The first ofthese meetings was a three-hander, involving Iain Mitchell QC, John Gailey ofPilgrim Systems PLC and Duncan Spiers, Advocate. The present article is basedupon the presentations given at the meeting and is the joint work of those threepresenters, but his co-authors are indebted to Duncan Spiers for his majorcontribution to researching the present article (especially the comprehensivelisting of site addresses).
Where to Begin?
With the introduction of the direct justiciability of the European Convention onHuman Rights into the law of Scotland in 1999 in terms of the Scotland Act 1998,and into the United Kingdom as a whole in October 2000, the working lawyersuddenly finds that he needs access to a whole new raft of jurisprudence whichwas formerly only the concern of the specialist. Inevitably, the prize will goto those lawyers who are best equipped to locate the relevant law, which will befound in what may well be (for the busy practitioner) new and hitherto unknownplaces.
The similarity of the European Convention to the UN Conventionwas not coincidental. The European Convention exists in a framework of othersimilar fundamental law texts which are to be found throughout the free world:for example, in Canada, Australia and the United States – and not only at thefederal level but also at the State and provincial levels. Already, in humanrights cases before the Scottish Courts there are references not only to theEuropean case-law, but also to cases from all over the world, both the obviousjurisdictions and those which are not so obvious, such as Quebec.
Scottish Cases
Two recent Scottish cases illustrate this trend.
Procurator Fiscal, Kirkcaldy v Kelly (18 August 2000)
This case involved the question whether an accused has a fairhearing in public when communications between district court clerks and thejustices are private and out with the presence of the accused and his legaladvisors. The Criminal Appeal Court decided that there was no contravention ofArticle 6(1) and that an accused did have a fair hearing in public.
In coming to its decision, the Appeal Court consideredprincipally the constitution of the District Court but also took time toconsider two Belgian cases, Delcourt v Belgium (1970) 1 EHRR 355 and Borgers vBelgium (1991) 1 EHRR 92 These cases, while based on similar facts, differedgreatly in their outcomes. It was noted that ‘the concept of a fair trial hadundergone a considerable evolution in the case law of the Court since the caseof Delcourt in 1970’ [para. 17] in particular that justice now has to be seento be done.
Margaret Anderson Brown v Procurator Fiscal, Dunfermline (2000)The Times, 14 February
This case involved a verbal requirement made by police unders172 of the Road Traffic Act 1988 to name the driver of a car. The appellant wasasked for this information at a time when she appears to have been undersuspicion herself of having driven the car at the requisite time. She claimedthat her right to a fair and public hearing under Article 6(1) had beencontravened in that she had been denied her right to silence and right againstself-incrimination. It was held that in her particular circumstances she hadbeen denied her right to a fair and public hearing under Article 6(1). [Thisdecision has recently been reversed. See Stdt (Procurator Fiscal, Dunfermline) vBrown (2000) The Times, 6 December.]
The Lord Justice General noted that Article 6(3) did not includea right to silence and against self-incrimination but that the jurisprudence ofthe European Court of Human Rights included reference to such rights for examplein paras 68 and 69 of Saunders v United Kingdom (Reports of Judgements andDecisions 1996-VI, page 2044) where it was observed ‘although not specificallymentioned in Article 6 of the convention, the right to silence and the right notto incriminate oneself are generally recognised international standards whichlie at the hear of the notion of fair procedure under Article 6’ [para 68].The Lord Justice General observed that ‘it is therefore legitimate for thiscourt to supplement any guidance to be derived from the decisions of the Courtitself by having regard to constitutional texts from other countries and todecisions of their courts on the interpretation and application of thosetexts.’ Thereafter a considerable number of materials from beyond the Europeanjurisdictional region were considered including cases from South Africa, Canada,United States.
The Message
What these two cases tell us is that, in considering European human rightsmaterials, we can expect our search for a proper construction of Europeanmaterials to take us beyond the articles of the European Convention, beyond theEuropean cases and thence to materials showing global trends. It is incumbentupon us to recognise that we should expect an evolution of general principlesand to become aware of global trends. Essentially, this trend means that the lawhas now become a great deal more diffuse and difficult to pin down than it usedto be.
Global Materials on the Net
Practising lawyers should remember the reassuring advice embossed on the coverof The Hitchhiker’s Guide to the Galaxy: ‘Don’t Panic’. Textbooks, suchas Lester and Pannick’s Human rights: law and practice, can give a jumping-offpoint, but at the end of the day a great deal of original research is likely tobe necessary, and this is where IT and, in particular, the Net can come to therescue, for there is a wealth of global material now readily available over theInternet.
This plethora of material creates its own problems. Whileconventional search strategies could and perhaps, should constitute thestarting-point – reading the Convention itself and the standard textbookswould reveal the Article number, the concept and, possibly, the leading cases,any one of which could be the foundation for a search – however, even thisapproach should be used with care: searching against ‘Article 6’ of theEuropean Convention is not normally going to recover material on a similar, butdifferently-numbered provision of the Canadian Charter, and a search against‘inhuman or degrading treatment‘ is not normally going to produce materialson the US concept of ‘cruel and unusual punishment’, though the two conceptsare clearly closely related.
The real problem which faces any Internet surfer in this area isthe plethora of sites of varying quality and completeness. How good or reliableare the sites which you are searching?
WebFerret
While search engines providing advanced search criteria such as WebFerret(downloadable at www.ferretsoft.com/)can provide considerable assistance, the number of resulting pages can makesearching for those that are actually relevant a daunting task. Furthermore,many of the pages that are listed are slanted in some way towards thecompiler’s interests. Often the links on these pages are out of date andsimply produce error messages which add to frustration.
To test its effectiveness, WebFerret was instructed to searchfor sites where there can be found material relating to human rights in thecontext of trials or tribunals but not relating to torture – ‘(human rights)not torture and (trial or tribunal)’ . This is quite a complex Boolean searchand the results were generally remarkably relevant. The more vague the search,the wider the results, demonstrating that it is always advisable to read theonline information. One of the main advantages is that, rather than relying onthe results returned by a single search engine such as Yahoo (www.yahoo.com)or Alta Vista (www.altavista.com),WebFerret trawls right across a wide range of sites, replicating the search andcollating the results, complete with optional ‘pop-up’ summaries.
Lawyers with a knowledge engine type of portal (such asHummingbird’s Enterprise Information Portal) will already be familiar with theconcept, where information is proactively trawled for and collated into acoherent locally organised source.
United Nations
However, even obvious sites may frustrate. For example, a search for the UnitedNations Universal Declaration on Human Rights may lead one, not unsurprisinglyto the UN Treaties page (http://untreaty.un.org/)but here we discover that this venerable organisation is averse to publicisingits achievements on the Net without a subscription!
The subscription page (http://untreaty.un.org/English/howtoreg.asp)helpfully opens with the note that ‘Every treaty and every internationalagreement entered into by any Member of the United Nations after the presentCharter comes into force shall as soon as possible be registered with theSecretariat and published by it’ but then proceeds to tell the user that anon-profit organisation or individual must pay $50 per month or $500 per year(and profit organisations pay twice as much). However, all is not lost. Thereare helpful collections of treaties (including UN Treaties) to be found free ofcharge in various places. Two good starting places for various lines of enquiryare the British Universities bibliographical search sites – http://bubl.ac.uk/(maintained by the Centre for Digital Library Research at Strathclyde Universitywhose International Law site is at http://bubl.ac.uk/link/i/internationallaw.htm)and the Social Science Information Gateway (http://www.sosig.ac.uk/)whose human rights page is at www.sosig.ac.uk/roads/subject-listing/World-cat/human.html.
Council of Europe
A useful resource detailing Treaties and Conventions of importance to which theUK is a signatory is to be found at the Council of Europe’s Treaty Collectionat http://conventions.coe.int/treaty/EN/cadreprincipal.htm.This enables us to locate a mass of important and relevant documents. Forexample, in addition to the Convention itself together with all of itsprotocols, there are agreements on social, medical, cultural, environmental,patent, and extradition matters, amongst others. In fact most of the majoragreements are represented. This makes this a useful starting point. The indexdetails the names of the documents in date order and gives dates of signatureand ratification which make for easy identification.
Avalon Project
For many purposes the Avalon Project at Yale provides another useful collectionwhether your interests are legal, historical or diplomatic. The site is at www.yale.edu/lawweb/avalon/avalon.htm.
It is conveniently split into time periods for those with ahistorical bent. But for most, the 20th Century division will be of greatestinterest.
Although an alphabetic listing is automatically provided, thesite is searchable. Many major documents of the 20th century can be found here.However, the site is principally geared as a teaching aid for US students andthere are a number of gaps (indeed, you won’t even find the EuropeanConvention on Human Rights here). Usefully, though, there is a sub-collectioncontaining a number of UN documents including the Universal Declaration of HumanRights (www.yale.edu/lawweb/avalon/un/unrights.htm).
The Avalon site gives many hours of interest and many gems canbe found here, for example the Warsaw Pact (www.yale.edu/lawweb/avalon/intdip/soviet/warsaw.htm),a whole collection devoted to World War II documents (www.yale.edu/lawweb/avalon/wwii/wwii.htm),historical items such as the British-American Diplomacy collection (www.yale.edu/lawweb/avalon/diplomacy/brtreaty.htm).
Hague Convention
Of particular interest is the Hague Convention site at www.hcch.net/e/index.htmlwhich contains useful resources such as the Hague Convention on the ServiceAbroad of Judicial and Extrajudicial Documents in civil or Commercial Mattersdated 15 November 1965 (http://www.hcch.net/e/conventions/text14e.html)and to which refence is made in the Rules of Court; and the Hague Convention onthe Civil Aspects of International Child Abduction dated 25 October 1980 (www.hcch.net/e/conventions/text28e.html)which forms the background to the Child Abduction and Custody Act 1985.
ASIL Site
Another resource of note is the American Society of International LawyersInternet resources site at www.asil.org/resource/Home.htm.Here at last are links from an American site to European resources. The ASILsite, being analysed into interests, is arguably a better way to locatespecialist interest resources.
Another analysed site is the Globelaw site (http://www.globelaw.com/)with its somewhat narrower but nevertheless analysed divisions of interest.
Specific Interest Collections
In addition to the above resource collections, there are other collections ofspecific interests. These include the many special interest academic collectionssuch as the European Environmental Law Page supported by the T.M.C. AsserInstituut in Holland (www.asser.nl/EEL/index.htm);special agency sites such as the European Environment Agency (www.eea.eu.int/);and specialist interest or lobbying groups such as Amnesty International (www.amnesty.org/)or Friends of the Earth (www.foe.org/)whose link pages provide interesting leads in their specialist areas.
Commercial Sites
In addition to free Web sites, all the major commercial suppliers are poised tojump on the human rights bandwagon.
Commercial sources such as Butterworths Lexis and Westlaw havean advantage in that materials often contain ‘added value’, in the guise ofeditorially introduced hyperlinks. These operate like the hyperlinks in BAILLI (www.BAILLLI.org).However in BAILLI, the linkages are automatically generated and rely upon thevagaries of the English language so may not be as comprehensive. Lawtel andJustis have also set up specific human rights collections, allowing access to arestricted cross-section of their material at restricted cost.
All of the services should be able to offer demonstration accessso that you can see for yourself whether the added value is also value formoney.
Butterworths Lexis www.butterworths.com
Lawtel www.lawtel.co.uk
Justis www.justis.com
Westlaw www.westlaw.co.uk
The foregoing survey highlights a number of useful lead sites which ought toenable the practical lawyer to remain orientated when searching through whatwould otherwise be a tangled web. Such ‘pre-packaged’ sites often provide amuch more focused view of materials and can therefore be much more useful thansearch engines where a mass of unanalysed leads may take one hither or thitherand often to sites of little practical use or sites which are out of date orcontain expired links.
Caveat Conspector
There are many other collections of interest (a detailed listing is given below)– but beware the slant some may have. Provenance is all important! Anyone withgood design skills and the monthly cost of an ISP in their pocket can producesomething that looks much more authoritative than an official site.
Conclusion
When research materials are easily and readily available, lawyers will tend touse them. The jurisprudence will thus tend to grow and to push forward thefrontiers of the substantive law.
In the context of human rights law, though there are many different national(and international) systems, there is a similarity amongst them which arises outof common historical antecedents. They, each of them, have a claim to beasserting rights which are fundamental to Western liberal democracy andembracing concepts which seek to be universal in application. Because of theshared value-systems of the societies which spawned them, there will, in anyevent, be a pressure to convergence.
In a world without the Web, the difficulty of doing comparativeresearch would tend to put a practical restraint upon how far and how fast suchconvergence might go. Conversely, the ready availability of the comparativejurisprudence on the Web, with lawyers who are equipped to research it, willinevitably lead to a widening and deepening of such convergence.
It is often said that the Internet will create pressures whichwill lead to economic globalisation. It may also be that, in the field of humanrights at least, the above conditions will lead to a kind of globalisation ofthe law, for the first time putting flesh on the bones of the 18th-centuryaspiration towards ‘natural law’, that is to say, a common and universalcode of human rights.
LINKS
General collections and entry gateways
BUBL
http://bubl.ac.uk/
SOSIG
http://www.sosig.ac.uk/
American Society of International Lawyers
http://www.asil.org/resource/Home.htm
Yale University Avalon Project
http://www.yale.edu/lawweb/avalon/avalon.htm
Miral international law page
http://www.gfos.hr/~miral/MP/International-Law.htm
International law reports database
http://www.interights.org/search.asp
International Criminal Tribunal
http://jagor.srce.hr/~mprofaca/lawsorce.html
Univ of Western Australia international law
http://www.law.ecel.uwa.edu.au/intlaw/
Pritchard international law links
http://www.priweb.com/internetlawlib/89.htm
Max Planck Institute for international law
http://www.virtual-institute.de/eindex.cfm
Specific collections
United Nations Treaty collection (subscription)
http://untreaty.un.org/
PACE Environmental Law Library
http://www.law.pace.edu/env/
European Environmental Law Page
http://www.asser.nl/EEL/index.htm
Globelaw site
http://www.globelaw.com/
Hague Conference site
http://www.hcch.net/e/index.html
Council of Europe Treaty Collection
http://conventions.coe.int/treaty/EN/cadreprincipal.htm
Environmental protection
Environmental Law Alliance Worldwide
http://www.elaw.org/
European Centre for Nature Conservation
http://www.ecnc.nl/doc/europe/legislat/convglob.html
European environmental agency
http://search.eea.eu.int/
Environmental Agency
http://www.environment-agency.gov.uk/
Foundation for international environmental law and development
http://www.field.org.uk/
Environmental Treaties and resources
http://sedac.ciesin.org/pidb/
World Conservation monitoring centre
http://www.wcmc.org.uk/
Human Rights
Canadian Human Rights Commission
http://www.chrc-ccdp.ca/
Other Canadian Human Rights Commissions
http://www.chrc-ccdp.ca/AboutCHRC/links.asp?l=e
The Human Rights Act
http://www.hmso.gov.uk/acts/acts1998/19980042.htm
European Court of Human Rights
http://www.echr.coe.int/
European Commission on Human rights
http://www.dhcommhr.coe.fr/
UK Beagle Human Rights digest
http://www.beagle.org.uk/hra
Diana human rights database
http://www.law.uc.edu/Diana/
European Convention on human rights
http://www.coe.fr/eng/legaltxt/104e.htm
Derechos – human rights on the internet
http://www.derechos.org/human-rights/manual.htm
Human Rights Internet
http://www.hri.ca
Minnesota Human Rights Library
http://www1.umn.edu/humanrts/
UN High Commissioner for Human Rights
http://www.unhchr.ch/
Human rights web
http://www.hrweb.org/resource.html
Florida State Univ international law
http://www.law.fsu.edu/library/courseconnections/humanrights.html
University of Kent human rights links
http://library.ukc.ac.uk/library/lawlinks/human.htm
Specific agencies
European Environment Agency
http://www.eea.eu.int/
International Atomic Energy Agency
http://www.iaea.org/worldatom/
International Labour Organisation
http://www.ilo.org/
Lobby organisations
Amnesty International
http://www.amnesty.org
Friends of the Earth
http://www.foe.org/
Greenpeace
http://www.greenpeace.org/
Pesticide Action
http://www.gn.apc.org/earthrights/earthrig.htm
Soil Association
http://www.soilassociation.org/
