Fiona de Londras

Privatized Sovereign Performance: Regulating in the Gap between Security and Rights?

This article explores what I term privatized sovereign performance: the private operationalization of functions that are intimately connected with the sovereign identity of the state. It is considered in the context of corporate involvement in extraordinary rendition in order to outline the rights-related difficulties it creates or exacerbates, and explore the ways in which transnational private regulatory mechanisms have a role to play in crafting a rights-based response. It argues that the public is saturated in rights-based regulation which pushes a state that wants to conceal its torturous activity into the private; that the conventional private regulatory mechanism of litigation faces significant obstacles and is ineffective in this circumstance; and that transnational private regulation holds potential to align the structural and legal obstructions to torture between the public and private sphere, thus making the escape hatch from rights seemingly presented by the privatization of sovereign performance more difficult to access.

Can Counter-Terrorist Internment Ever be Legitimate?

Counter-terrorist internment is generally rejected as illegitimate from a human rights perspective. However, while the practice of counter-terrorist internment has long resulted in the infringement of human rights, this article argues that the concept of internment holds some potential for legitimacy. This potential can only be realized if four legitimacy factors are fully embraced and complied with: public justificatory deliberation, non-discrimination, meaningful review, and effective temporal limitation. Outlining these factors, this article imagines a system of internment that is legitimate from a human rights perspective and can serve both real and pressing security needs, and rights-based legitimacy needs.

Dualism, Domestic Courts, and the Rule of International Law

The continuing development of an international community within which states generate and bind themselves to legal rules and standards is designed not only to achieve international peace and security—as expressed in the Charter of the United Nations1—but also in order to create a community of states within which each state is limited by external legal norms and not merely by its own will or political, financial and military resources. In other words, one of the products of the creation of a relatively formalised international community has been the creation of an international legal community of states within which an international rule of law continues to develop. This chapter is not concerned with that international rule of law as it operates on the international legal level; rather it is concerned with the mechanisms by which the rule of international law may be brought about. In other words, it is concerned with ways in which the international rule of law, including international legal norms, might be enforced by means of domestic legal processes thus resulting in a rule of international law.

MISSION IMPOSSIBLE? ADDRESSING NON-EXECUTION THROUGH INFRINGEMENT PROCEEDINGS IN THE EUROPEAN COURT OF HUMAN RIGHTS

Non-execution of the judgments of the European Court of Human Rights is a matter of serious concern. In order to address it, the reasons for and dynamics of non-execution need to be fully considered. This paper engages with non-execution by sketching the underpinning issues that help to explain it and, we argue, must shape our responses to it. Through this engagement, we conclude that non-execution is properly understood as a phenomenon that requires political rather than legal responses. This calls into question the usefulness of the infringement proceedings contained in Article 46(4) of the Convention and which it has recently been suggested ought to be embraced in attempts to address non-execution. We argue that, even if the practical difficulties of triggering Article 46(4) proceedings could somehow be overcome, the dynamics of non-execution suggest that such proceedings would be both futile and counterproductive, likely to lead to backlash against the Court and unlikely to improve States’ execution of its judgments.

Fatal Foetal Abnormality, Irish Constitutional Law, and Mellet v Ireland

Under the Irish Constitution abortion is allowed only where the life of the pregnant woman is at risk. The provision in question, Article 40.3.3 (or the 8th Amendment) has long been criticised for failing to respect womens autonomy, and in Mellet v Ireland, the UN Human Rights Committee found that Amanda Jane Mellet, who travelled to Liverpool to access abortion following a finding that her foetus suffered a fatal abnormality, had suffered a violation of her rights under the International Covenant on Civil and Political Rights (ICCPR). In this commentary I demonstrate the value of Mellet when compared to the possible legal findings in such circumstances under both the Constitution and the European Convention on Human Rights, and argue that the findings are not restricted to cases of fatal foetal abnormality. Rather, the Committees decision illustrates the suffering that all women in Ireland who travel to access abortion experience, arguably constituting a violation of their right to be free from cruel, inhuman, and degrading treatment. On that reading, Mellet signifies the need to implement a comprehensive rethink of Irish abortion law including, but going beyond, access to abortion in cases of fatal foetal abnormality.

Counter-Terrorist Detention and International Human Rights Law

In this chapter forthcoming in Ben Saul (ed), Research Handbook on International Law and Terrorism, I consider the compatibility of counter-terrorist detention with international human rights law from the starting point that what is protected in international law is not a right to be free from detention per se but rather a right to be free from the arbitrary deprivation of one’s liberty. This is clearly rooted in international human rights law, which is the main focus of this chapter (acknowledging that it interacts with international humanitarian law in situations of armed conflict). The chapter demonstrates that counter-terrorist detention can be compatible with the standards of international human rights law as they have been interpreted and applied in the past decade, but that in the process of such interpretation and application those standards have at times been diluted to a worrying extent.