Following the judgment in Cherry/Miller (No 2), there are a number of takeaways from the text that ought to enter into the public discourse. Noted for her use of plain language, Lady Hale, President of the UK Supreme Court, took the opportunity to restate some of the basic tenets of Constitutional Law in the United Kingdom.
The following is Paragraph 39 which highlights our democracy as representative, and how the executive, legislative, and judicial branches interact with each other under the principle of Parliamentary supremacy (sovereignty) that has existed since the middle of the 17th century.
This is the first in the “Law in 60 Seconds” series of videos I’m going to make.
Author’s note: The format for this blog is changing. It will contain personal thoughts and considerations around the research I am conducting as part of my PhD into self-determination & secession (independence) from peaceful, democratic states. I will include links where possible to open-source documents that highlight the issues raised. However, the content here is to be considered as ‘op-ed’, that is commentary by the author based on his opinion and not to be considered ‘peer-reviewed’ material. Please bear this in mind while reading and commenting.
The appeal of a referendum in democratic states is self-evident. The average citizen of a democratic state thinks of their political system as existing to serve their interests as a collective, and for their representatives to heed the instructions of the population when deciding on policy. A referendum on a specific policy, on its face, presents an opportunity for the population to unambiguously and directly instruct politicians as to the wishes of population on that given subject.
However, when one considers both the content and process of conducting a referendum, certain obstacles arise that make the certainty associated with the outcome troublesome. There are many reasons for this, but I will focus on three main points:
Referendum outcomes are typically misrepresented by politicians as evidence of a consensus amongst all participants in the exercise, essentially leading to political positions that only represent the majority of those that voted in the referendum.
The real world rarely comes down to yes or no. Although the ballot may contain a straightforward question with (typically) two possible responses, the reality of a given policy position may not lend itself to such a neatly bifurcated solution.
If the voter in a referendum lacks access to evidence-based, verifiable facts about the implications of the potential outcomes, it fundamentally undermines the legitimacy of those outcomes to be put into practice.
The Illusion of Consensus
It must first be acknowledged that no public vote is ever going to result in 100% of the population voting a particular way. In political elections, we are rightfully skeptical when any politician secures higher than 80% of the vote. In referendums, it is even rarer to see such ubiquity amongst the franchise.
There are exceptions: In March 2013, a referendum was held regarding the Falkland Islands where the people of that territory were asked if they wished to remain an Overseas Territory of the United Kingdom. The turnout was 91.94% of the eligible population, and the result was 99.8% in favour of retaining this political status, with only 3 votes against. International observers from six other countries certified the referendum as “free and fair, reflecting the democratic will of eligible Falkland Island voters“. (emphasis added)
However, most referendum results are less decisive, often ranging between as much as a 30% gap to as little as 0.1%. There are a myriad of factors that contribute to this, not the least of which is the content of the question itself. After all, if public consensus was so clear, there would not be a reason to hold a referendum in the first place. As such, most referendums expose political divisions amongst the population of a country, and they result in change that a constitutionally significant number of citizens rejected.
This wouldn’t typically be an issue if normal political means were employed in bringing about change. Here in the UK, legislation is subject to multiple levels of scrutiny and analysis, and often compromises are made in order to generate support for any given policy. In a referendum, by contrast, the outcome is presented as a concrete ‘mandate’ for a specific policy, and the concept of reaching a compromise to unify the electorate has become increasingly anathema to ‘respecting the will of the people’, even if it really means ‘the will of slightly more people on one side than the other’.
This conundrum is compounded when you take into consideration voter turnout. Taking the UK’s 2016 EU referendum as an example:
voter turnout was 72.21% – or in terms of people voting, 33.577 million out of a potential 46.5 million;
The outcome of the vote was 51.89% voting to leave the EU (a total of 17.41 million votes), and 48.11% voting remain (16.14 million votes); and
The UK has a population of 66.685 million people.
At first glance, the outcome of 51.89% is sufficient to say that ‘more voted to leave than remain’. However, in contrast to the amount of eligible voters, that 51.89% becomes 37.44% – or just 1/3 of those that were allowed to vote. Against the entire population – or put another way, against the total number of people that will be affected by the outcome – 51.89% drops even further to 26.1%. When considering whether democracy equates with a true understanding of the ‘will of the people’, the perception of that legitimacy is subject to debate.
It is a dirty secret of democracy that it only works if its citizens participate. It cannot be denied the importance of the electorate doing their civic duty by attending a polling station on the day of a vote, and equally that democratic systems can only rely on those that make their voices heard when called to do so. However, presenting the outcome of an election or referendum as the consensus of the people to pursue a given policy is to overlook the entirety of the population governed. This may appear to be a numbers game, but it should be remembered that each of those numbers are equal citizens in a democracy. Imposing an unforgivingly harsh policy that ultimately commanded support from a minority and representing it as a ‘clear majority’ is in itself damaging to the unity of a state.
The Façade of ‘Yes’ or ‘No’
Rarely, if ever, are most of life’s decisions as simple as a ‘yes’ or ‘no’.
This is even more so when considering potentially controversial policy decisions. Yet, when putting a referendum question to the people, the challenge is presenting these complexities in a manner that lends itself to choosing between two options. Referendums are only of utility when there is a ‘clear’ result – that is, one option is preferred over the other. Typically, this is achieved by carefully crafting the question as to ensure that it communicates clearly the subject at hand, and that the response clearly indicates a policy direction.
However, regardless of how ingenius the crafting of the question, it is inevitable that a ballot question will lack the ability to present the full scope of the choices on offer without the question becoming cumbersome and difficult for voters to understand. By way of an example, the question on the ballot for Québec sovereignty in 1980 read:
The Government of Quebec has made public its proposal to negotiate a new agreement with the rest of Canada, based on the equality of nations; this agreement would enable Quebec to acquire the exclusive power to make its laws, levy its taxes and establish relations abroad — in other words, sovereignty — and at the same time to maintain with Canada an economic association including a common currency; any change in political status resulting from these negotiations will only be implemented with popular approval through another referendum; on these terms, do you give the Government of Quebec the mandate to negotiate the proposed agreement between Quebec and Canada?
« Le Gouvernement du Québec a fait connaître sa proposition d’en arriver, avec le reste du Canada, à une nouvelle entente fondée sur le principe de l’égalité des peuples ; cette entente permettrait au Québec d’acquérir le pouvoir exclusif de faire ses lois, de percevoir ses impôts et d’établir ses relations extérieures, ce qui est la souveraineté, et, en même temps, de maintenir avec le Canada une association économique comportant l’utilisation de la même monnaie ; aucun changement de statut politique résultant de ces négociations ne sera réalisé sans l’accord de la population lors d’un autre référendum ; en conséquence, accordez-vous au Gouvernement du Québec le mandat de négocier l’entente proposée entre le Québec et le Canada ? »
This question ran 106 words long (113 in French), and included a number of proposals that would have been subject to extensive negotiations with the Canadian Government only after the referendum had been decided. The manner in which it was presented to the people of Québec was open to being misinterpreted as fait accompli, requiring only a yes vote to implement this agreement. The complicated and confusing nature of the question certainly contributed to a ‘No’ vote (59.56% No / 40.44% Yes, 85.61% turnout of 4,367,584 eligible voters). The subsequent 1995 independence referendum reflected this by reducing its content to a relatively sveldt 41 words (35 in French):
Do you agree that Quebec should become sovereign, after having made a formal offer to Canada for a new economic and political partnership, within the scope of the bill respecting the future of Quebec and of the agreement signed on June 12, 1995?
« Acceptez-vous que le Québec devienne souverain, après avoir offert formellement au Canada un nouveau partenariat économique et politique, dans le cadre du projet de loi sur l’avenir du Québec et de l’entente signée le 12 juin 1995? »
It should be noted that the “agreement signed on June 12, 1995” wrongfully suggested that some partnership had been agreed between Québec and Canada prior to the referendum. No such agreement existed. Despite this glaring misrepresentation, the result of the 1995 referendum was a ‘No’ vote (50.58% No / 49.42% Yes, 93.52% turnout of 5,087,009 eligible voters). The difference between Yes & No (54,288 votes) was less than the number of spoiled ballots (86,501).
In each ballot, the understanding was that a ‘Yes’ majority would provide a mandate to negotiate for the secession of Québec, but in no way guarantee the specific terms that were suggested in the verbiage of the question. It was also understood that a second referendum would likely be necessary once the actual terms of secession were negotiated as the mandate may not have supported all versions of secession.
What is clear is that ‘Yes’ or ‘No’ as a response could not legitimately convey nuanced support for the ultimate implementation of what would have been an irreversible action. Similarly, the 2014 Scottish independence referendum was presented as a choice of endorsing the SNP (Scottish National Party) terms of leaving the United Kingdom, terms which were entirely subject to negotiation and would almost have certainly changed substantially by the point of departure. The Scottish referendum did, however, manage to reduce their ballot question down to six words:
Should Scotland be an independent country?
The result: ‘No’ – 55.3% / ‘Yes’ 44.7%, 84.59% turnout of 4,283,392 eligible voters.
Though a question may be crafted to illicit a simple ‘yes’ or ‘no’, it does not mean that such a response is sufficient to endorse any one outcome beyond scrutiny. At best, a referendum may indicate the direction of travel for a given policy, whether the public would support further pursuits in any given endeavour. It has been suggested by multiple participants in multiple countries that any referendums that require negotiation with other governments (inter-governmental) or within the governmental structure of a single state (intra-governmental), a second referendum would be necessary to maintain legitimacy for a course of action given the degree of change that may occur during any negotiations. However, the suggestion that every person who votes for the ‘change’ option understands and is supporting an unambiguous, unquestionably-precise outcome is contrived. In any referendum for change, it is only the ‘status quo’ option that can command such a position – it is support for the way things already are, under the conditions that are already known.
In any event, it is a nice pretence to think that life breaks down into a series of ‘this or that’ decisions. In reality, however, there are usually multiple choices and many different factors that go into how we decide to express our desires.
The Need to be Informed for Consent to be Legitimate
There is an infamous response to a journalist in 2002 given by then-US Secretary of Defense Donald Rumsfeld that states:
…As we know, there are known knowns; there are things we know we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns — the ones we don’t know we don’t know. And if one looks throughout the history of our country and other free countries, it is the latter category that tend to be the difficult ones.
Though said in a completely different context, Secretary Rumsfeld’s comments highlight the difficulties associated with policy-by-referendums – the unknown unknowns and the perils they entail. Although a referendum appears to empower citizens to have direct impact on policy, what impact that might be is altogether a different matter. In order for a supposed mandate from the people to have legitimacy, the subsequent governmental action needs to reflect the actual wishes of the people – not just a convenient interpretation.
As has been noted in the post-Brexit discourse in the UK, the departure from the EU is not as self-evident as has been made out by some on the Leave side of the conversation. During the woefully inadequate referendum campaign period, multiple groups were formed to advocate for the UK exiting the European Union, and each offered up their vision of what a post-Brexit UK-EU relationship would look like. These options ranged from a relatively close arrangement with the UK maintaining access to the single market and customs union, through to the so-called ‘hard Brexit’ of no relationship beyond trading on the World Trade Organization (WTO) standard tariff schedules. The consequences economically, politically, and socially for the multiplicity of potential outcomes varies significantly, and it should be remembered that at no point during the referendum was a ‘hard Brexit’ supported by any of the Leave advocate groups.
However, as the process of departure from the EU has unfolded (the ‘Article 50’ withdrawal agreement negotiations), the complications of leaving have become readily apparent. At present, the major deadlock arises over the UK maintaining its commitments under the Belfast (‘Good Friday’) peace agreement by guaranteeing an open border between Northern Ireland and the Republic of Ireland. (This is unsurprising given the original intent of the EU as a means of maintaining peace in Europe.) Furthermore, there are implications in over 80 different sectors of business in the UK that will have to make major changes to their operations in order to accommodate all possibilities that still remain on the table. A number of UK car manufacturers are either closing their operations temporarily or exploring relocating their facilities elsewhere in the EU to maintain frictionless production. There are pension considerations for UK citizens resident in other EU states, as well as questions over the status of non-UK EU citizens resident in the UK (legally) after departure. For all the countless days and weeks of campaigning during the pre-referendum period, only a fraction of the real implications were ever fully laid out. As such, it cannot be conceived of that these ‘unknown unknowns’ would have had a serious and consequential effects over peoples’ decision to vote for the UK to leave the EU.
A law podcaster, UK Law Weekly, put it succinctly recently regarding the need for informed consent, not mere consent (at 7m48s):
It’s hard to see how any consent can be real and voluntary if it is not informed consent. You might volunteer to help an old lady cross the road, but if I then told you the road was the M25 [motorway], you might think twice.
The same holds in relation to the consent (or ‘will’) of the people as to how they wish to be governed. If the people of Scotland had voted ‘Yes’ to the question “Should Scotland be an independent country?”, only to find out that its ‘independence’ entailed extreme isolationism in closing its borders to people and trade, many of the pro-independence supporters would likely denounce that course of action as contrary to their wishes as expressed in the referendum.
One may reply by saying that the referendum did not specify what independence meant, and therefore isolation was a possible interpretation of that outcome. That suggestion would, however, be unreasonable and completely at odds with the information and education of the public prior to the referendum. Equally unreasonable would be suggesting that the unforeseen or unknown circumstances arising after the referendum in no way could result in the public changing their mind – thinking twice – about their decision. (The best example of the public regularly changing its collective mind is general elections. Nobody suggests that holding an election every 4-5 years is a “gross betrayal of our democracy“.)
The idea of holding a subsequent referendum (not a ‘second referendum’) whereby the people – now in full command of the consequences and implications of known knowns, known unknowns, or otherwise – can confirm their support for the reality of their initial decision is very much in line with the form of democracy that is associated with the holding of referendums. If the people can be entrusted to make the initial decision to instruct a government to begin a process of change, then certainly that trust must extend to the ability to confirm their wishes have been followed, or to change course if the circumstances have changed.
Sometimes a referendum may be needed earlier: for example, to initiate intergovernmental negotiations. In such cases, the government initiating the referendum should set out precise plans for what will be done in the event of a vote for change; the enabling legislation would set out a two-referendum process, for use in the event that the settlement does not deliver what was promised.
This commission involved politicians and individuals of all variety, including some who advocated for Brexit as part of the official campaign.
It is understandable that in the event of a relatively weak or ‘fluke’ chance that a particular side of a referendum wins despite their expectations, the concept of having a subsequent poll to confirm support can appear to be an attempt to reverse the direction of the initial referendum. However, it is argued that the greater the implications of the outcome – particularly where it can have dire consequences in practice, or where the action may be perceived as irreversible (e.g., secession/independence) – the greater the need exists to ensure that the public remains engaged with developments and given the opportunity to ‘ratify’ the final destination. It should also serve as a cautionary tale to those that play fast and loose with facts and truth: if a follow-up referendum is involved on the final terms of any course of action, it is very likely that any misrepresentation or lies will become apparent and have the potential impact of turning a victory into an ignominious defeat.
So what you’re saying is…
In the end, what matters most is that those actions taken by any government subject to the outcome of a referendum critically require the continuity of legitimacy. It is not sufficient to simply shut down any notion of confirming those decisions with the very people that constitute the powers with which elected representatives are entrusted.
It is also advisable that prior to any drastic course of action (e.g., constitutional, independence, etc.), the government of the day should seek first to build a consensus amongst all citizens. They should not blatantly set the interests of one half of the electorate directly against the other half, that is if the government wishes to continue to be the government of that country rather than party nepotists. It divides societies, and it risks a fundamental chasm opening up between the unity of the citizens of any State.
Referendums typically involve controversial subjects that are potentially divisive. The absence of these risks would make a referendum pointless. Holding referendums also offers the most direct manner of deciding State policy to the citizens exercising their collective right of self-determination. The decision to hold a referendum should not be taken lightly, and the process and contingency planning should involve a clear set of agreed information being provided to those citizens going to vote. Only where there is a clear informed majority supporting a clearly explained outcome to a clear question can any government invest the finances, resources, and efforts in pursuing a legitimate action.
To paraphrase a piece of common sense advice: Measure twice, cut once.
Voters in Catalonia will go to the polls on December 21 in an election triggered by the recent crisis over the region’s declaration of independence from Spain.
If separatist parities succeed at the ballot box it’s likely they will claim this as a legitimate mandate for independence. But this is not a sound interpretation of the international law of self-determination – and the result of the election cannot be seen as a proxy for independence.
Both those for and against the region’s right to claim independence from Spain argue that their position is grounded in international law. The Catalan government, prior to being deposed on October 27, claimed that the international right of all peoples to self-determination afforded the region the “right to independence” and the international legitimacy of their expectations – an argument supported by some commentators.
But self-determination and “a right to independence” are not synonymous. International law supports independence as a legitimate outcome of self-determination only under limited circumstances. There are three circumstances:
The self-determining territory is under foreign colonial rule.
The territory is subject to gross violations of human rights and humanitarian atrocities committed by the state.
The territory is excluded from the political process of the state.
Given that Catalonia is not a colony, post-Franco Spain has not committed gross human rights violations in the region, and Catalonia enjoys political inclusion at every level of government in Spain, it fails to meet these three circumstances. That means international law does not support Catalonia’s claim of an international “right to independence” under the current circumstances.
Quebec and Scotland
In the bids for independence of Quebec and Scotland, domestic political negotiation resulted in the Canadian and UK governments authorising referenda to be held over independence in each place. Holding a referendum does not necessarily give a region the right to secede if voters opt for independence, rather it creates an obligation on the parent state to act in good faith. There is no “automatic” right to secede created.
A landmark 1998 ruling in Canada on the issue of Quebec’s secession is a useful reference point here. For any independence referendum to be effective, the Canadian Supreme Court stated that where there is a clear answer to a clear question with a clear majority, a government cannot ignore the result. However, the extent of that obligation is for the government to enter into good faith negotiations with the region on the terms of departure – and these negotiations may not mean necessarily lead to independence.
Prior to the Scottish independence referendum in 2014, the Scottish and UK governments agreed to legally respect its outcome, and the appropriate constitutional powers were transferred to Scotland. Both sides accepted as a matter of law the consequences attached to the result.
In Catalonia, the independence referendum on October 1 was held outside the powers of the Catalan parliament – a position confirmed by the Spanish Constitutional Court. This is not to say that it was rebellion or sedition to pursue a referendum, rather it was beyond the Catalan government’s legal powers to unilaterally enact its consequences. Therefore, the result – which was in favour of independence – was not recognised either domestically or internationally.
Beyond the ballot box
Self-determination in democratic states is normally fulfilled within the constitutional framework of an existing state. The failure of separatist political parties to achieve constitutional amendments or agreements is not a denial of this right. Except in the extreme circumstances outlined above, relying on self-determination to provide an “automatic right to independence” is a dangerous misrepresentation of international law that threatens those states which adhere to democratic principles.
The electoral success of separatist parties at the ballot box does not give a legitimate mandate for independence. If separatist parties do win on December 21, it will not give Catalonia the right to secede. At best, it will require Madrid to engage in good faith dialogue with Barcelona on potential constitutional change in Spain.
None of this foregoes the possibility of the emergence of an independent Catalonia. There may be several compelling political or social concerns for fulfilling self-determination rights of the Catalans that could be presented as part of negotiations with Madrid. But there cannot be an ultimatum from the Catalan separatists that independence must be on the table in future negotiations.
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)