My latest article, co-authored with Kanstantsin Dzehtsiarou (Surrey, but soon to be of Liverpool) has been published in advance access format by the Human Rights Law Review. The paper is entitled “Managing Judicial Innovation in the European Court of Human Rights” and can be download (££) here. The abstract is as follows:
Since its establishment, the European Court of Human Rights 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 non-governmental organizations and complainants.
Continue reading New publication: On ‘judicial innovation’ and self-restraint in the ECtHR
Last September I spoke at a conference in Dublin City University entitled ‘Judges, Politics and the Irish Constitution‘. The conference brought together dozens of lawyers and political scientists from and in Ireland with an interest in the dynamics of constitutional interpretation, collaboration, evolution, politics and law. The organisers of that conference-Laura Cahillane (of UL), and Tom Hickey and James Gallen (both of DCU)–have now brought a number of the papers presented at the conference together into an edited collection. The book, also entitled Judges, Politics and the Irish Constitution–will be published next year by Manchester University Press. Continue reading New chapter: In Defence of Judicial Innovation and Constitutional Evolution
In 2011 Cambridge University Press published my monograph, entitled Detention in the ‘War on Terror’: Can Human Rights Fight Back? The book has now been rereleased in paperback form, at a very reasonable £23.99.
While much of the law has changed since the book was published in 2011, in my view the three core elements of the argument that I outlined in this book remain viable. These are:
- In times of terroristic crisis a space rich with the potential for repressive laws targeting the liberties of perceived risk bearers is opened up by a combination of ‘top down’ (or ‘moral’) panic perpetuated by moral and norm entrepreneurs such as politicians and security services and a ‘bottom up’ (or ‘popular’) panic emanating from a popular sense of risk and vulnerability and demand for ‘security’. (Primarily Chapter 1)
- In spite of hegemonic efforts by the US & UK to undermine the right to review of the lawfulness of one’s detention, this right remains resilient on the international law, arguably even having been strengthened in recent years. Thus, the international right arguably fares better than domestic rights protections in at least some respects. This can be partially explained by what I term ‘insulating factors’ that distance and, consequently, protect the international right from the convergence of top-down and bottom-up panic experienced in domestic systems. (Primarily Chapter 5)
- One way in which the international resilience of the right has impacted on rights protection at domestic level, notwithstanding the panic outlined above, is by its refraction through the courts into domestic jurisprudence, so that counter-terrorism judicial review has been relatively more robust and less deferential than experienced in previous circumstances of terroristic/violent crisis and than might have been expected. (Primarily Chapter 6)
In the meantime I have nuanced my arguments to some extent. For example, I have more fully explored what I described in the book as a ‘realist footnote’ of international adjudication tending to undermine some of the core elements of the right to be free from arbitrary detention (in Saul (ed), Research Handbook on International Law and Terrorism), and identified courts’ involvement in ‘regulatory constitutionalism’ (in Davis & de Londras, Critical Debates on Counter-Terrorism Judicial Review).
Detention in the ‘War on Terror’ is still assigned on reading lists for both undergraduate and graduate courses (esp. Chapters 1 and 5) and so I hope the release in paperback will make it more affordable for, and accessible to, students working in the area.