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Piracy and Human Rights
Transcript of Piracy and Human Rights
University College London Preliminary issues The use of force Deprivation of liberty Detainee treatment (negative rights) Detainee treatment (positive rights) Transfers
Things to consider ‘Law enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, [or] to prevent the perpetration of a particularly serious crime involving grave threat to life ...’ Basic Principles on the Use of Force and Firearms by Law Enforcement Officials 1990, UN Doc A/CONF.144/28/Rev.1 M/V ‘Saiga’ (No. 2)
ITLOS Case No. 2, para 155 Guyana v Suriname
(2008) 47 ILM 164, para 445 Legal consensus ‘[I]n international law force may be used in law enforcement activities provided that such force is unavoidable, reasonable and necessary’ ‘international law ... requires that the use of force must be avoided as far as possible and, where force is unavoidable, it must not go beyond what is reasonable and necessary in the circumstances.’ The use of force should always be reasonable necessary and proportionate.
Where possible, other methods should be exhasuted first.
Does not affect the principle of self-defence or defence of others. Similar standards found in:
Article 22(1)(f), UN Agreement relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks 1995 (Fish Stocks Agreement)
Article 22, Agreement concerning Cooperation in Suppressing Illicit Maritime and Air Trafficking in Narcotic Drugs and Psychotropic Substances in the Caribbean Area 2003 (Aruba Agreement)
Article 8bis(9), SUA Protocol 2005
Many bilateral narcotics interdiction treaties Instruments:
Article 9, International Covenant on Civil and Political Rights
Art 5, European Convention on Human Rights
Art 6, African Charter on Human and Peoples' Rights
Art 7, American Convention on Human Rights
Art 8, Arab Charter on Human Rights
Art 9, ICCPR:
‘Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.’
Clear basis in national law is required.
Clear powers of arrest in nationa law are required. Instruments:
Articles 7 and 10, ICCPR
Art 3, European Convention on Human Rights
Art 5, African Charter on Human and Peoples' Rights
Art 5, American Convention on Human Rights
Art 13 (and 15), Arab Charter on Human Rights
Art 7, ICCPR:
‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.’ Instruments:
Articles 9 and 14, International Covenant on Civil and Political Rights
Arts 5 and 6, European Convention on Human Rights
Art 7, African Charter on Human and Peoples' Rights
Arts 7 and 8, American Convention on Human Rights
Arts 7 and 8, Arab Charter on Human Rights
Art 10, ICCPR:
‘All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.’ Art 9, ICCPR
A detained person has a right (at the time of detention):
to ‘be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges’
to ‘be brought promptly before a judge or other [judicial] officer’
‘to trial within a reasonable time or to release’
‘to take proceedings before a court, regarding the lawfulness of his detention’ Art 14, ICCPR
Fair trial guarantees include:
presumption of innocence;
privilege against self incrimination (right to silence);
trial without undue delay;
adequate time to prepare;
a right to examine witnesses;
a right to an interpreter;
a right to self-representation, representation of one's own chosing or to an appointed laywer. Key points:
right to be brought ‘promptly’ before a judge
right to challenge lawfulness of detention
access to a lawyer - right may arise at first police interview, e.g. Salduz v Turkey (ECtHR, 2008): as a general rule should be provided from the first police interrogation Key questions:
Do human rights have extra-territorial application?
If so which? What is the legal test?
Who is responsible in multi-national operations?
What is the legal test?
Will vary according to the jurisprudence of national, regional, international courts or other human rights bodies.
European case law is split between effective control over territory and State agent authority and control: being aboard a flag vessel or a detention centre sufficient.
Where the test is State agent authority, questions as to when it arises.
Do human rights have extra-territorial application?
Differing views of principle, regarding certain instruments and on national standards.
General trend in regional and human rights body jurisprudence is to find they can: includes vessels under control of State officials.
Policy, not prejudicing the position of partners.
Who is responsible in multinational operations?
Behrami and Saramati (ECtHR): exercise of UNSC delegated powers, UN retains ultimate authority - UN responsible.
Al-Jedda (UK): UK controlled detention facility under UN mandate - UK responsible.
General international law test is effective (i.e. operational) control.
This presentation presumes:
at a minimum there is applicable international law on the use of force in maritime law enforcement;
many national, regional, international courts or bodies will find various human rights apply; and
Some States will have a different national position on strictly applicable law, but nonetheless apply core standards as a matter of policy. A sensitive issue:
courts and human rights bodies are reluctant to judge conditions in foreign or non-party States, or to 'impose' their standards;
but they must prevent a breach of applicable standards by State agencies within their jurisdiction through 'out-sourcing'. Obligations of non-refoulement or exposure to prohibited treatment:
cruel, inhuman or degrading treatment
flagrant denial of the right to a fair trial
other protected human rights Persecution under the UN Refugee Convention:
‘well-founded’ fear of persecution on grounds of race, religion, nationality, social group or political opinion; but
no application where there are ‘serious reasons’ for suspecting them of a serious crime committed outside their State of nationality - Art. 1(f)(b).
Torture or cruel, inhuman or degrading treatment:
Are there substantial grounds for believing there is a real risk to an individual transferee?
Do all the circumstances, including any assurances given, preclude a real risk of mistreatment?
Courts will look for: individual case assesments, clear procedures for obtaining assurances, and their likely effectiveness.
Where possible, and consented to, post-transfer visits and monitoring are the ‘gold standard’.
Practical measures: UNODC project at Shimo La Tewa. Fair trial and other human rights guarantees:
courts generally have no desire to impose their own standards on other States;
very high standard for defendants to show they should not be transferred because of a risk other human rights may not be respected. Inter-agency co-operation and discussion:
navy, foreign office, justice department, coast-guard, etc Where are suspects being transferred and what are your partner-State's requirements? What human rights instruments are you are party to and what tests will be applied? What further rights may apply under national or constitutional law? An overview presentation: what are the common standards and questions? Non-refoulement:
What will be the attitude of your courts to transferring suspects outside your national or regional human rights context?
What sensible, practical and consensual arrangements be made for monitoring suspects after their transfer in a manner that respects a partner State's sovereignty and national law?