Suchergebnisse

Introduction: For most of the world, the horrific events of September 11 could bring forth only one judgment in human, moral or social terms. Even for those of us far removed from the United States who saw the events on television - live and replayed time and time again – the truth was simple: the perpetrators and planners of these atrocities had committed a profound wrong, an act of evil and malevolence that surpassed in quality and impact any other terrorist attack in recent memory. While those who had hijacked the four planes and sent thousands of innocent victims to their deaths could not longer be brought to justice before any terrestrial court, there understandably arose out of the anger and grief a grim determination that those who had instigated and supported the commission of these acts would pay the price. Yet this unanimity of moral outrage and condemnation in the immediate aftermath of September 11 has given way to controversy and uncertainty in relation to many aspects of the legal and political responses to those events. The ordinary citizen might be forgiven for thinking that our international and national law and legal institutions should have no difficulty in bringing to justice those responsible for these outrages against human life and dignity – and that this would be done expeditiously in a manner consistent not only with the goals of justice but also in accordance with the protections of the rule of law, including essential principles of fairness and fundamental rights. Why does the international and national legal response seem so much in disarray and so contested and confused? In this lecture tonight I wish to address a number of aspects of the aftermath of September 11, in particular the adequacy of the international legal system to respond to the challenges those events have posed and the difficulties that have arisen in our efforts to address the consequences of those events at the international and national levels. My remarks will be structured around three issues: War and crime, or war or crime: what is the appropriate model of law that should be applied to events such as September 11 and to terrorism more generally? International efforts to address terrorism, including the problem of definition: in this section I will discuss the challenges that face us in formulating a workable international definition of terrorism, an endeavour that is fundamental to a global campaign against it. Terrorism and human rights: Finally, I will touch on some aspects of the relationship between terrorism and human rights at the international and national levels, and argue that we should not be seduced by the sirenic call of security that lures us in the current calls to root out terrorism in all its forms.

1. At the London Conference of the Association in 2000 the Executive Council approved the proposal of the Committee that the next stage of its work would be a study of the impact of the United Nations human rights treaty bodies established under the principal United Nations human rights treaties. The Committee had proposed that the initial stage of its project would be to focus primarily on the impact that the output of these bodies (in particular their "findings") has had on the work of national courts and tribunals, with a view to examining subsequently the impact of the work of the treaty bodies in other contexts at the domestic level. 2. The principal purposes of the study are to document the extent to which the work of the treaty bodies had begun to have an impact on the work of national courts and tribunals, to identify the factors that contribute to the use by courts and tribunals of this material, and to encourage further utilisation of the international sources by courts, tribunals and advocates by disseminating information about how they were already being used. 3. This report is a preliminary survey of the use made by national courts and tribunals of the output of the treaty bodies.2 It does not purport to be an exhaustive study of the many instances in which national courts have referred to or drawn on the work of the treaty bodies, either in its coverage of jurisdictions or of cases within particular jurisdictions; rather it endeavours to illustrate the different ways in which national courts have utilised that material and the principal legal issues which have been discussed, on the basis of the examples identified by the members of the Committee and others who have contributed information for the study. Th is interim study represents a sampling of case law from more than a dozen jurisdictions (and refers predominantly to English-language case law), the goal being to illustrate the range of issues that have come before domestic courts. The Committee hopes that the study will stimulate further documentation of the use made by national courts and tribunals of international material. 4. While the Committee considered that it would be worthwhile to study the impact of the work of the treaty bodies at the national level in other areas (such as the work of legislatures), it was felt that the study at this stage should be primarily focused on courts and tribunals, and similar adjudicative or quasi-judicial institutions (such as Ombuds procedures in some countries). The suggestion was also made that the study include references to the use made of treaty body output by international courts and tribunals. The present interim study includes a number of references to such cases, but a more detailed listing of those instances has been deferred to the next stage of the study. 5. The Committee proposes that this interim study will be further developed into a more comprehensive report for the 2004 Conference of the Association, and that this final report will document many more instances of the use of the work of the treaty bodies by domestic courts and tribunals, as well as by other domestic institutions.

Introduction: When I look back on the first decade or so of the Hong Kong Bill of Rights, it is difficult not to feel a certain satisfaction at the developments since 1991, but at the same time I feel somewhat disheartened. There is no doubt that the advent of, and subsequent litigation and activism around, the Hong Kong Bill of Rights Ordinance and its international progenitor, the ICCPR (the latter in constitutional garb before and after 1997), has had a significant impact in many areas of Hong Kong law and practice. The coming of the Bill of Rights brought with it a wide-ranging policy review in many areas, and some of the detritus of legal history was swept away as the result of judicial pronouncements of inconsistency, and subsequent legislative reform. The Bill of Rights also gave stimulus to the enactment of detailed legislation in other fields, above all in relation to different forms of discrimination. The courts of Hong Kong have become reasonably familiar with relevant international materials, with judgments regularly drawing on the jurisprudence of the United Nations treaty bodies (in particular the Human Rights Committee) and, more extensively, the jurisprudence of the European Convention on Human Rights, as well as human rights and constitutional law form many national courts. My purpose in this paper is to look at some aspects of the way in which the courts have approached Bill of Rights and related human rights issues over the years, and to identify some areas where there may yet be potential for the revitalisation or expansion of the Bill of Rights and the international human rights regime imported into Hong Kong law by article 39 of the Basic Law. It is not intended to be a comprehensive review or account, but is rather a selection of issues which seem to me to illustrate important points about the way the courts have approached, or could approach the protection of human rights.