New Publication: The Transnational Counter-Terrorism Order

m_clp_71_1coverLast November I was delighted to present a Current Legal Problems lecture at UCL. The article that emerged from that lecture has now been published in advance access format by the CLP and will appear in this year’s hardcopy. It is available here, and the abstract is  as follows:

We live our lives in an often-unseen transnational counter-terrorism order. For almost two decades now, counter-terrorist hegemons have been acting on multiple transnational levels, using a mixture of legal, institutional, technical and political manoeuvres to develop laws, policies and practices of counter-terrorism that undervalue rights, exclude civil society, limit dissent and disagreement, and expand greatly the reach of national and transnational security. The assemblage of laws, institutions, forums, processes, bureaucracies, and cooperative networks that have emerged from these machinations should be understood as a transnational counter-terrorism order that is intended to instantiate on a global level ‘an arrangement of social life…[that]…promotes certain goals or values’ (Bull), whether or not they conflict with rights, whether or not they emerge from legitimate and participatory processes. This paper brings together various seemingly-technical or esoteric strands of law, institutions, policy and politics to show their connections, interdependencies and interactions and, thereby, to illustrate the emergence of this transnational counter-terrorism order. It argues that unless we recognise the connections between and multi-scalar implications of the seemingly disparate, sometimes opaque, and often bureaucratic elements that make up the transnational counter-terrorism order, its scale and implications will remain hidden in plain sight and we may find ourselves unable effectively to insist on fidelity to the constitutionalist values of rights, accountability, and democratic legitimacy.

The JCHR Enquiry on Derogation from the ECHR: My Written Evidence

The Joint Committee on Human Rights has now published all of the written evidence it received about the proposed derogations by the UK from the ECHR in situations of conflict abroad. My submission is available here, and the executive summary is as follows: Continue reading “The JCHR Enquiry on Derogation from the ECHR: My Written Evidence”

Can infringement proceedings ‘solve’ the ECtHR’s non-execution problem?

The final version of new article, written with Kanstantsin Dzehtsiarou, is now published in the International and Comparative Law Quarterly. The article, entitled (rather pessimistically) “Mission Impossible? Addressing Non-Execution through Infringement Proceedings in the European Court of Human Rights”, picks up on a recent proposal that Article 46(4) of the ECHR would be used to address non-execution. This allows the Committee of Ministers to refer a case back to the Court in the case of non-execution by the contracting state. In short, we argue that such an approach is misguided on three grounds: practicality, futility, and backlash. Fundamentally, we say, the proposed solution does not ‘fit’ the problem of non-execution properly understood. Continue reading “Can infringement proceedings ‘solve’ the ECtHR’s non-execution problem?”

New blog: Ireland’s Abortion Ban: Subjecting Women to Suffering and Discrimination

As an associate of the Oxford Human Rights Hub, I occasionally provide posts for the Hub’s excellent blog. Yesterday my latest contribution was published. In “Ireland’s Abortion Ban: Subjecting Women to Suffering and Discrimination“, I consider the challenges posed by Mellet v Ireland and how the government might respond to them. I also argue against taking a narrow approach of addressing access to abortion in cases of fatal foetal abnormality only, and leaving the remainder of the 8th Amendment regime changed. The full post can be accessed here, and closes thus:

The Irish people voted on abortion in 1983, 1992 and 2002, but no referendum has ever offered the opportunity to liberalise abortion law. The Taoiseach (Prime Minister) has committed to convening a ‘Citizens’ Assembly’ to consider inter alia revisiting the 8th Amendment, and the UNHRC’s decision is expected to expedite this. However, to take the UNHRC’s decision as outlining ‘all’ that has to be done to make Irish abortion law compliant with human rights law and basic conceptions of bodily integrity, autonomy and self-determination, would be to mitigate the cruelty of the 8th Amendment only in a very particular kind of circumstance (FFA) without addressing the overall dilemma for pregnant women in Ireland. Thus, it is imperative that the terms of reference for the Citizens’ Assembly are expansive and allow for every option to be considered, including placing a positive statement of the right to self-determination in all medical matters into the Constitution.

The likelihood of that happening, however, seems low as long as the Government seems unwilling to have ‘big’ and difficult conversations about the status of the foetus, autonomy and self-determination, choice, medical care and medico-legal culture, belief, and morality. While decisions like the UNHRC’s can prompt political action, they cannot compel this difficult, uncomfortable, but necessary national conversation. Only political leadership and courage can do that. We wait to see whether that will be the legacy of the promised Citizens’ Assembly.