Doughty Street International - Doughty Street International Bulletin - Issue 4 https://doughty-street-chambers.newsweaver.com/International/ en-us 06 Aug 2018 04:34:06 IST 06 Aug 2018 04:34:06 IST https://doughty-street-chambers.newsweaver.com/International/rss.xml Newsweaver international@doughtystreet.co.uk (Doughty Street Chambers) support@newsweaver.ie (Newsweaver) 60 true International Law Bulletin https://doughty-street-chambers.newsweaver.com/International/15h8g0mkzsg?rss=true Welcome to this DSI Summer Bulletin. Over the last few months members of DSI have continued to work on many of the most important international cases. Jennifer Robinson [ https://doughty-street-chambers.newsweaver.com/International/1qjbnubnof5 ], who has now joined us as a full member, is representing Vanuatu in the Chagos Archipelago case at the International Court of Justice, Emilie Gonin [ https://doughty-street-chambers.newsweaver.com/International/1mnuhorx0k9 ] and Tatyana Eatwell [ https://doughty-street-chambers.newsweaver.com/International/11wfasidb1z ] have assisted the African Union with submissions in the case. Jennifer continues to act on behalf of Julian Assange in relation to his ongoing detention at the Ecuadorian Embassy in London; she has also worked tirelessly in seeking self-determination for the people of West Papua and spoke on the issue at our joint Chatham House seminar on [ https://doughty-street-chambers.newsweaver.com/International/53cb9hl3ji4 ] self-determination [ https://doughty-street-chambers.newsweaver.com/International/53cb9hl3ji4 ]. Jennifer, together with Caoilfhionn Gallagher QC [ https://doughty-street-chambers.newsweaver.com/International/5kim9ua92nc ], carry on their efforts on behalf of BBC Persian staff in their action against Iran for unlawful seizure of assets. Caoilfhionn and Paul Mason [ https://doughty-street-chambers.newsweaver.com/International/11tv7p0ylcm ] successfully used UN procedures to secure the release of artist Ramon Ebale in Equatorial Guinea, and Caoilfhionn and Jonathan Price [ https://doughty-street-chambers.newsweaver.com/International/zkxcbu0mddv ] have made submissions to the UN Working Group on Arbitrary Detention regarding the case of Amal Fathy in Egypt. Amal Clooney [ https://doughty-street-chambers.newsweaver.com/International/1jzzsfu7qbx ] has forged ahead with her work seeking justice for the Yazidis; and has now taken up the cause of the Reuters journalists unfairly detained in Myanmar. Kirsty Brimelow QC [ https://doughty-street-chambers.newsweaver.com/International/ngn4gvltjds ] has spent time on the front line in Colombia forging ahead with peace and accountability efforts. Finally, Geoffrey Robertson QC [ https://doughty-street-chambers.newsweaver.com/International/tpfuik2zw1l ] marked the 20th Anniversary of the International Criminal Court and the coming into force of the crime of aggression [ https://doughty-street-chambers.newsweaver.com/International/1l549ybs04o ] by setting out the case that could have been made against Blair and Bush. In this issue Susie Alegre [ https://doughty-street-chambers.newsweaver.com/International/5lk8vpcyqg4 ] explains the efforts she and Geoffrey Robertson QC have made assisting former President of Georgia, Mikhail Saakashvili, challenge the removal of his citizenship and facilitate his return to the Ukraine. David Bentley QC [ https://doughty-street-chambers.newsweaver.com/International/2vdcxcc5nd5 ] sets out the important assistance he gave in securing freedom for Prime Minister-in-waiting of Malaysia, Anwar Ibrahim, by challenging the suspect DNA evidence that had been relied upon against him. The former chair of the Restorative Justice Council, Lawrence Kershen QC, mediator and restorative justice practitioner, considers the importance of restorative justice in healing the wounds of mass atrocities and evaluates the restorative justice process at the International Criminal Court. Member of our Business and Human Rights team, Krishnendu Mukherjee [ https://doughty-street-chambers.newsweaver.com/International/11wymrsjvb5 ], highlights the important joint work of the Human Rights Lawyers Association and Institute of Contemporary Arts high level panel in their consideration of the most effective way to intervene in supply chains to ensure respect for human rights in an ever more globalised world. Susie Alegre describes the complex constitutional arrangements between the UK and its overseas territories, the sovereignty of parliament and the fast-evolving status of same-sex marriage within the context of international human rights law. Finally, Professor Nick Grief [ https://doughty-street-chambers.newsweaver.com/International/19vtt1r6nrm ] outlines his recent work developing a new human right to protect the freedom to exist without threat from above; the inaugural hearing of the Airspace Tribunal which will be held at Doughty Street on 21 September 2018. Have a wonderful and enjoyable summer. Look forward to seeing you in the new term. Steven Powles [ https://doughty-street-chambers.newsweaver.com/International/bt5abfxnt7s ] Head of Doughty Street International [ #_ftnref10 ] 25 Nov 2014 12:00:00 UTC babea5f40be53e0f773ae2c5864ab76d Feature Article <div id="ftn10"> <p class="p1" style="text-align: justify;"><span class="s1">Welcome to this DSI Summer Bulletin.</span></p> <p class="p1" style="text-align: justify;"> </p> <p style="text-align: justify;">Over the last few months members of DSI have continued to work on many of the most important international cases. <span style="color: #800000;"><a style="color: #800000;" href="https://doughty-street-chambers.newsweaver.com/International/1qjbnubnof5" target="_blank" rel="noopener">Jennifer Robinson</a></span>, who has now joined us as a full member, is representing Vanuatu in the Chagos Archipelago case at the International Court of Justice,<span style="color: #800000;"> <a style="color: #800000;" href="https://doughty-street-chambers.newsweaver.com/International/1mnuhorx0k9" target="_blank" rel="noopener">Emilie Gonin</a></span> and <span style="color: #800000;"><a style="color: #800000;" href="https://doughty-street-chambers.newsweaver.com/International/11wfasidb1z" target="_blank" rel="noopener">Tatyana Eatwell</a></span> have assisted the African Union with submissions in the case. Jennifer continues to act on behalf of Julian Assange in relation to his ongoing detention at the Ecuadorian Embassy in London; she has also worked tirelessly in seeking self-determination for the people of West Papua and spoke on the issue at our <span class="s1"><span style="color: #800000;">j</span><a href="https://doughty-street-chambers.newsweaver.com/International/53cb9hl3ji4" target="_blank" rel="noopener"><span style="color: #800000;">oint Chatham House seminar on </span></a></span><span style="color: #800000;"><a style="color: #800000;" href="https://doughty-street-chambers.newsweaver.com/International/53cb9hl3ji4" target="_blank" rel="noopener"><span class="s2">self-determination</span></a></span>. Jennifer, together with <span style="color: #800000;"><a style="color: #800000;" href="https://doughty-street-chambers.newsweaver.com/International/5kim9ua92nc" target="_blank" rel="noopener"><span class="s2">Caoilfhionn Gallagher QC</span></a></span>, carry on their efforts on behalf of BBC Persian staff in their action against Iran for unlawful seizure of assets. Caoilfhionn and <span style="color: #800000;"><a style="color: #800000;" href="https://doughty-street-chambers.newsweaver.com/International/11tv7p0ylcm" target="_blank" rel="noopener"><span class="s2">Paul Mason</span></a></span> successfully used UN procedures to secure the release of artist Ramon Ebale in Equatorial Guinea, and Caoilfhionn and <span style="color: #800000;"><a style="color: #800000;" href="https://doughty-street-chambers.newsweaver.com/International/zkxcbu0mddv" target="_blank" rel="noopener">Jonathan Price</a></span> have made submissions to the UN Working Group on Arbitrary Detention regarding the case of Amal Fathy in Egypt. <span style="color: #800000;"><a style="color: #800000;" href="https://doughty-street-chambers.newsweaver.com/International/1jzzsfu7qbx" target="_blank" rel="noopener"><span class="s2">Amal Clooney</span></a></span> has forged ahead with her work seeking justice for the Yazidis; and has now taken up the cause of the Reuters journalists unfairly detained in Myanmar. <span style="color: #800000;"><a style="color: #800000;" href="https://doughty-street-chambers.newsweaver.com/International/ngn4gvltjds" target="_blank" rel="noopener"><span class="s2">Kirsty Brimelow QC</span></a></span> has spent time on the front line in Colombia forging ahead with peace and accountability efforts. Finally, <span class="s1"><span style="color: #800000;"><a style="color: #800000;" href="https://doughty-street-chambers.newsweaver.com/International/tpfuik2zw1l" target="_blank" rel="noopener">Geoffrey Robertson QC</a></span></span> marked the 20<sup>th</sup> Anniversary of the International Criminal Court and the coming into force of the <span style="color: #800000;"><a style="color: #800000;" href="https://doughty-street-chambers.newsweaver.com/International/1l549ybs04o" target="_blank" rel="noopener">crime of aggression</a></span> by setting out the case that could have been made against Blair and Bush.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">In this issue <span style="color: #800000;"><a style="color: #800000;" href="https://doughty-street-chambers.newsweaver.com/International/5lk8vpcyqg4" target="_blank" rel="noopener"><span class="s2">Susie Alegre</span></a></span> explains the efforts she and Geoffrey Robertson QC have made assisting former President of Georgia, Mikhail Saakashvili, challenge the removal of his citizenship and facilitate his return to the Ukraine. <span style="color: #800000;"><a style="color: #800000;" href="https://doughty-street-chambers.newsweaver.com/International/2vdcxcc5nd5" target="_blank" rel="noopener"><span class="s2">David Bentley QC</span></a></span> sets out the important assistance he gave in securing freedom for Prime Minister-in-waiting of Malaysia, Anwar Ibrahim, by challenging the suspect DNA evidence that had been relied upon against him. The former chair of the Restorative Justice Council, Lawrence Kershen QC, mediator and restorative justice practitioner, considers the importance of restorative justice in healing the wounds of mass atrocities and evaluates the restorative justice process at the International Criminal Court. Member of our Business and Human Rights team,<span class="s1" style="color: #800000;"> <a style="color: #800000;" href="https://doughty-street-chambers.newsweaver.com/International/11wymrsjvb5" target="_blank" rel="noopener"><span class="s2">Krishnendu Mukherjee</span></a></span>, highlights the important joint work of the Human Rights Lawyers Association and Institute of Contemporary Arts high level panel in their consideration of the most effective way to intervene in supply chains to ensure respect for human rights in an ever more globalised world. Susie Alegre describes the complex constitutional arrangements between the UK and its overseas territories, the sovereignty of parliament and the fast-evolving status of same-sex marriage within the context of international human rights law. Finally, <span style="color: #800000;"><a style="color: #800000;" href="https://doughty-street-chambers.newsweaver.com/International/19vtt1r6nrm" target="_blank" rel="noopener">Professor Nick Grief</a></span> outlines his recent work developing a new human right to protect the freedom to exist without threat from above; the inaugural hearing of the Airspace Tribunal which will be held at Doughty Street on 21 September 2018.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">Have a wonderful and enjoyable summer. Look forward to seeing you in the new term.</p> <p style="text-align: justify;"> </p> <p style="margin: 0cm 0cm 0.0001pt; font-size: 12pt; font-family: Cambria, serif; text-align: justify;"><span style="font-family: Arial, Helvetica, sans-serif; font-size: 12px;"><a href="https://doughty-street-chambers.newsweaver.com/International/bt5abfxnt7s" target="_blank" rel="noopener"><span style="color: #993300;">Steven Powles</span></a></span></p> <p style="margin: 0cm 0cm 0.0001pt; font-size: 12pt; font-family: Cambria, serif; text-align: justify;"><span style="font-family: Arial, Helvetica, sans-serif; font-size: 12px;">Head of Doughty Street International</span></p> </div> <p style="margin: 0cm 0cm 0.0001pt; font-size: 12pt; font-family: Cambria, serif; text-align: justify;"><a style="color: blue; text-decoration: underline;" title="" href="#_ftnref10" name="_ftn10"></a></p> <p style="text-align: justify;"> </p> <p style="text-align: justify;"> </p> <p class="p1" style="text-align: justify; padding-left: 30px;"><span class="s1">Welcome to this DSI Summer Bulletin.</span></p> <p class="p2" style="text-align: justify;"> </p> <p>Over the last few months members of DSI have continued to work on many of the most important international cases. <span style="color: #800000;"><a style="color: #800000;" href="https://doughty-street-chambers.newsweaver.com/International/1qjbnubnof5" target="_blank" rel="noopener">Jennifer Robinson</a></span>, who has now joined us as a full member, is representing Vanuatu in the Chagos Archipelago case at the International Court of Justice,<span style="color: #800000;"> <a style="color: #800000;" href="https://doughty-street-chambers.newsweaver.com/International/1mnuhorx0k9" target="_blank" rel="noopener">Emilie Gonin</a></span> and <span style="color: #800000;"><a style="color: #800000;" href="https://doughty-street-chambers.newsweaver.com/International/11wfasidb1z" target="_blank" rel="noopener">Tatyana Eatwell</a></span> have assisted the African Union with submissions in the case. Jennifer continues to act on behalf of Julian Assange in relation to his ongoing detention at the Ecuadorian Embassy in London; she has also worked tirelessly in seeking self-determination for the people of West Papua and spoke on the issue at our <span class="s1"><span style="color: #800000;">j</span><a href="https://doughty-street-chambers.newsweaver.com/International/53cb9hl3ji4" target="_blank" rel="noopener"><span style="color: #800000;">oint Chatham House seminar on </span></a></span><span style="color: #800000;"><a style="color: #800000;" href="https://doughty-street-chambers.newsweaver.com/International/53cb9hl3ji4" target="_blank" rel="noopener"><span class="s2">self-determination</span></a></span>. Jennifer, together with <span style="color: #800000;"><a style="color: #800000;" href="https://doughty-street-chambers.newsweaver.com/International/5kim9ua92nc" target="_blank" rel="noopener"><span class="s2">Caoilfhionn Gallagher QC</span></a></span>, carry on their efforts on behalf of BBC Persian staff in their action against Iran for unlawful seizure of assets. Caoilfhionn and <span style="color: #800000;"><a style="color: #800000;" href="https://doughty-street-chambers.newsweaver.com/International/11tv7p0ylcm" target="_blank" rel="noopener"><span class="s2">Paul Mason</span></a></span> successfully used UN procedures to secure the release of artist Ramon Ebale in Equatorial Guinea, and Caoilfhionn and Jonathan Price have made submissions to the UN Working Group on Arbitrary Detention regarding the case of Amal Fathy in Egypt. <span style="color: #800000;"><a style="color: #800000;" href="https://doughty-street-chambers.newsweaver.com/International/1jzzsfu7qbx" target="_blank" rel="noopener"><span class="s2">Amal Clooney</span></a></span> has forged ahead with her work seeking justice for the Yazidis; and has now taken up the cause of the Reuters journalists unfairly detained in Myanmar. <span style="color: #800000;"><a style="color: #800000;" href="https://doughty-street-chambers.newsweaver.com/International/ngn4gvltjds" target="_blank" rel="noopener"><span class="s2">Kirsty Brimelow QC</span></a></span> has spent time on the front line in Colombia forging ahead with peace and accountability efforts. Finally, <span class="s1"><span style="color: #800000;"><a style="color: #800000;" href="https://doughty-street-chambers.newsweaver.com/International/tpfuik2zw1l" target="_blank" rel="noopener">Geoffrey Robertson QC</a></span></span> marked the 20<sup>th</sup> Anniversary of the International Criminal Court and the coming into force of the crime of aggression by setting out the case that could have been made against Blair and Bush.</p> <p> </p> <p>In this issue <span style="color: #800000;"><a style="color: #800000;" href="https://doughty-street-chambers.newsweaver.com/International/5lk8vpcyqg4" target="_blank" rel="noopener"><span class="s2">Susie Alegre</span></a></span> explains the efforts she and Geoffrey Robertson QC have made assisting former President of Georgia, Mikhail Saakashvili, challenge the removal of his citizenship and facilitate his return to the Ukraine. <span style="color: #800000;"><a style="color: #800000;" href="https://doughty-street-chambers.newsweaver.com/International/2vdcxcc5nd5" target="_blank" rel="noopener"><span class="s2">David Bentley QC</span></a></span> sets out the important assistance he gave in securing freedom for Prime Minister-in-waiting of Malaysia, Anwar Ibrahim, by challenging the suspect DNA evidence that had been relied upon against him. The former chair of the Restorative Justice Council, <span style="color: #800000;"><a style="color: #800000;" href="https://doughty-street-chambers.newsweaver.com/International/10giqbu7nmx" target="_blank" rel="noopener">Lawrence Kershen QC</a></span>, mediator and restorative justice practitioner, considers the importance of restorative justice in healing the wounds of mass atrocities and evaluates the restorative justice process at the International Criminal Court. Member of our Business and Human Rights team,<span class="s1" style="color: #800000;"> <a style="color: #800000;" href="https://doughty-street-chambers.newsweaver.com/International/11wymrsjvb5" target="_blank" rel="noopener"><span class="s2">Krishnendu Mukherjee</span></a></span>, highlights the important joint work of the Human Rights Lawyers Association and Institute of Contemporary Arts high level panel in their consideration of the most effective way to intervene in supply chains to ensure respect for human rights in an ever more globalised world. Susie Alegre describes the complex constitutional arrangements between the UK and its overseas territories, the sovereignty of parliament and the fast-evolving status of same-sex marriage within the context of international human rights law. Finally, <span style="color: #800000;"><a style="color: #800000;" href="https://doughty-street-chambers.newsweaver.com/International/19vtt1r6nrm" target="_blank" rel="noopener">Professor Nick Grief</a></span> outlines his recent work developing a new human right to protect the freedom to exist without threat from above; the inaugural hearing of the Airspace Tribunal which will be held at Doughty Street on 21 September 2018.</p> <p> </p> <p>Have a wonderful and enjoyable summer. Look forward to seeing you in the new term.</p> <p style="text-align: justify; margin: 0cm 0cm 0.0001pt; font-size: 12pt; font-family: Cambria, serif;"> </p> <p style="text-align: justify; margin: 0cm 0cm 0.0001pt; font-size: 12pt; font-family: Cambria, serif;"><span style="font-family: Arial, Helvetica, sans-serif; font-size: 12px;"><a href="https://doughty-street-chambers.newsweaver.com/International/bt5abfxnt7s" target="_blank" rel="noopener"><span style="color: #993300;">Steven Powles</span></a></span></p> <p style="text-align: justify; margin: 0cm 0cm 0.0001pt; font-size: 12pt; font-family: Cambria, serif;"><span style="font-family: Arial, Helvetica, sans-serif; font-size: 12px;">Head of Doughty Street International</span></p> <div id="ftn10"> </div> <p style="text-align: justify; margin: 0cm 0cm 0.0001pt; font-size: 12pt; font-family: Cambria, serif;"><a style="color: blue; text-decoration: underline;" title="" href="#_ftnref10" name="_ftn10"></a></p> <p> </p> <p> </p> Steven Powles, Head of Doughty Street International http://doughty-street-chambers.newsweaver.com/files/2/74771/158187/328979/edda6805c6fee7c608338b97/steven%20powles_2.jpg Anwar Ibrahim https://doughty-street-chambers.newsweaver.com/International/v0jf22lfnnf?rss=true David Bentley QC [ https://doughty-street-chambers.newsweaver.com/International/4ozh8u6y5k2 ] sets out the important assistance he gave in securing freedom for Prime Minister-in-waiting of Malaysia, Anwar Ibrahim, by challenging the suspect DNA evidence that had been relied upon against him. 17 Feb 2017 12:00:00 UTC 93382be65917d093cc0e318bc7a7350d Two column articles <p style="text-align: justify;"><span style="color: #993300;"><a style="color: #993300;" href="https://doughty-street-chambers.newsweaver.com/International/4ozh8u6y5k2" target="_blank" rel="noopener"><span class="s2">David Bentley QC</span></a></span><span class="s1"> sets out the important assistance he gave in securing freedom for Prime Minister-in-waiting of Malaysia, Anwar Ibrahim, by challenging the suspect DNA evidence that had been relied upon against him.</span></p> <p style="text-align: center;">By David Bentley QC</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">Doughty Street International was approached last year to look into possible appeal grounds in this case arising out of DNA evidence used at Malaysian politician Anwar Ibrahim’s notorious 2010 trial, and which formed a vital element in the prosecution case.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">The Sodomy allegations against Anwar had been widely viewed as “trumped up” charges – and as politically motivated. The US authorities had denounced the proceedings as a “show trial”.</p> <p style="text-align: justify;">The particular difficulty we faced as his UK lawyers was that the case had been all the way to the top of the court system in Malaysia, and on the face of it (short of a pardon) there was no-where else to go.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;"><strong>A brief (potted) history of the proceedings</strong></p> <ul style="text-align: justify;"> <li>2010 Anwar’s Sodomy trial begins in High Court in Kuala Lumpa</li> <li>Jan 2012 – trial ends with an <em>acquittal</em>. The Judge ruling that issues over the handling of a vital exhibit bag containing DNA samples meant <em>“confidence in the integrity of the samples was gone, and that he couldn’t rule out the possibility that the integrity of the samples had been compromised.”</em></li> <li>April 2014 – a prosecution appeal to the Court of Appeal leads to acquittal being set aside, and guilty verdicts substituted. Along with the imposition of a 5 year sentence of imprisonment.</li> <li>February 2015. Defence appeal to highest court in Malaysia (Federal Court) which upholds the Court of Appeal decision. Anwar begins serving his sentence.</li> <li>December 2016. Further defence application to Federal Court to review its earlier decision rejected.</li> </ul> <p style="text-align: justify;"> </p> <p style="text-align: justify;"><strong>Our approach</strong></p> <p style="text-align: justify;">Assisted by Yusmadi Yusoff in Malaysia, Jen Robinson and Nicola Peart (then a pupil here), we reconstructed the evidence given at the original trial. This initially involved sifting through 22 volumes of transcripts and exhibits (fortunately mostly in English).</p> <p style="text-align: justify;">We looked at how the DNA arguments had been advanced at various stages of the Malaysian proceedings, examined critically what the appeal courts had said, and looked at authorities and best practice in this area of evidence within our own jurisdiction - to see whether the prosecution expert evidence at trial was sufficiently robust to underpin the conviction.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;"><strong>Key problem</strong></p> <p style="text-align: justify;">Two Australian DNA experts called at trial by the defence had been comprehensively rubbished on appeal - described by Court of Appeal as <em>“mere armchair experts”</em> whose evidence had <em>“overwhelmed”</em> the judge at first instance. That judge was said to have made a <em>“serious error”</em> in accepting their evidence.</p> <p style="text-align: justify;">The defence experts fared no better in the Federal Court – their expert evidence had <em>“not raised any reasonable doubt”</em></p> <p style="text-align: justify;"><strong> </strong></p> <p style="text-align: justify;"><strong> </strong></p> <p style="text-align: justify;"><strong>Our opinion</strong></p> <p style="text-align: justify;">There were real concerns as to the safety of the conviction. We identified issues of integrity flowing from unorthodox handling of key exhibits. Additionally there were worrying contamination issues. We found a failure by government scientists properly to follow their own laboratory protocols, and failing to employ sufficiently robust laboratory procedures.</p> <p style="text-align: justify;">Viewed from UK perspective, we found clear shortcomings in the DNA evidence presented at trial, and I advised that a fresh review of the science be conducted.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;"><strong>Events gather pace</strong></p> <p style="text-align: justify;">April 2018, with an election looming, a Free Anwar campaign press conference in Malaysia was addressed by Nurul Izzah (MP and daughter of Anwar Ibrahim) and Yusmadi Yusoff - with my opinion on the DNA being made public, alongside a call by the campaign for the government to carry out a full review of the DNA evidence.</p> <p style="text-align: justify;">Then, in May 2018, the incumbent government lost the election.</p> <p style="text-align: justify;">There followed the immediate release of Anwar, through the issuing of a Royal Pardon. Based not on any technicality, but on basis of there having been a miscarriage of justice. The King told Anwar that this was the reversal of <em>"a clear miscarriage of justice”</em>, and that <em>“I cannot tolerate this and therefore your pardon is to be immediate and unconditional”.</em></p> <p style="text-align: justify;"> </p> <p style="text-align: justify;"><strong> </strong></p> <p style="text-align: justify;"><strong>Conclusion</strong></p> <p style="text-align: justify;">It is concerning that a man had to be imprisoned for so long on such poor evidence, and that the courts repeatedly brushed aside real concerns over the safety of the conviction. But the eventual overturning of this notorious conviction is surely a ground for optimism in relation to the future health of the rule of law in Malaysia.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;"><em>The above article is a precis of the oral presentation made by David Bentley QC at the seminar “The future of the rule of law in Malaysia: in conversation with Anwar Ibrahim”, held at Doughty Street Chambers, London on 13<sup>th</sup> June 2018, moderated by Jennifer Robinson, and at which Anwar Ibrahim himself was the guest speaker.</em></p> David Bentley QC http://doughty-street-chambers.newsweaver.com/files/2/74771/158187/328979/b41f3a21640676ebf646dd75/david%20bentley_2.jpg Citizenship and the Right to Enter One’s Own Country – the case of Mikhail Saakashvili https://doughty-street-chambers.newsweaver.com/International/1ivauvr7ous?rss=true Susie Alegre [ https://doughty-street-chambers.newsweaver.com/International/1lu0et6afic ] explains the efforts she and Geoffrey Robertson QC have made assisting former President of Georgia, Mikhail Saakashvili, challenge the removal of his citizenship and facilitate his return to the Ukraine. 06 Aug 2018 12:00:00 UTC d3b48e1eb51c688d0b92f5522b7c946a Two column articles <p style="text-align: justify;"><span style="color: #993300;"><a style="color: #993300;" href="https://doughty-street-chambers.newsweaver.com/International/1lu0et6afic" target="_blank" rel="noopener"><span class="s2">Susie Alegre</span></a></span><span class="s1"> explains the efforts she and </span><span class="s2">Geoffrey Robertson QC</span><span class="s1"> have made assisting former President of Georgia, Mikhail Saakashvili, challenge the removal of his citizenship and facilitate his return to the Ukraine.</span></p> <p style="text-align: center;">By Susie Alegre</p> <p> </p> <p style="text-align: justify;">Mikhail Saakashvili, the former President of Georgia, came to fame leading the “Rose Revolution.” He subsequently became a prominent politician in Ukraine but was stripped of his Ukrainian citizenship and forcibly abducted by Ukrainian state agents and removed from the country in 2017 and again in early 2018.  He has been denied the possibility of re-entering Ukraine.  </p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">Geoffrey Robertson QC and Susie Alegre of Doughy Street International advised Mr Saakashvili of the international human rights law implications of his treatment by Ukraine and a press conference was held in the Hague in May 2018 to bring the issues to international attention. </p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">Aside from the human rights implications around the right to liberty and degrading treatment through the forcible abduction and removal from the country, the case highlights the human rights implications of the removal of citizenship and denial of entry into one’s own country.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;"><em>Removal of Citizenship</em></p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">International human rights law prevents arbitrary removal of citizenship.  The European Court of Human Rights has found that the revocation of citizenship may amount to an interference with an individual’s right to respect for family and private life under Article 8 ECHR (see Ramadan v. Malta, no. 76136/12, § 85, ECHR 2016). In determining whether a revocation of citizenship is in breach of Article 8, the Court has addressed two separate issues: whether the revocation was arbitrary; and what the consequences of revocation were for the applicant.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">In determining whether or not the revocation of Mr Saakashvili’s citizenship was arbitrary, the Court would consider whether the revocation was in accordance with the law; whether it was accompanied by the necessary procedural safeguards, including whether Mr Saakashvili was allowed the opportunity to challenge the decision before courts affording the relevant guarantees; and whether the authorities acted diligently and in good faith (see K2 v UK, Application no. 42387/13 §52-61, ECHR 2017).  The consequences for Mr Saakashvili are particularly severe because he has effectively been rendered stateless.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">Ukraine has ratified the European Convention on Nationality.  Article 7 of that Convention prohibits a State Party from providing for the loss of nationality in its internal law if the person concerned would thereby become stateless (except in cases of fraud which does not appear to have been alleged here).  Ukraine has also acceded to the UN Convention relating to the Status of Stateless Persons (1954) and the Convention on the Reduction of Statelessness (1961).  </p> <p style="text-align: justify;"> </p> <p style="text-align: justify;"><em>Right to return to Ukraine</em></p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">Article 12(4) of the ICCPR guarantees in absolute terms that no one shall be arbitrarily deprived of the right to enter his own country.  The Human Rights Committee in its General Comment 27 has clarified that the scope of this provision</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;"><em>“…is not limited to nationality in a formal sense, that is, nationality acquired at birth or by conferral; it embraces, at the very least, an individual who, because of his or her special ties to or claims in relation to a given country, cannot be considered to be a mere alien.  This would be the case, for example, of nationals of a country who have there been stripped of their nationality in violation of international law…. (GC 27 § 20) There are few, if any circumstances in which deprivation of the right to enter one’s own country could be reasonable.  A State party must not, by stripping a person of nationality or by expelling an individual to a third country, arbitrarily prevent this person from returning to his or her own country (GC 27 § 21).</em></p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">As Mr Saakashvili had made Ukraine his home, it is his permanent residence and he has special ties with Ukraine including leadership of a political party in the country.  Ukraine is bound by its obligations under Article 12(4) of the ICCPR.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;"><em>Conclusion</em></p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">The treatment of Mr Saakashvili by Ukraine raises significant concerns under international human rights law but challenges may be brought only once domestic remedies have been exhausted.  Mr Saakashvili remains in exile but is continuing to challenge the actions of Ukraine through both diplomatic and legal channels. </p> Susie Alegre & Geoffrey Robertson QC http://doughty-street-chambers.newsweaver.com/files/2/74771/158187/328979/6f54febd180b9e550fbf9fd5/susie%20_%20geoff.jpg Restorative Justice at the International Criminal Court https://doughty-street-chambers.newsweaver.com/International/1d732a2w2sp?rss=true Lawrence Kershen QC [ https://doughty-street-chambers.newsweaver.com/International/zj2tt32k68a ], mediator and restorative justice practitioner, considers the importance of restorative justice in healing the wounds of mass atrocities and evaluates the restorative justice process at the International Criminal Court. 12 Jul 2017 12:00:00 UTC 9135f1b757142459eec33f8be1904c91 Two column articles <p style="text-align: justify;"><span style="color: #800000;"><a style="color: #800000;" href="https://doughty-street-chambers.newsweaver.com/International/zj2tt32k68a" target="_blank" rel="noopener">Lawrence Kershen QC</a></span>, mediator and restorative justice practitioner, considers the importance of restorative justice in healing the wounds of mass atrocities and evaluates the restorative justice process at the International Criminal Court.</p> <p style="text-align: center;"><span style="font-family: Arial, Helvetica, sans-serif; font-size: 12px;">By Lawrence Kershen QC</span></p> <p> </p> <p> </p> <p style="text-align: justify;">On the face of it genocide, crimes against humanity and war crimes hardly sit naturally with Restorative Justice processes - where dialogue is facilitated between victims and perpetrators about a crime and its consequences. Yet the ICC was sufficiently open-minded to invite me to speak about “The Role of RJ in the Criminal Justice Process” in a Guest Lecture at the Court a few months ago.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">For those not familiar with RJ – and that seemed to be a majority of the 40 or so audience members – it has been defined as “A process where all those with a stake in a specific offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future”.<a title="" href="#_edn1" name="_ednref1">[i]</a></p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">More informally it is a safe space in which – if both parties are willing – the victim can meet the offender, have their say, ask questions, agree what can be done to put things right, and move on with their lives. As well as victim and offender, those attending an RJ meeting may include their partners, workmates, neighbours, community representatives – in fact all those secondary victims affected by the crime.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">It’s worth noting that RJ is not</p> <ul style="text-align: justify;" type="disc"> <li>a substitute for a retributive Criminal Justice process</li> <li>mandatory or court-ordered</li> <li>a ‘soft option’</li> <li>designed to reduce re-offending</li> <li>about forgiveness</li> </ul> <p style="text-align: justify;">– although these last may arise naturally from the meeting.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">The benefits according to Government research<a title="" href="#_edn2" name="_ednref2">[ii]</a> include 85% of victims who regard RJ positively, 78% who would recommend it to others, a significant reduction in PTSD and desire for violent revenge, longer-term health benefits and a reduction in reoffending of 26%.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">So it came as a pleasant surprise - no doubt born of my ignorance – to learn that the ICC has a Trust Fund for Victims, established by Article 79 of the Rome Statute. And that the TFV has an assistance programme, with a mission to address harm to individuals resulting from the very crimes over which the court has jurisdiction - genocide, crimes against humanity and war crimes.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">If the Court itself orders reparations to victims, part of the TFV’s mandate is to implement them. These reparation orders are based on the convicted person’s criminal responsibility, and are funded through fines and forfeitures. They may be individual e.g. compensation, or collective e.g. reconstruction of destroyed buildings; and symbolic e.g. construction of community centres or service-based e.g. education, training.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">The second aspect of the Fund’s mandate is to provide ‘physical and psychosocial rehabilitation or material support’ to victims of crimes that fall within the jurisdiction of the Court. This assistance mandate enables victims of crimes and their families to receive assistance whether or not there has been a conviction by the Court. Resources for this kind of assistance are raised through voluntary contributions by member states and individuals. </p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">This broad mandate allows the Court to identify and award appropriate assistance to victims in the light of a particular case, and the rights and wishes of the victims and their communities, even to help promote reconciliation within divided communities. It can be offered to a wider range of victims who are affected by the broader situations before the court, whether or not they stem from a particular crime in a particular case.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">The work of the TFV in repairing harm caused by some of the gravest and most horrific crimes of modern times is hugely impressive.<a title="" href="#_edn3" name="_ednref3">[iii]</a> At the same time there are some significant differences between such a reparative system and an RJ process. The distinctions between reparation and restoration are more than semantic, and have the potential to enhance the effectiveness of the Trust’s work.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">First and foremost, in a typical RJ process the parties - after thorough preparation that may take many months - will meet face-to-face. Victims describe this as a unique opportunity to get answers to questions, like “why me?”. They are able to bring to life the consequences of the other’s actions and gain some understanding of his or her behaviour, and often achieve a degree of closure. Many describe the process as empowering.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">If the offender has chosen to participate, s/he has the possibility of understanding the consequences of their actions, redressing as far as possible the harm done, maybe to apologise and find ways make amends – in other words to start to transform their guilt into something more positive. Some speak of a burden having been lifted.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">A second distinction is the fundamental principle of RJ that before any restorative meeting can take place the offender has pleaded guilty. The significance is that they have taken responsibility for their acts. In cases tried by the ICC most if not all convictions follow a contested trial. It is rare that a constructive dialogue between victim and offender can happen where the offender is still denying responsibility for the harm caused.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">Thirdly, at the end of a restorative process the parties will seek to agree the steps to be taken to restore the status quo as far as possible. They work together with the facilitator to construct this outcome agreement (or accord), as distinct from a Court or other third party deciding what reparations are to be made, usually involving money payments.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">Restoration might include money, but more often has non-financial elements, e.g. apology, physical work to repair harm, programmes to support behaviour change, changed procedures to avoid a repetition of the harm done – in other words what the parties regard as the best way to repair the damage and prevent a recurrence.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">At the heart of these differences is the personal responsibility offered to both victims and offenders as to whether and how to address harm caused by even the most serious crimes. I don’t know whether there are ways for the ICC to encourage the pleas of guilty that are a prerequisite to an effective RJ process. I do know that empowering the parties to confront criminal behaviour and find ways to repair the harm can hold offenders to account, enhance victims’ sense of justice, and further the invaluable work of the ICC.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;"><em>Lawrence Kershen QC is a mediator and restorative practitioner and former chair of the Restorative Justice Council.</em></p> <div><br clear="all" /><hr align="left" size="1" width="33%" /> <div id="edn1" style="text-align: justify;"> <p><a title="" href="#_ednref1" name="_edn1">[i]</a> Tony Marshall, Home Office Research Development and Statistics Directorate, 1999.</p> </div> <div id="edn2" style="text-align: justify;"> <p><a title="" href="#_ednref2" name="_edn2"></a> </p> <p>[ii] UK Government Report “RJ – The Evidence”, 2007.</p> <p> </p> </div> <div id="edn3"> <p style="text-align: justify;"><a title="" href="#_ednref3" name="_edn3">[iii]</a> see e.g. <a href="https://doughty-street-chambers.newsweaver.com/International/icz68ict83r">https://www.trustfundforvictims.org/en/stories/benefit-victims-and-their-families</a></p> </div> </div> Lawrence Kershen QC http://doughty-street-chambers.newsweaver.com/files/2/74771/158187/328979/7941b586c7ce358d02572f78/lawrence%20kershen%20qc.png Interventions in Supply Chains https://doughty-street-chambers.newsweaver.com/International/10i43ry7n44?rss=true Krishnendu Mukherjee [ https://doughty-street-chambers.newsweaver.com/International/8666grf9p2g ], highlights the important joint work of the Human Rights Lawyers Association and Institute of Contemporary Arts high level panel in their consideration of the most effective way to intervene in supply chains to ensure respect for human rights in an ever more globalised world. 16 Feb 2017 12:00:00 UTC edc58488a9be9410696e8a31ec512a4a Two column articles <p style="text-align: justify;"><span class="s1"><a href="https://doughty-street-chambers.newsweaver.com/International/8666grf9p2g" target="_blank" rel="noopener"><span class="s2"><span style="color: #993300;">Krishnendu </span><span style="color: #993300;">Mukherje</span>e</span></a></span><span class="s1">, highlights the important joint work of the Human Rights Lawyers Association and Institute of Contemporary Arts high level panel in their consideration of the most effective way to intervene in supply chains to ensure respect for human rights in an ever more globalised world. </span></p> <p style="text-align: center;"><span style="color: #000000;">By <span class="s1"><span class="s2">Krishnendu Mukherjee</span></span> </span></p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">On the 11<sup>th</sup> September 2012, a fire at the Ali Enterprises<ins cite="mailto:Krishnendu%20Mukherjee" datetime="2018-07-01T18:04"> Ltd </ins> (known as AE) garment factory in Karachi killed nearly 300 workers. The major and perhaps only buyer of apparel from the AE factory was the German retailer, KiK Textilien GmbH (hereinafter KiK). AE was therefore a first tier supplier. Whilst the cause of the fire is disputed, the high death toll could be attributed to the failure to comply with basic fire safety regulations in Pakistan. For instance, there were heavy iron bars on the windows and an alleged lack of emergency exits, whilst access to other escape routes were blocked. There are further allegations that fire alarms and fire extinguishers, did not work and no proper training on the use of the extinguishers was provided. In addition, KiK conducted audits through a private firm, UL Responsible Sourcing Inc, which had conducted several audits to ensure compliance with KiK’s Code of Conduct. Despite the auditing process, it appears the failures were not identified or addressed.  </p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">It was against the background of this case, that a joint event by the Human Rights Lawyers Association (HRLA) and the Institute of Contemporary Arts (ICA) sought to consider the ways in which such tragedies could be prevented and remedied. The multi-disciplinary panel included: Jenny Holdcroft: Assistant General Secretary at IndustriALL Global Union; Shanta Martin, a partner at Leigh Day; Christina Varvia, Deputy Director of Forensic Architecture and Dr Anil Yilmaz-Vastardis, Lecturer at the University of Essex.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">Forensic Architecture, a research agency that investigates state violence and human rights violations using architectural techniques, have produced a short analysis of the AE factory which has been used to support legal proceedings in Germany.<a title="" href="#_ftn1" name="_ftnref1">[1]</a> The film was presented by Christina Varvia, which graphically (and yes forensically) demonstrated how AE were negligent and how AE and KiK’s version of the safety measures in the factory could not be substantiated. Forensic Architecture have worked on a number of interesting and informative projects which seek to highlight how the public truth is hidden or distorted, including US drone attacks, migration and most recently on Grenfell Tower. This work has won it a much-deserved nomination for this year’s Turner Prize.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">Dr Yilmaz-Vastardis, spoke about the KiK case and why the claimants chose to bring the claim in Germany, KiK’s home country. In particular, she stressed the difficulties in bringing the claim in Pakistan, and discussed how the evolving common law of negligence allowed a breach of duty of care to be found in non-traditional relationships, such as that between KiK and AE. Of particular importance was the fact that KiK had a Code of Conduct, which <em>inter alia</em> sought to ensure compliance with the health and safety standards at the workplace, where it was the majority buyer and could therefore exert power over the health and safety at AE.  Shanta Martin, explained her firm’s history litigating against parent companies in the UK. Such cases were initially based on establishing that the parent company had the requisite degree of control over its subsidiary, but increasingly showing that <ins cite="mailto:Krishnendu%20Mukherjee" datetime="2018-07-01T18:07">a </ins>UK-based company could be held liable through its own policies and diligence within its supply chain. Non-judicial interventions to access remedies were discussed by Jenny Holdcroft. She emphasised the importance of mechanisms such as the Bangladesh Accord, which, in response to the Rana Plaza tragedy, had brought together unions and garment manufacturers, to create a parallel system of factory inspection.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">Over the wide-ranging discussion that followed between the panellists there was a recognition of the significant expense and difficulties in bringing group claims in the home state. However, operational-level grievance mechanisms had so far failed to provide any accountability to corporations. Moreover, though consumers can play a role in putting pressure on companies to improve human rights in their supply chain, companies had no justification for the pressure put on their suppliers to cut costs. Whilst there were understandably differences of opinion in relation to the effectiveness of different strategies, the panel were in complete agreement that the Governments, whether of home or host states, needed to do more. Of particular criticism was the position of the British Government.: Someone with a remit across a range of responsible business topics from the Government’s Department for Business, Energy and Industrial Strategy had been invited to the panel, but could not attend. An email exchange with a civil servant was read out during the event, which highlighted the Government’s key policies and position on human rights violations in supply chains. However, it was felt that the Government’s position revealed little of substance and was in marked contrast to its rhetorical commitment. For example, a simple step of requiring mandatory due diligence in the supply chain rather than the voluntary requirement under the Modern Slavery Act 2015, which companies have largely ignored, would be a significant step forward.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">The law has not kept up with globalization. If it had then we would not be in a situation where different human rights protections are applied to the producers of the different parts of the same product. In the brave new world of business and human rights, the bottom line can no longer be profit. The bottom line has to be sustainability and that can only be ensured not only by obeying the law but also ensuring that your global business activity does not have wider negative human rights impacts.</p> <p> </p> <p> </p> <div><br clear="all" /><hr align="left" size="1" width="33%" /> <div id="ftn1"> <p><a title="" href="#_ftnref1" name="_ftn1">[1]</a> <a href="https://doughty-street-chambers.newsweaver.com/International/4zl2gkqwhbg">https://www.forensic-architecture.org/case/outsourcing-risk/</a></p> <p> </p> </div> </div> Krishnendu Mukherjee http://doughty-street-chambers.newsweaver.com/files/2/74771/158187/328979/f87bf598c22a900dc78cf951/tublu_2.jpg Rights, once given, cannot be taken away – Same-Sex Marriage in Bermuda https://doughty-street-chambers.newsweaver.com/International/1rxq6945w01?rss=true Susie Alegre [ https://doughty-street-chambers.newsweaver.com/International/1lu0et6afic ] describes the complex constitutional arrangements between the UK and its overseas territories, the sovereignty of parliament and the fast-evolving status of same-sex marriage within the context of international human rights law. 16 Feb 2017 12:00:00 UTC 7000994849ca2c18e1cb2fe2918b50d1 Two column articles <p style="text-align: justify;"><span class="s1"> <span style="color: #800000;"><a style="color: #800000;" href="https://doughty-street-chambers.newsweaver.com/International/1lu0et6afic" target="_blank" rel="noopener"><span class="s2">Susie Alegre</span></a></span> describes the complex constitutional arrangements between the UK and its overseas territories, the sovereignty of parliament and the fast-evolving status of same-sex marriage within the context of international human rights law.</span></p> <p style="text-align: center;">By Susie Alegre</p> <p style="text-align: center;"> </p> <p style="text-align: justify;">Last month the Supreme Court in Bermuda in <a href="https://doughty-street-chambers.newsweaver.com/International/19fxw0wv8uw"><strong><em>R Ferguson v AG & OUTBermuda et al v AG</em></strong><strong>[2018] SC (Bda) 46 Civ (6 June 2018)</strong></a> upheld the right to same-sex marriage in the Island despite legislative attempts to repeal it through the Domestic Partnerships Act (DPA).  Bermuda is a non-self-governing British Overseas Territory and the UK has responsibilities for its international obligations, including under international human rights law.  The legislation, while produced by the Bermudian Parliament, is signed off by the Governor, a British Crown appointment reporting to the Foreign and Commonwealth Office.  The UK ultimately has responsible for Bermuda’s compliance with the European Convention on Human Rights and other international instruments.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">Last year, in <a href="https://doughty-street-chambers.newsweaver.com/International/1ysegh6rblq"><strong><em>Godwin and Deroche-v-Registrar-General and others</em></strong><strong> [2017] SC (Bda) Civ (5 May 2017)</strong></a> the Bermudian Supreme Court had held that the definition of marriage as a union between a man and a woman was invalid because it discriminated against the applicants as same-sex partners.  This judgment was based on the Bermuda Human Rights Act 1981 which empowered the Supreme Court to declare any laws inconsistent with the Act as having no legal effect.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">Despite a range of arguments, the recent Ferguson case was ultimately decided on the basis of arguments around the Bermudian Constitution, in particular the freedom of conscience rights of the applicants under s. 8 and the prohibition of discrimination on the basis of creed in s. 12 of the Constitution.  The Court found that there had been an interference with the applicants’ rights to practise their belief in same-sex marriage in a permissible way.  The Constitution could be used to protect the rights of one group to practice their beliefs, but not to force their beliefs on others.  Therefore, the contested provisions of the DPA were unconstitutional.  The Court also found that those applicants who complained that their ability to manifest their beliefs by celebrating same-sex marriage had been taken away had been discriminated against on the basis of their creed as opposed to those applicants whose complaint arose from discrimination based on their sexual orientation.  It is interesting to note that the Court chose to approach the complex issues raised in this case from the perspective of rights to freedom of conscience and discrimination on the basis of creed rather than possible arguments about the right to marry or the right to private life.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">But this case is important, not only for its impact on the rights of Bermudians and for LGBTI rights more broadly, but also because of the fundamental principles of international human rights law that it raises.  While same-sex marriage is not recognised across the world, Bermuda is the first jurisdiction to legalise and then revoke the right to same-sex marriage.  But rights, once granted, cannot simply be taken away at the stroke of the legislator’s pen.  If it were so, none of us could be safe in the knowledge that our hard-won rights may not be taken away as the political climate changes.  In an age of populism, this is something that we should all be concerned about.  The principle of non-regression (or non-retrogression) in international human rights law – that is that rights, once granted, cannot be taken away – seems so self-evident that it has not needed to be tested in international courts.  This case, however, puts that principle into the spotlight.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">Susie Alegre of Doughty Street International developed arguments on the application of the ECHR to this case that were included in the written submissions of OUT Bermuda.  In particular, <a href="https://doughty-street-chambers.newsweaver.com/International/zahqikndju9"><strong>Susie focused on the principle of non-regression </strong></a>and the idea that international human rights law instruments are ‘living instruments’ which means they evolve to reflect developments in society.  Although these arguments were not taken up by the Supreme Court which concentrated on Bermudian constitutional law, such points will become more relevant now the case has been appealed.  Her submissions can be read <a href="https://doughty-street-chambers.newsweaver.com/International/zahqikndju9">here.</a></p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">Now that the Bermudian Government has appealed the decision, this case is likely to take on increased significance far beyond the shores of Bermuda raising, as it does, complex questions of constitutional law around the relationship between the UK and its overseas territories, the principle of the sovereignty of parliament in relation to international human rights obligations and the fast-evolving status of marriage in international human rights law.</p> <p style="margin: 0cm 0cm 0.0001pt; font-size: 12pt; font-family: Calibri, sans-serif; text-align: justify;"> </p> <div> <div id="ftn1"> <p style="margin: 0cm 0cm 0.0001pt; font-size: 12pt; font-family: Calibri, sans-serif; text-align: justify;"> </p> </div> </div> Susie Alegre http://doughty-street-chambers.newsweaver.com/files/2/74771/158187/328979/632bcdd71ab0f0d404dd0140/susie_alegre_low_res.jpg Airspace Tribunal https://doughty-street-chambers.newsweaver.com/International/nm99nrvpb85?rss=true Professor Nick Grief [ https://doughty-street-chambers.newsweaver.com/International/pfvmy7ighg1 ] outlines his recent work developing a new human right to protect the freedom to exist without threat from above; the inaugural hearing of the Airspace Tribunal which will be held at Doughty Street on 21 September 2018. 16 Nov 2017 12:00:00 UTC f69d0e15c0dda6ad02af606a58064f92 Two column articles <p style="text-align: justify;"><span style="color: #800000;"><a style="color: #800000;" href="https://doughty-street-chambers.newsweaver.com/International/pfvmy7ighg1" target="_blank" rel="noopener">Professor Nick Grief</a></span> outlines his recent work developing a new human right to protect the freedom to exist without threat from above; the inaugural hearing of the Airspace Tribunal which will be held at Doughty Street on 21 September 2018.</p> <p style="line-height: normal; margin: 0cm 0cm 10pt; font-size: 11pt; font-family: Calibri, sans-serif; text-align: center;"><span style="font-family: Arial, Helvetica, sans-serif; font-size: 12px;"><span style="color: #333333;">By Professor Nick Grief</span></span></p> <p align="center"> </p> <p> </p> <p style="text-align: justify;" align="center"><em>A public forum to consider the case for and against the recognition of a new human right to protect the freedom to exist without physical or psychological threat from above.</em></p> <p style="text-align: justify;"> </p> <p style="text-align: justify;" align="center">Inaugural hearing: Friday 21 September 2018, 10am – 4.30pm at Doughty Street Chambers.</p> <p style="text-align: justify;" align="center"> </p> <p style="text-align: justify;"><em>‘Over the last century, humans have radically transformed airspace: chemically, territorially, militarily and psychologically. Technological developments mean that this transformation is accelerating and growing in complexity. There is widening disparity in the global landscape of power, with civilians increasingly subject to expanding commercial and military exploitation of technology in airspace and outer space and to the consequences of environmental change. </em><em>The associated threats are not adequately addressed by the contemporary legal framework. There is an urgent need for new thinking. One aspect of airspace requiring development is the human rights dimension.’</em><a title="" href="#_ftn1" name="_ftnref1"><sup>[1]</sup></a></p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">Against that background, the hypothesis that we need a new human right to protect the freedom to exist without physical or psychological threat from above will be tested at a series of public hearings beginning in London with further hearings anticipated in locations around the world. Conceived and developed by Nick Grief (associate tenant at Doughty Street who represented the Marshall Islands in nuclear disarmament cases against India, Pakistan and the UK in the ICJ) and his University of Kent colleague Shona Illingworth (internationally acclaimed visual artist), the Airspace Tribunal will invite representations from experts across a broad range of disciplines and lived experience, such as human rights, contemporary warfare, new media ecologies, environmental change, neuropsychology, conflict and forced migration. The idea is to engage the audience and the wider public in dialogue and debate about the rapidly changing composition and nature of airspace, consider future pressures/impacts and interrogate and challenge the narrow terms by which airspace is currently defined and represented in law.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">Alongside Nick and Shona, the speakers/advocates will include Conor Gearty (LSE), professor of human rights law who has published extensively on terrorism, civil liberties and human rights; Andrew Hoskins (University of Glasgow), media sociologist known for his work on media, memory and conflict; Martin A. Conway (City, University of London), cognitive neuropsychologist and expert on human memory and the law; Maya Mamish (LSE), psychologist researching the integration and well-being of Syrian youth affected by armed conflict and displacement; and William Merrin (Swansea University), a specialist in digital media and author of Digital War.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">As Nick and Shona explained at a British-Albanian Lawyers Association event on the Airspace Tribunal at Doughty Street in June, the process will be led by Counsel to the Tribunal who will question each of the experts after they have delivered their statements and then facilitate comments and questions from the audience of invited participants and members of the public. The audience will be the judges, challenging the traditional state-centric view of how international law is created. The hearings will be recorded and transcribed to document the drafting history of the proposed new human right.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">The Airspace Tribunal is part of <em>Topologies of Air</em>, a major new artwork by Shona, commissioned by <a href="https://doughty-street-chambers.newsweaver.com/International/11vvvtx8v1l">The Wapping Project</a>, that will be exhibited at <a href="https://doughty-street-chambers.newsweaver.com/International/17n7kmfps80">The Power Plant,</a> Toronto in 2020. The Wapping Project (<a href="https://doughty-street-chambers.newsweaver.com/International/11vvvtx8v1l">http://thewappingproject.org</a>) is a London based arts organisation that commissions and produces contemporary art. The Power Plant is Canada’s leading public gallery devoted exclusively to contemporary visual art. The London hearing of the Airspace Tribunal is supported by the University of Kent, Doughty Street Chambers and The Wapping Project.</p> <p style="text-align: justify;"> </p> <p style="text-align: justify;">The organisers would welcome contributions to this project in the form of comments, criticism, suggestions and/or expressions of interest in attending the London hearing (<a href="mailto:info@airspacetribunal.org">info@airspacetribunal.org</a>). Further information about the Airspace Tribunal and its developing work can be found at <a href="https://doughty-street-chambers.newsweaver.com/International/17uxri4ifc6">www.airspacetribunal.org</a>.</p> <div><br clear="all" /><hr align="left" size="1" width="33%" /> <div id="ftn1"> <p style="text-align: justify;"><a title="" href="#_ftnref1" name="_ftn1">[1]</a> Nick Grief, Shona Illingworth, Andrew Hoskins and Martin A. Conway, Opinion, ‘The Airspace Tribunal: Towards a New Human Right to Protect the Freedom to Exist Without Physical or Psychological Threat from Above’ [2018] <em>European Human Rights Law Review,</em> Issue 3, 201.</p> </div> </div> Professor Nick Grief http://doughty-street-chambers.newsweaver.com/files/2/74771/158187/328979/f73b800d348e85a1c4403e97/nick%20grief.jpg