Papers
Dualism, Domestic Courts, and the Rule of International Law
Working Paper; Forthcoming IUS GENTIUM
The concern in this article is with the role that domestic courts and judges can play in enforcing the rule of international law in dualist states. The underlying purpose of the article is to consider whether there is something inherently anti-internationalist about dualist legal systems: do domestic courts and judges in dualist systems shun international law in favour of domestic law and, if so, is that a product of the dualist legal system? The paper argues that in fact there is nothing about dualism per se that precludes reference to and reliance on international legal norms and undertakes a short cross-jurisdictional survey in an attempt to sketch out an emerging spectrum of internationalism across dualist states. The purpose is not to present a conclusive picture of the position of international law in every dualist state but rather to argue that dualism alone can not explain the varying degrees of internationalism we see among superior courts in dualist jurisdictions. Rather, as I argue in the final part of the paper, degrees of internationalism should be understood as matters of legal culture. I attempt, in the final section, to unpack some elements of legal culture that are likely to impact on internationalism and, by so doing, to identify areas of possible development for the purpose of increased internationalism.
Like (4)International Decision: Saadi v Italy
Published in AMERICAN JOURNAL OF INTERNATIONAL LAW
Since the inception of the 'War on Terrorism' the absolute prohibition on refoulement under Article 3 of the European Convention on Human Rights has been the subject of intense criticism by some European states. The United Kingdom, in particular, has argued that the principle of non-refoulement under Article 3 (i.e. that a state may not transfer an individual (regardless of the danger they may pose) to any state where there is a "real risk" of subjection to torture, inhuman or degrading treatment or punishment) is inappropriate when applied to suspected terrorists considered to pose a dangerous threat to the safety and welfare of the community as a whole. In addition, numerous European states have begun to deport individuals suspected of terrorist involvement to states with notorious reputations for ill-treatment on the basis of Diplomatic Assurances.
In Saadi v Italy - the case considered in this short note - the European Court of Human Rights firmly reasserted the absolute nature of Article 3 and held that the pre-2001 test of no-refoulement was not subject to alteration or 'balancing' on the basis of the perceived dangerousness of the individual concerned.
This case note, forthcoming in final form in the American Journal of International Law, outlines the Article 3 decision in the case and contrasts the rigour of the Strasbourg jurisprudence on this matter with the US Supreme Court's decision regarding transfer to the Iraqi government in Munaf v Geren (2008), considering whether this disparity might result in any operational difficulties in circumstances - such as Iraq and Afghanistan - where United States and United Kingdom forces are collaborating in military operations.
Shannon, Saadi and Ireland's Reliance on Diplomatic Assurances under Article 3, ECHR
Forthcoming in IRISH YEARBOOK OF INTERNATIONAL LAW
In the course of the 'War on Terrorism' the United States has been permitted to use Shannon Airport, Ireland and Irish airspace for the purposes of refuelling, stop over, and fly over. Suspicion abounds that the United States has exercised these rights in relation to planes involved in 'extraordinary rendition' and, as a result, that Ireland is in breach of its obligation of non-refoulement under Article 3 of the European Convention on Human Rights. The Irish Government claims that it has received comprehensive and unequivocal Diplomatic Assurances from the United States that no persons have been, are being, or will be 'rendered' through Irish airspace and Shannon Airport and that these Assurances are sufficient to fulfill Ireland's Article 3 obligations, should they arise.
This essay, forthcoming in the Irish Yearbook of International Law, examines two fundamental questions that arise in relation to this issue: (1) is Ireland's jurisdiction engaged as a 'transit state' under Article 1 of the ECHR, and (2) if jurisdiction is engaged, could the Diplomatic Assurances provided be sufficient for Article 3 purposes. Thus, this essay approaches the question of transit states' liability for 'rendition' from a doctrinal perspective that has, thus far, largely been under-explored.
What Human Rights Law Could Do: Lamenting the Lack of an IHRL Approach in Boumediene & Al Odah
Published in ISRAEL LAW REVIEW
In December 2007 the US Supreme Court heard oral arguments in its latest Guantánamo Bay cases, Boumediene vs. Bush and Al Odah vs. United States. Interestingly, the argumentation offered in this litigation was almost exclusively domestic - international human rights law did not feature in spite of its capacity to add significantly to the weight and persuasiveness of the arguments of the petitioners. In respect of both the geographic scope and the content of constitutional standards, international human rights law has a well-developed body of jurisprudence that, this article argues, ought to have been advanced by counsel for the petitioners. This article both exposes the potentially significant international human rights law arguments that could have been advanced and explores some possible reasons for the marginalisation of this body of law. The article concludes that this strategic decision on the part of counsel for the petitioners robbed the US Supreme Court of an opportunity to assert the relevance of human rights law to the "War on Terrorism" and to expand on the relationship between international and domestic constitutional standards and, for those reasons, is to be lamented.
Controlling the Executive in Times of Terrorism: Competing Perspectives on Effective Oversight Mechanisms
Co-authored with Fergal F Davis; Working Paper; revised version forthcoming (2010) 30(1) OXFORD JOURNAL OF LEGAL STUDIES ___
The well-established pattern of Executive expansionism and limited oversight of Executive action in times of terrorism is problematic from the civil libertarian point of view. How to limit such action has been the subject of much scholarship, a large amount of which focuses on perceptions of institutional competence rather than effectiveness. For the authors the effective control of security-focused state action is to be judged by the extent to which it comprises only of action that is necessary and proportionate and thereby strikes an appropriate balance between security exigencies and individual rights. This article, written and structured in dialectic form, presents competing perspectives on effective oversight mechanisms: on the one hand an extra-constitutionalism perspective, proposing a limited role for the judiciary and emphasising the need for legislative and democratic controls; and on the other an argument for judicial muscularity. The purpose of this article is not in any way to reach agreement between these two positions but to present the arguments regarding the efficacy of each one in turn.
Prosecuting Sexual Violence in the Ad Hoc International Criminal Tribunals for Rwanda and the Former Yugoslavia
A final version of this paper will appear in MARTHA FINEMAN (ED), TRANSCENDING THE BOUNDARIES OF LAW (2010, Routledge, forthcoming)
Security Council Resolutions 1503 (2003) and 1534 (2004) provide that the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) are to complete their proceedings by the end of 2010. These Tribunals, established by the Security Council acting under Chapter VII of the Charter of the United Nations, were the first international criminal tribunals since the Nuremberg Tribunal and International Military Tribunal for the Far East established at the end of World War II and ushered in a new phase in international criminal law in which such ad hoc tribunals are increasingly being seen as viable options for post-conflict societies. Thus, we now have ad hoc tribunals that are either hybrid or completely international for Cambodia, Sierra Leone, Lebanon and Timor Leste as well as the permanent International Criminal Court. The age of international criminal accountability has, it might be said, arrived. To what extent, however, are these tribunals making individuals accountable for the widespread sexual violence that often (if not always) occurs in times of armed conflict and genocide‘ This paper explores the extent to which these tribunals making individuals accountable for the widespread sexual violence against women and girls that often (if not always) occurs in times of armed conflict and genocide. In particular, the paper tries to asses the extent to which feminist hopes for justice for women victims of sexual violence have been met by the Tribunals.
In this task, the paper takes a distinctly critical approach and focuses not only on the doctrinal advances made by the Tribunals (which have been vast) but also on the operationalization of those advances (which has been less impressive). This commitment to look not only at positive law but also at law in practice and to critically appraise the dissonances that appear has long been an important part of feminist legal methodology. In the analysis that follows it becomes clear that many of the difficulties that have arisen in relation to the prosecution of sexual violence before these tribunals are familiar to feminist legal theorists as they tend to have also arisen in adversarial domestic criminal justice systems. This calls into question the extent to which we should be celebrating these tribunals when seen through a feminist lens. In particular, it ought to cause us to question the extent to which a healthy norm transfer is occurring between the domestic and the international: to what extent are feminist lessons learned domestically transferred to the international sphere, and what kinds of lessons about prosecuting sexual violence will be transferred from the international proceedings to the reconstituted justice systems in post-conflict jurisdictions?
International Human Rights Law and Constitutional Rights: In Favour of Synergy
(2010) 9(2) International Review of Constitutionalism ___
This paper is concerned with demonstrating the capacity of international human rights law and domestic constitutional law to have a synergistic relationship that is focused on the ways in which the two sets of standards can be harmonised rather than on questions of ‘superiority’ and ‘inferiority’. Conceiving of the relationship between the two bodies of law in this way requires us to recognise their shared dignitary core and the optimal effect of international human rights law, namely effective rights-protection at the domestic level with international law playing a subsidiary role. This paper uses the example of LGBT rights in European Convention on Human Rights jurisprudence to demonstrate such a synergistic relationship and argues that such a relationship is possible as between US constitutional law and international human rights law notwithstanding some prima facie barriers thereto.
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