Inspiring Action in these Challenging Times

The Global Justice Academy (GJA) and Edinburgh Law School welcomed over 200 human rights academics and practitioners to the University of Edinburgh for the 2018 Association of Human Rights Institutes  (AHRI) Annual Conference on the 6-8 September 2018. The GJA holds the current Secretariat of AHRI in conjunction with the Centre for the Study of Human Rights Law (CSHRL) at the University of Strathclyde. In this post, AHRI Chair and GJA Management Group member, Dr Kasey McCall-Smith, reflects on the three days.

The theme of this year’s conference was ‘Renewing Rights in Times of Transition: 70 Years of the Universal Declaration of Human Rights’. The conference began with Works in Progress sessions on 6 September followed by the launch of the Political Settlements Research Programme’s PA-X Peace Agreements database (PA-X). Professor Christine Bell delivered a public lecture entitled The Inclusion Project: Human Rights Dilemmas in the Negotiation of Peace Agreements, with a response from the UN’s Ian Martin, entitled A UN ‘Surge in Diplomacy’ in a World in Transition

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Reflections from the Tenth Aniversary Edition of the Edinburgh Legal Theory Festival: Workshop on Virtue Ethics, Markets, and the Law

The Global Justice Academy recently sponsored one of the workshops at the 10th Anniversary Edition of the Edinburgh Legal Theory Festival. In this blog post, the co-convenors of the Edinburgh Legal Theory Research Group—Richard Latta and Joaquín Reyes—report on the issues raised during the workshop.

The workshop on ‘Virtue ethics, Markets, and the Law’—held on Tuesday 5thJune, the second day of the week-long Edinburgh Legal Theory Festival (4th-8thJune)—was devoted, as its name suggests, to explore the implications of a virtue-centred approach to legal theory for a wide-ranging variety of related topics, including the relationships between power, virtue and the constitutional state (Dominic Burbidge), algorithmic governance (René Urueña), the Rule of law and the law of equity (Irit Samet), intent to contract and trust (Prince Saprai), and the future of virtue jurisprudence (Chapin Cimino). All sessions were followed by a lively discussion in which the participants had the opportunity to give and receive important feedback on their ongoing research projects.

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Incarceration in Scotland: a system with positive evolutions in need of a generalisation of its good practices

In this guest post, Coline Constantin reflects on the recent seminar that tackled issues around incarceration in Scotland. Coline is reading for an LLM in Human Rights at Edinburgh Law School, and applied for funding for this event from the Global Justice and Global Development Academies’ Innovative Initiative Fund.

Scotland has the second highest imprisonment rate in Europe. Although English headlines for issues of overcrowding, under staffing, rising rates of self-harming cases do not find an echo north of the border, the statistic still makes it worth taking a closer look at its system. On Thursday 26 April, an engaged audience gathered at the University of Edinburgh to hear more about the positive developments and challenges of the Scottish system of detention.

Three panellists from different fields of expertise and different view angles on the Scottish situation were invited to cover topics from policy-making, to the implementation and analysis of these policies. Professor Richard Sparks, Convenor of Howard League Scotland and criminologist specialised on the different systems of detention in the UK, took us through his analysis of the particularities of the Scottish case within the UK and European context. Tom Halpin, Chief Executive of Sacro and prominent figure in the reduction of inequalities in the Scottish criminal justice system, gave us a sense of the work that is being done with communities and specific groups of people with convictions to go towards better mentoring and guidance throughout the process. Pete White, Chief Executive of Positive Prisons? Positive Future and fascinating storyteller, treated the audience with a story of his personal experience from his time inside and the aftermath of this life-changing event.

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The Shadows of Torture: Reporting from Guantánamo

This series of blogs presents a number of the legal issues raised at the April – May 2018 military commission proceedings against the alleged plotters of the 11 September 2001 (9/11) terror attacks against the US in the case of US v. Khalid Shaikh Mohammad, et. al. taking place at Camp Justice, Guantánamo Bay Naval Station, Cuba.

The author, Dr Kasey McCall-Smith, is conducting a research project entitled Torture on Trial, which is funded by the Royal Society of Edinburgh.

1. The Shadows of Torture

When people speak about torture and the war on terror, the most egregious and publicly decried acts generally pop to mind: waterboarding, walling, sleep deprivation, and so on. As the military commission proceedings in case of US v. Khalid Shaikh Mohammad, et. al. (KSM case) unfold, less examined examples aspects of torture reveal the irreversible physical and mental impacts on victims of such abuse.

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Recent Discussions in Legal Theory at the Edinburgh Legal Theory Research Group

In this post, the Co-Convenors of the Edinburgh Legal Theory Research Group for 2017-18, Richard Latta and Joaquin Reyes, report on their recent Winter/Spring seminar series and the topics discussed.

The Edinburgh Legal Theory Research Group is very grateful for the support of the Global Justice Academy for the Edinburgh Legal Theory Research Group’s Seminar Series of Spring 2018. This semester we hosted speakers from all over the world to discuss issues in legal theory and beyond legal theory. Continue reading

Personality and Procedure: Judges and UNCLOS adjudication

In his first post as GJA Student Ambassador, Connor Hounslow reports from the 2017 Scottish Centre for International Law‘s Annual Lecture. This year’s lecture was delivered by Natalie Klein, Professor and Dean of Macquarie Law School.

 

Last Tuesday, Professor Klein delivered the Scottish Center for International Law Annual lecture on the role of the judge in developing international law, especially within the context of the Law of the Sea. As described by Professor Klein, her body of research on this topic represents a microcosm of the international legal system. Nonetheless, Professor Klein’s explorations in this lecture posited an understanding of the judge which applies to the broader international legal universe.

Natalie Klein, Professor and Dean of Macquarie Law School, giving the Scottish Center for International Law Annual Lecture on ‘The Role of Judges in Developing the Law of the Sea’.

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Reflections from the Edinburgh Legal Theory Group Past Convenors’ Colloquium

The Global Justice Academy recently sponsored the Edinburgh Legal Theory Group Past Convenors’ Colloquium in collaboration with the Edinburgh Legal Theory Research Group. In this blog post, Paul Burgess – a third year PhD candidate in the Edinburgh Law School and Co-Convenor of the Edinburgh Legal Theory Research Group – reports on the issues raised.

 

The Colloquium was well attended by staff and students from across The University of Edinburgh. This included several new PhD candidates who had only arrived in the university for the first time that week. Some participants and presenters had travelled from other parts of the world.

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Specifying and Securing a Social Minimum

Dr Dimitrios Kagiaros (Edinburgh Law School) reports on a recent workshop, ‘Specifying and Securing a Social Minimum’, held at the International Institute for the Sociology of Law in Oñati, Spain with support from the Global Justice Academy.

Organised by Professors Mike Adler (University of Edinburgh), Sara Stendahl (University of Gothenburg) and Jeff King (UCL), the purpose of the workshop was to bring together international experts from a variety of research backgrounds to discuss the theme of ‘Specifying and Securing a Social Minimum’. The overarching issue that was examined related to the difficulties in determining how poor and vulnerable people can achieve basic minimum standards of nutrition, health care, housing, income, employment and education.

Drawing from a variety of disciplines, including legal theory, human rights law, constitutional and administrative law and social policy, the invited academic speakers were asked to submit research papers illustrating recent developments and new challenges in this field. The workshop followed a particularly innovative approach in generating discussion. Commentators were assigned to each paper and were responsible for presenting its content while also acting as discussants, providing feedback and identifying points for further discussion. This facilitated in-depth consideration of each paper and multiple opportunities for exchange of ideas across disciplines.

The conference theme generated debate on two controversial issues. Firstly, the workshop addressed different approaches and obstacles to defining a social minimum. This included discussion on the concept of poverty, the legal position of social assistance recipients, the concepts of social rights and social responsibilities, and the relationship between resources and the concept of a ‘minimally decent life’.
Secondly, the workshop aimed to bring further clarity to the thorny issue of how such a minimum can be achieved. More specifically, participants critically assessed the contribution of national policies, international conventions, targets and development goals, bills of rights or other forms of constitutional protection to securing this social minimum. Special emphasis was placed on the role of courts. Participants presented judicial approaches to securing a social minimum from India, South Africa, Brazil, and at the international level, the UN Committee on Economic, Social and Cultural Rights and the European Court of Human Rights.

Dr Kagiaros’ paper focused on the role of the European Court of Human Rights in this debate. The paper relied on recent admissibility decisions where applicants unsuccessfully challenged austerity measures adopted to give effect to conditionality agreements in states in the midst of a debt crisis. While ultimately the applications failed at the admissibility stage, the Court in obiter statements alluded to the possibility that a wholly insufficient amount of pensions and other benefits would, in principle, violate the Convention. The paper explored these statements in detail to decipher whether in fact the Court would be willing to set a social minimum standard of protection. The paper argued, that although a duty not to target specific individuals with harsh austerity measures while leaving others unaffected has been read into the ECHR, it is unlikely that with this statement on insufficiency of benefits the Court intends to create a social minimum.

Overall, this was a particularly enriching experience for all involved and hopefully more similar opportunities will arise to discuss these issues in even greater depth.

More about the author:

Dr. Dimitrios Kagiaros is a Teaching Fellow in Public Law and Human Rights at the University of Edinburgh and a member of the Edinburgh Centre for Constitutional Law. He has taught on constitutional law, administrative law and human rights law courses at the University of Edinburgh and the University of Hull. His research interests include whistle-blower protection, the impact of European sovereign debt crisis on human rights and the case law of the European Court of Human Rights in relation to freedom of expression.

 

 

The United Nations Treaty on the Prohibition of Nuclear Weapons

Dagmar Topf Aguiar de Medeiros is reading for a PhD in Law at the University of Edinburgh, and is an intern at UN House Scotland. As a member of a delegation from Scottish civil society, she recently attended negotiations in New York on the Treaty on the Prohibition of Nuclear Weapons, which was adopted 7 July 2017, at the United Nations.

The United Nations has aimed to ban nuclear weapons since it was established in 1945.[1] In fact, the very first UN General Assembly resolution established a Commission to set in motion measures towards nuclear disarmament.[2] Until recently, the most important instrument to this end was the Treaty on the Non-Proliferation of Nuclear Weapons (NPT).[3] Recent years have seen growing discontent with the discriminatory nature of the NPT, which distinguishes between nuclear weapon states and non-nuclear weapon states. Additionally, the NPT faces criticism with regard to the stagnation of nuclear disarmament. Although the treaty includes an obligation to work towards nuclear disarmament, Article 6 has not, as of late, provided sufficient incentive for nuclear weapon states to act.

With an aim to finally move forwards, in October 2016 the UN disarmament and international security committee saw 123 nations voting in favour of meeting to negotiate a legally binding instrument to prohibit nuclear weapons, leading to their total elimination. These negotiations have taken place throughout spring and summer 2017 and have culminated in the adoption of the Treaty on the Prohibition of Nuclear Weapons on the 7th July this year.

The treaty prohibits member states from developing, testing, producing, manufacturing, transferring, possessing, stockpiling, using or threatening to use nuclear weapons, and disallows them from assisting, encouraging or inducing anyone to participate in such activities. Furthermore, it has become forbidden to allow nuclear weapons to be stationed or deployed on member states’ territory. Of equal importance are the positive obligations in the treaty to provide adequate victim assistance and to take measures towards the remediation of environments contaminated as a result of the use or testing of nuclear weapons. Although not explicitly mentioned, there is a growing understanding that financing constitutes ‘assistance’ with prohibited acts.

The text and preamble of the ban treaty reflect the efforts of civil society by emphasising the humanitarian and environmental impact of any nuclear detonation, be it accidental or intentional. The humanitarian initiative proved successful in shifting the debate out of the security argument stalemate states had become entrenched in. At the negotiations, civil society had the opportunity to share the experiences of victims of nuclear weapons and nuclear testing, and to highlight the devastating impact of any detonation and the lack of adequate emergency-response capacity.

By placing human welfare and safety at the centre of the treaty, it is hoped that the ban treaty will have a ripple effect similar to that of the Conventions prohibiting Biological and Chemical weapons. Therefore, even though none of the nuclear weapons states have expressed any interest in joining the negotiations or the treaty, it is hoped the legal norm combined with continued pressure from civil society will eventually convince governments to discontinue nuclear deterrence policies.

The ban treaty is of particular interest to Scotland because of the country’s unique position of having to facilitate nuclear weapons without having any say in the decisions involving them. This is because nuclear weapons are considered a matter of national security and as such fall outside the scope of Scotland’s devolved powers.

[1] https://www.un.org/disarmament/wmd/nuclear/ (last visited 9 July 2017).

[2] General Assembly Resolution VIII, Establishment of a commission to deal with the problem raised by the discovery of atomic energy (24 January 1946), available from http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/1(I) (last visited 9 July 2017).

[3] Treaty on the Non-Proliferation of Nuclear Weapons (5 March 1970) 729 U.N.T.S. 161.

If you are interested in reading more about the negotiations on the ban treaty, including daily reports from the Scottish civil society delegation to New York, visit http://www.nuclearban.scot/ and http://www.icanw.org/

If you want to find out more about civil society engagement surrounding nuclear disarmament, please visit:

http://www.banthebomb.org/

http://www.nukewatch.org.uk/

http://www.article36.org/

If you’re interested in reading twitter updates, the handle to follow is #nuclearban

More about the author:

Dagmar Topf Aguiar de Medeiros is reading for a PhD in Law at the University of Edinburgh. She holds an LLM in Private Law from the University of Leiden and an LLB from the Utrecht Law College of Utrecht University in the Netherlands. Dagmar’s research interests span public international law, specifically environmental law, climate change law and human rights. Her current research relates to the international constitutionalism in the context of the United Nations Framework Convention on Climate Change.

Sexual Intimacy, Gender Identity & Fraud: A Conversation

This blog post was written by Heather Milligan, Communications Intern for the Global Justice Academy. The blog reports on a recent seminar event hosted by the Centre for Law and Society at The University of Edinburgh and led by Professor Alex Sharpe of Keele University on sexual intimacy, gender identity and fraud. 

The Centre for Law and Society at the University of Edinburgh recently hosted a presentation and seminar discussion on sexual intimacy, gender identity and fraud. Participants from a range of interdisciplinary backgrounds compared legal, cultural and ethical standpoints to debate convictions of gender identity fraud: either as demonstrating respect for the sexual autonomy of female complainants, or as a concerning example of criminal law overreach. The discussion was framed and contextualised by a series of sexual offence prosecutions brought against young gender non-conforming people (designated female at birth) in recent years in the United Kingdom on the basis of gender identity fraud, all of whom were convicted and placed on the Sex Offenders Register. Professor Alex Sharpe (Keele University) introduced the topic with a brief film clip from the 1992 film ‘The Crying Game’ in order to illustrate the type of intimate encounter between cisgender and transgender individuals that has led to such convictions. The film also served to demonstrate the complainants’ typical responses to cis-trans intimacy, in which the defendant’s gender history is (apparently) not disclosed and this non-disclosure is later perceived as deceptive and harmful.

Professor Sharpe put forward a persuasive argument for bringing an end to the criminalisation and prosecution of these cases, advocating greater individual responsibility for sexual intimacy while remaining sensitive to the difficulties involved in questioning the statements of rape complainants. Her initial presentation was structured around three key philosophical and criminal law concepts: consent, harm and deception. Firstly, the point was made that claims of non-consent in the discussed cases relied heavily on a ‘right to know’ ideology, in which complainants foregrounded an entitlement to the defendants’ gender history, simultaneously dismissing and overruling the defendants’ rights to privacy and dignity. The seminar group discussed the idea that this apparent right to know is often conflated with a desire to define transmen as women against their will: an act of degradation. The discussion prompted resonant legal and ethical questions: should there be an obligation to disclose information prior to intimacy, or should our ethical response be to scrutinise the cisgender demand to know? With implications for sexual offences more broadly, for consent to be informed, how transparent must sexual partners be, and at what cost?

Other examples of desire-led intimacy were put forward to suggest that individuals may wish to know many facts about their sexual partners – for example age, income, drug use, criminal conviction – yet the omission of this information would never lead to prosecution. The specific targeting of gender history is an issue of inconsistency further indicative of the discriminatory effects of civil society and criminal law. These cases seemed motivated by the underlying transphobic (and homophobic) assumptions that no cisgender person would, with full disclosure of their gender history, willingly have intimate relations with a transgender person. This led to interesting audience reflection that complainants often only come forward when encouraged to do so by family or community members, and that the pressure of homophobic society, the fear of being identified as a lesbian by others and internal crises of identity and sexuality, may have motivated the complaints. The societal presumption that any non-cis non-heterosexual intimacy is inherently harmful was identified as an aggressive amplifier in these cases.

 
Finally, a distinction between acts of omission and acts of deception was drawn. It was argued that in cases of gender history and identity disclosure, most often these were instances of ‘not saying’ rather than active or intentional deception, and that these entailed a variety of valid justifications – not least the physical and psychological risk involved in acts of disclosure. Professor Sharpe invited the audience to understand these cases as a balancing of potential harms, weighing the complainants’ feelings of betrayal and distress (potentially a response conditioned by transphobic and homophobic anxieties) against the defenders’ risk of degradation and abuse. Opening up questions and discussion to the audience encouraged a lively discussion on related issues such as the ethics of sexual preference and the reproduction of power dynamics; the (positive) ambiguity of desire; what acts can really be said to constitute disclosure; and, ultimately, whether pleasurable acts retrospectively re-imagined can truly be labelled as harmful.

This event was presented by Law Reform and Social Justice, and The Centre for Law, Arts and Humanities and the Gender Institute.