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Monday, April 11, 2011

Parliamentary sovereignty just leads to absolute power to corrupt

Parliamentary sovereignty just leads to absolute power to corrupt

According to Lord Neuberger, MR, :"It is true that membership of the Convention imposes obligations on the state to ensure that judgments of the Strasbourg court are implemented, but those obligations are in international law, not domestic law. And, ultimately, the implementation of a Strasbourg, or indeed a domestic court judgment is a matter for Parliament. If it chose not to implement a Strasbourg judgment, it might place the United Kingdom in breach of its treaty obligations, but as a matter of domestic law there would be nothing objectionable in such a course. It would be a political decision, with which the courts could not interfere".

According to Wikipedia: International law is the term commonly used for referring to laws that govern the conduct of independent nations in their relationships with one another. It differs from other legal systems in that it primarily concerns provinces rather than private citizens. In other words it is that body of law which is composed for its greater part of the principles and rules of conduct which States feel themselves bound to observe, and (a) The rules of law relating to the function of international institutions or organizations, their relations with each other and their relations with States and individuals; and

(b) Certain rules of law relating to individuals and non-state entities so far as the rights and duties of such individuals and non-state entities are the concern of the international community.[1] However, the term "international law" can refer to three distinct legal disciplines

Public international law, which governs the relationship between provinces and international entities, either as an individual or as a group. It includes the following specific legal field such as the treaty law, law of sea, international criminal law and the international humanitarian law.
Private international law, or conflict of laws, which addresses the questions of (1) in which legal jurisdiction may a case be heard; and (2) the law concerning which jurisdiction(s) apply to the issues in the case
Supranational law or the law of supranational organizations, which concerns at present regional agreements where the special distinguishing quality is that laws of nation states are held inapplicable when conflicting with a supranational legal system.

The two traditional branches of the field are:

jus gentium — law of nations
jus inter gentes — agreements among nations

According to Wikipedia: International human rights law refers to the body of international law designed to promote and protect human rights at the international, regional and domestic levels. As a form of international law, international human rights law is primarily made up of treaties, agreements between states intended to have binding legal effect between the parties that have agreed to them; and customary international law, rules of law derived from the consistent conduct of states acting out of the belief that the law required them to act that way. Other international human rights instruments while not legally binding contribute to the implementation, understanding and development of international human rights law and have been recognised as a source of political obligation.[1]

Enforcement of international human rights law can occur on either a domestic, regional or international level. States that ratify human rights treaties commit themselves to respecting those rights and ensuring that their domestic law is compatible with international legislation. When Domestic Law fails to provide a remedy for human rights abuses parties may be able to resort to regional or international mechanisms for enforcing human rights.

International Human rights law is closely related to, but distinct from international humanitarian law. Similar, because the substantive norms they contain are often similar or related - for example both provide a protection from torture. Distinct because they are regulated by legally distinct frameworks and usually operate in different contexts and regulate different relationships. Generally, human rights are understood to regulate the relationship between states and individuals in the context of ordinary life. While humanitarian law regulates the actions of a belligerent state and those parties it comes into contact with, both hostile and neutral, within the context of an armed conflict.[2]

For a citizen of the UK it is totally unsatisfactory that the UK is under an obligation in international law to ensure that human rights are protected under the Convention and for the UK to abide by the Court judgments, and yet these obligations do not form part of domestic law. In other words, the UK informs the international community that it is in favour of human rights, but this does not extend to the reality if citizens in the UK attempt to enforce their human rights in the domestic courts. So, in the UK, we do not have actual human rights but just the appearance of human rights.

Antoine Buyse on the ECHR Blog reports: In the preparations for the upcoming Izmir high level conference in Turkey (under the Turkish chairmanship of the Council of Europe), the European Court of Human Rights has issued an 'Opinion' which reflect its input and views for that meeting. The Izmir conference is following up on last year's conference in Interlaken in Switzerland on the ongoing reforms of the European system of human rights protection...It re-emphasizes that subsidiarity is a core aspect of human rights protection: first and foremost human rights should be ensured at the national level. But it adds, importantly, that subsidiarity "cannot be unconditional and unilateral". It only works if states do secure rights in practice and offer effective remedies and execute the Court's judgments. The Court refers to this as a shared responsibility for human rights. It also indicates that it exercises ultimate control on whether an applicant's rights have been effectively respected.

The principle of subsidiarity cannot apply in the UK because according to Lord Neuberger: "the courts would have to overcome the acceptance by Lord Hoffmann in the House of Lords in 2000 of the proposition that Parliament can ‘if it chooses, legislate contrary to fundamental principles of human rights'".

Parliament has not legislated to deny fundamental principles of human rights, in Hirst v UK (No2), Parliament has simply not sought to legislate for a change in the law. And, the courts as a result are failing to provide an effective remedy for the breach of human rights. Because Parliament is failing in its obligations the courts also fail in their obligations. And, the Committee of Ministers fails in its obligations to properly supervise execution of the ECtHR's judgments. I can see the UK using the subsidiarity principle to deny human rights to its citizens, particularly against the vulnerable groups in society like prisoners.

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