Tallyn Gray
The United Nations-backed ‘hybrid’ tribunal, the Extraordinary Chambers in the Courts of Cambodia (ECCC), is a special internationalized court established to try senior leaders of the Communist Party of Kampuchea (CPK) (better known as the Khmer Rouge) and those most responsible for the Crimes against Humanity, Genocide and Grave breaches of the Geneva Conventions that occurred in Cambodia under the watch of the CPK-led government during the period 1975-1979. The institution has proven to be expensive and controversial.
Over 2012, the ECCC saw its first case reach its full conclusion following the final appeal of the first accused person, it endured a continuing funding crisis and the resignation of one international judge who cited “the egregious dysfunctions within the ECCC” as reason for his departure.
This commentary looks back over 2012 and places the ECCC in the social, political and legal context of today’s Cambodia and discusses what impact the ECCC is having in this wider context.
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Daniel Heimler
The increasing emphasis on Human Rights as part of the global zeitgeist since 1945 has revolutionised international law and the policies of governments. Despite this, the philosophical foundations of Human Rights are not very clear. International legal instruments refer to Human Rights being based on ‘dignity’; however dignity is a slippery concept. In a world where Human Rights are of such great importance it is essential that they are properly understood. This paper will explore and critically evaluate a variety of dignity-based conceptions of Human Rights including those based on Liberalism, Deontology and Utilitarianism. It will be suggested that a number of particular conceptions standout as being the strongest which, inter alia, crucially balance carefully the interests of the community against the interests of individuals. Significantly, it shall be pointed out that while various international Human Rights instruments appear to possess the hallmarks of particular philosophical theories, some of the Human Rights included in those instruments do not necessarily reflect the result of the theory being applied. This paper will conclude by suggesting that the most appropriate view of the philosophical foundations of Human Rights is that of a mixture of the strongest dignity-based theories rather than one alone. This mixture of dignity-based theories can be viewed upon as a holistic conception of Human Rights based on human dignity. The holistic conception is of great practical importance because, inter alia, it can be used to properly identify a hierarchy of Human Rights, increase respect for them, and assist in the solving of complex Human Rights related dilemmas.
Key words: Philosophical, Foundations, Human, Rights, Dignity, Community, Individual, Liberalism, Deontology, Utilitarianism
READ MORE...“focused and proportionate” 1 or a derogation of the right to a fair trial?
Bob Jones
The UK Government has proposed the Justice and Security Bill with the stated intention that it will “…modernise judicial, independent and parliamentary scrutiny of the Agencies to improve public confidence that executive power is held fully to account …better equip the courts to pass judgment in cases involving sensitive information; and … protect UK national security by preventing damaging disclosures of genuinely national security-sensitive material.”2 The vehement backlash to the Bill by the media and civil society is endemic of a topic that has become central to political debate on the balance of personal liberty with national security over the last ten years. Previous applications of several of the provisions of the Bill in other circumstances have led many organisations,3 including the existing body of special advocates, to claim that they have“…absolutely nothing to do with the traditions of adversarial justice as we have come to understand them in the British legal system.”4 The following paragraphs address the reasoning outlined above and deduce whether the mechanisms that the Bill introduces will achieve the Government’s proposed goals, or whether they instead constitute a derogation from the UK's obligations under international law that is neither focused nor proportionate.
READ MORE...Daniela Nadj
The aim of this paper is to revisit what has often been described as a watershed moment in recent feminist activism and scholarship, namely the embrace of gender-specific concerns by international human rights law and the recognition of women’s rights as human rights, which gained heightened visibility starting in the early 1990s. Gender-based violence committed in armed conflict, in particular, animated international feminist scholarship in unprecedented ways, primarily, because it was considered an obvious feminist issue, but also because feminist advocates sensed an opportunity to visibilise wartime sexual violence against women by way of international law aiming to provide legitimacy to a long marginalised phenomenon of war. In line with this development, feminist inclusion strategies, such gender mainstreaming1 that actively promote women’s visibility across the United Nations human rights machinery have assumed a central role in transforming the former absence of women from international law into part of its institutional machinery. And yet there is a sense that the triumph of gender came at a cost to women. Current feminist debates around the issue, for example, reveal a profound tension between ‘universalist feminists’, who generally endorse the jurisprudence of the tribunals and fear that any destabilisation of the female subject or critique of the law will lead to a rupturing of the perceived successes achieved and feminists advocating for critical introspection, who have mainly been sidelined from the dominant debate for fear that their concerns would lead to a renewed denial of female authenticity.2
This article aims to contribute perspective to what the visibility of gender within the international human rights machinery signifies for women in the current political and legal moment. More centrally, it questions whether the embrace of gender terminology is linked to a determination to provide legitimacy to a previously invisible subject in law, the woman. It asks whether feminism with its unequivocal lobbying for the inclusion of politically neutral terminology might have inadvertently departed from its original politics of women.
READ MORE...A theoretical analysis of contemporary use of force and the redrawing of institutional facilitation of collective peace and security
Janet McKnight
This article analyses how competing theoretical arguments from international law and international relations attempt to explain the twentieth century phenomenon of international legal institutions and the twenty-first century use of force within these legal frameworks. First, to illustrate the overarching theoretical framework, key concepts of realism and liberalism will be offered, with the former maintaining that international law, institutions, and notions of humanitarianism merely conceal inevitable power politics and global security competition, and the latter contending that norms of human dignity and collective security have become state interests and are facilitated through international cooperation. Second, an examination of international legal institutions under the sub-theories of neorealism and neoliberal institutionalism will consider whether such institutions, the United Nations in particular, are merely a strategy of powerful states to confine the actions of less powerful states, or whether these legal frameworks provide functional tools for state cooperation. Third, the essay will look at empirical examples of the use of force under U.N. Charter law in conjunction with humanitarian and human rights principles of international law. Specifically, unilateral and unauthorised use of force by the United States and the North Atlantic Treaty Organisation will be questioned as either substantiating neorealist claims of power structures in the international order or as forcing institutional legal reform to facilitate international cooperation of collective. Fourth, challenges to the United Nations’ continued relevance and expanding impact in the realm of international law and global violence are discussed with relation to the hurdles in contextualising Charter provisions and to the prevalence of non-state terrorists highlighting the importance of ‘others’ in defining the peripheries of international law. These challenges will emphasise the consequences of the United Nations’ failure to acknowledge its foundational dichotomy as an inclusive-exclusive regime in the international order. Lastly, modernisation of the theoretical understandings themselves will be discussed as vital to reconceptualising a picture of state-regime interaction that can guide legal reform of use of force provisions and more accurately redraw paths to collective peace amid modern security concerns.
READ MORE...Matthew Jay
This article develops some thoughts on law, freedom, justice, hope and grief. Taking an interdisciplinary approach by looking at poetry, painting, Latin and films I utilise Krzysztof Kieślowski’s Trois Couleurs: Bleu, and in particular, the life of its main protagonist, Julie, to explore how the very essence of man makes freedom possible. Heidegger’s theory on Being, first developed in Being and Time and his thoughts on freedom explored in later works, are used as an analytical framework. The essential question is: if man is forever bound by his history, if he is always under the compulsion of law (law eventually takes on the meaning found by Ben-Dor in Thinking about Law), then how is it that man can ever be free? Explored in tandem with this is the ontology of Grief (emphatically with a capital ‘G’), the ‘tragic oppression’ brought about by it and the ‘genuine liberation’ achieved by Hope. The work is a spiral. It is impossible to present it as a straightforward question with a straightforward answer. The ultimate lesson to be drawn from it, however, is that freedom can only occur within the framework of slavery. Man can only be free when he is bound to his historicality. It is only in accepting this and acting truly to oneself that one can ever achieve happiness. What I have sought to do at the same time is show that happiness can only occur at a very human level. The law's obsession with rights and duties, and certain obsessions with selfishness, go far in oppressing man but not in liberating him.
READ MORE...Saad Minhas
This paper aims to analyse the parameters of risk in relation to terms of a contract. The research is based on commercial considerations in construction law and revolves around the concerns of the contractor. Contractual terms are assessed in themselves, as a party to the contract as a whole, and in relation to the lifecycle of a project. Key elements of analysis are provided in examining the definition of terms, the variety of risks on a project, and the liberties taken in assessing contracts at the point of claims.
While the article takes strides to define particular stages of the construction project lifecycle, the true emphasis is made on what those particular stages mean for the terms used in contracts therein. In many construction projects the stages even defined on the ‘critical path’ can be unique to specific projects and based on time restrictions. The issue examined here is not so much on the varying nature of construction projects, it is understood here that this is difficult to control. However, what is analysed here is the use of contractual terms, how they function, operate, and how they are interpreted by the many parties involved.
Terms are so defined so as to act as a constant in the realm of variables. This article contextualises this notion and asks why such a fixture is yet so often misinterpreted.
READ MORE...Westminster Law Review University Challenge
TBC
Professor Andreas Philippopoulos-Mihalopoulous, Dr. Henrik Andersen, Sherif Elgebeily and Serhat Yilmaz
Sherif Elgebeily and Joanna Economopoulos
Daniel Geey, Sherif Elgebeily and Serhat Yilmaz
Writing for Law Reviews by Professor Lisa Webley