On Monday, June 16th of 2008 same-sex marriage became legal in the state of California due to a ruling by the Supreme Court of California. Since this site is crawling with human rights lawyers and such I will not embarrass myself by attempting detailed legal analysis of the 172 page ruling but I think the decision is worthy of comment. While the state of Massachusetts had already legalized same-sex marriages back in 2004, and Connecticut, Vermont, New Jersey, and New Hampshire all had civil union laws with equal benefits, this case was particularly significant for several reasons. California is the largest state in the nation and also possesses the highest population of same-sex couples (over 92,000 according to the 2000 census), the largest gay population at over 1.3 million, and the most famous “Gay village” in the world, San Francisco, which has a gay population as high as 15%.
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 By Tobias Thienel

Sorry for the extreme delay: I missed this one, perhaps because of the less than catchy title. It’s the judgment of the English High Court in R (G) v Nottinghamshire Healthcare NHS Trust [2008] EWHC 1096 (Admin) of 20 May this year. Mind you, as headings go, this one would seem to come in at the lower end of most people’s scale of surprise. The conclusion that there is no human right to smoke would seem patently obvious. But do bear with me; there has been no suggestion in this English case that a right to smoke has ever been laid down in any instrument of English or international law; it hasn’t. That much really is obvious. Instead, the argument proceeds from Article 8 ECHR, the right to respect for a person’s private life (and also their family life, home and correspondence, none of which matters here), which is ‘not susceptible to exhaustive definition’ (Pretty v United Kingdom, para 61). More to the point, the right to respect for one’s private life has been held to protect, inter alia, a person’s physical and moral integrity (see ibid and Bensaid v United Kingdom, paras 46-47). It may not be entirely implausible that to ban smoking is to interfere with a smoker’s physical and psychological integrity, if the ban prevents them from smoking at all. Justification of the interference might be another matter, but Article 8 would have then been engaged, if nothing more. In the case of G itself, the ban on smoking was complete. The claimants were detained mental patients in a secure unit, and were not allowed to go outside to smoke. They were and are still allowed to smoke in one room in their facility, but that permission is to expire on 1 July. From then on, the unit will be entirely smoke-free, and the claimants will be prevented from smoking at all. They will, in other words, be forced to quit. I understand that this can be an unpleasant experience. And still, the High Court (Pill LJ and Silber J) dismissed the claim, holding that Article 8 was not engaged. Continue reading →

By Otto Spijkers

The first goal in the match between the Netherlands and Italy has triggered a lot of debate on the ‘legality’ of the goal. Was it according to the rules? The referee, who has the ultimate authority to apply the rules, decided to count the goal. But was that a correct decision? On the website of the BBC, the case is hotly debated, with over a 1000 comments attracted thus far. This is a summary of the facts of the case:

A Dutch player (Ruud van Nistelrooy) stands in front of the goal. He receives the ball from a fellow Dutchman who is further away from the goal line than van Nistelrooy at the time of passing, and van Nistelrooy then kicks the ball in the net. At that moment, there is no Italian defender between him and the keeper (see picture). Just behind the goal you can see an Italian defender, Christian Panucci, who seems injured at the time the goal is scored.

The applicable law is Rule 11 of the Laws of the Game 2007/2008. It states, as far as relevant:

Offside Position

A player is in an offside position if:
– he is nearer to his opponents’ goal line than both the ball and the second last opponent
A player is not in an offside position if:
– he is in his own half of the field of play or
– he is level with the second last opponent or
– he is level with the last two opponents.

When we wish to apply the law to the situation, we need first to look at the law itself and interpret it by using the textual method of interpretation, and, if that doesn’t solve the problem, we look at relevant case law, i.e. similar situations in the past, and authoritative interpretations of those situations. Continue reading →

By Tobias Thienel

A while back, I had a few comments, many critical, on the judgment of the ECtHR’s Grand Chamber in N v. United Kingdom, the latest case concerning the expulsion of an AIDS patient to a receiving state providing little in the way of health care. In particular, I was less than satisfied with a few things the Court said in its treatment of Article 3 ECHR, clearly the main issue in the case. But there is another aspect to the case that is also far from edifying: after having found that there would be no violation of Article 3 were the applicant in fact expelled to Uganda, the Court very briefly held that the applicant’s additional complaint under Article 8 did not raise any separate issue. It was therefore unnecessary for the Court to examine that complaint (para 53 of N). Continue reading →

By Otto Spijkers

My fellow-blogger just introduced us to what indeed seems a wonderful conference on International Law and Armed Conflict. This gave me the idea also to advertise for a conference where I will be presenting my research: the Second Global International Studies Conference in Ljubljana, Slovenia. Continue reading →

By Tobias Thienel

The Grand Chamber of the European Court of Human Rights has today rendered judgment in one of the most – technically and morally – difficult cases to have come before it recently. The case is N v United Kingdom, and concerned the expulsion of someone suffering from AIDS at an advanced stage to Uganda. That person, Ms N, was currently undergoing treatment in the UK, but would not foreseeably receive anything like the same degree of medical assistance in Uganda. It was therefore likely that removal from the UK would expose her to serious pain and discomfort from her disease, and hasten her death. The applicant therefore argued that to remove her to Uganda in those circumstances would be in violation of Article 3 of the Convention. That article, of course, prevents the Contracting States of the ECHR from expelling or extraditing anyone to a situation in the receiving State in which the removed person would face a real risk of ill-treatment contrary to Article 3 standards (that’s torture and inhuman and degrading treatment) (Soering v United Kingdom, paras 85-91). There is also good precedent for the application of that prohibition to the case of an AIDS patient being removed to a poor State where the patient would be without any assistance, and would soon die: that case is D v United Kingdom, and today’s judgment was largely about distinguishing or applying that precedent. The Grand Chamber distinguished D, and found no violation of Article 3 in the present case. I find that difficult to support, and badly argued in the judgment. Continue reading →

By Otto Spijkers

A year ago, the Mothers of Srebrenica, 6.000 surviving relatives of those killed in the Srebrenica genocide, went to the District Court in The Hague to demand reparations for damages that resulted from the failure of both the Netherlands and the United Nations to prevent the genocide and save the lives of more than 7.000 relatives. On 18 June 2008, there will be a first hearing in this case. The issue that will be considered that day is whether the United Nations can claim immunity. Continue reading →

By Tobias Thienel

The European Court of Human Rights has yesterday heard argument in the case of Medvedyev and Others v France. The webcast of the hearing, simulcast in English, is here. A press release setting out the basic facts and complaints is here. The case raises a few interesting points. Having watched the webcast, I’m not sure they will all (re-)appear in the eventual judgment, but if they do, it’s going to be a truly fascinating judgment. Put shortly, the case merges the law of the ECHR with the international law of the sea. The facts are these: a freighter sailing under the Cambodian flag on the High Seas of the Atlantic Ocean, the Winner, was suspected of carrying illicit drugs, to be delivered to European coastal states. France therefore made a request to Cambodia for permission to stop and search the vessel. Such permission was granted in a note verbale from the Cambodian Ministry of Foreign Affairs, transmitted via the usual diplomatic channels. The French Navy then did set about stopping the vessel. At that time, the Winner did not fly any flag at all, and refused to identify itself when requested to do so by the French Navy. The Navy vessel fired a warning shot across the bow of the Winner, which then eventually stopped. After it had then tried to ram the boat carrying the French boarding party, French Navy personnel boarded the ship, and found considerable amounts of cocaine. The Navy officers arrested the crew of the Winner, who were then confined to quarters, while the Winner was taken to a French port (Brest). The journey from the place of the stop and search (in the waters off Cape Verde) to Brest took 13 days, during which the crew of the Winner were kept under arrest. Once at Brest, the crew were taken to police custody, and brought before a judge some 48 hours later. The case raises two main issues: (a) the legality of the arrest at sea, and (b) the legality of the delay between the arrest and the judicial decision. Continue reading →

 By Tobias Thienel

First of all, I do apologise for this late report (this is something I am going to have to do rather a lot in the next few days). The judgment of Mr Justice Collins in R (Smith) v Assistant Deputy Coroner for Oxfordshire [2008] EWHC 694 (Admin) is now over a month old. Still, it is quite interesting, so I propose to make some comments on it even now.

Collins J ruled in the High Court that British soldiers serving in Iraq were under the ‘jurisdiction’ of the United Kingdom within the meaning of Article 1 ECHR, and that they accordingly enjoyed rights under that Convention. In the case at hand, this meant that the inquest into the death of a British serviceman by the Assistant Deputy Coroner for Oxfordshire had to comply with the duties of investigation imposed by Article 2 ECHR (the duty to protect human life, inter alia by investigating any death that may arguably have been the result of wrongful acts and omissions of the state). I would suggest that Collins J was right, but that his reasons were not. The fault for that, I believe, lies with the Strasbourg Court more than with Collins J himself. Continue reading →