Reflections on International Law and Social Change

By Dr Lee McConnell, Lecturer in Law (University of Bristol Law School)

In a recently published article, I draw together some thoughts on the relationship between international law and social change. While I can do no more than provide a flavour of some of the themes explored in the article, I hope these reflections are at least thought-provoking.

A brief glance at the preamble to the UN Charter, which commits to the promotion of ‘social progress and better standards of life in larger freedom’, is indicative of the unique way in which international law asserts its own inherently ‘progressive’ character.[1] Regardless of whether one shares this vision, a more modest connection between law and social change will be familiar to many. This is the idea that international law can be harnessed to advance a particular cause – that it is, in essence, an empty vessel that can be filled with progressive content. This assumption, often implicit but rarely articulated or confronted, is what my article seeks to address. (more…)

The Challenges in Covid19 Times for Refugee Determination and Accessing Protection

By Prof Elspeth Guild, Queen Mary University of London and Kathryn Allinson, Research Assistant, Queen Mary University of London and Teaching Associate, University of Bristol.

The spectre of the Covid19 pandemic has stalked political leaders, at local, regional, national and European levels since mid-January 2020. In amongst the myriad responses that States have taken to combat the spread of the virus those relating to refugee protection make grim viewing. The scenes at the Turkish Greek land border where the President of the Commission, the President of the European Council, the EU High Representative of the Union for Foreign Affairs were present to witness, and applaud, the violent actions of the Greek border guards and military in preventing people seeking to cross from Turkey to the EU to seek protection is exemplary of the approach of many States. And it did not help the image of the EU in these exceptional times, as a place where refugees are welcome and provide protection in accordance with international law.

This unedifying political spectacle addressed towards the Turkish President and intended as a response to his responsibilities came at a most problematic time. EU states were within a week of closing internal and external borders to movement of persons with little regard to the needs of refugees. In this blog we will examine the subsequent efforts of the EU (and associated countries including the UK) to comply with their obligations under the 1951 Refugee Convention, in particular, as regards the processing of asylum applications. (more…)

Detention of refugees, asylum seekers and migrants under Corona lockdown risks becoming arbitrary

By Prof Elspeth Guild, Queen Mary University of London and Kathryn Allinson, Research Assistant, Queen Mary University of London and Teaching Associate, University of Bristol.

As the Covid-19 pandemic has tightened its grip on many western states, many refugees, asylum seekers, and migrants continue to be detained in reception and detention centres, without any prospect of release. With asylum processing at a standstill and returns to countries of origin on hold, detention of these individuals risks becoming arbitrary, if not inhumane.

“Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence”, states article 12(1) of the International Covenant of Civil and Political Rights (ICCPR). The liberty of movement is a human right – a right that has been severely curtailed since the outbreak of the Covid-19 pandemic.

In order to reduce disease dissemination, states worldwide have put in place severe travel and movement restrictions, affecting both internal and external travelling. Article 12(1) is a qualified right and so exceptions can be made in the context of public health necessity. These restrictions have resulted in lockdowns in countries around the world, confining people to their homes with only specific exceptions permitted. (more…)

As the Corona pandemic worsens, EU borders shut down: “A new low point for the EU’s respect for refugee rights and international law”

By Prof Elspeth Guild, Queen Mary University of London and Kathryn Allinson, Research Assistant, Queen Mary University of London and Teaching Associate, University of Bristol.

On 3 March 2020, the heads of the key EU law-making institutions met at the Greek-Turkish border to support the efforts of the Greek border guards in pushing back and refusing crossing to a number of people (apparently not Turkish or Syrian nationals) seeking to flee Turkey and enter the EU. On 4 and 6 March respectively, the EU Councils for Home Affairs and Foreign Affairs, made statements applauding the action of the four heads of EU institutions in support of Greek border guards stating “The EU and its Member States remain determined effectively to protect the EU’s external borders. Illegal crossings will not be tolerated.”

The problem in international law with the actions of the Greek border guards, and their encouragement by the four heads of the EU institutions, is that they are not consistent with the obligations of the Member States and the EU (as stated in Article 78(1) Treaty on the Function of the European Union). This provision states that the EU is committed to respecting the UN Convention Relating to the Status of Refugees 1951 and the 1967 Protocol. Article 33 of that Convention provides that ‘no one shall be sent back to a state where he or she is at risk of persecution.’ This principle of non-refoulment is thus protected in international refugee law but is also a non-derogable obligation under international human rights law and considered to have customary law status. (more…)

The IEL Collective Symposium II – Disrupting Narratives on International Economic Law: Theory, Pedagogy and Practice

By Dr Clair Gammage & Dr Amaka Vanni, For and on behalf of the IEL Collective

In 2019, a group of scholars in the discipline of International Economic Law (IEL) launched the IEL Collective to provide a space for critical reflections of the regulation and conduct of states, international organisations and private actors in economic governance within and across state boundaries. International economic law (IEL) as an arena of scholarship, policy and practice has developed exponentially over the past three decades, evolving from a sub-field of public international law into a multi-layered, highly specialised discipline of its own. As a field of study, IEL encompasses a broad range of issues relating to the law, regulation and governance of the global economy, including trade, investment, finance, intellectual property, business regulation, energy and competition law. It is a discipline that intersects with other disciplines, such as international and domestic labour law, human rights, and environment as recognised by the United Nation’s 2030 Agenda for Sustainable Development. However, in the discipline of IEL there remain significant questions over the plurality and diversity of methodologies, voices and viewpoints. (more…)

Abortion in Northern Ireland: The Ewart Judicial Review Judgment

By Dr. Jane Rooney, Lecturer in Law (University of Bristol Law School)

NB: Abortion law in Northern Ireland is set to change on 22nd October 2019 if the suspended Northern Irish Assembly continues to not function on or after 21st October. This blog post contextualises and recognises the continued relevance of judicial review proceedings challenging the prohibition on abortion in Northern Ireland in cases of fatal foetal abnormality within a dynamic, multi-layered legal, political and social context.

On 3rd October 2019, the High Court of Justice in Northern Ireland decided that Northern Irish abortion law was incompatible with the Human Rights Act 1998 (HRA) insofar as it prohibited abortion in cases of fatal foetal abnormality (FFA). Justice Keegan decided to refrain from pronouncing on the remedy before hearing further submissions by the parties involved: she delayed the decision over whether to make a declaration of incompatibility (DOI) pending further submissions.[1]  This judicial review case follows a momentous year in activism, litigation, and legislative reform on abortion in Northern Ireland. The following provides context to the judgment, and a summary of the key reasoning employed. It then focuses on the DOI point which is yet to be concluded. A DOI should be made for two primary reasons. First, this remedy is warranted in the circumstances of the prohibition on abortion in cases of FFA. It can be distinguished from Nicklinson which introduced the idea that a DOI need not be made despite finding an incompatibility. Second, to proceed with refusing a DOI despite finding an incompatibility, and normalising Nicklinson, would have broader consequences for the human rights protection system in the UK. (more…)

Conclusions from the Workshop on Labour Behind the Food System

On June 14th 2019, a group of academics, union representatives, civil society organisers, and members of food-related NGOs and think tanks gathered in Bristol along with the United Nations Special Rapporteur on the Right to Food, Professor Hilal Elver. The intention was to look closely at the condition of work and workers behind the UK food system. Throughout the day, we shared testimonies, experiences and accounts concerning the main challenges and obstacles faced by workers from farm to fork, including beyond the boundaries of the United Kingdom. We discussed trafficking, modern slavery, low wages, availability, technological innovation, migration, and several other issues that affect and characterize the life and the future of people who make our food possible. We have closely followed the ongoing conversations around the UK Food Strategy, including a consultation that opened just last week, along with the parliamentary debate around the Agricultural Bill and the proposals on the new post-CAP domestic settlement for agriculture. We have also been particularly attentive to the increase in household food insecurity in the country, in particular among farmworkers, farmers and workers within the food sector. It is striking that hunger, obesity and malnutrition are increasingly felt among those who produce and transform food.

In light of our research, experiences and conversations, we have listed below some of the main conclusions arising from our workshop. There is no food without labour, and because a healthy and justly rewarded workforce is essential to a sustainable food system, we consider that these elements should inform the whole process of the UK food strategy. When it comes to labour, the future of food is not only about a skilled workforce that knows how to use technology. It is about: an integrated approach and greater coordination within the food system; attention to the bottlenecks; a broad notion of food workers; intersectionality; transparency and visibility; protection, respect and fulfilment of the workers’ human and labour rights; access to justice and reliable enforcement;  and  fair access and use of technological innovation. (more…)

Legal Authority Beyond the State – Towards New Insights into International Law

By Prof Patrick Capps, Professor of International Law (University of Bristol Law School) and Prof Henrik Palmer Olsen (University of Copenhagen Faculty of Law)

Two new edited volumes, which add new perspectives on international law, have recently been published by OUP and CUP. The first is International Court Authority (published by OUP during the summer of 2018 and edited by Karen Alter, Laurence Helfer and Mikael Rask Madsen), and the second is Legal Authority Beyond the State (published by CUP early in the spring of 2018 and is edited by Patrick Capps and Henrik Palmer Olsen (the writers of this blog)). The books are similar insofar as they present interdisciplinary scholarship on the authority of international law. Both are, at root, an exploration of how legal authority is established and evolves in international organizations, such as international courts. An important difference between the two books is how each sees the plausible limits of theoretical inquiry into the nature of authority. International Court Authority is more empirical, while Legal Authority Beyond the State is situated in the rationalist philosophical tradition. We argue that the empirical inquiry found in International Court Authority is limited to measure factual, observable behavior which appears to be engaging with international organizations and their laws, but it cannot account for authority per se, which is commonly accepted (in both books) to be the self-conscious orientation of actor’s behavior towards international law, so that it is consistent with the practical reasons offered by international organizations. (more…)

Enforcement of awards under the New York Convention: choice of remedies and the significance of time limits

By Prof Jonathan Hill, Professor of Law (University of Bristol Law School).

© Michael Coghlan

It is a truism that, although the ultimate purpose of an arbitration is the rendering of an award which definitively determines the disputes that were referred by the parties to arbitration, in practice, the making of the final award may well not be the end of the road. This truism is graphically illustrated by the events following an arbitration conducted around ten years ago under the auspices of the Singapore International Arbitration Centre (SIAC); the dispute had arisen out of a failed joint venture between two groups of companies, a Malaysian media group (Astro), and various companies, including First Media (FM), which were part of an Indonesian conglomerate known as Lippo. During the arbitration, in which the Astro companies were the claimants, the tribunal made a number of awards; in 2010, the arbitration culminated in a final award of US$250 million in the claimants’ favour. Since then, the Astro companies have been trying to enforce the awards through the courts against FM (and others), most notably in Singapore and Hong Kong. Following decisions by the Singapore Court of Appeal (PT First Media TBK v Astro Nusantara International BV [2013] SGCA 57) and, more recently, by Hong Kong’s Court of Final Appeal (Astro Nusantara International BV v PT Ayunda Prima Mitra [2018] HKCFA 12), those attempts now appear to have failed.

In terms of the substance, the case seems, at first glance, to be a relatively simple one. The problems were, to a large extent, procedural and those problems were exacerbated by the fact that the courts of two jurisdictions were required to address the same – or very similar – questions. In total, there were five judicial decisions – two in Singapore – High Court (SGHC) and Court of Appeal (SGCA) – and three in Hong Kong – Court of First Instance (HKCFI), Court of Appeal (HKCA) and Court of Final Appeal (HKCFA). In both jurisdictions, Astro’s application to enforce the awards succeeded at first instance; it was only at the highest level in each jurisdiction that FM prevailed. This blog is divided into six substantive sections; after a brief consideration of the arbitration (I), the most significant features of each of the five court decisions are analysed (II-VI). Some of the lessons that can be learned from the whole saga are summarised in the Conclusion.  (more…)

Standing of the Northern Ireland Human Rights Commission in the UK Supreme Court Abortion Decision

By Dr Jane Rooney, Lecturer in Law (University of Bristol Law School).

In its much-awaited decision on Northern Irish abortion laws, a majority in the UK Supreme Court dismissed the appeal brought by the Northern Ireland Human Rights Commission (the Commission) on the basis that it lacked standing to bring legal proceedings [In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review [2018] UKSC 27]. Kathryn McNeilly, Fiona Bloomer, and Claire Pierson explain the context and implications of the ruling here. Despite agreement ‘that the current law in Northern Ireland on abortion is disproportionate and incompatible with Article 8 of the [European] Convention’ on Human Rights (see UK Supreme Court press release), the Commission had no standing and therefore the Supreme Court could not make a declaration of incompatibility under section 4 of the Human Rights Act and their statements on rights violations were obiter dicta.

This blog considers the Supreme Court’s adjudication on standing. It argues for a literal interpretation of the Northern Ireland Act 1998 and Human Rights Act 1998 (HRA) to argue that, contrary to the UK Supreme Court’s majority judgment, the Commission is empowered under the Northern Ireland Act to bring proceedings in cases of an unlawful act of a public authority and for review of the compatibility of Northern Irish primary legislation with the European Convention on Human Rights (the Convention). (more…)