It is T-minus 81 days until liftoff on my PhD research. I received and accepted my offer to study this week (Tuesday), and I’m still getting it into my head that this is really happening. Don’t get me wrong, I’m very excited and quite eager to get going – in fact, I’m not waiting to begin reviewing the current literature as you will see later. However, as I’m very familiar with the mountain climb that is a PhD (given my friendship with many colleagues who have made the climb), there is a certain sense of awareness about the sheer volume of work required and the toll it will take on one’s life.
Part of the requirements of the programme are regular progress updates on how the research is going. As a result, it got me thinking back to the blog here and what purpose it might serve as I go forward. I have decided to use it as a tool to document and communicate the journey to anybody interested in pursuing a similar endeavour.
As for the subject of the PhD, I have proposed to focus on what I, in the preliminary, refer to as an evolutionary approach to understanding the function of self-determination. I will be examining the legal relationship between ‘peoples’ and the State, the concept of sovereignty and legitimate authority, and the exclusive legal personality of statehood to which some sub-state groups aspire. This is borne out of previous research I have done regarding the Québécois and Scottish independence referendums. I am seeking to test the validity of restrictions on the exercise of the right of self-determination insofar as it may affect the territorial integrity of a democratically-inclusive rights-adhering nation-state. As such, there may be some terminology issues from time to time, and I hope to offer some clarity where I can. At present, a number of recent events have also contributed to the international legal and political landscapes, in particular the recent advisory opinion by the International Court of Justice on Kosovo (referred to the Court by Serbia).
The format will be fairly simple: every title will reference the day of the PhD, and the content will reflect two themes. The first will be some observations based on the previous day(s)’s research – specifically on the topic of the PhD itself. This is for the legally-curious who are into the material. The second half will consist of what my partner refers to as ‘life admin’ – the human cost of the project, where my head is at, and how pursuing this doctorate is affecting my personal life. Each post will conclude with a reference to one or two articles/treaties/documents that I will be reading and reviewing in the next post, along with any benchmark events that are of interest.
So, the blog is shifting slightly towards what one might call a bit of a ‘vanity project’, albeit an important facet to the PhD experience overall. I welcome all questions, criticisms, comments, and concerns that you might leave for me in the (moderated) comments section below.
One last point: I will also audio record these posts allowing for a more accessible format should you wish to give your eyes a rest.
To my friends and colleagues in international law around the world,
I am looking for some of you good people to volunteer some of your time and grey matter towards an analysis project reviewing the UK’s Iraq (Chilcot) Inquiry. It is without doubt that many of us have waited a very long time for the report to be released. Indeed, some of you may have been involved in matters directly related to representations before the Chilcot Inquiry. I know many of you will be interested in reading the report for personal and/or professional reasons. As somebody who lectures on War Crimes, I anticipate my students will be keen to raise the matter in the autumn.
Here is the thrust of the project:
I’m asking for us to come together and share our insights amongst ourselves, and to put out our review to media outlets for their use in the future. No matter where you are in the world, if you are able to hunker down with a PDF section of the report, provide annotations, and be able to write a review of the key information, we are looking to collaborate on a sort of international legal Cliffs/Coles notes to Chilcot, followed by a summary of possible implications the report might have. This may include providing interviews to television news, radio, and newspapers in your various locations – the wider the spread of academics and lawyers, the wider we will offer the final review.
Please get in touch if you are interested in participating. I’m hoping to get this project going rather soon, with the aim of having a completed publication by the early autumn 2016. You can either get in touch be responding to this post, or if you have my personal details get in touch directly.
You will require internet access, Adobe Acrobat Reader (free), and access to Google Docs. Ideally, you should be able to also participate in either Skype or Google Hangouts audio/video conferences too. I will provide technical support as needed.
I look forward to hearing from you all. I’m certain many others are as well.
This time has come and gone, though it remains to be seen as to what constitutional changes will be implemented – change that will only come after the next UK General Election in May.
However, many of the questions posed by the Scottish referendum, in conjunction with events in Ukraine (Crimea and the Eastern Regions) and so-called Islamic State (Syria and Iraq), have created a significant dearth of opportunity for considering what may, for some, be a straightforward question: What is a State?
More specifically, it is likely to be the case that my PhD will examine the role that international legal theory plays in the creation of new states, juxtaposed against the looming backdrop of practical reality and pragmatic geopolitical policies. (Fun stuff, I know…)
Today has been carving out some supplementary chapter headings as a roadmap for my research. I hope to use this template to formulate the content of the PhD application itself, which would then be submitted to a number of institutions for consideration. The key elements in deciding which universities to apply to comes down to which faculties contain relevant experts on this topic, capable of ensuring that I keep to both the project path and within the relevance of international/constitutional law. That said, I do have a couple of institutions that are top of that list in my mind…
To elucidate on the central motivation behind the PhD, I offer the following thought. The experience of Québec and Scotland showed a certain acceptance that a particular domestic constitutional arrangement can be made whereby a sub-state territory may gain independence and attain statehood without violence or conflict. The main idea here would be that the parent state would immediately give legitimacy to the newly-emerged state should the constitutional order be satisfied. However peaceful and civilised that arrangement may be, international law would have had little to no input on whether the international community at large would recognise the legitimacy of the emergent state. The prevailing declaratory theory of statehood takes only into consideration that a state has (a) a permanent population; (b) a defined territory; (c) government; and (d) a capacity to enter into foreign relations. (These are collectively referred to as the ‘classical’ or ‘Montevideo‘ criteria of statehood.)
There exists a competing theory of statehood – the constitutive theory. To date, it has been rejected by various courts (including the International Court of Justice in The Hague). At its core, the attainment of statehood status depends on the international recognition of a particular state by other states. As recognition is primarily a political decision, not a legal one, criticism for this theory is understandable – erstwhile-legitimate states may be denied a ‘seat at the top table’ and all the privileges that are commensurate to being a primary state actor in the international arena.
However, suggesting that there is no legal defined process under which a sub-state territory may rely upon for guidance (for which the current theory does not make account) leaves open the process to both political perversion and systematic abuse. In essence, even having the goalposts moved still systematically retains the seed of hope; the absence of any international legal process effectively removes the goalposts altogether. And the absence of hope is antithetical to human condition. Hence, non-state groups and foreign interveners take advantage of this lacuna in the law to devastating effect: consider so-called Islamic State’s intent to establish a Middle Eastern state. It is arguable that they may, under the current declaratory theory, already fulfil the criteria for statehood. This is despite the illegality of their territorial seizure or brutal oppression of opposition. This was equally so for the Crimean peninsula in Ukraine.
And so, I hope to consider the experience and legal research surrounding this conundrum in law that may on paper prohibit illegality and remain ambiguous on state creation but cannot account for the factual reality that faces us today. It cannot be that such a fundamental basis of human society – the state – should remain as elusive as it currently stands.
The recent declassification of the US Senate Committee Report on the Central Intelligence Agency’s use of torture on detainees has (rightly) provoked public outcry – both against the use of Enhanced Interrogation Techniques (EITs) that amounted to torture, as well as backlash from the former Bush 43 administration over perceived flaws and misapprehended findings within the report. Those denouncing the report also believe declassification occurred as a result of the politicisation and demonization of the Republican Party, the CIA and the efforts of the US Armed Forces to combat terrorism over the last decade and a half.
However, there is a middle ground here where arguments have been made out by the public and certain government and intelligence actors that surreptitiously suggests that torture may be illegal and ugly, but given the shocking brutality of groups like al-Qaeda and Islamic State may morally and/or ethically warrant a moderate employ of torture (such as waterboarding aka simulated drowning), particularly when it results in actionable intel that ‘saves American lives’. Even more worrisome is the perception that such arguments are both intellectually brave and perfectly reasonable.
“This is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its enemies are open before it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the Rule of Law and recognition of an individual’s liberty constitutes an important component in its understanding of security. At the end of the day, they strengthen its spirit and its strength and allow it to overcome its difficulties. […] law infringing upon a suspect’s liberty “befitting the values of the State of Israel,” is enacted for a proper purpose, and to an extent no greater than is required.” (at paragraph 39)
One accepts that we are in the midst of troubling and uncertain times. But in making such acceptance, one must outright reject the notion that somehow criminal acts such as torture are not absolutely internationally prohibited by law. There are few internationally criminal acts that rise to this level, including (but not limited to) genocide, war crimes, and crimes against humanity (wherein torture itself is a modality of the crime).
Furthermore, the notably absent comment from Bush 43 on the outcome of this report is not, as some pundits portray it, a mystery. Even Cheney should consider his public comments carefully. Taking a cue from the Pinochet extradition cases in UK for crimes committed in Chile during his military dictatorship, the absence of any domestic prosecutions for torture may lead to international indictments against the offending administration where it is clear that these acts were part of a systematic and executively-approved mandate. That terrorism provides a contextual narrative behind the impetus for such coercive techniques is both legally and morally bereft of evidential value. It is also a criminal act for which countries are legally required under international law to pursue prosecutions against domestic perpetrators or extradite to another state that is willing to do so (a principle in international law known as aut dedere aut judicare). The international prohibition on torture is both absolute and non-derogable (arguably jus cogens in nature), meaning under no circumstances may it be acceptable as a means of obtaining information – whether or not the information obtained is reliable.
And that is what is most disturbing about this: There is a not-so-tacit permissiveness in the report’s critics, where information gathered under torture is reliable, actionable and can point to intelligence and security successes (particularly in so-called ‘ticking bomb’ scenarios of an imminent security threat), that any country can wash their hands of the moral indignity of using torture is tantamount to criminal hypocrisy of the highest order. Most reasonable individuals are aware of the challenges that such a restrictive policy places before the security services (re-read the Israeli Supreme Court’s comments). Theirs is not by any means an easy profession. However, in defending and securing the future of any state, the best and most reliable source of unrelenting loyalty to that state comes from the unshakable and genuine belief that it is a state worth preserving. All states have moral and ethical issues, but it is those fundamental legal principles of that state that give real meaning to both the moral and legal character of its citizens and its representatives. It is submitted that the adherence to the strict and absolute prohibition on the employment of physical and mental torture is one of those fundamental principles and to abandon such would be an act of irreversible self-harm.
Lastly, sparing some criticism for those involved in the creation of international law: The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) definition of torture (Article 1) is ‘purposefully vague’. That is to say, rather than enumerating a list of prohibited acts as torture (which invariably leads to arguments that omitted acts are less than torture and thus acceptable), the definition focuses on (a) the intentional infliction of severe pain or suffering, whether physical or mental, (b) for such purposes as coercively obtaining information or confession from the subject or a third-party, and (c) where such acts were inflicted, instigated, consented to or in acquiescence of a public official or person acting in official capacity. The problem here is that even this definition is open to each state’s interpretation as to what ‘severe pain or suffering’ means (i.e., if moderately painful, it may not be torture). It is here in this darkest of grey areas where the law does not offer the protections that the public may incorrectly assume that it does. That is on us as international lawyers for not having the wherewithal to address the matter more robustly – something for which victims of torture-by-another-name may find unforgivable.
I’m very pleased to report that I have contributed to the devolution process in a submission to the Smith Commission.
It was a very short timetable to work to, and as such this paper is not fully worked up as it will be when I submit for journal publications. However, I wanted to share the original which is intended to be understood by all persons, not just those steeped in the typical language of law.
I hope this brings some understanding to those of you who read it, and I would very much appreciate any feedback you might have. Please consider sending me an email if you wish to keep your opinion confidential.
As WordPress does not allow me to attach a document (or I haven’t found out how to do that yet…), I have uploaded the document for your review at Academia.edu – a website for all manner of academics worldwide. The link is here:
This follows thematically from my first blog entry regarding the UK’s threat to withdraw from the ECHR and the Council of Europe. ‘Putting Britain First’ policies that ignore that Britain is part of the international community in order to quell short-sighted, nationalistic and isolationist political minorities threatens to undermine the reputation of the UK as a global role-model for the adherence to the rule of law (including international law to which all countries are bound) and as supposed champions of human rights at home and abroad.
Original Article by @AdamWagner1 of 1 Crown Office Row chambers and ukhumanrightsblog.com – Definitely endorsing you to follow both.
It is easy to forget that our domestic debate over the European Convention on Human Rights might be having an international impact. But the UK is only one of 47 states which is party to the Convention, and the European Court of Human Rights in Strasbourg protects over 800 million people.
This morning, we brought you exclusive interviews with survivors of the Beslan massacre who are rightly worried that if the UK leaves the Convention, or even threatens to leave as the Conservatives did recently, that will affect their fight for justice. In short, Vladimir Putin would have a ready excuse for ignoring any conclusions reached by the Court.
Well, here is another example of the effect which political trash-talking about the ECHR can have. Kenyan President Uhuru Kenyatta is facing war crimes charges in the Hague relating to ethnic violence which erupted after the 2007 elections leaving…
You are the country of my birth, my youth and that beacon in my heart that reminds me that another way is possible where our individual and collective voices trumped violence and terror. Alas, our voices are now momentarily silent from the shock that has followed from the targeting of our soldiers on home soil. Our hearts have taken a blow as we consider the implications that the events in Québec and Ottawa have for our unique multicultural democracy.
As noted by MPs whilst locked down in the Parliament speaking to the world’s press, ‘ours is an open society that is welcoming for all’. There were no barriers preventing these individuals from storming Parliament Hill because that is not the Canada we want – one where our politicians and institutions reside behind fortified ramparts, only accessible after multiple security checkpoints. One Canadian journalist even stated that there is weekly yoga open to the public on the lawn out front.
We should remember that the casualties of these attacks have been two soldiers at home.
Our collective sorrow at the presence of political violence in Canada is understandable. I had grown up thinking of our soldiers as wearing the blue berets of peacekeepers. I enjoyed the positive reputation that the country of my birth afforded me when travelling elsewhere in the world. Having moved to the United Kingdom, I still get a prompt apology when an incorrect assumption is made based on my distinctly non-British accent. (To be fair, I always say there is no reason to apologise. I’m from Toronto. As Alec Baldwin quipped in 30 Rock: “It’s like New York, without all the stuff.”)
FLQ and the October Crisis of 1970
But this is not the first time that Canada has borne witness to such acts on home soil. In 1970, during the FLQ October Crisis, terrorists (I won’t even acknowledge their agenda for separatism – it is an insult to those separatists in Québec who act peacefully as one should in a just democracy) kidnapped a British diplomat (James Cross) and killed a Québec Provincial Minister (Pierre Laporte), and also set off almost a hundred explosive devices during their campaign. Ultimately, James Cross was released in exchange for safe passage to Cuba for the kidnappers. However, in order to deal with the crisis, the War Measures Act was invoked, suspending habeus corpus, and the military was deployed in Québec and Ottawa to re-establish order. This crisis was where Prime Minister Pierre E Trudeau famously stated: “Just watch me” in response to a question of how far he would be willing to go to deal with the matter.
During that crisis, Warrant Officer Class II Walter Leja of 3 Field Engineer Regiment was gravely injured whilst attempting to disarm an FLQ mailbox bomb. He was later awarded the George Medal by Queen Elizabeth II. A watchman, Wilfred O’Neill, was killed when another bomb went off at a Canadian Army recruitment office in Montréal.
The legacy of this crisis was such that violent political extremism was condemned as repugnant and unnecessary, and as testament future separatist efforts were pursued under the rule of law by peaceful means.
Oka: A Breakdown of Relations with First Nations
In 1990, following encroachment upon lands subject to claims by the Mohawk Nation and an attempt by Québec Police (Sûreté du Québec) to dismantle a barricade around that land, a stand-off ensued between the Canadian Military and the paramilitary arm of the First Nations, the Warriors. In a famous image from the tense events, a Native Warrior stood face-to-face with a Canadian soldier in an effort to provoke violence. Here is the CBC evening news report on that day:
What makes this distinct from the FLQ, and what gives pause to labelling the events as ‘terrorism’ is difficult relationship that has endured between the Government of Canada and the First Nations. Under the original alliances with the British Crown, the First Nations were recognised as ‘friends of the Crown’, as opposed to subjects – the status of non-native Canadians.
A colleague of mine who served in the Canadian Forces at the time was deployed to Oka. Conversing with him on the matter, he stated that it was the most difficult mission he had ever undertaken. Given that he was also deployed in the first Gulf War, I asked how this engagement differed. His answer was as stark as it was to the point: “When I looked down sight of my rifle, I realised I was aiming at a fellow Canadian. I’m not sure I could’ve shot.”
Sadly, during the initial police intervention, SQ Corporal Marcel Lemay was struck and killed by gunfire. The stand-off lasted 78 days, with the Mohawks and the military commander Lieutenant-Colonel Robin Gagnon (Royal 22e Régiment) negotiating for a peace. It should also be noted the intervention of the Mohawk women who intervened and ordered the Warriors to de-escalate tensions. However, this crisis formed the basis for further tensions in other parts of Canada with First Nations peoples. Much is yet to be resolved.
Post-9/11: Responding to the ‘War on Terror’
The events of 11 September 2001 in the United States prompted Canada to reorient our military efforts to support the American-led and ISAF/NATO operations in Afghanistan. Putting Canada ‘on a war footing’, Canadian military forces entered Afghanistan in late 2001, with the initial insertion conducted by the elite Joint Task Force 2 (JTF2).
On 17 April 2002, four soldiers from 3rd Battalion Princess Patricia’s Canadian Light Infantry (‘PPCLI’) were killed, and eight wounded, following a friendly-fire bombing by an American F-16 mistaking the Canadian’s live-fire training operation for a Taliban assault (the Tarnak Farm incident). These casualties were the first for Canadian Forces since the Korean War.
In another tragic first, on 17 May 2006 Canada suffered its first female servicemember’s fatality, when PPCLI Captain Nichola Goddard’s armoured vehicle was struck by RPGs.
The toll on our soldiers from the Afghan conflict was extreme. According to currently available reports, 158 soldiers were killed and 1,859 were injured or wounded. The Canadian public attitude towards the war shifted from supportive (from 2001-2005, only 1 in 5 Canadians opposed the war) to opposition (by 2010, 56% were opposed to the mission in Afghanistan). However, throughout the conflict, the dissent was mostly directed towards the political decisions and not targeted towards Forces personnel.
On 15 March 2014, the last Canadian soldiers in Afghanistan returned home.
On Monday (2014.10.20), two soldiers walking in a parking lot outside a veteran’s support centre were run down by a car driven by a 25-year-old man who was known to police for radical ideology and sympathies for the terrorist group ISIL/ISIS/Islamic State. 53-year-old Warrant Officer Patrice Vincent succumbed to the injuries he sustained in the attack. The other soldier is still in hospital. The perpetrator also died of injuries sustained when he was shot by Québec Police attempting to apprehend him.
Then, earlier today (2014.10.22), a gunman approached the National War Memorial in Ottawa and opened fire on the honour guard protecting the Tomb of the Unknown Soldier. Despite medical interventions by civilian by-standers, Corporal Nathan Cirillo died of his gunshot injuries.
The gunman proceeded towards the Canadian Parliament buildings, entering inside and reportedly firing more than thirty times. The Sergeant-at-Arms (typically a ceremonial post) for the Parliament, Kevin Vickers, intercepted and killed the perpetrator just outside the rooms where Canadian MPs were holding their caucuses. Reports have suggested that the federal police (RCMP) and Canadian Army are still looking for multiple suspects believed to be involved. Most of the capital was subject to lockdown until 2025hrs EST. Parliament Hill remains closed to the public.
The subtitle of this post is ‘A Eulogy for Innocence’. The innocence I speak of is that which all Canadians have in relation to our self-image as a tolerant nation inclusive of all that transcends the problems elsewhere in the world. This innocence is, unfortunately, one of youthful naivety. Canadians are today, perhaps more than at any other time, now realising that not everybody else in the world thinks fondly of our Northern paradise. Furthermore, we also must come to realise that our servicemembers experience real peril when we send them out on deployment. While these professionals carry the Maple Leaf on their shoulders, they represent the best of us: compassionate in the face of tragedy, defiant in the face of tyranny, and resolutely heroic in the face of danger. The True North Strong and Free.
When they come home, however, Canada should be the one corner of the earth where we all share in these values. They should not find themselves facing the possibility that their fellow citizens may pose a danger to their lives.
Living in south-east London, I was very close to where Fusilier Drummer Lee Rigby was murdered on the streets of Woolwich outside the Royal Artillery Barracks. The deranged acts of his killers were a result of similar radicalisation as had occurred with the attacker on Monday. (The gunman in Ottawa has not, at time of publication, been identified by authorities as having shared in radical ideology.) And it is further lamentable to consider that here in the UK, soldiers on home soil have had to be on guard against numerous threats in the past, including from the IRA. To see so many soldiers in uniform in public during the 2012 Olympic Games was disconcerting at first, but they did a wonderful job of securing the venues and providing assistance where needed.
Nonetheless, I think that any person serving their country should never have to hide that identity for fear of retribution whilst at home. But pragmatic security concerns have made it so. After all, rhetoric will be of little comfort to their family if practical measures could have saved a soldier’s life.
What makes me sad is that these measures that I have grown accustomed to here in Britain could possibly be necessary back in Canada now. The barriers outside Westminster Palace (British Parliament) and the security just to enter will need to be considered for Parliament Hill in Ottawa. Self-protection measures for soldiers in uniform in Canada will have to be developed in order to keep them safe when amongst the public.
But saddest of all for me is that after today’s horrific tragedy, is that my military friend’s psychological dilemma of even pointing his rifle at a fellow Canadian may no longer be a justifiable concern. When citizens take advantage of their mutual goodwill towards each other to commit heinous acts of violence, suspicion may be the legacy that lingers longest amongst us.
I sincerely hope that I am proven wrong.
UPDATE (2014.10.26): It is too early to consider how this week’s events could alter the national conversation that most Canadians know we must have in order to go forward from this tragedy. However, I wish to point out that I have never heard a more patriotic and emotionally-rousing performance of the National Anthem prior to any Hockey Night in Canada. Click here: Ottawa, Toronto, Montreal unite for stirring Canadian anthem (Courtesy NHL)
It seems that the recent advances by UKIP and the perception of instability within the Conservative Party over membership in the EU and its effect on Westminster’s control over immigration is becoming a source of embarrassment for the United Kingdom. The EU as an institution (in this instance the final-month-as-Commission President José Manuel Barroso), as well as other EU Member States are becoming curiouser and curiouser as to the British position regarding the free movement of people. And what they have to say, in the absence of any firm proposals to them, is that attempts to arbitrarialy limit free movement are incompatible with the fundamental principles of the EU, and that Prime Minister David Cameron should not expect a positive reaction if we suggest that the UK could renegotiate an ‘opt-out’ (or ’emergency brake’ as has been reported) from this principle.
However, I am torn between two truths here.
Firstly, the speculation and posturing by the the majority partner of the UK coalition Government over renegotiation with Brussels has often been led by the Conservative’s fear of their own UKIP shadow. What’s worse is that, somehow (and I suspect this is due to an unfortunate-yet-chronic transient identity crisis) Labour has been drawn into entertaining similar Brexit referendum mania out of concern of losing support in the next General Election in May 2015. The Liberal Democrats have been the only party to firmly state their position that they would remain in the EU if installed into Downing Street next spring – though I’d hazard the supposition that DPM Nick Clegg thinks his chances of such success are as likely as that other dream he has where he solves the Middle East Crisis before lunch and then wins Euromillions. Bless.
If I have to reiterate UKIP’s position on the EU, you may wish to take the opportunity to check yourself for a pulse. (I’ll wait…)
Assuming you haven’t just realised your membership in the ‘choir invisible’, the only thing I’d speculate about UKIP is that, if flabbergastingly they were to become the UK Government, I doubt they would hold a referendum on Britain being in or out of Europe. They would likely unilaterally turn in Britain’s EU membership card and clear out our lockers in Brussels, and then have the cheek to suggest that we’d still like access to the common market facilities without financial or social obligations.
In addressing the matter at Chatham House, Barroso stated that while he dismisses the likelihood of an arbitrary exemption for the UK on immigration, that all the member states of the EU have concerns with regard to benefits-abuse related migration, and constructive dialogue on this issue would likely find sympathy throughout Europe.
And this is the central point of the first truth: The political narrative in the UK has become so distorted by the influence of UKIP from the fringe – and yes, they remain on the fringe even with an MP – that the ability of more reasonable political forces to pursue proper policies with more reasonable expectations of success. Put simply: UKIP has perverted UK-EU relations to the point where the Government and the Opposition must appear to negotiate by impossible ultimatums, rather than act responsibly within our international legal obligations and through consensus-building dialogue with our EU allies. This path will not deliver the reform that all Member States desire. It will not usher the UK into an EU-unfettered era of isolationist glory. It will not endear our British reputation to future international partners that our commitments are fleeting. Most importantly, it falsely provides the British public with the idea the only thing that comes from EU membership is inward migrants increasing pressure on a limited job market, contrary to the truth that the benefits of EU membership are legion and offset the price of that membership.
Furthermore, Farage was able to suggest that this is another instance of the EU dictating terms to the UK – a complete distortion of the reality that in fact the current obligations for Britain towards the EU are based on the UK’s sovereign decision to undertake those terms when it ratified the Lisbon Treaty in 2009. But that is what Farage has always been effective at: distortion bordering on outright lies. It was the cornerstone of the majority of his claims during the ill-conceived EU debate between himself and Nick Clegg. (Despite anybody who has even a passing understanding of the facts, Farage’s delivery and charisma managed to convince the general public that he came out on top in that instance.)
But what irks me about Barroso’s intervention is just that – it was a foreign intervention in what amounts to a domestic matter. But George! Isn’t it appropriate for the EU to respond?! No, or not yet at least. Barroso acknowledges that no proposal to limit immigration from Europe has been transmitted to Brussels from the UK. Legally speaking, the EU has not been invited by the UK to consider the matter as yet, let alone respond directly outside diplomatic channels. Speculating about the UK position when you are still (for another month) the EU Commission President is, at best, poorly timed. Had Barroso waited until after his impending retirement to make comment as a private citizen, the political fallout for the Conservatives would have been limited. But as Commission President, Barroso represents the institution of the EU in an official capacity.
So why, if Barroso’s statements are true, is it bad for an official from the EU to interfere with the UK?
Firstly, all the Member States of the EU remain sovereign, even if they have agreed to undertake obligations within the international organisation (‘IO’). The EU, as an international body, is constrained to operate within the principles of applicable international law – specifically in this instance the prevention of interference from an IO in matters that are essentially under domestic jurisdiction. At the United Nations, this principle is enshrined in Article 2(7) of the Charter. Furthermore, under diplomatic law, Article 41(1) of the Vienna Convention on Diplomatic Relations imposes upon persons enjoying diplomatic privileges “a duty not to interfere in the internal affairs of [the British] State”. References to customary diplomatic privileges appear in the Protocol on the Privileges and Immunities of the European Union annexed to the Lisbon Treaty. Barroso, in the absence of formal proposals or communiqués from the British legation to Brussels, is essentially interfering in a purely domestic political issue in the UK – similar to his intervention with regard to the Scottish Referendum. In both these instances, the veracity of his statements in no way vindicate the violation of domestic sovereignty.
Secondly – and worse – is that Barroso’s interference adds fuel to the UKIP fire. The narrative from their party now will use these statements to underscore a manufactured perception that the Prime Minister and his party are supposedly lying to the electorate and ineffectual at asserting the British State’s rights internationally. This is completely false, but nonetheless effective and fitting with the UKIP ideological ‘Canada’ strategy. Disturbingly however is the notable lack of any of our British politicians having the confidence to mirror Barroso’s statements from within the UK. It would seem that the political strategists in the Labour and Conservative parties strongly feel that countering the message delivered by Farage and UKIP would not resonate with the public and might lose them the election. Talk about squeaky wheels…
Therefore, I propose a solution to my dilemma of two truths.
If UKIP has got this level of influence out of being the squeaky wheel on the EU, those of us who believe the opposite – that EU membership is fundamentally in the interest of Britain – should make our position known in sufficient numbers that incumbent and prospective politicians seeking our vote understand that we could do with an antidote to all this UKIP madness.
I say hold the referendum. To echo the Prime Minister, I am at heart a democrat. I accept the defects that come with such adherence to principle, and in this context accept that there is a risk that a majority may decide to take the UK out of the European Union. I hope that this is not the case, and I would contribute as I might to ensuring that the public had access to knowledge allowing them to decide the matter informatively.
However, hold the referendum now. Before the next General Election. On exactly the terms of the Lisbon Treaty as they stand today. Putting negotiations on the table under threat of departure is hardly the mature or enlightened persona that should accompany our nation’s relations with partner states. If reform is preferred, then remove the threat of departure, and allow the United Kingdom to take the lead in partnership with the other EU nations to examine the real concerns within the organisation. But we should abandon the idea that we can fundamentally gut the foundations unilaterally and still enjoy a positive relationship.
Rather than being unreasonable, let us be reasonable. Rather than collapsing into isolationist insanity, let us aspire to building cooperation. Rather than demanding the impossible, let us be the torch-bearer of real progress in Europe.
You can’t always get what you want… …but if you try sometimes, you get what you need.
Lyric Credit: You Can’t Always Get What You Want (Jagger/Richards) from Let It Bleed (1969)
Waking up to the dawn of new Conservative Party plans to scrap the European Convention on Human Rights for the UK was both disturbingly incoherent and troubling in implications. Likely a response to the party-political challenge posed by UKIP towards the Tories, it seems that Europe is a source of headache within a party that seems to be schizophrenic in its approach. While espousing the strength and leadership of the UK, Tories – in the same breath – suggest that where the UK must abide by rules it helped bring into existence is antithetical to ‘British democracy’.
Hogwash. But let me tell you why…
International Law: Pacta Sunt Servanda
One of the jus cogens (non-derogable) rules in international law is Pacta Sunt Servanda – all treaties are binding. (This rule can be found in the Vienna Convention on the Law of Treaties Article 26) In essence, where a state signs up to a treaty it is held that the state intends to abide by the terms in good faith. While the VCLT acknowledges principles whereby treaties can be terminated or suspended (Arts 54-64), threatening both the ECHR and the EU to withdraw unless concessions are made after the UK has entered into such obligations is antithetical to the principles that treaties are binding.
What goes beyond the pale is the consistent statements from the Tories that somehow the UK can withdraw from those aspects that it deems unattractive yet continue to reap benefits from such institutions that it publicly (and possibly privately) denounces. On the implications of ECHR, the Tories are suggesting that a concession (or reform in their parlance) will be made allowing the UK to ignore rulings from the Strasbourg Court, effectively only making a court an ‘advisory body’. It is notable that this is not what the European Convention set out (and was agreed upon by the UK). Article 46(1) states: “The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.”
For this ‘reform’ to take place, all signatories (‘High Contracting Parties’) would have to agree to modification of this Article. How could this be? If the ECtHR (the Court) is perceived as advisory only, then can it possibly be that human rights in the UK and elsewhere in Europe truly have a judicial means of enforcement? No, this would amount to a gutting of any teeth that human rights have developed since their inception in the wake of World War Two. Furthermore, in 2013 the ECtHR rendered 916 judgments, with only 13 judgments (1.4% of the total cases) involving the UK. Of those 13 cases, 8 judgments found at least one violation by the UK of a Convention right. It should be remembered as well that ECHR rights apply only between an individual and the state (vertical effect), not between individuals alone (horizontal effect).
Of note to a possible withdrawal from ECHR by the UK, such an action would be incompatible with our membership in the Council of Europe (it is a requirement), and likely to be ineffectual in the EU (given that ECHR rights are incorporated almost verbatim by the EU’s Charter of Fundamental Rights). Isolation of our little island appears to be the policy of the Conservative Party.
So, it appears that the Tories’ approach to ECHR is to declare that because in the case of eight people who’s rights were found to be violated, international protections afforded all 63+ million British citizens should be abandoned, and so few negative consequences under an international treaty are sufficient for the British state to act in a manner inconsistent with its good faith obligations under international law. The caveat that saves the British reputation at this point is that this is not draft legislation, so at present cannot be construed as representing official state policy or law. Once we cross that line however, we may find international reactions to be significant and legion.
Domestic Law: The Human Rights Act 1998 – The UK’s domestic efforts to enforce rights
Further to deriding the ECHR, the Tories have also suggested tearing up the Human Rights Act of 1998 (‘HRA’) which came under the Blair Labour government. This document is vital for domestic enforcement of human rights, and stands as the primary reason for why there are so few interventions from Strasbourg over UK jurisprudence. Without this legislation, the UK courts would be powerless to enforce human rights, meaning that any violations would have to go to Strasbourg, a scenario that would significantly increase the likelihood of ECtHR interventions. However, in the event of UK withdrawal from ECHR as well, this would mean that there would effectively be no human rights in the UK.
Let me repeat that. Tearing up the Human Rights Act and withdrawing from ECHR means that, as a British citizen, you would have NO human rights.
Such a consequence gives me pause.
However, the Tories have suggested that it would be ‘democratically correct’ that the Parliament of the UK should be the ultimate arbiter as to what rights are afforded to its citizens. Cue the sounds of the masses shouting ‘Hurrah’ for British Democracy, politicians being elected ‘to protect democracy’ from the threat of human rights, and the sounds of gavels falling ordering those horrible criminal foreigners being sent home. This would cure all our ails, and the rails of HS2 will be made of gold.
I think not.
Firstly, human rights are a shield, not a sword. My colleagues know that I am pragmatic and realist in my attitude to human rights’ role in the rule of law, but I have never ever suggested that they do not occupy a very important part of the fairness and just nature of our society. Human rights cannot threaten democracy. Human rights are not accomplices after the fact to criminal actions. Human rights are the baseline measure of how a country treats its people. Human rights enhance our ability as citizens to engage with our nation’s democracy with confidence. And most importantly, human rights universally apply to us all.
Where human rights laws have challenged policies on counterterrorism, immigration or welfare, it is those policies that should be reformed, not the human rights that prevent abuse of individuals by the state. Certainly, the operation of human rights do not pose existential threats to any democracy.
Human rights, in reality, typify the ability of minorities to avoid persecutions by a majority – akin to the difference between a real democracy and a dictatorship. These rights should be controversial. They should, from time to time, create a paradox whereby the easy road is made unavailable in dealing with difficult situations. Human rights forces us as a society to address the complexity and consequences of state actions without sacrificing those elements that make a country worth living in in the first place.
The HRA only being passed in 1998 is shocking to me. While certainly not the only means of rights enforcement before that point, most British people must traverse the breadth of the domestic legal order before seeking redress in Strasbourg. Often referred to as a ‘foreign human rights court’, I’d support the idea of moving the seat of the court to somewhere in the UK just to negate such disingenuous statements. But that the seat is external of the UK should compound the tragedy that in even 8 cases, justice could not be meted out here at home.
What is being suggested is that the HRA and ECHR should be replaced with a ‘British Bill of Rights’.
Firstly, how simple a people are we where such pandering could gain traction? Just because a document contains ‘British’ in its title does not translate to superior content. Arguably, the current content of the ECHR is limited in domestic scope by the HRA – not all of its provisions have been given direct effect in British courts. What more would be removed from these minimal rights to make them acceptable to the ranks of the Tory part who are petrified of their UKIP shadow?
Secondly, a ‘Bill of Rights’ already exists in the American constitution (they are the first 10 amendments). Very few of those amendments parallel the current human rights regime in Europe. (The Second Amendment – the right to bear arms – is not a right that I would wish for the UK.) Invoking the name ‘Bill of Rights’ also suggests an enhanced constitutional status of those ‘British rights’. Unfortunately, most citizens in the UK do not realise that such constitutional protections do not exist here. All that is necessary to alter laws that are constitutional in nature is a majority vote in the Commons, a process made that much easier with a majority election win by a single party. Hence the attachment of this human rights review to the desire for a Tory majority in May 2015. This is how the original HRA was passed under a Labour win in 1997. However, HRA incorporated already-existing rights laws from an international treaty and did not seek to ‘re-write’ those human rights. The model of the HRA was taken from the Canadian Charter of Human Rights, part of the Constitution Act of 1982 in Canada. Again, in Canada, under Article 38(1), changes to human rights require (a) resolutions passing in the Senate and the House of the Federal government, and (b) passage in two-thirds of the provincial legislatures where the population of those provinces is more than 50% of the Canadian population. Changing human rights in the Great White North is not a process undertaken lightly.
In the UK, there are no provisions that protect our constitutional laws from being tinkered with by any single political party which gains a majority – disturbing when you consider that in voter turnouts of barely 65% since 2001, a majority in Parliament could result from less than a third of the electorate supporting that party. That such a case may significantly impact legal protections and enforcement of human rights is doubly disturbing.
And that is where the nub of the domestic conversation lies: human rights without a means of enforcement against the government/state are meaningless. They are relegated to the pages of academia, and have no value for the people they are meant to protect. Whatever the Tory iteration of this ‘British Bill of Rights’, it will be borne of political frustration as opposed to any real criticisms of the ECHR regime. And worse, this rewrite is likely to contain less rights with less enforcement where ‘Parliament’ (read ‘Government’) has final say as to whether they have violated your rights. Considering that one of the principles of the rule of law is that no one can sit in judgment of their own case, I heavily suggest that this is what the Tories’ plan for human rights will ultimately endeavour to accomplish. But then again, how can they violate your human rights if they have effectively taken them away from you?
Selling out human rights because the UK state was caught out a handful of times would be laughable if it weren’t so fundamentally frightening. It’s time here in Britain that we stop acting like a petulant toddler refusing to play nicely with others. We need to stop threatening to become international delinquents if we don’t get our way. We should focus on adapting to the changing geopolitical challenges before us, and working within our international legal obligations, as opposed to constantly suggesting that the UK be treated exceptionally from all other nations. Pining for our history (as is espoused by UKIP) increasingly seems to come at a cost for our future. The empire is dead and buried (as it should be), but our best days may still lie ahead.