What Human Rights Law Could Do: Lamenting the Absence of an International Human Rights Law Approach in Boumediene & Al Odah

In December 2007 the U.S. Supreme Court heard oral arguments in its latest Guantánamo Bay cases, Boumediene v. BushandAl Odah v. 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 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 marginalization of this body of law. The Article concludes that this strategic decision on the part of counsel for the petitioners robbed the U.S. 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.</jats:p

Can counter-terrorist internment ever be legitimate?

Counter-terrorist internment is generally rejected as illegitimate from a human rights perspective. However, while the practice of counter-terrorist internment has long resulted in the infringement of human rights, this article argues that the concept of internment holds some potential for legitimacy. This potential can only be realized if four legitimacy factors are fully embraced and complied with: public justificatory deliberation, non-discrimination, meaningful review, and effective temporal limitation. Outlining these factors, this article imagines a system of internment that is legitimate from a human rights perspective and can serve both real and pressing security needs, and rights-based legitimacy needs

Rights, Security and Conflicting International Obligations: Exploring Inter-Jurisdictional Judicial Dialogues in Europe'

The European Court of Justice's decision in Kadi & Al Barakaat has frequently been condemned as a missed opportunity for the Court to engage in a wider international debate about how states' multiple layers of obligation relate to one another. In this paper, we compare the ECJ's approach in this case to previous approaches in the Council of Europe, the United Kingdom, France, Germany, and the EU courts themselves. We argue that the way in which the Court chose to frame the issues in Kadi in fact enabled it to engage in an inter-institutional and inter-organizational international dialogue rejecting dichotomous approaches to security and rights. At the same time, the approach enabled the Court to strengthen its internal constitutional commitment to fundamental rights protection and, a priori, to reject dichotomous counter-terrorist approaches on the local as well as the international level. We therefore present Kadi as a case of key significance for both European and international constitutionalist processes

Contesting the cruel treatment of abortion-seeking women

NOTICE: this is the author’s version of a work that was accepted for publication in Reproductive Health Matters. Changes resulting from the publishing process, such as peer review, editing, corrections, structural formatting, and other quality control mechanisms may not be reflected in this document. Changes may have been made to this work since it was submitted for publication. A definitive version was subsequently published in REPRODUCTIVE HEALTH MATTERS, [VOL 22, ISSUE 44, (2014)] DOI: 10.1016/S0968-8080(14)44818-

National counter-terrorism (C-T) policies and challenges to human rights and civil liberties: Case study of United Kingdom

In the UK the rise post-2005 in “home-grown” terrorism, relying to a significant extent on strikes on soft targets by “self-starters,” means that the search for effective preventive measures remains a continuing concern. Below a number of the preventive counter-terror measures adopted post-9/11, and incrementally strengthened in response to the current threat, are found to fall into three categories and represent interventions at the stages in the path toward attacks. This chapter focuses on selected examples of these preventive measures. In terms of three key stages, firstly, there is the attempt to prevent radicalization, under the “Prevent” strategy. A second strategy relies on taking certain measures to control the activities of those considered likely – on the balance of probabilities – to engage in terrorist-related activity. A third preventive strategy relies on the special terrorism offences under the Terrorism Acts 2000 and 2006, as amended, intended to allow for intervention at a very early stage in terrorist plots and in preparing or instigating terrorist acts (“precursor” offences)

The Role of Derogations from the ECHR in the Current “War on Terror”

This chapter points out that derogation from the ECHR under Article 15 ECHR was designed after the Second World War precisely to allow contracting states to meet emergencies such as the one represented by the current “war on terror,” but to remain within the ECHR system, while suspending adherence to certain rights on a temporary basis. Article 15 allows states to cease their adherence to a number of Convention rights during the period of the emergency. It might be expected therefore that reliance on derogations would be particularly significant at the present time. But the chapter finds that very few derogations have been sought from ECHR contracting states despite the recent very significant rise in terrorist activity. Given that derogations have played little part in counterterrorism efforts in most of the ECHR contracting states, a significant degree of continued adherence to the ECHR has been maintained, but some attention has turned to other methods of exploring the evasion of its protection. This chapter explores the reasons behind the lack of reliance on derogations and the implications of turning to such other methods as alternatives

Shannon, Saadi and Ireland’s Reliance on Diplomatic Assurances Under Article 3 of the European Convention

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

International Human Rights Law and Constitutional Rights: In Favour of Synergy

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

Managing Judicial Innovation in the European Court of Human Rights

Since its establishment in 1959, the European Court of Human Rights (ECtHR) has developed into a constitutionalist actor within and beyond the continent of Europe; a development that is in no small part due to judicial innovations, such as evolutive interpretation. Such innovation has resulted in a tension between the Court and the contracting parties that may conceivably call into question states’ diffuse support for the Court. We argue that this tension is addressed by the Court by means of a nascent model of judicial self-restraint discernible from the Court’s docket management, its cognisance of non-legal factors in particularly contentious cases, and its use of consensus-based interpretation. While arguably necessary, such a model is not cost-free; rather, it may have implications for the quality of the Court’s decision-making and its standing in the eyes of other stakeholders, such as NGOs and complainants