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1. What is the future of international law?

With the 10th European Society of International Law (ESIL) Anniversary Conference just around the corner some key thinkers share their thoughts on what they think the future of international law looks like.

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“International law traditionally flourishes with liberal hegemony, shared interests, or balance-of-powers parity. The first condition is visibly waning. The second and third conditions support regional and functional islands of multilateralism. While those islands may sometimes be shaky, they will continue to provide work for international lawyers. Beyond that, in the rough waters of war, peace, and even justice, the language of international law will also continue to pervade international relations. But it increasingly risks being perceived as an imprudent distraction. That is unless civil societies can unsettle the present monopolies that shape the terms of international legal discourse.”

Ingo Venzke, Research Fellow and Lecturer, Amsterdam Center for International Law, University of Amsterdam, author of How Interpretation Makes International Law: On Semantic Change and Normative Twists, and co-author of In Whose Name? A Public Law Theory of International Adjudication

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“The future of international law will be somewhat as with its present: we will witness the continued expansion of international law’s reach into new and emerging areas of common concern, wrought by climate change, technology, and continued processes of international and regional integration that are changing the nature of State-to-State relations. I do hope, however, that there will be continued and sustained critical reflection in scholarship on the impact of law on the international space—on who it empowers and excludes, on the nature of legalisation and its purposes—for it is only through heightened scrutiny, and not unquestioned application, that international law may serve as a progressive force.”

Gleider I. Hernandez, Lecturer in Law, Durham University, author of The International Court of Justice and the Judicial Function

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“In my opinion, the international law of the future will be less influenced by the ‘Westphalian model’, for at least two reasons: the increasing role played by non-state actors, in particular armed groups and multinational corporations, which challenges existing state-centred rules of international law, and the emergence of cyberspace as a separate domain, that will entail a rethinking of traditional concepts like territory, sovereignty, and jurisdiction. With regard to the future of international institutions, it remains to be seen whether the United Nations will be able to survive in its outdated structure.”

Marco Roscini, Reader in International Law, University of Westminster, author of Cyber operations and the use of force in international law

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“The future of international law is likely to be as its past: a vital, though often misunderstood, medium through which social actors at various levels and in various forms can structure and order their interactions, reflect their desires and manifest their concerns. It is neither static nor predictable. Following a period in which there have been high expectations of what international law can achieve, the next few years may be times of challenge as it struggles to deliver solutions which have become expected of it. But this is merely part of the endless re-calibration necessary to reflect the tasks to which it is being put and the realities which need to be faced. If international law does not disappoint from time to time it will cease to be a source of aspiration – and that would make for a far bleaker future.”

Malcolm Evans, Professor of Public International Law, University of Bristol, author of International Law and Blackstone’s International Law Documents

*   *   *   *   *

Vienna, AT. Photo by  Luca Sartoni. CC BY-SA 2.0 via lucasartoni Flickr.
Vienna, AT. Photo by Luca Sartoni. CC BY-SA 2.0 via lucasartoni Flickr.

“International law has undergone dramatic change in the past fifty years, with issues from human rights to the environment to trade now the subjects of a wide range of hard and soft law instruments. Yet, many of the principles encapsulated within these documents remain unrealized due to the inability of international law to influence domestic law and national political priorities. Oftentimes, international law seems to remain distinct from domestic systems, treated with suspicion by national institutions.

“In the twenty first century, the national and international cannot be so easily separated. In areas such as refugee flows, arms proliferation, environmental degradation and combatting impunity, domestic initiatives and capability hold the key to international security. Agreement on and adherence to international standards is essential if global threats with national origins are to be managed effectively. International law must become not only the standard setter but the enabler and enhancer of domestic capacity. One of the key challenges will be to alter perceptions of international law itself. Rather than being viewed as something to be resisted or resented, side-stepped or paid lip service to, international legal standards must become part of domestic legislative and political agendas. The challenge is enormous, but essential, because, in the words of Anne-Marie Slaughter, the future of international law is domestic.”

Alison Bisset, Lecturer of Law, University of Reading, author of Blackstone’s International Human Rights Documents

*   *   *   *   *

“In the security regime, the future of international law looks increasingly dim. Attributability is a prerequisite for accountability, and powerful governments are discovering new ways to mask innovative forms of coercion behind a veil of anonymity. “Little green men” with no visible identification, untraceable drone strikes, “NATO” bombings that conceal belligerents’ identities, cyber-attacks masked by false flags—these sorts of intrusions all erode the rule of law by making it difficult if not impossible to impute responsibility. Should this trend continue, the security regime could look increasingly like Ferguson, Missouri—a juridical black hole where lawless police hide their badges.”

Michael J. Glennon, Professor of International Law, The Fletcher School of Law and Diplomacy, Tufts University, author of National Security and Double Government

*   *   *   *   *

“In my opinion, the future of international law in the coming decades will continue to be shaped by the continued tensions between sovereignty and other interests of the international community, such as the protection of the environment, the development of the Responsibility to Protect and more broadly human rights.

“On the one hand, states will obviously have to continue to accept that the traditional Westphalian model of international law is facing challenges and that things cannot be as they were in the past.

“But on the other hand, activists in various fields need to accept that the world is not changing as fast as they would like everyone to believe and that sovereignty remains a key feature of the international legal order. To a certain extent, as a feature of any given community, sovereignty is in fact conceptually unavoidable in one shape or another, whether at the domestic or the international level. Testimony to this is the continued relevance in international affairs of national(istic) claims which find their legal cristalisation in concepts such as statehood, self-determination and the prohibition of the use of force in international law.

“Accepting this reality is key in shaping realistic, effective and intellectually sound policies that not merely focus on individual rights, however important they are, but also take into account the collective dimensions and interests of any human society.”

Dov Jacobs, Associate Professor in International Law at the Grotious Centre, Leiden University, contributor to “Targetting the State in Jus post Bellum: Towards a theory of Integrated Sovereignties” in Jus Post Bellum: Mapping the Normative Foundations

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2. Remembering the slave trade and its abolition

On August 23rd the United Nations observes the International Day for the Remembrance of the Slave Trade and its Abolition. In honor of this day, we examine the history of slavery and its abolition, and shed light on contemporary slavery practices.

View the infographic below to learn more, or open it as a PDF to click through to freely available content from across our public international law resources.

OPIL_SLAVERY

Download a PDF copy of the infographic

Headline image credit: Photo by orythys, Public Domain CCo via pixabay

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3. Reading demeanor in the courtroom

When it comes to assessing someone’s sincerity, we pay close attention to what people say and how they say it. This is because the emotion-based elements of communication are understood as partially controllable and partially uncontrollable. The words that people use tend to be viewed as relatively controllable; in contrast, rate of speech, tone of voice, hesitations, and gestures (paralinguistic elements) have tended to be viewed as less controllable. As a result of the perception of speakers’ lack of control over them, the meanings conveyed via paralinguistic channels have tended to be understood as providing more reliable evidence of a speaker’s inner state.

Paradoxically, the very elements that are viewed as so reliable are consistent with multiple meanings. Furthermore, people often believe that their reading of another person’s demeanor is the correct one. Many studies have shown that people – judges included – are notoriously bad at assessing the meaning of another person’s affective display. Moreover, some research suggests that people are worse at this when the ethnic background of the speaker differs from their own – not an uncommon situation when defendants address federal judges, even in 2014.

The element of defendants’ demeanor is not only problematic for judges; it is also problematic for the record of the proceedings. This is due to courtroom reporters’ practice of reporting the words that are spoken and excluding input from paralinguistic channels.

One of the original Victorian Courtrooms at the Galleries of Justice Museum. Photo by Fayerollinson. CC BY-SA 3.0 via Wikimedia Commons.
One of the original Victorian Courtrooms at the Galleries of Justice Museum. Photo by Fayerollinson. CC BY-SA 3.0 via Wikimedia Commons.

I observed one case in which this practice had the potential for undermining the integrity of the sentencing hearing transcript. In this case, the defendant lost her composure while making her statement to the court. The short, sob-filled “sorry” she produced mid-way through her statement was (from my perspective) clearly intended to refer to her preceding tears and the delays in her speech. The official transcript, however, made no reference to the defendant’s outburst of emotion, thereby making her “sorry” difficult to understand. Without the clarifying information about what was going on at the time – namely, the defendant’s crying — her “sorry” could conceivably be read as part of her apology to the court for her crime of robbing a bank.

Not distinguishing between apologies for the crime and apologies for a problem with delivery of one’s statement is a problem in the context of a sentencing hearing because apologies for crimes are understood as an admission of guilt. If the defendant had not already apologized earlier, the ambiguity of the defendant’s words could have significant legal ramifications if she sought to appeal her sentence or to claim that her guilty plea was illegal.

As the above example illustrates, the exclusion of meaning that comes from paralinguistic channels can result in misleading and inaccurate transcripts. (This is one reason why more and more police departments are video-recording confessions and witness statements.) If a written record is to be made of a proceeding, it should preserve the significant paralinguistic elements of communication. (Following the approach advocated by Du Bois 2006, one can do this with varying amounts of detail. For example, the beginning and ending of crying-while-talking can be indicated with double angled brackets, e.g., < < sorry > >.) Relatedly, if a judge is going to use elements of a defendant’s demeanor in court to increase a sentence, the judge should be prepared to defend this decision and cite the evidence that was employed. Just as a judge’s decision based on the facts of the case can be challenged, a decision based on demeanor evidence deserves the same scrutiny.

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4. Changing legal education

Martin Partington discussed a range of careers in his podcasts yesterday. Today, he tackles how new legal issues and developments in the professional environment have in turn changed organizational structures, rules and regulations, and aspects of legal education.

Co-operative Legal Services: An interview with Christina Blacklaws

Co-operative Legal Services was the first large organisation to be authorised by the Solicitors Regulatory Authority as an Alternative Business Structure. In this podcast, Martin talks to Christina Blacklaws, Head of Policy of Co-operative Legal Services.

 

The role of chartered legal executives: An interview with Diane Burleigh

The Chartered Institute of Legal Executives sets standards for and regulates the activities of legal executives, who play an important role in the delivery of legal services. In this podcast Martin talks with Diane Burleigh, the Chief Executive of CILEX, about the challenges facing the legal profession and the opportunities provided for Legal Executives in the rapidly developing legal world.

 

Educating Judges and the Judicial College: An interview with Lady Justice Hallett

The Judicial College was created by bringing together separate arrangements that had previously existed for training judicial office-holders in the courts (the Judicial Studies Board) and Tribunals Service (through the Tribunals Judicial Training Group). In this podcast Martin talks to its Chairman, Lady Justice Hallett, about the reasons for the change and ways in which the College is developing new ideas about judicial education.

 

Headline image credit: Law student and lecturer or academic. © Palto via iStockphoto.

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5. Why referendum campaigns are crucial

As we enter the potentially crucial phase of the Scottish independence referendum campaign, it is worth remembering more broadly that political campaigns always matter, but they often matter most at referendums.

Referendums are often classified as low information elections. Research demonstrates that it can be difficult to engage voters on the specific information and arguments involved (Lupia 1994, McDermott 1997) and consequently they can be decided on issues other than the matter at hand. Referendums also vary from traditional political contests, in that they are usually focused on a single issue; the dynamics of political party interaction can diverge from national and local elections; non-political actors may often have a prominent role in the campaign; and voters may or may not have strong, clear views on the issue being decided. Furthermore, there is great variation in the information environment at referendums. As a result the campaign itself can be vital.

We can understand campaigns through the lens of LeDuc’s framework which seeks to capture some of the underlying elements which can lead to stability or volatility in voter behaviour at referendums. The essential proposition of this model is that referendums ask different types of questions of voters, and that the type of question posed conditions the behaviour of voters. Referendums that ask questions related to the core fundamental values and attitudes held by voters should be stable. Voters’ opinions that draw on cleavages, ideology, and central beliefs are unlikely to change in the course of a campaign. Consequently, opinion polls should show very little movement over the campaign. At the other end of the spectrum, volatile referendums are those which ask questions on which voters do not have pre-conceived fixed views or opinions. The referendum may ask questions on new areas of policy, previously un-discussed items, or items of generally low salience such as political architecture or institutions.

Another essential component determining the importance of the campaign are undecided voters. When voter political knowledge emanates from a low base, the campaign contributes greatly to increasing political knowledge. This point is particularly clear from Farrell and Schmitt-Beck (2002) where they demonstrated that voter ignorance is widespread and levels of political knowledge among voters are often overestimated. As Ian McAllister argues, partisan de-alignment has created a more volatile electoral environment and the number of voters who make their decisions during campaigns has risen. In particular, there has been a sharp rise in the number of voters who decide quite late in a campaign. In this case, the campaign learning is vital and the campaign may change voters’ initial disposition. Opinions may only form during the campaign when voters acquire information and these opinions may be changeable, leading to volatility.

The experience of referendums in Ireland is worth examining as Ireland is one of a small but growing number of countries which makes frequent use of referendums. It is also worth noting that Ireland has a highly regulated campaign environment. In the Oireachtas Inquiries Referendum 2011, Irish voters were asked to decide on a parliamentary reform proposal (Oireachtas Inquiries – OI) in October 2011. The issue was of limited interest to voters and co-scheduled with a second referendum on reducing the pay of members of the judiciary along with a lively presidential election.

The OI referendum was defeated by a narrow margin and the campaign period witnessed a sharp fall in support for the proposal. Only a small number of polls were taken but the sharp decline is clear from the figure below.

Figure One – The Campaign Matters (OI Referendum)
The Campaign Matters (OI Referendum)

Few voters had any existing opinion on the proposal and the post-referendum research indicated that voters relied significantly on heuristics or shortcuts emanating from the campaign and to a lesser extent on either media campaigns or rational knowledge. The evidence showed that just a few weeks after the referendum, many voters were unable to recall the reasons for their voting decision. An interesting result was that while there was underlying support for the reform with 74% of all voters in support of Oireachtas Inquiries in principle, it failed to pass. There was a very high level of ignorance of the issues where some 44% of voters could not give cogent reasons for why they voted ‘no’, underlining the common practice of ‘if you don’t know, vote no’.

So are there any lessons we can draw for Scottish Independence campaign? Scottish independence would likely be placed on the stable end of the Le Duc spectrum in that some voters could be expected to have an ideological predisposition on this question. Campaigns matter less at these types of referendums. However, they are by no means a foregone conclusion. We would expect that the number of undecided voters will be key and these voters may use shortcuts to make their decision. In other words the positions of the parties, of celebrities of unions and businesses and others will likely matter. In addition, the extent to which voters feel fully informed on the issues will also possibly be a determining factor. It may be instructive to look at another Irish referendum, on the introduction of divorce in the 1980s, during which voters’ opinions moved sharply during the campaign, even though the referendum question drew largely from the deep rooted conservative-liberal cleavage in Irish politics (Darcy and Laver 1990). The Scottish campaign might thus still conceivably see some shifts in opinion.

Headline image: Scottish Parliament Building via iStockphoto.

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6. Law careers from restorative justice, to legal ombudsman, to media

What range of career options are out there for those attending law school? In this series of podcasts, Martin Partington talks to influential figures in the law about topics ranging from restorative justice to legal journalism.

Restorative Justice: An interview with Lizzie Nelson

The Restorative Justice Council is a small charitable organisation that exists to promote the use of restorative justice, not just in the court (criminal justice) context, but in other situations of conflict as well (e.g. schools). In this podcast Martin talks to Lizzie Nelson, Director of the Restorative Justice Council.

 

Handling complaints against lawyers: An interview with Adam Sampson

In this podcast, Martin talks to Adam Sampson, Chief Legal Ombudsman. They discuss the work of the Legal Ombudsman, how it operates, the kinds of issue it deals with, and some of the limitations the office has to deal with matters raised by dissatisfied clients.

 

Reporting the law: An interview with Joshua Rozenberg

Joshua Rozenberg is one of a very small number of specialist journalists who cover legal issues in a serious and thoughtful way. He has worked in a wide variety of media, including the BBC, The Daily Telegraph, and The Guardian. In this interview, he describes how he decided to become a journalist rather than a practising lawyer and comments on the challenges of devising ways to enable legal issues to be raised in mass media.

 

Headline image credit: Law student and lecturer or academic. © Palto via iStockphoto.

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7. Can changing how prosecutors do their work improve public safety?

In the 1990s, policing in major US cities was transformed. Some cities embraced the strategy of “community policing” under which officers developed working relationships with members of their local communities on the belief that doing so would change the neighborhood conditions that give rise to crime. Other cities pursued a strategy of “order maintenance” in which officers strictly enforced minor offenses on the theory that restoring public order would avert more serious crimes. Numerous scholars have examined and debated the efficacy of these approaches.

A companion concept, called “community prosecution,” seeks to transform the work of local district attorneys in ways analogous to how community policing changed the work of big-city cops. Prosecutors in numerous jurisdictions have embraced the strategy. Indeed, Attorney General Eric Holder was an early adopter of the strategy when he was US Attorney for the District of Columbia in the mid-1990s. Yet, community prosecution has not received the level of public attention or academic scrutiny that community policing has.

A possible reason for community prosecution’s lower profile is the difficulty of defining it. Community prosecution contrasts with the traditional model of a local prosecutor, which is sometimes called the “case processor” approach. In the traditional model, police provide a continuous flow of cases to the prosecutor, and she prioritizes some cases for prosecution and declines others. The prosecutor secures guilty pleas in most of the pursued cases, often through plea bargains, and trials are rare. The signature feature of the traditional prosecutor’s work is quickly resolving or processing a large volume of cases.

Community prosecution breaks with the traditional paradigm and changes the work of prosecutors in several ways. It removes prosecutors from the central courthouse and relocates them to a small office in a neighborhood, often in a retail storefront. This permits the prosecutor to develop relationships with community groups and individual residents, even allowing residents to walk into the prosecutor’s office and express concerns. It frees the prosecutors from responsibility for managing the flow of cases supplied by police and allows them to undertake two main tasks. The first is that prosecutors partner with community members to identify the sources of crime within the neighborhood and formulate solutions that will prevent crime before it occurs. The second is that when community prosecutors seek to impose criminal punishments, they develop their own cases rather than rely on those presented by police, and they typically focus on the cases they anticipate will have the greatest positive impact on the local community.

In the past fifteen years, Chicago, Illinois, has had a unique experience with community prosecution that allowed the first examination of its impact on crime rates. The State’s Attorney in Cook County (in which Chicago is located), opened four community prosecution offices between 1998 and 2000. Each of these offices had responsibility for applying the community prosecution approach to a target neighborhood in Chicago, and collectively, about 38% of Chicago’s population resided in a target neighborhood. Other parts of the city received no community prosecution intervention. The efforts continued until early 2007, when a budget crisis compelled the closure of these offices and the cessation of the county’s community prosecution program. For more than two years, Chicago had no community prosecution program. In 2009, a new State’s Attorney re-launched the program, and during the next three years, the four community prosecution offices were re-opened.

Window of an apartment block at night. © bartosz_zakrzewski  via iStockphoto.
Window of an apartment block at night. © bartosz_zakrzewski via iStockphoto.

This sequence of events provided an opportunity to evaluate the impact of community prosecution on crime. The first adoption of community prosecution in the late 1990s lent itself to differences-in-differences estimation. The application of community prosecution to four sets of neighborhoods, each beginning at four different dates, enabled comparisons of crime rates before and after the program’s implementation within those neighborhoods. The fact that other neighborhoods received no intervention permitted these comparisons to drawn relative to the crime rates in a control group. Furthermore, Chicago’s singular experience with community prosecution – its launch, cancellation, and re-launch – furnished a sequence of three policy transitions (off to on, on to off again, and off again to on again). By contrast, the typical policy analysis observes only one policy transition (commonly from off to on). These multiple rounds of program application enhanced the opportunity to detect whether community prosecution affected public safety.

The estimates from this differences-in-differences approach showed that community prosecution reduced crime in Chicago. The declines in violent crime were large and statistically significant. For example, the estimates imply that aggravated assaults fell by 7% following the activation of community prosecution in a neighborhood. The estimates for property crime also showed declines, but they were too imprecisely estimated to permit firm statistical inferences. These results are the first evidence that community prosecution can produce reductions in crime and that the reductions are sizable.

Moreover, there was no indication that community prosecution simply displaced crime, moving it from one neighborhood to another. Neighborhoods just over the border of each community prosecution target area experienced no change in their average rates of crime. The declines thus appeared to reflect a true reduction instead of a reallocation of crime. In addition, the drops in offending were immediate and sustained. One might expect responses in crime rates would arrive slowly and gain momentum over time as prosecutors’ relationships with the community grew. But the estimates instead suggest that community prosecutors were able to identify and exploit immediately opportunities to improve public safety.

This evaluation of the community prosecution in Chicago offers broad lessons about the role of prosecutors. As with any empirical study, some caveats apply. The highly decentralized and flexible nature of community prosecution forbids reducing the program to a fixed set of principles and steps that can be readily implemented elsewhere. To the degree that its success depends on bonds of trust between prosecutor and community, its success may hinge on the personality and talents of specific prosecutors. (Indeed, the article’s estimates show variation in the estimated impacts across offices within Chicago.) At minimum, the results demonstrate that, under circumstances that require more study, community prosecution can reduce crime.

More broadly, the estimates suggest that the role of prosecutors is more far-reaching than typically thought. Crime control is conventionally understood to be primarily the responsibility of police. It was for this very reason that in the 1990s so much attention was devoted to the cities’ choice of policing style – community policing or order maintenance. Restructuring the work of police was thought to be a key mechanism through which crime could be reduced. By contrast, a conventional view of prosecutors is that their responsibilities pertain to the selection of cases, adjudication in the courtroom, and striking plea bargains. This article’s estimates show that this view is unduly narrow. Just as altering the structure and tasks of police may affect crime, so too can changing how prosecutors perform their work.

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8. Challenges facing UK law students

Making the leap between school and university can be a stretch at the best of times, but for UK law students it can be a real struggle. As there is no requirement to study law at school before beginning an undergraduate programme, many new law students have a very limited knowledge of how the law works and what they can expect from their studies.

We asked a group of 77 law students from around the UK about how they prepared for their courses. It turns out, only a third of them did any reading before starting, but a vast majority would have done, if only their university had given them a bit of advice.

infographic_web

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9. The First World War and the development of international law

On 28 June 1914, Archduke Franz Ferdinand and his wife Sophie, Duchess of Hohenberg, were assassinated in Sarajevo, setting off a six week diplomatic battle that resulted in the start of the First World War. The horrors of that war, from chemical weapons to civilian casualties, led to the first forays into modern international law. The League of Nations was established to prevent future international crises and a Permanent Court of International Justice created to settle disputes between nations. While these measures did not prevent the Second World War, this vision of a common law for all humanity was essential for international law today. To mark the centenary of the start of the Great War, and to better understand how international law arose from it, we’ve compiled a brief reading list.

The Oxford Handbook of the History of International Law, Edited by Bardo Fassbender, Anne Peters, and Simone Peter

How did international law develop from the 15th century until the end of World War II? This 2014 ASIL Certificate of Merit winnor looks at the history of international law in relation to themes such as peace and war, the sovereignty of states, hegemony, and the protection of the individual person. It includes Milos Vec’s ‘From the Congress of Vienna to the Paris Peace Treaties of 1919′ and Peter Krüger’s ‘From the Paris Peace Treaties to the End of the Second World War’.

Formalizing Displacement: International Law and Population Transfers by Umut Özsu

A detailed study into the 1922-34 exchange of minorities between Greece and Turkey, supported by the League of Nations, in which two million people were forcibly relocated. Check out the specific chapters on: Wilson and international law; US jurisprudence and international law in the wake of WWI; and the failed marriage of the US and the League of Nations and America’s reaction of isolationism through WWII.

The Birth of the New Justice: The Internationalization of Crime and Punishment, 1919-1950 by Mark Lewis

How could the world repress aggressive war, war crimes, terrorism, and genocide in the wake of the First World War? Mark Lewis examines attempts to create specific criminal justice courts to address these crimes, and the competing ideologies behind them.

A History of Public Law in Germany 1914-1945 by Michael Stolleis, Translated by Thomas Dunlap

How did the upheaval of the first half of the 20th century impact the creation of public law within and across states? Germany offers an interesting case given its central role in many of the events.

“Neutrality and Multilateralism after the First World War” by Aoife O’ Donoghue in the Journal of Conflict and Security Law

What exactly did ‘neutrality’ mean before, during, and after the First World War? The newly independent Ireland exemplified many of the debates surrounding neutrality and multilateralism.

The Signing of Peace in the Hall of Mirrors, Versailles, 28th June 1919 by William Orpen. Imperial War Museum. Public domain via Wikimedia Commons.
The Signing of Peace in the Hall of Mirrors, Versailles, 28th June 1919 by William Orpen. Imperial War Museum. Public domain via Wikimedia Commons.

“What is Aggression? : Comparing the Jus ad Bellum and the ICC Statute” by Mary Ellen O’Connell and Mirakmal Niyazmatov in the Journal of International Criminal Justice

The Treaty of Versailles marked the first significant attempt to hold an individual — Kaiser Wilhelm — accountable for unlawful resort to major military force. Mary Ellen O’Connell and Mirakmal Niyazmatov discuss the prohibition on aggression, the Jus ad Bellum, the ICC Statute, successful prosecution, Kampala compromise, and protecting the right to life of millions of people.

“Delegitimizing Aggression: First Steps and False Starts after the First World War” by Kirsten Sellars in the Journal of International Criminal Justice

Following the First World war, there was a general movement in international law towards the prohibition of aggressive war. So why is there an absence of legal milestones marking the advance towards the criminalization of aggression?

“The International Criminal Tribunal for the Former Yugoslavia: The Third Wang Tieya Lecture” by Mohamed Shahabuddeen in the Chinese Journal of International Law

What is the bridge between the International Military Tribunal, formed following the Treaty of Versailles, and the International Criminal Tribunal for the former Yugoslavia? Mohamed Shahabuddeen examines the first traces of the development of international criminal justice before the First World War and today’s ideas of the responsibility of the State and the criminal liability of the individual.

“Collective Security, Demilitarization and ‘Pariah’ States” by David J. Bederman in the European Journal of International Law

When are sanctions doomed to failure? David J. Bederman analyzes the historical context of the demilitarization sanctions imposed against Iraq in the aftermath of the Gulf War of 1991 from the 1919 Treaty of Versailles through to the present day.

“Peace Treaties after World War I” by Randall Lesaffer, Mieke van der Linde in the Max Planck Encyclopedia of Public International Law

How did legal terminology and provisions concerning hostilities, prisoners of war, and other wartime-related concerns change following the introduction of modern warfare during the First World War?

“League of Nations” by Christian J Tams in the Max Planck Encyclopedia of Public International Law

What lessons does the first body of international law hold for the United Nations and individual nations today?

“Alliances” by Louise Fawcett in the Max Planck Encyclopedia of Public International Law

Peace was once ensured through a complex web of diplomatic alliances. However, those same alliances proved fatal as they ensured that various European nations and their empires were dragged into war. How did the nature of alliances between nations change following the Great War?

“International Congress of Women (1915)” by Freya Baetens in the Max Planck Encyclopedia of Public International Law

In the midst of tremendous suffering and loss, suffragists continued to march and protest for the rights of women. How did the First World War hinder the women’s suffrage movement, and how did it change many of the demands and priorities of the suffragists?

“History of International Law, World War I to World War II” by Martti Koskenniemi in the Max Planck Encyclopedia of Public International Law

A brief overview of the development of international law during the interwar period: where there was promise, and where there was failure.
 
Headline image credit: Stanley Bruce chairing the League of Nations Council in 1936. Joachim von Ribbentrop is addressing the council. Bruce Collection, National Archives of Australia. Public domain via Wikimedia Commons.

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10. The OUP and BPP National Mooting Competition

Oxford University Press and BPP Law School are proud to co-sponsor this national mooting competition which provides law students from around the country with the opportunity to practise and hone their advocacy skills. The event is now one of the most prestigious mooting competitions in the UK, where student advocates debate a fictitious case in a mock court of appeal in front of a judge. Over 140 law students embark on the contest each October; run on a knock-out basis they are whittled down over 4 rounds to the 4 who compete in the nail-biting final.

The final of the OUP and BPP National Mooting Competition 2013-2014 took place on Thursday 10th July, and proved to be a very enjoyable night of mooting indeed. Teams from Aston University, the London School of Economics, Kaplan Law School and Queen Mary, University of London battled it out for the top prize, with Theodore Anthony Meddick Dyson and Darren Low of Queen Mary, University of London emerging as worthy moot champions.

His Honour Judge Charles Gratwicke of Chelmsford Crown Court presided over the final and kept the students on their toes with some keen questioning. In his summing up, Judge Gratwicke praised the hard work and depth of knowledge the students demonstrated, saying: “You have displayed an exceptionally high standard of advocacy skills and the differences between the teams are paper-thin. You will all be successful because people of quality always find their niche”.

All photos by Arnaud Stephenson.

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11. On unauthorized migrants and immigration outside the law

From news stories about unaccompanied minors from Central America to invisible workers without legal standing, immigration continues to stir debate in the United States. The arguments framing the issue are often inflected with distorted ideas and words. We sat down with Hiroshi Motomura, the author of Immigration Outside the Law, to discuss this contentious topic.

You use the term “unauthorized migrants” instead of “illegal” or “undocumented” immigrants. Why this choice of words?

This is a topic that is so controversial that even the labels provoke deep disagreement. The words “illegal” or “undocumented” often reflect very strong views. Because my goal is to explain what makes these debates so heated and then to analyze the issues carefully, I start with neutral terms, like “unauthorized” and “immigration outside the law.” I reach some firm conclusions about the nature of unauthorized migration and the best policy responses, but I try hard to work through the many arguments on both sides, acknowledging my own assumptions and taking all views seriously. This effort requires that I start with neutral terms.

What was the influence of the landmark 1982 US Supreme Court decision in Plyler v. Doe on our current discussion of immigration policy?

Plyler was pivotal. The Court said that the state of Texas couldn’t keep kids out of public schools just because they are in the United States unlawfully. It was a 5–4 decision, and we can debate whether the Court would come out the same way today. But Plyler it is much more than constitutional law. Plyler turned on three questions that remain at the heart of controversy. First, what does it mean to be in the United States lawfully––is “illegal” or “undocumented” more apt? Second, what is the state and local role in immigration policy? Third, should unauthorized migrants be integrated into US society—are they “Americans in waiting”?

A photograph of the May 1st, "Day without an Immigrant" demonstration in Los Angeles, California. © elizparodi via iStockphoto.

A photograph of the May 1st, “Day without an Immigrant” demonstration in Los Angeles, California. © elizparodi via iStockphoto.

Are unauthorized migrants “Americans in waiting”?

Many unauthorized migrants are Americans in waiting, meaning that their integration into American society should be recognized and fostered. Unauthorized migrants have contributed to US society, especially through work, often over a long period of time. Their contributions justify lawful immigration status and a path to citizenship. An argument that is just as strong, though less often heard, is that unauthorized migrants have come to the United States as part of an economic system that depends on them — to be tolerated when we need them and exposed to discretionary enforcement when we don’t. These two arguments aren’t mutually exclusive, and both find support in history and the reality of today’s America.

Can unauthorized migrants currently assert their rights within the US legal system?

Unauthorized migrants can assert rights in many settings. They can sue if an employer refuses to pay them. They have a right to due process in the courts. In many states, unauthorized residents are eligible for driver’s licenses and in-state tuition rates at public colleges and universities. They are not relegated to oblivion. Why not? These rights recognize in small ways that unauthorized migrants are Americans in waiting. To be sure, broad scale legalization proposals in Congress attract a lot of attention, but mini-legalizations take place every day in settings where decision-makers at all levels of government acknowledge the place of unauthorized migrants in American society.

What have state and local governments done to address immigration outside the law?

The state government authority was at the heart of Plyler, and the state and local role has been controversial ever since. States and localities have tried to enforce federal immigration laws directly or indirectly. Arizona’s SB 1070 is a prominent example. At the same time, other states and localities try to integrate unauthorized migrants, through driver’s licenses, ID cards, and access to higher education, and by curtailing cooperation with federal immigration enforcement. Does federal immigration authority displace both types of state or local laws? I think not. The compelling reason to limit state and local enforcement is preventative––so state and local officials can’t enforce immigration laws in ways that are selective and discriminatory. This concern doesn’t apply when states and localities recognize or foster the integration of unauthorized migrants.

A version of this article will appear in the UCLA School of Law alumni magazine.

Hiroshi Motomura is Susan Westerberg Prager Professor of Law at UCLA. He is the author of Immigration Outside the Law and Americans in Waiting.

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12. Hate crime and community dynamics

By Mark Austin Walters


Hate crimes are offences that are motivated by hostility, or where some form of demonstration of hostility is made, against the victim’s identity. Such crimes can have devastating impacts, both on those directly victimised and on other community members who fear they too may be targeted. While much has been written about the impacts of hate crime victimisation, there has been little which has focused on how the criminal justice system can effectively address the consequences of hate — other than through criminalising and punishing offenders.

A relatively new theory and practice of criminal justice is that of “Restorative Justice” (RJ). RJ seeks to bring the “stakeholders” of an offence together via inclusive dialogue in order to explore what has happened, why it happened, and how best those involved in the offence can repair the harms caused. There is now a substantial body of research into the effectiveness of RJ for violent and non-violent offences. Yet there has been little attention paid to whether such a process can effectively address crimes motivated by identity-based prejudice.

The harms caused by prejudice-motivated crime can relate both to the individual traumas experienced by victims, and the structural harms faced by many marginalised communities. The individual and structural harms caused by hate crime are not easily remedied. The current approach to combating hate crime via criminalisation and enhanced penalties, while important symbolically to the combatting of hate crime, does little to directly repair harm or challenge the underlying causes of hate-motivated offending.

In order to understand more about the reparative qualities of Restorative Justice for hate crime an empirical study of RJ projects was conducted where practices were used to address the causes and consequences of hate crime offences. The 18 month project involved 60 qualitative interviews with victims, restorative practitioners, and police officers who had participated in a restorative practice. In addition, 18 RJ meetings were observed, many of which involved face-to-face dialogue between victim, offender, and their supporters. One such project, administered by the Hate Crimes Project at Southwark Mediation Centre, South London, used a central restorative practice called Community Mediation, which employs a victim-offender or family group conferencing model. The cases researched involved “low-level” offences (including crimes aggravated by racial, religious, sexual orientation, and disability hostility) such as causing harassment, violence, or common assault, as well as more serious forms of violence including several cases of actual bodily harm and grievous bodily harm.

In the Southwark Hate Crimes Project, the majority of complainant victims (17/23) interviewed stated that the mediation process directly improved their emotional wellbeing. Further exploration of the process found that the levels of anger, anxiety, and fear that were experienced by almost all victims were reduced directly after the mediation process. Victims spoke at length about why the dialogical process used during mediation helped to improve their emotional wellbeing. First and foremost, participants felt they could play an active role in their own conflict resolution. This was especially important to most victims who felt that they had previously been ignored by state agencies when reporting their experiences of victimisation. Many noted that they were finally being listened to and their victimisation was now being taken seriously.

800px-Southwark_Bridge_at_night

It was of utmost importance to victims that the perpetrator signed an agreement promising to desist from further hate incidents. In terms of desistance, 11 out of 19 separate cases of ongoing hate crime incidents researched in Southwark ceased directly after the mediation process had taken place (participants were interviewed at least six months after the mediation process ended). In a further six cases incidents stopped after the community mediator included other agencies within the mediation process, including schools, social services, and community police officers.

Unfortunately, the positive findings reported from Southwark were not repeated for the restorative policing measures used for low-level offences by Devon and Cornwall Police. Just half of the 14 interviewees stated that they were satisfied with the outcome of their case, where an alternative restorative practice, called Restorative Disposal was used. There were several reasons for lower levels of harm reparation at Devon and Cornwall, most of which were directly linked to the (lack of) restorativeness of the intervention. For example, several participants felt pressured by the police to agree to the intervention which had direct implications for the voluntariness of the process – a key tenet of restorative justice theory and practice.

Collectively, these results suggested that where restorative justice is implemented by experienced practitioners committed to the values of “encounter,” “repair,” and “transformation” it could reduce some of the harms caused by hate. However, where Restorative Justice was done “on the quick” by facilitators who were not equipped with either the time or resources to administer RJ properly, victims will be left without adequate reparation for the harms they have endured.

Another key factor supporting the reparative qualities of restorative practice, is reconceptualising the central notion of “community”. It is important to understand the complex dynamics of “community” by recognising that it may have certain invidious qualities (that are causal to hate-motivated offences) as well as more benevolent virtues. Equally, “community” may provide a crucial conduit through which moral learning about “difference” can be supported and offenders can be reintegrated into neighbourhoods less likely to reoffend.

Although the notion of community is an elusive concept, it is important for the future use of restorative practices for practitioners to view community organisations as important components of local neighbourhoods. These organisations (including neighbourhood policing teams, housing associations, schools, colleges, and social services) have an important role to play in conflict resolution, and must work together using a multi-agency approach to addressing hate crime. Such an approach, if led by a restorative practitioner, allows the various agencies involved in tackling hate victimisation to combine their efforts in order to better support victims and manage offenders. Hence, Restorative Justice may have scope to not only mitigate against the traumas of direct victimisation but also some of the structural harms that marginalised groups continue to experience.

Dr Mark Austin Walters is a Senior Lecturer in Criminal Law and Criminal Justice at the University of Sussex, and the Co-Director of the International Network of Hate Studies. He is the author of Hate Crime and Restorative Justice: Exploring Causes and Repairing Harms, which includes a full analysis of the impacts of hate crime, the use of restorative justice, multi-agency partnerships and the importance of re-conceptualising “community” in restorative discourse in cases involving “difference”. A full text of the book’s introduction ‘Readdressing Hate Crime’ can be accessed online.

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Image credit: Southwark bridge at night, by Ktulu. CC-BY-SA-3.0 via Wikimedia Commons.

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13. Why do prison gangs exist?

By David Skarbek


On 11 April 2013, inmate Calvin Lee stabbed and beat inmate Javaughn Young to death in a Maryland prison. They were both members of the Bloods, a notorious gang active in the facility. The day before Lee killed Young, Young and an accomplice had stabbed Lee three times in the head and neck. They did so because Lee refused to accept the punishment that his gang ordered against him for breaking “gang rules.” Lee didn’t report his injuries to officials. Instead, he waited until the next day and killed Young in retribution.

While this might seem to provide evidence that gangs are inherently violent, that’s not so. The story is more complicated. Gangs enforce a variety of rules that they design to establish order. Lee violated these rules by giving his cellmate—who had a dispute with a rival gang—a knife. Many inmates would see this as encouraging violence, which gangs seek to control. The situation provides a glimpse at a major role played by prison gangs. They don’t form to promote chaos, but to limit spontaneous acts of violence.

Many people are surprised to learn about the extent to which gangs regulate inmate life. Not only do many inmates feel they must join a gang, but gangs even issue written rules about appropriate social conduct. These include who you may eat lunch with, which shower to use, who may cut your hair, and where and when violence is acceptable. One gang gives new inmates a written list of 28 rules to follow. Many gangs even require new inmates to provide a letter of introduction from gang members at other prisons. Moreover, gangs also encourage cooperation within their group by relying on elaborate written constitutions. These often include elections, checks and balances, and impeachment procedures.

Fence and lights. © JordiDelgado via iStockphoto.

Fence and lights. © JordiDelgado via iStockphoto.

Besides setting rules, prison gangs promote social order by adjudicating conflict. Inmates can’t turn to officials to provide this when dealing in illicit goods and services. An inmate can’t rely on a prison warden to resolve a dispute over the quantity or quality of heroin. They can’t turn to officials if someone steals their marijuana stash.

In short, prison gangs form to provide extralegal governance. They enforce property rights and promote trade when formal governance mechanisms don’t. The provide law for the outlaws.

Yet, gangs’ dominance today stands in stark contrast with the historical record. In California, the prison system existed for more than a century before prison gangs emerged. If gangs are so important today, then why didn’t they exist for more than 100 years?

A major cause of the growth of prison gangs is the unprecedented growth in the prison population in the last 40 years. The United States locks up a larger number and proportion of its residents than any other country. This amounts to about 2.2 million people (707 out of every 100,000 residents). With such large prison populations, officials can’t provide all the governance that inmates’ desire. Mass incarceration thus creates fertile conditions for the rise of organized prison gangs.

David Skarbek is a Lecturer in the Department of Political Economy at King’s College London. He is the author of The Social Order of the Underworld: How Prison Gangs Govern the American Penal System, which is available on Oxford Scholarship Online. Read the introductory chapter ‘Governance Institutions and the Prison Community’ for free for a limited time.

Oxford Scholarship Online (OSO) is a vast and rapidly-expanding research library, and has grown to be one of the leading academic research resources in the world. Oxford Scholarship Online offers full-text access to scholarly works from key disciplines in the humanities, social sciences, science, medicine, and law, providing quick and easy access to award-winning Oxford University Press scholarship.

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14. The HSA/HRA response to Hobby Lobby

EZ Thoughts

By Edward Zelinsky


Few recent decisions of the US Supreme Court have engendered as much controversy as Burwell v. Hobby Lobby Stores, Inc. In that case, the Court decided that a closely-held corporation’s employer-sponsored medical plan need not provide contraception if the shareholders of such corporation object to contraception on religious grounds.

Responding to the resulting controversy, Senator Patty Murray, along with many of her Democratic colleagues, has proposed legislation to overturn Hobby Lobby. Senators Kelly Ayotte and Deb Fischer, along with many of their Republican colleagues, have introduced legislation confirming Hobby Lobby. In the current political environment, there is little chance of either bill becoming law any time soon.

However, there is a response to Hobby Lobby which would address the concerns of both contraception advocates and of religious objectors to contraception. In particular, any employer which objects to providing birth control should instead be required to fund for its employees independently-administered health savings accounts (HSAs) or health reimbursement arrangements (HRAs). An HSA or HRA permits the covered employee to spend employer-provided, pre-tax health care dollars on any medical service the employee chooses, from birth control to an MRI, without implicating the employer in the employee’s spending decision.

The HSA/HRA alternative respects the religious rights of sponsoring employers. With conventional insurance or self-insured health plans, the sponsoring employer’s plan provides a menu of choices which frames the employees’ decisions. In contrast, the HSA/HRA approach permits employees to spend health care dollars on whatever medical services employees select including services to which the employer objects – without the employer’s plan framing the employees’ choices. HSAs and HRAs are thus like cash wages which, when spent by the employee, do not entail participation by the employer.

Doctor With Piggy Bank

Justice Alito’s Hobby Lobby opinion identifies two other possible ways to provide contraception services without violating the rights of objecting employers. First, HHS might extend to closely-held for-profit firms the regulatory accommodation now limited to religious nonprofit entities other than churches. Under this accommodation, insurers or third-party administrators provide employees with contraception at no cost to the religious employer. Alternatively, the federal government might itself make birth control available to women who lack contraception coverage from their employer-sponsored health plans.

Commentators have expressed reservations about both these approaches. Some women’s health groups argue that a federal program will stigmatize the women who receive their contraception from such a program. Moreover, the problems of the Department of Veterans Affairs suggest the need for skepticism about the federal government as a provider of medical services. A number of religious groups contend that the current regulatory accommodation for religious employers does not go far enough and still makes employers participate in the provision of birth control to which they object.

In light of these concerns, HSAs and HRAs are compelling alternatives. HSAs and HRAs are analogous to cash wages which the employee spends as he chooses. Such accounts can assure women of the ability to obtain contraception which they seek with employer-provided, pre-tax health care dollars without burdening the religious beliefs of employers who object to involvement with contraception.

Suppose, for example, that Hobby Lobby is required to establish for each of its employees an HSA or HRA administered by the company’s bank. A Hobby Lobby employee could submit receipts to the bank for any type of medical care the employee selects. The employee would subsequently receive from the bank a reimbursement check for this care from his or her HSA/HRA account. Alternatively, HSA/HRA debit cards have become popular devices. These cards allow a covered employee to swipe when receiving health care services with the card.

These accounts could be used by each employee to defray any medical expense the employee elects including, but not limited to, the kinds of contraception to which the employer objects. However, the employer would not be complicit in the employee’s medical choices just as the employee does not participate in an employee’s decision to spend her wages on something with which the employer disagrees.

The HSA/HRA approach potentially has political legs. HHS (along with the Departments of the Treasury and Labor) could adopt regulations implementing this approach. Conservatives like HSAs and HRAs since these accounts implement a consumer-driven approach to health care. Liberals want to assure employees of contraception even if employers object to contraception. The HSA/HRA response to Hobby Lobby thus has bi-partisan appeal and is a compelling compromise as a matter of law and public policy.

ZelinskiEdward A. Zelinsky is the Morris and Annie Trachman Professor of Law at the Benjamin N. Cardozo School of Law of Yeshiva University. He is the author of The Origins of the Ownership Society: How The Defined Contribution Paradigm Changed America. His monthly column appears on the OUPblog.

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Image credit: Doctor With Piggy Bank. Photo by prosot-photography, iStockphoto.

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15. Humanitarian protection for unaccompanied children from Central America

By Jennifer Moore


We are approaching World Humanitarian Day, an occasion to honor the talents, struggles, and sacrifices of tens of thousands of humanitarian workers serving around the world in situations of armed conflict, political repression, and natural disaster. The nineteenth of August is also a day to recognize the tens of millions of human beings living and dying in situations of violence and displacement in West Africa, the Middle East, Central America, and every corner of the globe.

The notion of humanitarianism is linked to humanitarian law, the law of armed conflict or jus in bello, which strives to lessen the brutality of war, guided by the customary principles of distinction, necessity, proportionality, and humanity. But humanitarian workers animate these humanitarian principles on the ground in situations of human catastrophe that span the continuum of human and natural causation and overwhelm our capacity to categorize human suffering.

Today, humanitarian workers are active in every country in the world: from International Committee of the Red Cross workers in Nigeria helping displaced persons from communities attacked by Boko Haram insurgents; to UN High Commissioner for Refugees staff in Jordan and Lebanon assisting refugees from the civil war in Syria and Iraq; to Catholic Charities volunteers and staff in Las Cruces, New Mexico, United States sheltering women and children fleeing gang violence, human trafficking, and entrenched poverty in Central America.

US/Mexico border fence near Campo, California, USA. © PatrickPoendl via iStockphoto.

US/Mexico border fence near Campo, California, USA. © PatrickPoendl via iStockphoto.

Humanitarian emergencies, whether defined in military, political, economic or environmental terms, have certain basic commonalities: life and livelihood are threatened; communities and families are fractured; farms and food stores are destroyed; and people are forced to move — from village to village, from rural to urban area, from city to countryside, or from one country or continent to another.

Humanitarian workers who engage with communities in crisis are not limited to one legal toolkit. Rather, they stand on a common ground shared by humanitarian law, human rights law, and refugee law. Their life-affirming interventions remind us that all these frameworks are animated by the same fundamental concern for people in trouble. Whether we look to the 1949 Geneva Conventions and the principle of protecting the civilian population; to the 1948 Universal Declaration of Human Rights and its norms of family unity and child welfare; to the 1951 Refugee Convention and its prohibition against the forced return or refoulement of individuals to threatened persecution; or to the enhanced protections accorded unaccompanied children in the United States under the Trafficking Victims Protection Reauthorization Act of 2008, the essential rules are remarkably similar. Victims and survivors of war, repression, and other forms of violence are worthy of legal and social protection. It is humanitarian workers who strive to ensure that survivors of violence enjoy the safety, shelter, legal status, and economic opportunities that they require and deserve.

For the unaccompanied children from Central America seeking refuge in the United States, humanitarian protection signifies that they should have the opportunity to integrate into US communities, to have access to social services, to reunify with their families, and to be represented by legal counsel as they pursue valid claims to asylum and other humanitarian forms of relief from deportation. When the US Congress passed the Refugee Act in 1980, it was in recognition of our humanitarian obligations under international refugee law. As a signatory to the 1951 Convention relating to the Status of Refugees, the United States pledged not to penalize refugees for their lack of legal status, but rather to protect them from deportation to threatened persecution. These humanitarian obligations preexist, animate, and complement specific provisions of federal law, including those that facilitate the granting of T visas to trafficking victims, humanitarian parole to individuals in emergency situations, and asylum to refugees. When new emergencies arise, our Congress, our executive, and our courts fashion the appropriate remedies, not out of grace, but to ensure that as a nation we fulfill our obligations to people in peril.

As an American looking forward to World Humanitarian Day, I am thinking about the nearly 70,000 unaccompanied children from Central America apprehended by the US Customs and Border Protection agency over the past 10 months; the 200 Honduran, Salvadoran and Guatemalan women and children who have stayed at the Project Oak Tree shelter in the border city of Las Cruces, New Mexico this month; and the over 400 children and families detained within the Federal Law Enforcement Training Center in the small town of Artesia, New Mexico this very week. These kids and their families are survivors of poverty, targets of human trafficking, victims of gang brutality, and refugees from persecution. They have much in common with the displaced children of Northern Nigeria, Syria, and Iraq. Like their counterparts working with refugees and displaced persons throughout the world, the shelter volunteers, community residents, county social workers, immigration attorneys, and federal Homeland Security personnel who help unaccompanied children from Central America in the United States are all humanitarian workers. But so are our elected officials and legislators. And so are we. How will we honor World Humanitarian Day?

Jennifer Moore is on the faculty of the University of New Mexico School of Law. She is the author of Humanitarian Law in Action within Africa (Oxford University Press 2012). Read her previous blog posts.

Oxford University Press is a leading publisher in international law, including the Max Planck Encyclopedia of Public International Law, latest titles from thought leaders in the field, and a wide range of law journals and online products. We publish original works across key areas of study, from humanitarian to international economic to environmental law, developing outstanding resources to support students, scholars, and practitioners worldwide. For the latest news, commentary, and insights follow the International Law team on Twitter @OUPIntLaw.

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16. Are schools teaching British values?

By Stephanie Olsen


In June, (now former) Education Secretary Michael Gove announced that all primary and secondary schools should promote “British values”. David Cameron said that the plans for values education are likely to have the “overwhelming support” of citizens throughout the UK. Cameron defined these values as “freedom, tolerance, respect for the rule of law, belief in personal and social responsibility and respect for British institutions”. ‪At root, such a policy gets at the emotional conditioning of children. To adhere to a certain ideological conceptualization of “freedom,” to feel “tolerant,” or to be “respectful” (whether of parents, teachers, authorities or institutions), is to act according to implicit feelings of rightness.

Values are never just abstract ideas, but are expressed and experienced through emotions. And they are not ideologically neutral. To stress the education of British values is to put a form of emotional education on the agenda. Though many commentators have pointed out that the broad outlines of such an education already exist in schools, the fear of “extremism”, of the promotion of the “wrong” sort of values, has triggered a vigorous debate. What has largely gone unrecognized in this debate, however, is that it is emphatically not new.

In the nineteenth and early twentieth centuries, politicians and educationalists promoted a new education based on character training and the emotions, precisely to build British citizens who would respect and uphold British institutions. This brand of education was to be accomplished at school, but also at home, and in religious and youth organizations.

Herbert Fisher, the President of the Board of Education who spearheaded the Education Act of 1918, argued that the masses should be educated “to stimulate civic spirit, to promote general culture … and to diffuse a steadier judgement and a better informed opinion through the whole body of the community.” Other educational commentators broadly agreed with this mission. Frederick Gould, a former Board School teacher and author of many books on education argued that “The community cannot afford to let the young people pass out with a merely vague notion that they ought to be good; it must frame its teaching with a decisive and clear vision for family responsibilities, civic and political duties”.

Michael Gove, by Paul Clarke, CC-BY-3.0 via Wikimedia Commons.

Michael Gove, by Paul Clarke, CC-BY-3.0 via Wikimedia Commons.

Civic duties – the civic spirit – were to be taught to the extent that they would become ingrained, implicit, felt. This was to be primarily a moral education. Educators stressed character training, linking moral education to British imperialism or nationalism in an unashamedly patriotic spirit. Education reform was to improve future citizens’ productivity and develop national character traits.

Like Gould, educator John Haden Badley stressed the need to teach active citizenship and service. Education on these lines would provide “a deeper understanding of the human values that give to life its real worth”, cultivating and maximizing the potential of a “superior” Britishness. Meanwhile, in a speech in Manchester in 1917, Fisher argued that “the whole future of our race and of our position in the world depends upon the wisdom of the arrangements which we make for education.” He observed, in language strikingly familiar to contemporary political rhetoric, that “we are apt to find that the wrong things are being taught by the wrong people in the wrong way.”

But even in 1917 the rhetoric was clichéd. A generation of commentators before Fisher argued that the civic shortfalls in mass formal education could be fixed by informal education in youth groups and religious organizations and through improved reading matter. Much juvenile and family literature, whether motivated politically or religiously, stressed emotional socialization, especially in the building of morality and character, as critical for national cohesion.

The trouble with visions of national cohesion, as the last century and a half of educational debate bears out, is the difficulty in getting any two parties to agree what that vision looks like. At the turn of the twentieth century all agreed that children mattered. How they were to be educated was important not just to individual children and their families, but equally importantly, to the community and the nation.

Yet some reformers had patriotic aims, others religious; some civic, some imperial; some conservative, others socialist. Many combined some or all of these aims. All, whether explicitly stated or not, wanted to train, instrumentalize and harness children’s emotions. Children’s reading matter, the stories they were told, and the lessons they heard were known to be powerful forces in cultivating the emotions. Hence the high stakes, then and now, on the narratives supplied to children.

Michael Gove, in common with his Victorian forebears, turns to the “great heroes of history” to serve as models of emulation. Back in the early 1900s, Gould thought history “the most vital of all studies for inspiration to conduct.” The study of history is certainly no stranger to being manipulated for didactic ends in order to impart “British values.”

While Gove is only the latest in a long line to link British history, British values and education, there are surely lessons to be learnt from past attempts and past failures to implement this strategy. A generation of boys and young men at the turn of the twentieth century had grown up learning the positive value of patriotic service. In this memorial year, marking a century since the outbreak of the First World War, it seems appropriate to reflect on what values we might want to instil in the young. What feelings do we want them to learn?

Stephanie Olsen is based at the history department, McGill University (Montreal) and the Max Planck Institute for Human Development, Center for the History of Emotions (Berlin). She was previously postdoctoral fellow at the Minda de Gunzburg Center for European Studies at Harvard University. The co-author of Learning How to Feel: Children’s Literature and the History of Emotional Socialization, c. 1870-1970 she is currently working on children’s education and the cultivation of hope in the First World War.

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17. The downing of Malaysian Airlines Flight MH17

By Sascha-Dominik Bachmann


The downing of the Malaysian Airlines Flight MH17 on 17 July 2014 sent shockwaves around the world. The airliner was on its way from Amsterdam to Kuala Lumpur when it was shot down over Eastern Ukraine by an surface to air missile, killing all people on board, 283 passengers including 80 children, and 15 crew members. The victims were nationals of at least 10 different states, with the Netherlands losing 192 of its citizens.

With new information being released hourly strong evidence seems to indicate that the airliner was downed by a sophisticated military surface to air missile system, the SA-17 BUK missile system. This self-propelled air defence system was introduced in 1980 to the Armed Forces of the then Soviet Union and which is still in service with the Armed forces of both Russia and Ukraine. There is growing suspicion that the airliner was shot down by pro-Russian separatist forces operating in the area, with one report by AP having identified the presence of a rebel BUK unit in close proximity of the crash site. The United States and its intelligence services were quick in identifying the pro-Russian separatists as having been responsible for launching the missile. This view is supported further by the existence of incriminating communications between the rebels and their Russian handlers immediately after the aircraft hit the ground and also a now deleted announcement on social media by the self declared Rebel Commander, Igor Strelkov. This evidence points to the possibility that MH17 was mistaken for an Ukrainian military plane and therefore targeted. Given that two Ukrainian military aircraft were shot down over Eastern Ukraine in only two days preceding 17 July 2014 a not unlikely possibility.

It will be crucial to establish the extent of Russia’s involvement in the atrocity. While there seems to be evidence that the rebels may have taken possession of BUK units of the Ukrainian, it seems unlikely that they would have been able to operate these systems without assistance from Russian military experts and even radar assets.

Makeshift memorial at Amsterdam Schiphol Airport for the victims of the Malaysian Airlines flight MH17 which crashed in the Ukraine on 18 July 2014 killing all 298 people on board. Photo by Roman Boed. CC BY 2.0 via romanboed Flickr.

Makeshift memorial at Amsterdam Schiphol Airport for the victims of the Malaysian Airlines flight MH17 which crashed in the Ukraine on 18 July 2014 killing all 298 people on board. Photo by Roman Boed. CC BY 2.0 via romanboed Flickr.

Russia was quick to shift the blame on Ukraine itself, asking why civil aircraft hadn’t been barred completely from overflying the region, directly blaming Ukraine’s aviation authorities during the emergency meeting on the UN Security Council (UNSC) on 18 July 2014. Russia even went so far to blame Ukraine indirectly of shooting down MH17 by comparing the incident with the accidental shooting down of a Russian civilian airliner en route from Tel Aviv to Novosibirsk in 2001. Despite Russia’s call for an independent investigation of the incident, Moscow’s rebels reportedly blocked actively international observers from OSCE to access the site.

While any civilian airliner crash is a catastrophe, and in cases of terrorist involvement an international crime, the shooting down of passenger jets by a state are particularly shocking as they always affect non combatants and resemble acts which are always outside the parameters of the legality of any military action (such as distinction, necessity, and proportionality). Any such act would lead to global condemnation and would hurt the perpetrator state’s international reputation. Consequently, there have only been few such incidents over the last 60 years.

What could be the possible consequences? The rebels are still formally Ukrainian citizens and as such subject to Ukraine’s criminal judicial system, according to the active personality principle. Such a prosecution could extent to the Russian co-rebels as Ukraine could exercise its jurisdiction as the state where the crime was committed, under the territoriality principle. In addition prosecutions could be initiated by the states whose citizens were murdered, under the passive personality principle of international criminal law. With Netherlands as the nation with the highest numbers of victims having a particularly strong interest in swift criminal justice, memories of the Pan Am 103 bombing come to mind, where Libyan terrorists murdered 270 humans when an airliner exploded over Lockerbie in Scotland. Following international pressure, Libya agreed to surrender key suspects to a Scottish Court sitting in the Netherlands.

The establishment of an international(-ised) criminal forum for the prosecution of the perpetrators would require Russia’s cooperation, something which seems to be unlikely given Putin’s increasing defiance of the international community’s call for justice. A prosecution by the International Criminal Court (ICC) in The Hague under its Statute, the Rome Statute, is unlikely to happen as neither Russian nor Ukraine have ratified the Statute. An UNSC referral to the ICC — if one accepts that the murder of 298 civilians would amount to a crime which qualifies as a crime against humanity or even a war crime under Article 5 of the ICC Statute — would fail given that Russia and its new strategic partner China are Veto powers on the Council and would veto any resolution for a referral.

Other responses could be the imposing of unilateral and international sanctions and embargos against Moscow and high profile individuals. Related to such economic countermeasures is the possibility to hold Russia as a state responsible for its complicity in the shooting down of MH17; the International Court of Justice (ICJ) would be the forum where such a case against Russia could be brought by a state affected by the tragedy. An example for such an interstate case arising from a breach of international law can be found in the ICJ case Aerial Incident of 3 July 1988 (Islamic Republic of Iran v. United States of America), arising from the unlawful shooting down of Iran Air Flight 655 by the United States in 1988. The case ended with an out of Court settlement by the US in 1996. Again, it seems quite unlikely that Russia will accept any ruling by the ICJ on the matter and even less likely would be any compliance with an damages order by the court.

One alternative could be a true US solution for the accountability gap of Russia’s complicity in the disaster. If the US Congress was to qualify the rebel groups as terrorist organizations then this would make Russia a state sponsor of terrorism, and as such subject to US federal jurisdiction in a terrorism civil litigation case brought under the Anti-Terrorism Act (ATA-18 USC Sections 2331-2338) as an amendment to the Alien Torts Statute (ATS/ATCA – 28 USC Section 1350). The so-called “State Sponsors of Terrorism” exception to the Foreign Sovereign Immunities Act (FSIA Exception-28 USC Section 1605(a)(7)), which allows lawsuit against so-called state sponsors of terrorism. The Foreign Sovereign Immunities Act (FSIA) Exception of 1996 limits the defense of state immunity in cases of state sponsored terrorism and can be seen as a direct judicial response to the growing threat of acts of international state sponsored terrorism directed against the United States and her citizens abroad, as exemplified in the case of Flatow v. Islamic Republic of Iran (76 F. Supp. 2d 28 (D.D.C. 1999)). Utilising US law to bring a civil litigation case against Russia as a designated state sponsor of international terrorism would certainly set a strong signal and message to Putin; it remains to be seen whether the US call for stronger unified sanctions against Russia will translate into such unilateral action.

Time will tell if the downing of MH17 will turn out to be a Lusitania moment (the sinking of the British passenger ship Lusitania with significant loss of US lives by a German U-boat led to the entry of the US in World War I) for Russia’s relations with the West, which might pave the way to a new ‘Cold War’ along new conflict lines with different allies and alliances. What has become clear already today is Russia’s potential new role as state sponsor of terrorism.

Sascha-Dominik Bachmann is an Associate Professor in International Law (Bournemouth University); State Exam in Law (Ludwig-Maximilians Universität, Munich), Assessor Jur, LL.M (Stellenbosch), LL.D (Johannesburg); Sascha-Dominik is a Lieutenant Colonel in the German Army Reserves and had multiple deployments in peacekeeping missions in operational and advisory roles as part of NATO/KFOR from 2002 to 2006. During that time he was also an exchange officer to the 23rd US Marine Regiment. He wants to thank Noach Bachmann for his input. This blog post draws from Sascha’s article “Targeted Killings: Contemporary Challenges, Risks and Opportunities” in the Journal of Conflict Security Law and available to read for free for a limited time. Read his previous blog posts.

The Journal of Conflict & Security Law is a refereed journal aimed at academics, government officials, military lawyers and lawyers working in the area, as well as individuals interested in the areas of arms control law, the law of armed conflict and collective security law. The journal aims to further understanding of each of the specific areas covered, but also aims to promote the study of the interfaces and relations between them.

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18. How much do you know about investment arbitration?

Int Court Justice law robesInvestment arbitration is a growing and important area of law, in which states and companies often find themselves involved in. In recognition of the one year anniversary of Investment Claims moving to a new platform, we have created a quiz we hope will test your knowledge of arbitration law and multilateral treaties. Good luck!

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Investment Claims (IC) is an acclaimed service for both practitioners and academic users. Regular updates mean that subscribers have access to a fully integrated suite of current and high quality content. This content comes with the guarantee of preparation and validation by experts.

Oxford University Press is a leading publisher in arbitration law, including Investment Claims, latest books from thought leaders in the field, and a range of other journals and online products. We publish original works across key areas, from international commercial arbitration to investment arbitration, dispute resolution and energy law, developing outstanding resources to support practitioners, scholars, and students worldwide. For the latest news, commentary, and insights follow the Commercial Law team @OUPCommLaw, and the International Law team @OUPIntLaw on Twitter.

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19. World Cup puts spotlight on rights of migrant workers in Qatar

By Susan Kneebone


As recent demonstrations in Brazil around the staging of the FIFA 2014 World Soccer Cup show, major sporting events put the spotlight on human rights issues in host countries. In the case of Qatar the preparations to host the FIFA 2022 World Cup are focussing worldwide attention on the plight of migrant workers. It estimated that the country needs an extra 500,000 migrant workers to build stadiums and other infrastructure such as a metro system in the lead up to the World Cup. But a report by the International Trade Union Commission (ITUC) predicts that 4,000 migrant construction workers will die in Qatar before the start of the game.

As for much of the Gulf States region, Qatar is heavily dependent on migrant workers. It has the highest ratio of migrants to citizens in the world, with migrant workers making up approximately 88 per cent of the whole population. The majority of migrant workers come from South and South-East Asian countries: Bangladesh, India, Indonesia, Nepal, Pakistan, Sri Lanka, and the Philippines. A series of reports has revealed poor working conditions for migrant workers in Qatar particularly in the construction industry and in domestic workplaces and a lack of enforcement of existing protective legal mechanisms.

This situation highlights the global issue of exploitation of low and unskilled temporary migrant workers, also labelled as “foreign workers”. Currently, there are about 232 million migrants globally, of whom it is estimated that 105 million are migrant workers who are displaced by necessity in a labour market which reflects the increasing disparity between rich and poor countries. Unskilled temporary migrant workers are vulnerable because they have no choice but to migrate to work. Such workers are constructed in laws and policies as lacking connection to the host state but rather the responsibility of their home state. They are discriminated in the host state on the basis of their culture and identity, and often regarded as ‘export’ labour at home.

Builders at Work: There are close to one million migrant workers in Qatar, mainly from South Asia. The majority work in construction. Photo by WBUR Boston's NPR News Station. CC BY-NC-ND 2.0 via wbur Flickr.

Builders at Work: There are close to one million migrant workers in Qatar, mainly from South Asia. The majority work in construction. Photo by WBUR Boston’s NPR News Station. CC BY-NC-ND 2.0 via WBUR Flickr.

The Kafala sponsorship system which operates in Qatar is a symptom of such vulnerability. The Kafala system reduces migrant workers to the status of slaves or indentured property in host country. This system is used to regulate the relationship between employers and migrants, with a work permit linked to a single person, who is often the sponsor. The law provides power and authority to sponsors to prevent migrant workers from changing employers and from the leaving Qatar.

As the Special Rapporteur on the human rights of migrants, François Crépeau summaries:

The kafala system enables unscrupulous employers to exploit employees. Frequent cases of abuse against migrants include the confiscation of passports, refusal to give “no objection” certificates (allowing migrants to change employer) or exit permits and refusal to pay migrants’ plane tickets to return home. Some employers do not extend residence permits for their employees, often because of the fees incurred. This leads to migrants ending up in an irregular situation, with no valid identity card, despite the fact that they are regularly employed. [7]

The recruitment process and charging of excessive fees are other critical issues. Recruitment fees are forbidden by Qatari law, but the reports found that many migrant workers had taken out substantial loans to pay the fees in their home countries and were in long-term debt. Contract substitution is also a huge problem, as the terms of contracts signed in the home countries are often different upon arrival in Qatar, usually with a lower salary and different job description. As migrant workers cannot easily change jobs without the sponsor’s approval and often have recruitment loans to repay, they become highly vulnerable to abuse and less likely to report such violations. In many cases, such practices will amount to human trafficking for labour exploitation or forced labour as the Amnesty International Report, “My Sleep is My Break” explains (pp54-60).

The exploitation of “foreign” migrant workers suggests that we have created a new global form of ‘indentured servitude’ or slavery in which others exercise property-like powers or control over individuals. The irony is that the development of individual rights to free and decent working conditions in the nineteenth century ran parallel to the anti-slavery movement. Qatar 2022 offers an opportunity to Qatar to show the global community the need to recognise collective responsibility for migrant workers in a globalised economy, and to put pressure on states and non-state actors to respect the rights of migrant workers.

Dr Susan Kneebone (PhD, MA (Asian Studies), Dip Ed, LLB), is a Professor in the Faculty of Law, Monash University, Australia. She is the author of many articles and book chapters, including author \ editor of the following: Transnational Crime and Human Rights: Responses to Human Trafficking in the Greater Mekong Subregion (Routledge 2012) (co-authored with Julie Debeljak) ; Migrant Workers Between States: In Search of Exit and Integration Strategies in South East Asia 40 (4) Asian Journal of Social Sciences (2012) ; “Transnational Labour Migrants: Whose Responsibility?” in Fiona Jenkins, Mark Nolan and Kim Rubenstein eds, Allegiance and Identity in a Globalised World (Cambridge University Press, 2014 – in press) Chapter 18. Recent publications include: “ASEAN and the Conceptualisation of Refugee protection” in Abass A. and Ippolito, F., et al eds., Regional Approaches to the Protection of Asylum Seekers: An International Legal Perspective (Ashgate 2014) Chapter 13, pp295-324 ; “The Bali Process and Global Refugee Policy in the Asia-Pacific Region” Special Edition of the Journal of Refugee Studies on Global Refugee Policy, 2014.

Interested in learning more about the issues facing migrant workers? Oxford Journals has created a special World Refugee Day virtual issue with a selection of free articles.

Oxford University Press is a leading publisher in international law, including the Max Planck Encyclopedia of Public International Law, latest titles from thought leaders in the field, and a wide range of law journals and online products. We publish original works across key areas of study, from humanitarian to international economic to environmental law, developing outstanding resources to support students, scholars, and practitioners worldwide. For the latest news, commentary, and insights follow the International Law team on Twitter @OUPIntLaw.

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20. Free speech, reputation, and the Defamation Act 2013

Freedom of expression is a central tenet of almost every modern society. This freedom however often comes into conflict with other rights, and can be misused and exploited. New media – especially on the internet – and new forms of media intrusion bring added complexity to old tensions between the individual’s rights to reputation and privacy on the one hand, and freedom of expression and the freedom of the press on the other.

How should free speech be balanced with the right to reputation? This question lies at the heart of defamation law. In the following videos, Lord Neuberger and Dr Matthew Collins QC discuss current challenges in defamation law, and the implications of recent changes to legislation enacted in the Defamation Act 2013. Lord Neuberger highlights urgent issues including privacy, confidentiality, data protection, freedom of information, and the Internet.

In this video, he draws attention to recent high-profile events such as the Leveson Inquiry and the phone-hacking trials, and points up key features of the new legislation.

Click here to view the embedded video.

Dr Matthew Collins QC outlines his perspective on the likely long-term impact of the 2013 Act.

Click here to view the embedded video.

The Rt Hon the Lord Neuberger of Abbotsbury Kt PC is President of the Supreme Court of the United Court of the United Kingdom. Dr Matthew Collins QC is a barrister based in Melbourne, Australia. He is also a Senior Fellow at the University of Melbourne, a door tenant at One Brick Court chambers in London, and the author of Collins on Defamation.

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21. Veils and the choice of society

By Can Yeginsu and Jessica Elliott


On 1 July 2014, the Grand Chamber of the European Court of Human Rights held that France’s ban on wearing full-face veils in public pursued a legitimate aim because it reflected a “choice of society”. Although the Court found that the blanket prohibition amounted to an interference with the religious rights of the minority in France that wore the full-face veil, it was justified because it protected the rights of others to have the option of facial interaction with that minority. The Court accepted that this right of potential facial interaction forms part of the minimum standards of “living together” in French society and outweighs the right of the minority to express their religious beliefs through wearing a full-face veil.

The result of the decision is that ‘SAS’, the applicant Muslim woman in the case, was held not to have suffered a violation of her religious rights under the European Convention on Human Rights. S.A.S. v France is another recent example of the controversies which can arise in the field of law and religion but its significance goes beyond that: the case has given rise to a full and carefully-reasoned judgment from the Strasbourg Court which revisits and, in places, develops its jurisprudence in this difficult area of the law.

The Decision

Article 9 is the principal protection available for religious freedom under the Convention. When examining a potential Article 9 violation, the Strasbourg Court must establish whether the act complained of – in this case, the ban on the veil – interferes with the applicant’s religious rights. If so, the Court will then consider whether or not that interference is: (1) prescribed by law; (2) pursuant to a legitimate aim; and (3) necessary and proportionate in a democratic society.

In S.A.S, the Court found that the ban was prescribed by French law (the Law No. 2010-1192) and constituted an interference with the applicant’s religious beliefs. The critical issues for the Court were whether or not the blanket prohibition was: (i) in pursuit of a legitimate aim; and, if so, (ii) necessary in a democratic society, that is to say, proportionate.

The second paragraph of Article 9 sets out the only legitimate grounds on which religious rights can be interfered with: public safety, public order, health or morals, or for the protection of the rights and freedoms of others. The Court dismissed the French Government’s arguments based on public safety, and considered the other three arguments put forward – that the veil fell short of the minimum requirements of life in society; that it harmed equality between men and women; and that it was a manifestation of disrespect for human dignity – under the heading of the ‘rights and freedoms of others’. The Court rejected the dignity and gender equality arguments, and focused on whether the requirements of “living together” could be a legitimate aim. The Court found that they could. The core of its reasoning is at §122 of the judgment:

“[The Court] can understand the view that individuals who are present in places open to all may not wish to see practices or attitudes developing in those places which would call into question the possibility of open interpersonal relationships, which, by virtue of an established consensus, forms an indispensable element of community life within the society in question. The Court is therefore able to accept that the barrier raised against others by a veil concealing the face is perceived by the respondent State as breaching the right of others to live in a space of socialisation which makes living together easier.”

The Court’s assessment of proportionality ultimately came down to the fact that the sanctions were, in the Court’s view, light (albeit criminal) and reflected a choice of society. France’s margin of appreciation in this area was such that it could, and should, make this choice without interference from an international court.

The Dissent

The joint partly dissenting opinion of Judges Nussberger and Jäderblom voiced a number of criticisms of the majority approach, of which the following are an important few:

  • The concept of ‘living together’ as a right is ‘far-fetched and vague’.
  • It seems unlikely that the veil itself is at the root of the French ban, rather than the philosophy linked to it. French parliamentary reports revealed that the true concerns are linked to the meaning of the veil: as ‘a form of subservience’, because of its ‘dehumanising violence’, and because of the fact that it represents ‘the self-confinement of any individual who cuts himself off from others whilst living among them’.
  • The opinion of the majority is wrong to ignore an individual’s right to express herself, or her beliefs, in a way that shocks others. The Court’s mandate is to protect expressions of rights which ‘offend, shock and disturb’, as well as those that are favourably received.
A Group of Women Wearing Burkas. Afghanistan women wait outside a USAID-supported health care clinic. Photo by Nitin Madhav (USAID). Public domain via Wikimedia Commons.

A Group of Women Wearing Burkas. Afghanistan women wait outside a USAID-supported health care clinic. Photo by Nitin Madhav (USAID). Public domain via Wikimedia Commons.

The Discussion

Some actions, whether religiously motivated or otherwise, could be so objectively offensive to the operation of society that they require limitation in the name of ‘living together’. However, where the action in question is non-violent and generally without external impact, extreme care must be exercised in establishing why society’s right not to be exposed to an act outweighs the individual’s right to perform it. This is all the more so the case where the action in question is an expression of a religion which, as the judgment acknowledges, can too often be subject to social prejudice.

One of the key difficulties with the opinion of the majority in S.A.S is the extent to which the Strasbourg Court allows ‘society’s choice’ to govern state action where distinctly unpopular rights are threatened. The Convention seeks to establish and to enforce European standards of protection for the rights of every individual. The Convention is an instrument which supports ‘democratic societies’.  This is not in the political sense of allowing the dominant collective voice to decide the fate of all; societies are capable of achieving that without assistance. The Convention should ensure that the voices of all groups and individuals in the society – popular or otherwise – are heard, and afforded proportionate weight where state aims threaten individual rights.

As the partly dissenting opinion points out, Western societies are fearful of what the veil connotes. The grounds of argument rejected by the Court were in all likelihood the more honest ones: there was clear social discomfort about a practice which ran counter to ideas of gender equality and human dignity. The Court rightly discounted such arguments where the applicant could show that wearing the veil was a matter of choice. Absent the issue of force, it is simply a question of whether covering the face is so offensive to others that it outweighs the religious importance of the action. Some may well ask whether or not the S.A.S judgment has explained why the alleged social offence caused is more important than the interference with a right which is at the core of international protection.

The majority judgment is significant also for the arguments that the Court rejected. Gender equality was not accepted as a legitimate aim by the Court. This is a shift. In its previous case law on the Islamic headscarf, the Court had stated that “it appears difficult to reconcile the wearing of an Islamic headscarf with the message of tolerance, respect for others and, above all, equality and non-discrimination”: Dahlab v Switzerland; Leyla Sahin v Turkey. The position has changed:

“a State Party cannot invoke gender equality in order to ban a practice that is defended by women […] in the context of the exercise of rights enshrined in those provisions, unless it were to be understood that individuals could be protected on that basis from the exercise of their own fundamental rights and freedoms” (S.A.S., §119).

Similarly, the Court rejected the State’s public safety argument, finding that in the absence of a general threat to public safety, a blanket ban was a disproportionate interference with the applicant’s Article 9 right. That finding is in contrast to the Court’s earlier decision in Mann Singh v France, when the Court accepted France’s restrictions of religious rights on the grounds of public safety without requiring evidence of the necessity of the restriction.

Although this decision accords with the Court’s general approach to the protection of religious dress under Article 9, it significantly shifts the focus onto the choices of individual societies as legitimate restrictions on religious rights. Much attention was given by the Court to the particular consensus of French society as a counterbalance to the identified right of a religious minority; this could represent a considerable enhancement of the scope of the ‘rights and freedoms of others’ limitation under Article 9(2). It remains to be seen how the Strasbourg Court will define the limits of the democratic choice of Member States in future decisions: this is, and will remain, a difficult and developing area of the law.

Can Yeginsu is a barrister at 4 New Square Chambers in London. He is the co-author (with Sir James Dingemans, Tom Cross and Hafsah Masood) of The Protections for Religious Rights: Law and Practice. Jessica Elliott is a barrister at One Crown Office Row Chambers in London.

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22. Donor behaviour and the future of humanitarian action

By Anne Hammerstad


After a short lull in the late 2000s, global refugee numbers have risen dramatically. In 2013, a daily average of 32,200 people (up from 14,200 in 2011) fled conflict and persecution to seek protection elsewhere, within or outside the borders of their own country. On the current trajectory, 2014 will be even worse. In Syria, targeting of civilians and large-scale destruction have led to 2.5 million (and counting) refugees fleeing the country since 2011. The vast majority shelter in neighbouring Lebanon (856,500), Jordan (641,900), and Turkey (609,300). As I write, hundreds of thousands are fleeing the advancing forces of the Islamic State in Iraq and al-Sham (ISIS) in neighbouring Iraq. And civil wars and ethnic violence have resurged in many parts of Central Africa and the African Horn.

What future for humanitarian action in this dire scenario? This question was raised on the fifth of May by the UN Secretary-General, Ban-Ki Moon, when he launched a programme of global consultations, which will culminate in the first ever World Humanitarian Summit in Istanbul in 2016, poised to “set a new agenda for global humanitarian action”. The UN has raised four sets of challenges, to deliver humanitarian aid more efficiently, effectively, innovatively, and robustly.

The launch of these consultations is timely, but it avoids an important challenge to the future of humanitarian action: the policies of donor governments.

United Nations Geneva

At first glance, this may seem like a strange assertion. After all, although needs continue to surpass the ability to provide, donor funding for humanitarian operations has skyrocketed. From less than US$1 billion in 1989, the global humanitarian budget stood at US$22 billion in 2013. Most of these funds come from a small number of Western donor states. But coupled with this rise in funds comes a donor agenda that risks, even if unintentionally, undermining the humanitarian ideal. This challenge is far from the only one posed to humanitarian action — much worse for the security of humanitarian workers are the terrorist groups that target them, leading to the killing of an estimated 152 aid workers in 2013. But because humanitarian action depends on a moral consensus over its meaning and worth, the current trajectory of donor policies is worrisome.

The humanitarian ideal is based on international solidarity: that outsiders can and should provide aid and protection in a principled, non-partisan, needs-based manner to civilian casualties of war and political violence. This ideal of politically disinterested solidarity with fellow human beings caught up in war and violence, regardless of who or where they are, has always been at some remove from the reality of humanitarian operations, but a consensus has nevertheless existed that it is an ideal worth aspiring to. Recently, though, donor governments have been increasingly open and unapologetic about using humanitarian aid to further their own political or security objectives.

One such objective is to keep immigration down. Since most man-made humanitarian crises have displacement as a core component, one objective of Western donor support of humanitarian aid to refugees is to contain population movement. The vast majority of refugees — people who have fled for their lives across international borders — remain within their near region, in camps or regional cities. Only a small proportion attempt the long journey to Europe, Australia, or North America in hope of jobs and a better future. Western humanitarian donors would prefer that even fewer asylum seekers make it to their own shores, while refugee host states in the Global South would like burden-sharing and solidarity to mean more than monetary charity from the well-off to the poorer.

Containment strategies seem to be working. While refugee numbers are increasing overall, including in industrialized states, the proportion of refugees hosted by developing states has grown over the past ten years from 70 percent to 86 percent. In Lebanon, there are 178 Syrian refugees for every thousand Lebanese inhabitants (in Jordan, the number is 88 per thousand). But efforts by the UN High Commissioner for Refugees (UNHCR) to resettle particularly vulnerable Syrian refugees have had lukewarm responses. This donor attitude of charity from afar coupled with hostility to asylum seekers and unwanted migrants in general, undermines the moral underpinnings of humanitarianism. After all, the Good Samaritan, often put forward as the embodiment of the humanitarian spirit, did not leave a few coins with the battered traveller he found by the wayside. He took him home and nursed him.

Another trend undermining the humanitarian ideal is the increased, and increasingly unapologetic, strategic use of aid to further donors’ own foreign and security policy objectives. There is a clear increase in the past couple of decades in the earmarking of funds and channelling of resources, not necessarily to the neediest of humanitarian victims, but to those deemed more relevant to donor interests. The ‘hearts and minds’ campaigns in Afghanistan and Iraq in the 2000s are the starkest representatives of this trend. As US-led intervention forces aimed to win over local populations by disbursing aid, the overall share of US overseas aid channelled through the US Department of Defense rose from 5.6 percent in 2002 to 21.7 percent in 2005.

These donor trends of openly pursuing domestic, foreign, and security policy goals through humanitarian aid are detrimental to the long-term future of humanitarian action, since they undermine the consensus and the ethical values underpinning the humanitarian ideal. While other challenges also loom, the strategies (and strategizing) of donors should have been included as a core topic of the Global Consultations.

Dr Anne Hammerstad, University of Kent, is author of The Rise and Decline of a Global Security Actor: UNHCR, Refugee Protection and Security. She writes and tweets on refugees, humanitarianism, conflict, and security. You can follow her on Twitter at @annehammerstad.

To learn more about refugees, conflict, and how countries are responding, read the Introduction to The Rise and Decline of a Global Security Actor: UNHCR, Refugee Protection and Security, available via Oxford Scholarship Online. Oxford Scholarship Online (OSO) is a vast and rapidly-expanding research library. Launched in 2003 with four subject modules, Oxford Scholarship Online is now available in 20 subject areas and has grown to be one of the leading academic research resources in the world. Oxford Scholarship Online offers full-text access to academic monographs from key disciplines in the humanities, social sciences, science, medicine, and law, providing quick and easy access to award-winning Oxford University Press scholarship.

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23. Ralph Zacklin: a personal perspective on international law

What does international law truly mean in the world today? For the publication of Malcom Evans’s International Law, Fourth edition, we asked several leading figures that question. Ralph Zacklin, the former UN Assistant Secretary General for Legal Affairs, provides his personal perspective on international in the edited essay below. A full version of his essay can be found on the textbook’s Online Resource Centre, along with five other personal perspectives.

By Ralph Zacklin

I have been privileged to work for almost thirty years as an international lawyer in the United Nations and from this vantage point international law is neither the omnipotent solution to the world’s problems nor is it an illusion that only die-hard pacifists cling to. It is, in fact, for the practitioner a very real and pragmatic discipline. That it may be uncertain, incomplete, and difficult to enforce does not lessen the need for the rule of law on the international plane nor does it mean that the efforts to codify the law and develop its institutions should cease or be diminished.

At the core of contemporary international law is the Charter of the United Nations. It is a tribute to its drafters in the San Francisco Conference that this instrument has retained its essential validity as a set of fundamental principles which have guided the community of States for more than fifty years. It is the basis for the development of much of international law as we know it today in such key areas as human rights, the environment, and the law of the sea and outer space, not to mention the vast array of multilateral treaties in numerous technical, economic, and scientific areas.

International law provides a common legal vocabulary within which States and other actors operate. It provides a framework for conceptions of what is ‘legal’ or ‘right’. For the author personally, the most striking lesson of the last thirty years is not the quantitative qualitative development of international law which has been substantial but the degree to which States have come to accept the existence of international law as a standard that must be observed or by which their actions must be justified.

There is another dimension to international law which is sometimes overlooked in an era of globalization. International law, however inchoate it may be, represents the expectations and claims of substantial segments of humanity. It cannot be dismissed merely because of its perceived weakness. This dimension is of particular relevance to the member States of the United Nations, the overwhelming majority of whom rely on international law-making processes in international forums to weave together the fabric of the rule of law.

This accounts for the persistence of the United Nations in the holding of major conferences or summits––much derided in some quarters––which have produced soft law Declarations on the environment, human rights, advancement of women and a panoply of economic and social rights. These fora move from agenda-setting gradually towards normative outcomes and have undeniably altered the international legal landscape over the past twenty-five years.

Law, whether domestic or international, is by nature a conservative discipline. Its evolution is slow, even laborious. International law is not, nor should it be, viewed as an ideal state in which harmony prevails. Like any other system of law, its rules and institutions mature over time. When one compares the international law of today with that of a mere three decades ago, one cannot but marvel at the advances that have been made both normatively and institutionally. The path of advancement is by no means uneventful but it continues.

I have been fortunate in my own career to have had the opportunity to contribute to significant developments in international law, such as the establishment of ad hoc criminal tribunals for Yugoslavia and Rwanda as well as, more recently, the Special Court in Sierra Leone. Over the years I have provided legal advice which has helped to shape much of the contemporary law of UN peace-keeping and, like many of my colleagues, have rejoiced in the completion of UN mandates which have resulted in the independence of countries such as Namibia and Timor-Leste. There have also been tragic failures in Rwanda, Bosnia, and Somalia.

At the outset of my career I was motivated like many young people of the time by an idealistic determination to make the world a safer and a better place. Over the years my idealism has certainly been tested, but I believe that the role and impact of international law has grown, and it continues to grow.

Ralph Zacklin is the former UN Assistant Secretary General for Legal Affairs. Malcolm Evans is a Professor of Public International Law at the University of Bristol. Malcolm Evans is the editor of International Law, which provides wide-ranging analysis of all the key issues and themes in public international law and brings together an outstanding collection of interesting and diverse writings from the leading scholars in the field.

Oxford University Press is a leading publisher in international law, including the Max Planck Encyclopedia of Public International Law, latest titles from thought leaders in the field, and a wide range of law journals and online products. We publish original works across key areas of study, from humanitarian to international economic to environmental law, developing outstanding resources to support students, scholars, and practitioners worldwide. For the latest news, commentary, and insights follow the International Law team on Twitter @OUPIntLaw.

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24. What are the most important issues in international criminal justice today?

While human history is not without crime and slaughter, it is only in the twentieth century, especially following the Nuremberg and Tokyo trials, that people sought justice in the name of all humanity. To mark the World Day for International Justice we invited our authors and editors to answer the question: What do you consider to be the most important issue in international criminal justice today?

“The impression that international justice is a tool of powerful States directed against smaller, weaker, poorer, and more isolated countries and peoples is the greatest challenge to international criminal justice today. Some of these large, powerful nations are themselves guilty of terrible abuses that go unpunished. For example, the United States enthusiastically joins in efforts to prosecute Hissène Habré in Senegal under the Torture Convention, yet its administration has promised impunity to American leaders and military officials responsible for torture at Abu Ghraib, Guantanamo, and elsewhere. Until international justice satisfactorily addresses this double standard, there will be little satisfaction in more trials of the likes of Taylor, Lubanga, and Mladić. For this reason, the most inspiring development of the past year was the decision of the Prosecutor of the International Criminal Court to undertake a preliminary examination of the conduct of British forces in Iraq.”
William Schabas, Professor of International Law, University of Middlesex, and author of Unimaginable Atrocities: Justice, Politics, and Rights at the War Crimes Tribunals (2014)

“In my view, it is time to begin to question whether the International Criminal Court will ever play a major role in the fight against impunity. This is not an issue of bad management, poor decision-making, or anything else epiphenomenal and potentially fixable. Instead, it’s a question of institutional design: it is simply unclear whether the Court, by aiming to keep watch over both the victors and the vanquished, will ever be able to muster the kind of international support – from states, and most importantly from the Security Council – that it needs to conduct credible investigations and prosecutions. There is reason for scepticism, given the Court’s inability to prosecute both rebels and government officials in even one conflict. Indeed, it’s difficult to avoid wondering: for all its flaws, is victor’s justice the only international criminal justice possible? Is selectivity an inherent part of an international criminal tribunal that works?”
Kevin Jon Heller, Professor of Criminal Law, SOAS, University of London, and author of The Hidden Histories of War Crimes Trials (2013)

International Criminal Court (ICC) Haagse Arc. Photo by ekenitr. CC BY-NC 2.0 via 46774986@N02 Flickr.

International Criminal Court (ICC) Haagse Arc. Photo by ekenitr. CC BY-NC 2.0 via 46774986@N02 Flickr.

“States need to overcome their alienation from international criminal justice. After the euphoria that allowed for the ‘Pinochet Saga’ to happen and led to the establishment of the International Criminal Court, states’ priorities, unfortunately, seem to have shifted – hardly surprising in times of financial crisis or mass surveillance. However, states still are and will ever be the backbone of the international criminal justice system – and this explicitly includes the so-called ‘third’ or ‘bystander’ states acting on the basis of universal jurisdiction. It’s in particular their role within the international criminal justice system that needs to be redefined by determining the parameters for complementarity and subsidiarity.”
Julia Geneuss, Dr. iur., LL.M. (NYU), Senior Research Fellow and Lecturer at the University of Hamburg, and member of the Editorial Committee of the Journal of International Criminal Justice

“International criminal law has long chased the dream of permanence. Its foundations at Versailles and Nuremberg and its revival in the 1990s were acts of ad hockery, and in those contingent acts the failings of justice ad et post hoc were apparent; a permanent court, we though, might fix them. We have now had a decade and more of permanence, and with it a severe testing of that hope. Courts for Sierra Leone and Lebanon, and calls for more (like David Scheffer’s recent proposal for a third-party court for Syria), show that ad hoc, hybrid incentives did not disappear with the Rome Statute. The challenges to ICC jurisdiction in Kenya and Libya – and the increasingly assertive objections of African leaders – have exposed the illusion that we have devised a unitary, homogenous justice system suited to the varied needs of a notional international community. Global justice is ad hoc – permanently so.”
Timothy William Waters, Professor of Law at Indiana University Maurer School of Law, and editor and co-author of The Milosevic Trial: An Autopsy (2014)

“Over past decades, international criminal justice has produced diverse political and social effects in the countries and communities where it intervened, either directly through investigations and trials or indirectly through the threat of investigations. But the international system is still at the beginning of a new era of interaction between domestic and international justice. International interventions remain contested because they are removed from broader socio-political concerns that are at the heart of societal priorities in conflict and post-conflict settings. Fundamental dimensions, such as the process of internalizing international concepts in the domestic realm, and most fundamentally, the ‘translation’ of justice into local concepts, language, or culture remain underdeveloped. There is need for a better nexus between three core dimensions in justice strategies: ‘institutional response’, ‘translation’, and domestic ‘reception’. Criticisms relating to selectivity, Western agendas or implicit biases of international justice are too easily discarded by quantitative justifications (e.g., gravity calculations), resource problems or formal notions of consent. This has created a push for new initiatives and responses at the domestic and regional level (e.g., criminal jurisdiction of the African Court on Human and Peoples’ Rights). International justice remains vital but needs to be re-thought. Core challenges include: (i) the need to devise accountability goals and models more carefully in light of their impact on local interests and realities of conflict, (ii) greater care in assessing the practicability and possibility of burden-sharing with domestic institutions, (iii) greater sensitivity to the empowering and disempowering effects of ICC intervention in situation countries, and (iv) the need for a better nexus between justice intervention and development strategies.”
Carsten Stahn, Professor of International Criminal Law and Global Justice, Leiden University, and Editor of The Law and Practice of the International Criminal Court (2015), and Jus Post Bellum: Mapping the Normative Foundations (2014)

“The central issue confronting international criminal justice today is: at what level of governance should issues of global justice be decided? This question is confronted by the International Criminal Court but also more broadly as a global matter where there are evolving norms of universality which mean that serious crimes can be prosecuted in a number of jurisdictions, domestic, i.e. where the crime may have occurred but also in other countries where there are other ties, such as the nationality of victims, etc., or another nexus.

“The principle of ‘complementarity’ is appealing because it offers guidance in the general rule of the priority of the local, where the international plays a gap-filling role; namely in the language of the Rome treaty, contemplating international intervention only where the relevant state ‘is unwilling and unable’, i.e. where capacity to apply justice is unavailable and/or no will exists. In the words of the Rome Treaty Preamble, its aegis ‘shall be complementary to national criminal jurisdictions’, which is defined later on to mean that cases would be inadmissible internationally ‘unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.’

“But the simplicity of the rule as stated belies the complexity of the normative question. Hence, recent illustrations raised by, for example, the referral of the Libya situation and case of Saif Quaddafi shows us that willingness without capacity for a fair trial can result in risking an international imprimatur on sham or show trials; and by contrast in the case of ICC prosecutions relating to Kenya’s post election violence, where capacity exists, without related willingness, in light of regime change, may well require dynamic evaluation of the timing of international judicial intervention. So long as there are no ongoing human rights violations.

“When it comes to global justice, what makes for institutional legitimacy may well be a relative matter, requiring a nuanced analysis in both law and politics.”
Ruti G. Teitel, Ernst C. Stiefel Professor of Comparative Law, New York Law School, Visiting Fellow, London School of Economics, and author of Globalizing Transitional Justice: Contemporary Essays (2014), Humanity’s Law (Hardback 2011; Paperback 2013), and Transitional Justice (Hardback 2000; Paperback 2002)

Oxford University Press is a leading publisher in international law, including the Max Planck Encyclopedia of Public International Law, latest titles from thought leaders in the field, and a wide range of law journals and online products. We publish original works across key areas of study, from humanitarian to international economic to environmental law, developing outstanding resources to support students, scholars, and practitioners worldwide. For the latest news, commentary, and insights follow the International Law team on Twitter @OUPIntLaw.

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25. Hobby Lobby and the First Amendment

By Richard H. Weisberg


The recent Hobby Lobby decision, which ruled that corporations with certain religious beliefs were no longer required to provide insurance that covers contraception for their female employees — as mandated by Obamacare — hinged on a curious piece of legislation from 1993. In a law that was unanimously passed by Congress and signed by President Clinton, the Religious Freedom Restoration Act (RFRA) stated that “Government shall not substantially burden a person’s exercise of religion.” The intention of RFRA was to offer an opportunity for religious people to challenge ordinary laws, state or federal, that had some adverse impact on their faith. The RFRA was a direct response to a case three years earlier, when the Supreme Court decided that laws that applied to everybody were acceptable even if they burdened a religious community. RFRA was Congress’ scream of protest to the Supreme Court’s jurisprudence.

By passing the RFRA in 1993, Congress was trying to steal the Supreme Court’s thunder. It was not fixing physical infrastructures; it was fixing a fellow branch of government. It was not over-ruling what it considered to be a faulty judicial reading of its own statutes; it was changing an interpretation of the Constitution itself. But isn’t the Court, for better or worse, the ultimate authority on the First Amendment? Didn’t the principle of separation of powers prevent the legislative branch from amending, by mere majority vote within its own chambers, the Constitution as understood by the justices at any given time?

Ruth Bader Ginsburg, US Supreme Court Justice. Collection of the Supreme Court of the United States. Photographer: Steve Petteway. Public Domain via Wikimedia Commons.

Indeed, the Supreme Court went on to strike down RFRA in 1997, but only in part. It ruled that the states were not covered by RFRA’s change, but that the federal government was. This provided the opening for the Hobby Lobby decision, where several for-profit closely held corporations sought to defeat a federal regulation about contraception that applied generally to businesses, but offended their own belief systems.

Most discussion of Hobby Lobby, including even Justice Ginsburg’s dissent, has flexibly adapted to the idea that RFRA is constitutional, despite its extraordinary usurpation of judicial power. Her dissent correctly points out that her colleagues in the majority go even further than Congress in permitting religious belief to trump democratically passed legislation. Yes: the majority went much too far in holding that a corporation can “believe” anything or that free exercise rights are violated even when the central beliefs or practices of the religious are not directly implicated; but far worse was its acceptance, without discussion, of Congress’s power grab under RFRA. And the dissents doubled down on that departure from firm and fine traditions we call separation of powers.

Two examples of flexibility, however otherwise opposed, do not add up to the uncompromising defense of our Constitution needed at all times and perhaps especially now. The Supreme Court needed intransigently to re-assert its own power as a separate branch of government. Hobby Lobby’s attempt to veto part of Obamacare that offended its “corporate faith” would and should have been shut down immediately. Our Constitutional system of checks and balances required a clear statement. The Court, on both sides of Hobby Lobby, gave us the ambiguities that muddy the waters when compromise replaces principle.

Richard H. Weisberg, professor of Constitutional Law at Cardozo Law School, is the author of In Praise of Intransigence: The Perils of Flexibility.

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