Friday, February 29, 2008

'Views from the Bridge' and discussion

Dr Natalia Alvarez will screen “Views from the bridge” on Tuesday 4th March from 11 to 12:30 in Taylor A37. Dr Alvarez explains that the film helps one to 'understand the problems that Kosovo might face in the near future. The portrayal it gives of the situation in Kosovo is quite different from that provided by newspapers and the media':

VIEW FROM THE BRIDGE – the first documentary feature about post-war Kosovo. Confused with the earlier Balkan conflicts and overshadowed by Afghanistan and Iraq, Kosovo’s story may hold the most compelling lessons of all.

Following the film, there will be a short discussion about the new status of Kosovo and the question of minority rights.

This meeting is open to all law students, members of staff and research students interested in this topic.

Wednesday, February 20, 2008

Derek Fincham in The New York Times

Our colleague Derek Fincham, a co-founder of this Society, has already captured the imagination of the British media in interviews with BBC radio and BBC television. Now his blog has been quoted in one of the foremost US newspapers, The New York Times. This piece in The New York Times' 'Ideas and Trends' section addresses what Derek describes as the "Dr. No situation" in art thefts. Hearty congratulations are of course in order.

Presidential Politics and the Equality of Nations

It is becoming increasingly likely that the major candidates in the United States general election will be Senator Obama (D) and Senator McCain (R). The two Senators appear to view the status of nations in fundamentally different ways.

Senator McCain supports the establishment of a League of Democracies (Derek analyses the proposal here). McCain's proposal envisions a League of Democracies that will not replace the United Nations, but that could act without its approval. While the idealism of the suggestion cannot be questioned, a League of Democracies hints at the creation of first-class and second-class States, with the former class assuming authority that international law does not afford it to date.

This is in contrast with Senator Obama’s much-debated suggestion that he would meet with foreign leaders whether they are friends or foes of the United States, and whether they are friends or foes of ‘freedom’.

I may be reading too much into this, but the way I see it the two candidates have a fundamentally different views of the equality of nations; the US general elections will have a significant impact on whether international law returns to its traditional notions or departs further therefrom. In Senator McCain’s view, democracies have a superior status and are entitled to act without the approval of other States – a view that is at once pragmatic and idealistic, but that challenges basic notions of international law. I read Obama’s view as one that is not only diplomatically pragmatic, but that also indicates support for the notion that all States are equal.

Tuesday, February 19, 2008

LRS Presentation Tomorrow

Wednesday 20th February, 5pm - Taylor C28 Justin Borg Barthet, 'The Challenge of Online Gambling to European Socio-Economic Governance'

In Schindler the ECJ held that lotteries fall within the meaning of the freedom to provide services for the purposes of the EC Treaty, provided that Member States may derogate from the Treaty in order to protect public order and the interests of consumers. The judgment leaves much room for interpretation regarding the extent to which Member States may erect barriers to online gambling within the EC. In the absence of European legislation to clarify the limits of Member States’ powers, it is submitted that a lack of clarity gives rise to ample grounds for costly litigation. In addition, the law as it stands challenges the notion of shared sovereignty in the EC. Prescriptive jurisdiction is haphazardly distributed among the Member States, rather than being pooled supranationally. Moreover, the rules governing adjudicatory jurisdiction allow ample room for forum shopping. The presentation analyses these issues with reference to the litigation in PMU v Zeturf in which the courts of two EU Member States had to contend with questions of the freedom to provide services, jurisdiction, recognition and enforcement of judgments, and the conflict between the public policies of Member States.

Sunday, February 17, 2008

"Don't Tell Mama, I'm for Obama"

This week’s Economist has an interesting leader in which it discusses the ability of the Democratic Primary frontrunner Barack Obama’s ability to deliver on his promising campaign and impressive surge in popularity. The leader, inter alia, asserts that a black president in the White House is likely to transform America’s image abroad – something that is desperately needed following the Bush tenure. Overall, the Economist notes, probably rightly so, that Obama has, thus far, not faced the same level of scrutiny as have his rivals, which has allowed him to rely on rhetoric and high expectations rather than political substance. Similarly, the economist notes that Obama’s voting record in the Senate is one of the most left leaning ones among Democrats. Although this is likely to appeal to most Europeans, as this would arguably place him firmly in the centre of the political scale over here, one should not get too carried away. It is evident that even a left leaning Democratic President is going to pursue US objectives and interests once installed in the White House. Rightly so. However, where Obama has the potential to lead with a good example is as to what constitute US interests. For example, Obama has already pledged to make diplomatic approaches to Iran and Syria should he be elected. Although this will not solve the Middle East predicament, it is certainly a welcomed change from the Bush administration. Apart from this, a point that might work in Obama’s favour in the race against Hillary Clinton is the fact that for nearly twenty years the US has been governed by either a Bush or a Clinton, which may rouse arguments of a Monarchy of The United States of America. In addition, it remains the situation that Hillary Clinton is (for various as well as obscure and self-contradicting reasons) subject to serious hatred from various quarters of both the right and left of America. This might work in favour of Obama as Democrats, who are vary of loosing out on the presidency to the revived John McCain at a time when it is practically there for the taking, will look to polls indicating that Clinton fares badly in head to head polls against McCain whereas Obama edges ahead. Either way, at least Obama has a great campaign slogan in "Don't Tell Mama, I'm for Obama" while less than a year of Bush’s presidency is left. Let the countdown begin.

Saturday, February 16, 2008

An Independent Kosovo?

Rumours are fierce on the internet that Kosovo is set to declare its independence from Serbia this weekend. Whether Kosovo will formally announce its independence this weekend or not, it is evident that the partition is forthcoming. We have previously on the blog touched upon some of the implications of Kosovo’s independence here and here. The rumours follow announcements by the Prime Minister of Kosovo, Hashim Thaci, vowing to protect Serbian minorities within Kosovo and statements from the Russian Foreign Ministry stating that any declaration of independence from Kosovo would be taken into account in regard to Russia’s relations towards the breakaway parts of Georgia aspiring to be independent themselves. Similarly, a number of European states are reluctant to recognise an independent Kosovo fearing that it will prove a rubberstamp to other regions in Europe seeking independence from nation states. However, it cannot be emphasised strongly enough that the will of the Kosovo Albanians to seek independence should not be turned into a geopolitical back and forth discussion where one state’s independence is used as a trade-off against another. Such matters are far too important to deserve such attention. Although it remains a cliché, it is paramount that such important issues of regional independence are treated on a case to case basis by the international community and not according to predestined arguments of “we did not oppose this so you should not oppose that”.

South African Supreme Court of Appeal Judge in Aberdeen

The LRS has the pleasure to announce that Judge Brand of the Supreme Court of Appeal of South Africa will visit the University of Aberdeen on Friday 02 May. Judge Brand will deliver a talk on the subject of 'South African Contract Law and the Constitution'.

Judge Brand holds a BA, an LL.B and an LL.M. from the University of Stellenbosch, and a Drs Juris from Leiden University. He was a practising advocate for fourteen years, before being appointed a Judge in 1992 and a Judge of appeal in 2001 (see here).

We are thankful to Prof David Carey Miller who made this event possible.

Wednesday, February 13, 2008

More on the Archbishop and Islamic Law

A few days ago I commented on the Archbishop of Canterbury’s proposal to have elements of Islamic law coexisting with the English legal system. I questioned the extent to which it would be possible for English law to recognise some facets of Islamic family law.

An article on sheds further light on the matter. Gilles Cuniberti explains how the Cour de Cassation in France has refused to recognise a number of Algerian and Moroccan divorces. He describes the factual background as follows:

The facts of the cases are almost invariably the same. The couple was of Algerian (or Moroccan) origin. They were sometimes born there, or even had got married there. They then emigrated to France, where they have been living ever since. They sometimes acquired French citizenship.

It seems that it is normally the wife who wants the divorce. She therefore decides to sue, in France. But the husband then travels to Algeria or Morocco and gets an islamic divorce (Talaq) there. He subsequently attempts to rely on the res judicata effect of the Moroccan judgment to stop the French proceedings. This is where the French court has to decide whether the foreign judgment can be recognised in France and thus have a res judicata effect.

The reasons why the wife chooses France, and the husband their country of origin, are quite simple. The wife seeks an allowance for her and the children. A French court would give her much more than an Algerian court. And in any case, under Islamic law, at least as a matter of principle (there are some variations among sunni schools), women may not ask for divorce. This is a right which belongs to men only.

Cuniberti highlights procedural and substantive inequalities between men and women in Islamic law and goes on to explain that French public policy dictates that the Algerian and Moroccan divorces cannot be recognised. He notes that the gender inequality is deemed to breach the European Convention of Human Rights.

Cuniberti’s explanation confirms that the recognition and enforcement in Europe of judgments rendered on the basis of Islamic family law poses insurmountable difficulties. Notwithstanding the Archbishop’s best intentions, the existing barriers to recognition and enforcement in transnational law surely confirm that the proposal that Sharia law should formally coexist with English private law is unworkable from a practical perspective.

Tuesday, February 12, 2008

Justice Scalia on “Self-Righteous” Europe

In today’s Law in Action, on BBC Radio 4, US Supreme Court Justice Antonin Scalia gives a rare interview touching upon a few fascinating legal issues. Justice Scalia is one of the most controversial characters on the US Supreme Court; hailed by conservatives, and abhorred by liberals, for his approach to legal interpretation based on doctrines of originalism and (strict) textualism. This approach is in sharp contrast to the approaches seen in Europe, by for instance the ECJ, where norms of judicial activism are very much alive. Regardless of what one thinks of Justice Scalia he does have some interesting points on the issue of legislation, not just constitutions, being static instruments that do not evolve over time. Similarly, Scalia discusses the use of “smacking on the face” under the “ticking bomb scenario”, which is likely to cause offense. In addition, he has some good points on the appointment of judges in the US, which, he argues, is ultimately not any longer about the lawyerly qualities of a candidate but about politics. However, while discussing the use of the death penalty Scalia argues that the criticism from Europe, levied on its wide use in the US, is self-righteous. Scalia asserts that the death penalty was in use in Europe 30 years ago and that “if Europe had representative democracies that really worked” it would probably still be in place as he claims that opinion polls would show support for it (the death penalty is prohibited through Protocol No. 6 to the European Convention of Human Rights). I am not sure Scalia is correct here (and for the record I strongly oppose the use of the death penalty in all cases). Obviously any outcome of a possible opinion poll would depend on the exact phrasing of the question, and while many people, I think, would be likely to support the death penalty for certain crimes (such as paedophilia), I am not sure that the death penalty would be supported by the people of Europe on a general level. On this point, it is interesting that Scalia claims that the death penalty was outlawed [in Europe] by the “Supreme Court”(!). Hmmm….. Scalia notes that he travels “abroad sometimes” but maybe he ought to swing by the library’s shelves on European law in order to allow himself to be updated on the various judiciaries in place in Europe.

You can listen to the Interview with Justice Scalia here.

Resurrection of the Cartoon Crisis?

Although one hoped that calm would have by now been restored following the publishing of the infamous Muhammad cartoons by the Danish newspaper Jyllands-Posten in September 2005, it now appears that the predicament is far from over. This morning it emerged that Danish police and intelligence services had thwarted a plot to assassin a cartoonists behind one of the cartons depicting the Prophet Muhammad (I won’t post the cartoons here but a simple Google search should provide those who are interested with a chance to see the cartoons for themselves). Danish police arrested, in the early hours of Tuesday, three persons suspected of planning an attack on the Jyllands-Posten cartoonist; one being a Danish citizen of Moroccan descent and two Tunisian citizens. The Danish citizen has since been released but face charges in relation to the Danish penal code’s provisions on terrorism while the two Tunisian citizens are to be instantly deported. Although the news is still emerging, it is laudable that violence against a journalist utilising his right to free speech has been avoided. In the same vein, any plans to meet the expression of such freedoms with violence or threats deserve utmost condemnation and denunciation.

However, this entire discussion raises some more profound questions in relation to freedom of speech and expression and the need to take due care and consideration of other peoples’ faith, feelings and sentiments. In particular in light of the news that at least one other Danish newspaper (Politiken) has announced it will publish the cartoon made by the cartoonist in tomorrow’s edition in support while another newspaper has already done so in its online editorial (Berlingske Tidende). Although the cartoons was, and still are, within the relevant Danish law and clearly do not constitute ‘hate speech’ as developed by the European Court of Human Rights, nor instigation under Danish law, it could be questioned, on a moral level, whether the cartoons were necessary. This was most succinctly pointed out by the former Danish Foreign Minister, Uffe Ellemann Jensen, who, in the aftermath of the publishing of the original cartoons, noted that just because one has a particular right to do something one does not necessarily have to do it. In my opinion, this comment was most notable by its absence in the Danish debate following the publishing, which seemed to focus on, the perhaps more straight foward, issues of rights and lack of appreciation of such rights rather than issues of morality and responsibility. Thus, it appears that the debate and controversy will continue for a considerable period.

The Legal Research Society held a roundtable discussion on the topic in October 2006 and you can find background information on the event and the crisis here. The Danish media have covered today’s story extensively (mostly in Danish) but here are references to the BBC’s coverage as well as the coverage in the NY Times.

Sunday, February 10, 2008

An economic analysis of electoral laws

Malta’s electoral laws divide the tiny State into 13 districts of more or less equal size, each electing five members of Parliament. This means that in order to be elected to Parliament, a candidate must garner a quota of 16% of votes cast in a district, through a single transferable vote system (save for the fifth candidate elected in each district who often does not reach the quota but is elected because every other candidate is eliminated). In practice this also means that a political party must enjoy almost 16% support in an electoral district in order to be represented in Parliament.Proposals to adopt a 5% national quota have been resisted by the two major parties, thus virtually guaranteeing that they will be the only two parties in Parliament in a winner takes all system. This has been the subject of much heated debate on a popular Maltese blog.

The democratic advantages of greater pluralism are intuitive to some, while the advantages of stability engendered in a two-party system are intuitive to others. I will therefore adopt a different approach here and look instead to competition theory.

The forces that drive competition include (i) the existence of a plurality of suppliers, (i) the possibility of access to the market by new actors, and (iii) consumer choice.

On the first count, the political system does not fail completely. There is a plurality of political parties, but only two have the critical mass to make it into Parliament.

The second and third aspects that I identify are inextricable one from the other: Consumers, or voters for the present purposes, are restricted in their choices because they are aware that if they opt for a third party that cannot garner 16% of the vote, they will favour their less favoured major party by omitting to vote for their second preference. In other words, if Party A and Party B are the major parties, a voter who is ambivalent about Party A, but abhors Party B, must vote for Party A, notwithstanding that s/he identifies most strongly with Party C or Party D. The limitation on the demand side obviously limits access to the market by new actors (the second factor that I list above).

Accordingly, if economic theory is applicable, it can be concluded that electoral systems that are skewered in favour of a two-party system limit competition, encourage complacency and therefore drive quality down. They are basically inefficient.

Of course, I concede that there are a number of flaws in this approach, including the fact that there might be perfect competition within the major parties. Yet, there could equally be several barriers to competition within a political party. There are also several other factors to consider that I do not have the time or space to do here; these include the identification of the market: is it the independent voters alone, or should there be a market for ideas within a political ideology? And the list goes on.

Most importantly, there remains one central question: is it pertinent to apply economic analyses to electoral laws, or is this simply academic navel gazing? Can we apply competition theory to a market for ideas?

Whither Self Determination II?

A few days ago, Justin wrote how the governments of Cyprus and Romania would refuse to recognise an independent Kosovo should the international community go ahead and, as planned, support Kosovo’s declaration of independence from Serbia. On Friday, the newly re-elected President of Serbia, Boris Tadic, told participants at a security conference in Munich that the possible partition of Serbia would likely lead to the flaring up of old conflicts. Tadic said “Should Serbia be partitioned against its will... it could in turn result in the escalation of many existing conflicts, the reactivation of a number of frozen conflicts, and the instigation of who knows how many new conflicts”. Although Tadic is attempting to strike a balancing act between securing Serbia’s path towards the European Union, while, at the same time, trying to avoid the breaking up of Serbia, his comments are interesting for a number of reasons. For instance, it is paramount that any violence is avoided in the Balkans – a region already ravaged by war and ethnic hostilities. This needs to be kept in mind although it is evident that the international community will (rightly) support Kosovo in its strive towards independence. Therefore, the establishing of a EU mission in Kosovo, as promised by EU leaders, is much welcomed in this respect. Furthermore, it is clear that Serbia, despite seeing its influence diminish, still plays a role in the stabilisation of the region on a political level. This needs likewise to be kept in mind by the West when supporting Kosovo. Thus, it is important not to alienate Serbia further now that its people has rejected the radical Tomislav Nikolic as president and favoured the more pro-Western Tadic. Of course, more Serbian collaboration in the tracking down of suspected war criminals like Radko Mladic and Radovan Karadzic would be helpful.

Friday, February 08, 2008

Has the Archbishop Gone Bonkers?

I take no credit, and, I hope, no blame, for the title of this post. Yesterday's lecture by the Archbishop of Canterbury titled 'Islam in English Law: Civil and Religious Law in England' has met with a deafening outcry, including newspaper headlines screaming 'Victory for Terrorism' and columnists asking 'Has the Archbishop Gone Bonkers?' The newspapers might leave one with the impression that the Archbishop wants us all to live under Muslim law, including Muslim criminal law. On reading the lecture (available here) one wonders if all the fuss stems from the demonization of Islam, as opposed to the actual content of the lecture.

The Archbishop was in fact making the case for the coexistence of secular and religious legal systems in the civil sphere. While I tend to disagree with the proposition that we should regress to a state in which religion enters the public sphere to a greater extent than by informing societal norms, I must admit that the Archbishop makes a compelling case for normative pluralism:

Societies that are in fact ethnically, culturally and religiously diverse are societies in which identity is formed, as we have noted by different modes and contexts of belonging, ‘multiple affiliation’. The danger is in acting as if the authority that managed the abstract level of equal citizenship represented a sovereign order which then allowed other levels to exist. But if the reality of society is plural – as many political theorists have pointed out – this is a damagingly inadequate account of common life, in which certain kinds of affiliation are marginalised or privatised to the extent that what is produced is a ghettoised pattern of social life, in which particular sorts of interest and of reasoning are tolerated as private matters but never granted legitimacy in public as part of a continuing debate about shared goods and priorities.

It must be emphasised that the suggestion was premised with the caveat that we must be 'prepared to think about the basic ground rules that might organise the relationship between jurisdictions, making sure that we do not collude with unexamined systems that have oppressive effect or allow shared public liberties to be decisively taken away by a supplementary jurisdiction.'

Of course, the proviso is vague at best. It says nothing about the finer details of the effects of choices of Islamic law and Islamic courts. How could the gender inequalities in Islamic family law be accommodated in the English legal system, particularly following the adoption of the Human Rights Act? If Sharia courts are to have jurisdiction that is recognised and enforced by the State, those courts would have to accept some limitations to the precepts of Quranic law - a blasphemous notion.

In sum, while the Archbishop's lecture should create a legitimate discussion as opposed to the predominant sensationalist reporting, I remain quite unconvinced that we should tinker with the status quo.

UPDATE: The Propaganda Box has an excellent piece about this titled 'Has Ruth Gledhill (and everyone else) gone bonkers?' To her credit, Ruth Gledhill links up to The Propaganda Box in her own blog post from which I borrowed this post's title.

Thursday, February 07, 2008

Kenya and historic injustices – ongoing human rights violations and how history won’t go away

More than 1,000 people have been killed and about 300,000 forced from their homes in the Kenyan post-election crisis. The UN Security Council has given its backing for the mediation mission led by the former UN secretary general Kofi Annan. The violence in Kenya has eased slightly but the conflict is far from being resolved.

In a recently published article the founder of the US Coalition for Peace with Truth and Justice in Kenya, John Barbieri refutes three “myths and misrepresentations” pervading the media coverage on the Kenya crisis which shall be synthesized here: Firstly, the conflict is not “ethnic” or “tribal”. It is rather a conflict between the rich and the poor and as such of political nature (with an ethnic element). Elites on both sides ruthlessly stir up violence. Labelling the conflict as “tribal” is racist, antiquated and inaccurate. Secondly, the current crisis is not a “shock”. It is often falsely presented as coming out of the blue as Kenya was supposed to be a beacon of stability, democracy and economic growth in Africa (for whom? At what price?). The developments are directly connected to the inability of the Kenyan government to come to terms with the brutal legacy and power distributions inherited from British rule. Similarly the Harvard history professor Caroline Elkins argued in a BBC interview recently that the seeds for clashes have been sown under British colonialism. In the same line today’s Guardian g2 supplement deplores a historic wrong – the eviction and dispossession of large parts of Kenyans from their fertile land – that was never put right. Those who conceive of the crisis as a shock are either blatantly ignorant, dishonest or practice mere wishful thinking to be so naïve. Finally, we must not forget that Western countries have huge military and economic interests and ties with Kenya. This refers to the so-called ‘war on terror’ (the Kibaki administration has allowed and worked closely with the U.S. on supposed ‘terrorist’ raids against Muslims in the country and was an ally in U.S.-supported invasion of Somalia by Ethiopian forces to overthrow the Union of Islamic Courts (UIC) in southern Somalia one year ago) and vested American, UK and other European business interests in Kenya as well, who likely did not care for Odinga’s ‘social democratic’ platform which was posing the threat of more taxes and redistributive wealth. To be fair, realizing that its incredulous immediate congratulations on Kibaki’s ‘victory’ after the elections results were announced were a mistake the State Department quickly moved to retract this congratulatory statement, and then issued a statement calling an end to the violence and for the situation to be resolved through ‘constitutional and legal remedies.’ However, argues Barbieri, it is quite clear that these ‘remedies’ are blatantly weighted in the incumbent’s favour and thus will merely support the status quo: Kibaki and corruption.,,2253507,00.html


Paula Herm
of Law
Doctoral candidate

Wednesday, February 06, 2008

CASS Conference 2008: Call for Papers

The Law Section of the Organising Committee of College of Arts & Social Sciences Postgraduate Conference, at the University of Aberdeen, Scotland invites graduate students undertaking legal research to submit abstracts for consideration. The Conference will take place over two days (11-12 June) in the beautiful surroundings of King's College, University of Aberdeen, Scotland.

Please click here for further information.

Tuesday, February 05, 2008

February/March Programme (Updated)

The following is the Society's programme for the coming weeks:

Wednesday 13th February, 5pm - Taylor C11
'Minority Report' and Discussion
(moderated by Alessia Vacca and Ahmed Hassanein)
Please click here for further information.

Wednesday 20th February, 5pm - Taylor C28
Justin Borg Barthet, 'The Challenge of Online Gambling to European Socio-Economic Governance'
In Schindler the ECJ held that lotteries fall within the meaning of the freedom to provide services for the purposes of the EC Treaty, provided that Member States may derogate from the Treaty in order to protect public order and the interests of consumers. The judgment leaves much room for interpretation regarding the extent to which Member States may erect barriers to online gambling within the EC. In the absence of European legislation to clarify the limits of Member States’ powers, it is submitted that a lack of clarity gives rise to ample grounds for costly litigation.
In addition, the law as it stands challenges the notion of shared sovereignty in the EC. Prescriptive jurisdiction is haphazardly distributed among the Member States, rather than being pooled supranationally. Moreover, the rules governing adjudicatory jurisdiction allow ample room for forum shopping. The presentation analyses these issues with reference to the litigation in PMU v Zeturf in which the courts of two EU Member States had to contend with questions of the freedom to provide services, jurisdiction, recognition and enforcement of judgments, and the conflict between the public policies of Member States.

Wednesday 12th March, 5pm - Taylor C16
Brigit Toebes, 'Sex Selection Under International Human Rights Law'
Sex selection, or influencing whether to have a boy or a girl, embraces sex selection before and during pregnancy, as well as infanticide. In my presentation I will discuss the issue of sex selection from an international human rights perspective. I will address the question of whether human rights laws are permissive or prohibitive with regard to sex selection. In relation to this I will discuss some of the ethical views on the matter. India and the UK are used as case studies to illustrate the debate. In both countries sex selection is -roughly speaking- prohibited, but the difference is that, while in India there is widespread practice of ‘son preference’, in the UK reasons for choosing to sex select are mostly because of ‘family balancing’.

The key question is whether choosing the sex of one’s child is inherent in the right of reproductive choice, an important principle under international human rights law. I will suggest that international human rights law does not recognise a right to ‘sex selection’. I will point out that international human rights law is generally geared towards prohibiting sex selection based on the assumption that it enhances discrimination of women. On this basis I will put forward the view that a right to choose the sex of one’s child is not an element of women’s ‘right of reproductive choice’, which stipulates a right to choose the number and spacing of one’s children, not the sex.

Based on these findings I will argue that international human rights law provides strong legal and moral grounds for prohibiting sex selection, in particular in countries like India where there is extensive practice of sex selection. In countries like the UK, where the current main reason to sex select is for ‘family balancing’, the basis for prohibition under international human rights law is not as strong, yet several reasons can be put forward to nonetheless prohibit the practice.

Essay Competition in Private International Law is running an essay competition for students of private international law. The first prize is $500 plus $300 worth of books. The best essays will also be considered for publication in the Journal of Private International Law. Further information can be found here.

Monday, February 04, 2008

'Minority Report' and Discussion

We will screen 'Minority Report' on Wednesday 13th February, 5pm in Taylor C11.

In the future, criminals are caught before the crimes they commit, but one of the officers in the special unit is accused of one such crime and sets out to prove his innocence.

Is this such a far-fetched proposition? Following the movie, Alessia Vacca and Ahmed Hassanein will moderate a brief discussion about the contemporary erosion of fundamental criminal law notions such as the requirement of both a mens rea and an actus reus for the commission of a crime.

Relativity of Rights and Revolutions

All too often we talk about the inviolability and near absoluteness of human rights, the universality of shared principles that stem from basic human dignity. But consider the following. Hereunder Alavi Tabar, a reformist Iranian writer who often bumped heads with the conservative old guard, discusses some achievements of the Revolution that he sought to reform:

'Before the Revolution, you had traditional towns where parents wouldn't allow their daughters to go to school; they didn't want them being taught by men, in places where there was no hejab.' He was referring to the Islamic head covering for women, which Khomeini had eventually succeeded in making compulsory. 'After the Revolution, they brought in the hejab, and women teachers, and suddenly all these traditional families started sending their children - with great enthusiasm - to school.

...Those who say the Revolution rejected modernity are quite wrong. Before the Revolution, modernity was an exotic foreign tree, whose fruit we were importing. Some of it tasted good and some not so good, but the essential fact remained; we knew nothing about the tree, just the fruit...What you have now, after the Revolution, is a movement towards a kind of modernity that's not imposed by someone else, but something that comes up of itself. It's stronger, more authentic.'

C de Bellaigue, In the Rose Garden of the Martyrs. A memoir of Iran (HarperCollins, UK 2004) 68-69

Sunday, February 03, 2008

Pakistan, Bangladesh and a Territorially Viable Palestinian State

'The electrified barrier is highly effective. It has made it virtually impossible to escape Gaza, and the result is a sense of imprisonment and suffocation. There are 3,766 people to every square kilometer in the territory. The towns, camps, and houses are hideously overpopulated. To escape the watching eyes of one's family and the pressure of the community at large requires almost superhuman ingenuity. People in Gaza live without windows on the outside. The only crumbs of comfort come from encounter with foreigners passing through - or from dreams peddled by Israeli TV or the satellite channels. The people speak of Gaza as a "rabbit hutch" or a "life-size jail." Most Gazans under twenty have never known anything other than the place where they were born. A test carried out on children and young people from the ages of ten to twenty-four has shown that three out of four people think that the map of Gaza is the map of Palestine. The inability to picture the national space is an example of how a generation, and indeed a whole society, trapped in a given territory can have its imagination literally amputated by the experience.' (L Bucaille, Growing up Palestinian (Princeton University Press, USA 2004) 87)

In this context, will a Palestinian State suffer the same fate as Pakistan/Bangladesh? Yossi Alpher, a former senior adviser to Ehud Barak, seems to think so. He argues that "In view of today's demographic situation, we clearly do require the emergence of a territorially viable and stable Palestinian state, if only to enable Israel to survive as a Jewish and a democratic state." The alternative would be a fragmented Palestinian State that is a threat to regional stability - a threat to Israel itself. I do not know of any international law basis that would require a territorially viable Palestinian State, but there is ample historical precedent to show that pragmatism requires the pressures of the Gaza strip to be relieved through free movement between Gaza and the West Bank. Yet it is arguable that the fate of Palestine has already been sealed by virtue of the division of power between Fatah and Hamas in the two territories, as well as decades of separate experience - the emergence of separate identities.

Friday, February 01, 2008

Whither self determination?

The governments of Cyprus and Romania have stated that they will not recognise the expected unilateral declaration of Kosovo’s independence (see report here). Romania has gone so far as to state that it “will not be able to recognise an independence proclamation by Kosovo on any level (...) whether coordinated or unilaterally proclaimed".

The Romanian president is reported to have expressed that this would send the wrong message to countries that face ethnic conflicts. Admittedly, the Romanian president raises an important point about the dismemberment of ethnically diverse States. There certainly is a principled argument for States to respect Serbia’s territorial integrity and cultural connection to Kosovo.

Yet this conundrum must be resolved with reference to the sovereign will of the people of Kosovo, particularly when one considers the long list of aggravations that Kosovo has suffered at the hands of rule from Belgrade. In the light of recent history, is it not more tenable to argue that the principle of self determination should lead States to support the province’s right to self determination?