did not immediately incorporate the treaty. This had the effect of preventing people going before Britain’s courts to argue that their Convention rights had been violated. As a result, Britain headed the list of violators at Strasbourg, as Britons sought a remedy in Europe. A case that many health professionals will remember, concerned the Strasbourg Court's overturning of the ban on the Sunday Times publication of reports on the effects of Thalidomide, in 1979.

    40 of the Council of Europe's 41 member states have now incorporated the ECHR into their domestic legislation. Britain became the 40th when the Human Rights Act took force on October 2, 2000. Now, cases that might have ended up in Strasbourg could be resolved in the British courts. Individuals will be able to rely on their rights to bring civil proceedings, defend themselves in civil or criminal proceedings, to appeal or seek judicial review. The courts must try to interpret legislation, whether primary or subordinate, so as to be compatible with the ECHR. Where the courts are unable to interpret legislation in this way, the higher courts are empowered to make a declaration of incompatibility. They cannot strike down primary legislation as unconstitutional, as happens in some countries, such as Canada. However, during debates in both Houses, the Government has indicated that such declarations should lead to legislative change. The courts can setaside subordinate legislation, unless the parent legislation prohibits that. All public authorities should act in a manner compatible with the ECHR. This includes companies exercising public functions, such as guarding prisoners.

    The Human Rights Act is not expected to result in a raft of new court findings of human rights violations. In Scotland, where the courts have had to take account of the Convention since July 1st 1999, only 16 of the 600 cases were successful. In the health field, we might anticipate challenges to Postcode rationing of lifesaving drugs or other treatments, treatment decisions based on life-style or age, withdrawal of life-support systems, use of DNR notices, refusal of medical treatment, including palliative treatment, misdiagnosis resulting in incorrect treatment, detention of patients with non-treatable personality disorders and the closure of long stay hospitals or care homes.

    None of these cases are likely to faze the UK courts, which have considerable experience of hearing health-related cases. Recent cases have covered withdrawal of treatment of an incompetent adult, a husband's right to prevent his wife from obtaining an abortion, the provision of reproductive services, breach of confidentiality of patient information, cuts in a scheme to improve orthopaedic services, hospital shortages resulting in the postponement of hole in the heart surgery, the closure of a unit for bone marrow disease, the refusal to provide experimental treatment for leukemia, the use of a blood clotting agent derived from human blood, the denial of Interferon to a patient with multiple sclerosis, the refusal of gender reassignment surgery to two transsexuals and the refusal to provide IVF treatment.

    The Human Rights Act will also spawn a Parliamentary Committee on Human Rights. The Committee’s terms of reference will include the scrutiny of draft legislation and remedial orders, the conduct of inquiries into general human rights issues and the need for the Human Rights Commission to monitor the Human Rights Act. This will be a joint committee of both Houses, but its size and membership might not be determined until after the next election. Professor David Feldman of the University of Birmingham, has been appointed legal advisor to the Committee.

    Such a Committee could play a major part in increasing public awareness of human rights. It could, for example, inform discussions on curricula, including those of medical schools. Should it recommend the establishment of a Human Rights Commission, then such a Commission would probably perform a similar role to the commissions currently monitoring the Race Relations Act and the Equal Opportunities Act. Human rights groups would undoubtedly welcome the contribution such a body could make to the creation of the culture of human rights in the UK. They would also wish to see it providing a lead in taking cases and advising possible plaitiffs under the Human Rights Act.

    PHR-UK will be monitoring these developments with interest. Chair Peter Hall recently attended a seminar on the impact of the Human Rights Act on NHS access and decision making, and we have also made ourselves known to Professor Feldman.

    Bernard Hamilton


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