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Legal Pluralism – A Primer
A number of my previous blog postings made extensive reference to the buzzword “legal pluralism” which one finds abound in contemporary legal literature. Instances of legal pluralism can be found in the recent debate on faith-based arbitration in Ontario, in the Beth Din courts of New York, and in the family law structure of the Philippines.[1] A discussion on the very term “legal pluralism” is important so that its underlying assumptions can be uncovered and scrutinized rather than passing the relevant discussion unnoticed.
I. Defining Legal Pluralism
At its core, the concept of legal pluralism serves two purposes. The first purpose is to discredit the doctrine of legal centralism. Griffith’s seminal paper on legal pluralism defined the ideology of legal centralism as a claim that “law is and should be the law of the state, uniform for all persons, exclusive of all other law, and administered by a single set of state institutions”.[2] The state thus holds a monopoly over the administration of law, and is the sole source of legitimizing authority as to what constitutes “law”. Legal centralism follows a liberal conception where “state institutions operate according to strict principles of equality and neutrality”,[3] based on the assumption that state law is logically coherent.[4] According to legal pluralists, legal centralism is conceptually parasitic to the development of descriptive theories of the law, since it establishes an a priori notion of the desirable state of affairs.[5] As its second…
BY Philip Duguay
FILED UNDER
Human Rights
Immigration and Refugee Law
Public International Law
The Securitization of Immigration and Refugee Law in the United Kingdom
In describing governance trends in the United Kingdom today, Ian Loader contends that certain issues or “threats” are taken out of the realm of democratic politics and “securitized” by government.[1] Refugee and asylum law in particular, is an issue that has been increasingly securitized over the past decade since the ‘9-11’ attacks in the US in 2001 and the ‘7-7’ attacks in the UK in 2005. Evidence of this trend can be detected from the analysis of a recent press statement from the British Home Office:
Asylum applications for the last three months of 2009 were the lowest since the early 1990s. Net migration is down, and the new UK Border Agency is increasingly successful… We are making the UK a more hostile place for illegal immigrants by issuing foreign nationals with ID cards, checking those who apply for visas against watch lists and fining those who employ illegal workers.[2]
There is nothing inherently wrong with a dip in asylum applications occurring within the UK. In fact, the decreasing amount of refugees in the UK probably does correlate with a global downturn in the total number of refugees.[3] Yet, it is strange that this press statement focuses on this dip in correlation to the UK Border Agency’s (UKBA) attempt to create a more “hostile” atmosphere for those seeking to migrate to the UK. The UKBA publishes accounts of its agents cracking down on illegal…
Les assassinats ciblés au regard du droit international: légaux ou pas?
Depuis que les États-Unis ont déclaré leur « guerre contre la terreur » suite aux événements du 11 septembre 2001, de multiples attaques ciblant spécifiquement une personne ou un groupe ont été exécutées sur le territoire d’un État étranger. Notamment en ce qui concerne le conflit israélo-palestinien, au cours duquel la Force israélienne de défense a rendu publics ses agissements, n’hésitant pas à organiser l’assassinat de dirigeants de groupes de l’opposition palestinienne présumés avoir commis des actes terroristes. Les assassinats ciblés forment donc un problème préoccupant sur le plan juridique à une époque où les techniques et stratégies de guerre ne cessent d’évoluer.
Nils Melzer, conseiller juridique au Comité international de la Croix-Rouge et auteur du livre Targeted Killing in International Law, définit un assassinat ciblé comme l’utilisation d’une force létale par un sujet de droit international et dirigée à l’encontre d’une personne individuellement sélectionnée n’étant pas détenue. Cette force doit être intentionnelle (plutôt que négligente ou insouciante), préméditée (plutôt que simplement volontaire) et délibérée (dans le sens que la mort de la personne ciblée est le but ultime de l’opération, à l’opposé du cas où la mort bien qu’intentionnelle et préméditée demeure le résultat accidentel d’une opération poursuivant un tout autre but)[1]. Ces attaques posent d’épineux problèmes lorsque considérées en vertu du droit humanitaire international et du droit international des droits humains. La communauté juridique internationale est d’ailleurs divisée sur la question…
Regionalization of International Criminal Law on the African Continent?: Ubuntu and Amnesty
On 15th December 2009, the African Court on Human and Peoples’ Rights (ACHPR) rendered its (much awaited) first decision – In the Matter of Michelot Yogogombaye v The Republic of Senegal.[1] In the case, Michelot Yogogombaye brought an application against Senegal with a view to suspend Senegal’s ongoing legal proceedings against Hissène Habré, former President of Chad.[2] Habré is suspected of complicity in crimes against humanity, war crimes and acts of torture in Chad between 1982 and December 1990.[3] Yogogombaye alleged that Senegal had violated the legality principle by amending their Constitution to authorize “retroactive application of its criminal laws, with a view to trying exclusively and solely Mr. Hissène Habré”.[4] Although the ruling did not move beyond the merits in finding that Senegal had not accepted the Court’s jurisdiction,[5] some of the arguments outlined deserve attention. In this case note I will focus on the arguments on the issues of amnesty to draw out the regional flavour in the approach.
Amnesty and Ubuntu: Shared objective?
An interesting feature in the judgment was that Yogogombaye urged the Court to order that Senegal utilize the philosophical concept of ubuntu to develop a national “Truth, Justice, Reparations and Reconciliation” Commission for Chad on crimes committed between 1962 and 2008.[6] Ubuntu (or African Humanity) is a philosophy that attempts to capture the intersection of justice and humanity by essentially asking: how does one keep their humanity after being wronged? This was underscored…
Re-defining Disability in South Africa: The Social Assistance Amendment Bill
The Social Assistance Amendment Bill introduced in the South African Parliament last month has revealed fissures in government policy and has opened up debate on how this country handles disability issues. A key concern for some is that South Africa does not have centralized disability legislation. There are however, several different pieces of legislation and government policy that treat disability issues, such as the Social Assistance Act of 2004, the Employment Equity Act of 1998, and the Integrated National Disability Strategy of 1997, among others. This is not unusual, as countries such as Canada do not have dedicated national disability legislation. However, because the various pieces of South African legislation use different definitions of the term disability, this can create confusion, particularly when disabled persons are applying for government-provided financial assistance. Major criticisms of the bill are that it is still not clear enough, and that it does almost nothing to help move South Africa away from a medical model of disability, towards a social model that would promote societal inclusion for persons with disabilities.
South Africa signed and ratified the Convention on the Rights of Persons with Disabilities and its optional protocol in 2007. Furthermore, the South African Constitution specifically enshrines equality for persons with disabilities under Article 9(3). Yet, it is not clear how the current bill will take this nation closer to full implementation of the Constitution and the Convention. While the Deputy Minister of…
Piercing the Veil of State Immunity: Exceptions to the rule
Incumbent head of state immunity at international law is a multi-layered issue. Whether an incumbent head of state always has immunity therefore depends on certain variables. In this short piece, I will discuss the current state of the law on state immunity.
Revisiting old tensions: Horizontality
Incumbent head of state immunity hugs the boundaries of the verticality/ horizontality discourse. Although derived from customary international law, state immunity is rooted in the horizontal level through its objective of maintaining a peaceful coexistence[1] between States and ensuring states’ sovereignty. As underscored in Arrest Warrant[2], courts at the horizontal level cannot interfere with head of state immunity because such an action would hinder the effective performance of the official’s duties. At this level, there is no exception for State official immunity – not even for derogation of jus cogens norms.[3] Although this may seem a high price to pay to grease the wheels of international camaraderie, some argue[4] that absence of immunity in relation to human rights violations is more likely to hinder international cooperation than it is to significantly increasing protection of human rights.[5]
Peeling back the layers: Ratione materiae and Ratione personae
Viewed through a human rights lens, the finding of absolute immunity in Arrest Warrant is contentious. However, I argue that in failing to make a clear distinction between ratione materiae and ratione personae, the Arrest Warrant judgement missed an opportunity to limit the polemic nature of its overarching judgment.…
What’s wrong with banning the niqab?
Let’s start with the obvious: it violates the religious freedom of Muslim women who choose to wear the niqab for reasons of faith. Even those who would defend a ban, such as noted constitutional lawyer Julius Grey, acknowledge that this would violate religious freedoms – however, freedom of religion in Canada is never absolute, and the question is whether or not the government would be able to adequately justify such an infringement.
It is widely speculated that Bill 94 – proposed legislation that would bar the niqab from being worn in government offices, hospitals, and schools in Quebec – will face fierce legal challenges despite the overwhelming public support it receives in Quebec and the rest of Canada. There are three principle avenues by which one might pursue a legal challenge to this legislation.
The first is to sue the government in Quebec Superior Court, invoking the Canadian Charter of Rights and Freedoms. The Canadian Charter stipulates that everyone is fundamentally entitled to freedom of conscience and religion, subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society (as determined using the two steps outlined in the Oakes Test).
The second avenue is to bring a complaint to the Quebec Human Rights Commission alleging discrimination on the basis of the Quebec Charter of Human Rights and Freedoms. The Quebec Charter stipulates that every person is fundamentally…
Toward a Right to Development? : Reflecting on the Endorois Decision
Last month, the African Commission on Human and Peoples’ Rights (“ACHPR”) handed down a decision on the Endorois peoples’ situation in Kenya. The decision not only marks the end of a nearly 40 year struggle by the Endorois people against the Kenyan government but it also heralds the increasing importance of the third generation human right to development.
The Endorois people are a sub-tribe from central Kenya that were evicted from their lands near Lake Bogoria in the 1970s. The government relocated them to an area that limited their access to a clean water source, central sites of worship and other daily requirements for their pastoral way of life. The Kenyan government failed to provide compensation for this eviction but still proceeded to develop a Game Reserve on the Endorois former lands.
After exhausting all domestic avenues for remedy, the Endorois – with the help of Minority Rights Group International – brought their case before the ACHPR. The ACHPR is a quasi-judicial regional body that renders non-binding decisions aimed at protecting human and collective rights in Africa as envisaged by the African Charter on Human and Peoples’ Rights (“African Charter”). Although non-binding, I believe that the decisions from the ACHPR can be viewed as a snapshot of general zeitgeist. Indeed, until the African Court on Human and Peoples’ Rights starts delivering decisions regularly, the Commission’s decisions will remain an important and indicative…
Judicial Reform Coming to China! International Community Elated!
April 1: This morning, China’s Minister of Justice Wu Aiying held a press conference in which she declared the need for greater judicial transparency. The announcement came in the wake of a decision involving four executives of the mining corporation Rio Tinto, who were accused of bribery and stealing trade secrets. The defendants were sentenced to 7-14 years in prison, including 10 years for Australian Stern Hu.
“There are important questions about due process raised by this case,” Ms. Wu commented, “particularly since large parts of the case were heard behind closed doors.”
Ms. Wu announced that she intended to introduce a broad set of reforms to the Chinese justice system, which would greatly strengthen the principles of judicial impartiality, transparency, and fairness.
“If we are able to pass these reforms, after rigorous debate in the People’s National Congress, it will be a great step forward for the cause of justice in China.”
She also noted that tendency of Chinese courts to give exceptionally harsher sentences to those who plead not-guilty (leading to nearly universal pleas of guilty, as in the Rio Tinto case) goes against the principle that a defendant should be presumed innocent. She expressed concern that such cases as these were hurting the reputation of China’s justice system internationally.
Several high-profile international cases had indeed strained relations between China and various Western countries recently. China’s execution on December 29, 2010 of British citizen Akmal Shaikh…
Does the International Law of Assassination Outside of the Battlefield Make Sense?
Alan Dershowitz’s recent Huffington Post column discusses the legality of the assassination of Mahmoud al-Mabhouh, (now former) leader of Hamas’ military wing. Commentators correctly speculate that Israel was responsible. Dershowitz argues that the assassination did not violate international law. Whether or not the assassination violated international law, another important question is whether the relevant international law makes sense.
Dershowitz’s first inquiry is to determine if al-Mabhouh was a combatant vis-à-vis his killers. Accepting that the Israelis assassinated him, al-Mabhouh was a combatant—considering that he was an “active participant in the ongoing war by Hamas against Israeli civilians. Indeed, it is likely that he was killed while on a military mission to Iran in order to secure unlawful anti-personnel rockets that target Israeli civilians.[1]” Now that we’ve established that al-Mabhouh was a combatant, we have to determine if there are circumstances in which international law forbids combatant assassinations. Presumably, international law does not allow assassinations of combatants under all circumstances.
Dershowitz writes that geography is the only limitation on assassinations of combatants. Had the assassination taken place in Gaza, it assuredly would have been legal. The only complication to the legality of the assassination is the fact that it took place in Dubai. Dubai law and sovereignty was violated—but nothing else. Perhaps there should be other circumstances in which assassinations of combatants are prohibited. I confess to not being an international law expert;…
