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

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-

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

Controlling the Executive in Times of Terrorism: Competing Perspectives on Effective Oversight Mechanisms

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 consists 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

Grand Chamber of the European Court of Human Rights, A, B and C v IRELAND, Decision of 17 December 2010

A, B & C v Ireland has attracted significant attention for what it says (or does not say) about abortion and the European Convention on Human Rights. However, the decision is also significant for the evolution of decision-making methods in the Court, and especially the notion of ‘European consensus’. A, B & C v Ireland saw the emergence of what we term ‘trumping internal consensus’ to allow for moral judgements within a state to ‘trump’ an identified European consensus. We argue that this raises serious constitutionalist concerns, not least because of its potential impact on harmonisation and questionable methodological basis

The Impact of Provider Restrictions on Abortion-Related Outcomes : A synthesis of legal and health evidence.

Many components of abortion care in early pregnancy can safely be provided on an outpatient basis by mid-level providers or by pregnant people themselves. Yet, some states impose non-evidence-based provider restrictions, understood as legal or regulatory restrictions on who may provide or manage all or some aspects of abortion care. These restrictions are inconsistent with the World Health Organization’s support for the optimization of the roles of various health workers, and do not usually reflect evidence-based determinations of who can provide abortion. As a matter of international human rights law, states should ensure that the regulation of abortion is evidence-based and proportionate, and disproportionate impacts must be remedied. Furthermore, states are obliged take steps to ensure women do not have to undergo unsafe abortion, to reduce maternal morbidity and mortality, and to effectively protect women and girls from the physical and mental risks associated with unsafe abortion. States must revise their laws to ensure this. Where laws restrict those with the training and competence to provide from participating in abortion care, they are prima facie arbitrary and disproportionate and thus in need of reform. This review, developed by experts in reproductive health, law, policy, and human rights, examined the impact of provider restrictions on people seeking abortion, and medical professionals. The evidence from this review suggests that provider restrictions have negative implications for access to quality abortion, contributing inter alia to delays and recourse to unsafe abortion. A human rights-based approach to abortion regulation would require the removal of overly restrictive provider restrictions. The review provides evidence that speaks to possible routes for regulatory reform by expanding the health workforce involved in abortion-related care, as well as expanding health workers' roles, both of which could improve timely access to first trimester surgical and medical abortion, reduce costs, save time, and reduce the need for travel