Presentation of a Paper on Brexit and EU Citizenship at a Conference in Austria

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In the past few years the concept of citizenship has for a variety of reasons regained fashion amongst national, European and international lawyers. In the UK the renewed interest in the notion of citizenship is partially explained by the effect of Brexit on the status of EU citizens in the UK (and UK nationals in the EU). Last year a wide range of events, which Christian Dadomo and Dr Noëlle Quénivet attended, were organised in Bristol to discuss citizenship (see here and here) and so when they saw a call for papers for a conference on citizenship at the University of Graz (Austria) they jumped onto the opportunity to present their work abroad and thankfully their paper entitled ‘Assessing EU Citizenship under the Myopic Lens of Brexit’ was accepted.

The conference ‘Transformation of Citizenship’, held on 20 and 21 November 2018, was organised by the Institute for International Law and International Relations in conjunction with the European Training and Research Centre for Human Rights and Democracy of the University of Graz (Uni-ETC) within the context of the project ‘Transnational Governance of Irregular Migration and the Transformation of Citizenship’.  It brought together a vast array of scholars from all around the world to discuss issues such as the sale of passports, global citizenship, statelessness, foreign terrorist fighters, solidarity, etc. Two panels were dedicated to Union Citizenship, thus highlighting the importance and relevance of the topic.

Christian and Noelle started their paper by reminding the participants that the CJEU had defined EU citizenship as a fundamental status that enables nationals of Member States to enjoy the same treatment in law and that since then scholars had been debating the legal value of such status. Christian and Noelle argued that Brexit brings to the surface again discussions about the legal value or more generally the worth of EU citizenship in contrast to (State) nationality. In their opinion, there are two ways of looking at EU citizenship. There is first a minimalist approach that focuses on the legal status and the rights with which individuals are endowed. It is the more palpable, almost every day life appearance of EU citizenship for EU citizens having exercised their right to free movement. Yet, attachment and loyalty to the EU cannot be fostered by a limited focus on citizens’ status and rights alone and so there is also a broader and more dynamic approach to EU citizenship that looks at the symbolism of EU citizenship and more specifically at the solidarity between EU citizens that should create some form of identity. It is more aspirational and inscribes itself in a vision of the EU as a polity in which a European civitas exists and thrives.

At first sight, Brexit undergirds this minimalist approach to EU citizenship in as much as many discussions centred upon the rights of the EU citizens in the UK (though less on the UK nationals in the EU27). The focus of attention was initially about the fate of these EU citizens in the UK and the rights they would lose as a result of Brexit. Both EU nationals in the UK and UK nationals in the EU realised the value of their EU citizenship. After all, you only appreciate what you had once you have lost it! For example, UK nationals both in the EU and more interestingly in the UK (even those who have never exercised their right to free movement) have applied for the nationality of an EU Member State to keep their EU citizenship.

However, the wider, aspirational approach towards EU citizenship is no less visible in Brexit for there have been demonstrations in favour of the EU in a State whose nationals have always been sceptical towards the EU, support in the European Parliament for ‘associate’ EU citizenship and a European Citizenship Initiative launched in July 2018 with the objective of keeping EU citizenship for UK nationals in the EU27. Therefore, it is possible to state that Brexit has revealed that EU citizenship goes beyond this minimalist approach that focuses solely on rights to a vision of EU citizenship as something that has a wider appeal and is based on solidarity along the French motto of ‘liberté, égalité et fraternité’.

More fundamentally, the European Union has enabled a shift in the way non-nationals are viewed: from foreigners to workers (homo economicus), to residents and to EU citizens. With Brexit the pendulum might go all the way back to viewing UK nationals in the EU who were EU citizens as foreigners and EU citizens in the UK as foreigners. Yet, the rhetoric of both the UK and the EU shows that they are adamant to reverting to square one. Consequently, it might be possible to state that Brexit has demonstrated that EU citizenship has subtly though fundamentally challenged the way EU citizens who have exercised their right to free movement are viewed. Though Brexit undeniably highlights the duality of EU citizenship, a status in its own right as well as a complementary over-layer that acts as a gate to rights that will be lost post-Brexit, it has revealed the intrinsic value of EU citizenship for EU citizens living in another EU Member State. As a result, Christian and Noelle argued that Brexit shows that EU citizenship is more than just a bundle of rights. EU citizenship has a transformative power in the sense that it is not just a ‘top up’ but has become part of a Union citizen’s legal heritage, especially in relation to long-term residents. And so, reverting to the status quo ante is nearly impossible.

What is more Brexit offers an opportunity to reinforce and complete EU citizenship and putting EU citizenship at the forefront of the European project. Like the French revolutionaries who created French citizenship on the tryptic ‘liberty, equality and fraternity’, the EU citizenship can equally be further developed on the tryptic ‘freedom of movement, equality treatment and solidarity’. Freedom of movement is fully developed, equal treatment can be completed by extending the so-called special (political) rights and notably the right to stand and vote in all national elections including referenda in their country of residence, and finally solidarity needs better promotion as it is only in its infancy.

The Criminal Justice Research Unit share their latest scholarly writings

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The Criminal Justice Research Unit organised on 12 November a Staff Research Seminar giving colleagues the opportunity to talk about their latest scholarly writings.

Matt Hall launched the seminar by presenting a fascinating and highly topical research piece on the legal framework relating to alcohol consumption in airports. This topic is not far off from his own PhD that examines the (ab)use of alcohol at football events and the law that governs it. As Matt pointed out, drunkenness at airports is not a new phenomenon, though it is not causing as much trouble as the media would like to portray it. What seems however new is the fact that individuals, particularly those about to embark on hen/stag/18-30’s etc., arrive at airports in a state of drunkenness which is indicative of the ‘pre-loading’ phenomena that is popular amongst many drinkers. Moreover, over indulgence in unregulated access to free alcohol in some departure lounges is also a concern. The abuse of alcohol at airports is a source of unease for the safety of the aircraft and of the passengers. It leads to disruptions to passengers, (including the planes having to be diverted) for which the airlines incur costs.

So, how is alcohol consumption regulated within society and at airports? As Matt explained, the most important piece of legislation relating to alcohol is the Licensing Act 2003. Its objectives are to prevent crime and disorder as well as public nuisance, ensure public safety and protect children. Anyone selling alcohol must comply with the Act’s principles. The system works on the basis of a licence which must be renewed and thus can also be lost. When applying for an application renewal, representations can be put forward to the relevant Licensing Authority from members of the public or the authorities, highlighting any concerns that the aforementioned principles are not being adhered to. The Act also lists a number of offences such as the sale of alcohol to drunk persons on the relevant premises, the failure to leave the relevant premises when requested to do so, obtaining alcohol for a drunk person on the relevant premises and the sale of alcohol to an individual under the age of 18, etc. The key problem is the enforcement of these offences, as for example, drunk people are regularly still being served alcohol. Remarkably, the Licensing Act 2003 does not apply to airside bars within airports as they are exempt under Section 173 which lists several designated airports. Two justifications are adduced for this exemption: a licensing officer would need to obtain airside security clearance, as well as any ‘sting’ personnel who ‘test’ licensed premises by sending in under 18’s to ‘test purchase’ and secondly, the exemption is in line with practice at airports in other countries. There is thus no surprise that in 2017 the House of Lords Select Committee on the Licensing Act 2003 recommended the repeal of Section 173.

Another important piece of legislation is the Civil Aviation Act 1982 which lists as offences entering the aircraft drunk, endangering an aircraft, endangering the safety of a person, etc. Yet, it turns out that the enforcement is poor here too as drunk individuals are very rarely stopped when boarding an aircraft. There are however on average 40 prosecutions per year which result in anything from a fine of £2000 up to 13 months custody.

Matt highlighted the fact that one problem resides in the definition of drunkenness, thus raising the issue of legal certainty. At which point is an individual deemed drunk? To explain this Matt referred to the situation of drunkenness in public places and at football events. In the former case, offenders are often ‘dispersed’ and told to go home; in the latter, they are prevented from accessing the football stadium as arresting drunk individuals is not a priority for law enforcement officers. Discretion is the key word here. A similar situation is happening at airports as fighting drunkenness is not a priority for airport officials and so enforcement of the law is low.

How can the issue be tackled? Matt went through a number of possible solutions. First, Section 173 could be repealed thus allowing airside bars to be licensed and thereby adhering to the Licensing Act’s principles. There could also be a blanket ban on alcohol consumption at airports and on board of aircraft, however, this would be unlikely given the financial interests of various stakeholders and also, issues of jurisdiction such as when an aircraft leaves UK airspace. Alternatively, individuals who are drunk could be barred from entering an aircraft, which would require a stricter approach in applying the law. In his opinion, the thrust of the problem is that there is no clear definition of the concept of ‘drunk’.

The second presentation held by Dr Noëlle Quénivet focused on the defence of duress and whether it was a justification or an excuse under international criminal law. Her presentation is based on a chapter of a book she is co-writing with Dr Windell Nortje (University of Western Cape, South Africa) on child soldiers and the defence of duress (to be published by Palgrave). Noëlle started by highlighting that, as strange as it may sound, defences are an essential component of international criminal law: individuals who have committed war crimes, acts of genocide or crimes against humanity are allowed to raise defences. The possibility to use defences should be welcomed as a sign that international criminal law is not about victor’s justice and human rights standards, and particularly the right to a fair trial, are complied with. After all, the use of defences does not mean that the act finds approval; it however does not merit condemnation and punishment.

Duress is one of the defences available to alleged perpetrators prosecuted before the International Criminal Court (ICC). It is usually understood as the compulsion of perpetrator to commit a crime because he/she fears for his/her life and limb, the threat stemming from another person (see Article 31(1)(d) of the ICC Statute). As a result, the perpetrator is placed in a position where his/her freedom of will and decision-making abilities are restricted to such level that he/she is not able to make a moral choice.

Noëlle explained that to understand how the defence of duress is applied one needs to examine the Anglo-American common law tradition in as much as the latter has been key in influencing case-law in international criminal law, namely via the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY). Under national law criminal law defences are often subdivided into justifications and excuses to distinguish between wrongfulness and blameworthiness. A justified action is not criminal because the conduct, although unlawful, is permissible or tolerated as its benefits outweigh the harm or evil of the offence. Here the focus is on the act. An excuse involves an action that is produced by the impairment of a person’s autonomy. Here the focus is on the actor.

Duress is a highly controversial defence in international criminal law. In common law countries it is a justification whilst it is an excuse in Romano-Germanic (civil law) systems. Moreover, duress is not admitted as a full defence in common law countries which means that it can never be invoked in the case of killing. To illustrate the issues relating to the application of duress Noëlle recounted the facts of the Erdemovic case and how the ICTY had come to the conclusion that ‘[d]uress does not afford a complete defense to a soldier charged with a crime against humanity and/or war crime involving the killing of innocent human beings.’ (para 19)

She then suggested that the ICC Statute might have overruled this jurisprudence since duress is accepted as a ground excluding responsibility that applies to all crimes and does not stipulate that it cannot be pleaded when taking a person’s life. Whether it is an excuse or a justification remains to be seen as the criteria for duress have been amalgamated with that of necessity (usually viewed as a justification) in a single provision and the fact that the provision requires the actor to carry out a lesser evil test seems to indicate that the defence is considered a justification.

Noëlle then explained that she would prefer the defence of duress to be an excuse. First, it ensures that the wrongful acts are viewed as such, the message being that such acts cannot be tolerated. Second, it allows to understand the act in its wider context, the focus being on the actor and his/her lack of autonomy in the given circumstances. Third, it can be used as a full defence, including killing though at this stage she indicated that she supported the application of the principle of proportionality, rather than a balance of harms test, as a limit to using duress as the defence.

Presentation of a paper on ‘Nationality as a Tool of Hybrid Warfare’ at a Workshop on Russia and International Law

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It is argued that Russia’s contemporary foreign policy and actions following its loss of territory after the breakup of the Soviet Union have led it to attempt to regain its influence using a variety of methods. In particular, it is contended that increasingly Russia is using ‘hybrid warfare’ tools to this end while at the same time exploring the limits of international law through lawfare which is defined as the use and exploration of the limits of the law to the letter but not necessarily the spirit to achieve desired outcomes. It is against this conceptual framework familiar to war studies specialists that Dr Noëlle Quénivet presented a paper, jointly written with Dr Sabine Hassler, entitled ‘Nationality as a Tool of Hybrid Warfare – Limits under International Law’ at the Workshop on ‘Russia and International Law – Politics and Discourse’ organised by the British International Studies Association on 17 September 2018. The workshop, held at the War Studies Department at King’s College London, brought together a group of young and well-seasoned scholars in international law and international relations to discuss Russia’s current stance in international law.

After a keynote address by Prof Bill Bowring of the University of Birbeck the first panel focused on Russia, Law and ‘Hybrid Warfare’ in which Dr Hassler and Dr Quénivet’s paper was delivered. It is contended that to achieve its foreign policy objectives, Russia has developed an arsenal of tools such as information operations, cyberattacks, proxies, etc. while maintaining that it complies with international law, at least with the established legal framework. One set of arguments claims that Russia is not trying to create new law but rather explores the scope and interpretational variations of the existing framework to achieve its objectives. Another set of arguments focuses on lawfare in the sense that Russia has employed law and legal processes to further its aims by exploiting legal thresholds and grey areas, thereby instrumentalising international law: it is using, abusing and misusing the law.

Using the example of the concept of nationality under international law Dr Hassler and Dr Quénivet show how Russia has instrumentalised the identification of nationals and the subsequent conferral of nationality to create facts and context that seemingly justify Russia offering its discretionary right to offer diplomatic protection to its nationals abroad and ‘intervening’ in Georgia and Ukraine. The paper maintains that the conferral of nationality (coined ‘passportisation’) is part of an integrated lawfare strategy that has so far evolved in five phases. This long-haul policy consists in creating facts as a basis for legal claims and then applying the law onto the facts with a view to modifying the law and thus establishing new, albeit sometimes unrelated to nationality, international law norms. Whilst it might be viewed as an exercise in international law interpretation, the fact that there seems to be a discernible pattern and that the situations created as a result of this policy are often unlawful means that first the law appears to be deliberately misused or abused and thus indeed is an instrument of warfare, and second one needs to carefully examine the practice and the opinio juris of Russia to predict possible changes in customary international law.

Dr. Philippe Karpe attends Centre for Applied Legal Research as Visiting Scholar

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By Noelle Quenivet:

Between 10 February and 10 March 2018 the Centre for Applied Legal Research hosted Dr Philippe Karpe as Visiting Scholar. Dr Philippe Karpe is a senior legal researcher and international expert working for CIRAD, a French agricultural research and international cooperation state organization working for the sustainable development of tropical and Mediterranean regions. Worldwide there are 850 CIRAD researchers assigned in 40 countries involved in an array of projects. Dr Karpe is currently posted in Nairobi, Kenya. Invited by the International Law and Human Rights Unit and the Environmental Law Research Unit it was a pleasure to have him with us. Dr. Karpe took part in a wide range of teaching and scholarly activities offered by the Bristol Law School, as well as pursuing his own research on indigenous people and the management of natural resources.

By education Dr Karpe is a public international lawyer who studied at the universities of Nancy, Paris 10 and Strasbourg in France and holds a ‘habilitation à la direction de recherche’ (Accreditation to supervise research) – a French post-doctoral degree allowing him to supervise PhD students. Besides supervising PhD candidates at CIRAD he also teaches at the universities of Strasbourg (France) and Hokkaido (Japan). The bulk of his work however consists in planning and running projects with and for international organisations (eg United Nations Development Programme-UNDP, World Bank), NGOs (eg Rainforest Foundation Norway, Organisation des Nations Autochtones de Guyane-ONAG) and other stakeholders applying his expertise on governance and rule of law, including indigenous peoples’ rights (general and particular rights, especially land rights, forest’s and carbon’s rights, forest users’ rights, women’s rights), socio-environmental safeguards, sustainable forest management, rural and forest land tenure (including for the implementation of the Voluntary Guidelines on the Responsible Governance on Tenure of Land, Fisheries and Forests in the Context of National Food Security-VGGT), participative management of lands (including the use of artificial intelligence), participative mapping, institutional arrangements and stakeholder commitments (civil society, forest communities, etc.).

Dr Karpe led workshops on three modules (‘Natural Resources’, ‘Corporate Governance and Corporate Social Responsibility’ and ‘European Environmental Law and Policy’) offered on our LLM programmes. In each of these modules he shared with the students his extensive knowledge and practical expertise in the relevant fields. He brought law to life by using concrete legal problems he had been confronted with in his own field work.

For example, in the module ‘Natural Resources’ led by Prof Jona Razzaque Dr Karpe produced real forest legal texts that were enacted by regional, national and local public authorities. The students could thus see how forests are protected (or not). This helped the students to better understand the practical application of the law as well as its (sometimes unintended) consequences on local populations.

In the module ‘Corporate Governance and Corporate Social Responsibility’ the students were asked to engage in a discussion on ethical aspects of activities carried out by multinational enterprises using real contracts that were agreed upon between indigenous people and organisations. Passionate discussions in this workshop run by Dr Karpe and Dr Sabine Hassler on (for example) the protection of traditional knowledge in India and the protection of the intellectual property rights of the indigenous peoples ensued.

This inquisitive and practice-oriented type of engaging with the students was again displayed in the workshop on the EU Common Agricultural Policy (CAP) in the module ‘European Environmental Law and Policy’. Together with the module leader, Christian Dadomo, Dr Karpe challenged the students to analyse the current CAP reform and its interface with the environment and, more largely, the future shape of the society. He notably discussed with the students the negative and positive connections between agriculture, the society and the environment (eg pollution, deforestation, drying up of rivers, etc) and how the reform of the CAP deals with these issues. Dr Karpe’s visit was a great asset to our practice-led and student-centred teaching culture on the LLM programme at UWE.

Throughout his stay at UWE Dr Karpe also took the opportunity to attend a number of external engagement events organised by CALR such as the Brexit and Corruption talk by Dr Lorenzo Pasculli and the Brexit and Trade Relations panel discussion. As a scholar working often far away from European legal issues he particularly enjoyed this insight into one of the most commonly debated issue in the UK: the withdrawal of the UK from the European Union. In this context, he sincerely enjoyed the great variety and quality of the different UWE’s opportunities to develop and enrich the knowledge on many scientific and political vital present concerns.

Dr Karpe had the opportunity to deepen his present academic research especially on Harmony with Nature, the Commons, the indigenous peoples and the farmers by collecting many references and academic articles on the UWE’s virtual library and by daily discussions with colleagues on a variety of topics, some of them relating to research methods and methodology (eg epistemology, social-legal studies and critical legal studies). Furthermore his stay at UWE gave him the opportunity to consider some new academic concerns such as conflict, war and the humanitarian legal framework.

On two occasions Dr Karpe presented his work to UWE staff and students. At a first event he shared with us his practice-based research and at a second reflected upon his work as a lawyer in the field. A roundtable on ‘The Future of the Commons’ was organised on 28 February 2018 to discuss the definition of the concept of the ‘Commons’ and develop the ‘Commons Thinking’. Dr Karpe’s intervention focused on his own experience of the commons in the African context.

For example he was once confronted with what appeared to be an odd situation in a village. The local population did not seem to be related or linked, the concept of society did not seem to apply either and it appeared that each person was working for him/herself. A positive, classic lawyer would have undoubtedly failed to realise that there was something beyond that and that in fact these individuals were connected by a common, shared ‘space’. Dr Karpe then questioned whether the concept of the commons was an answer to this practical/technical problem which could be turned into a political concern. He posited that current values do not conform to aspirations of justice and that contemporary laws do not help support, protect and promote the life of individuals who live in such a situation. Yet, as a lawyer, his job is to establish justice between people and to find solutions to concrete technical as well as political problems. Thus in his view the concept of the Commons appear to be the most suitable tool. However, when trying to write the law of the Commons the lawyer faces the harsh reality of having to acknowledge that law simply is not the most appropriate tool. For example, law is usually split in different areas such as contract law, family law, property law, etc and yet the Commons transcend these separations. Also the Commons are a ‘space for development’ as they create opportunities for changes and evolution. This all makes it difficult to freeze the Commons into law.

Dr Karpe argued that for him it was crucial that human rights be at the centre of all these activities. Law should be created around human rights. He also challenged the vertical relationship of law whereby constitutional law sits at the top of the hierarchy of any national legal system. Whilst he admitted that this might sound revolutionary as lawyers struggle to understand law in anything but hierarchical terms and categories he emphasised that only a horizontal understanding of the law could avoid corrupting the Commons. As he explained his support for the Commons he however warned that the concept of the Commons might in specific contexts be used as a new form of colonialism enabling State and organisations, for example to deny rights to indigenous people on the basis that under the principle of non-discrimination and shared access to resources no special rights should be given to them.

Last but certainly not least Dr Karpe gave a talk entitled ‘Has the Wandering Lawyer Reached his Destination? – The Adventures of a Lawyer Working in the Field’ which gave him the opportunity to reflect on his work. It was an enlightening talk as Dr Karpe shared with us over 25 years of research in Cameroon, the Central Republic of Africa, Madagascar, Democratic Republic in Congo, Gabon, etc. He kicked off this presentation by asking ‘What am I? What is my purpose as a lawyer?’. Looking at the type of jobs he usually carries out he acknowledged that his work tends to touch upon a range of topics (eg weddings, contracts, etc) though it does focus on forestry. Yet, as a human being he questions what his real role is. For him, he should be promoting justice and more specifically social justice.

As a result he does not question the abstract internal coherence of the texts, the content of texts or their effectiveness and efficiency as such. Rather, these are only steps in this research work. The basic research question is ‘under which conditions may the lawyer contribute to improving the living conditions of the local population?’. The objective is thus to understand how law can contribute to improving the living conditions and ensure the protection of a certain idea of a community of life. For this, four assumptions must be made: 1) laws and rules may contribute to social change and lawyers are thus useful; 2) laws and rules have a political function; 3) there is a community of life and 4) the function of laws and rules is to guarantee social peace. Likewise Dr Karpe conceded that there were a number of challenges: 1) working with disadvantageous groups such as indigenous people, rural women, etc; 2) the status of users’ rights in developing countries and 3) the status of peasants. All these challenges relate to various aspects of vulnerability and deprivation of rights. With this in mind the lawyer must think about how he can have a positive impact on society.

In Dr Karpe’s eyes the most suitable way to understand societies and to then be in a position to support them is to conduct extensive research in the field. This means using involved, immersed and applied research techniques so that a concrete and continuous contact with the relevant people can be established.

Dr Karpe also stressed that the nature of the field obliges all actors to adopt an interdisciplinary approach and so he works with economists, anthropologists, biologists, pharmacologists, etc, bearing in mind that each person brings his/her own views and perceptions of the situation and that all these views as well as methodologies need to be integrated into one’s work. Does that mean that the lawyer disappears? Dr Karpe stressed he remains a positive lawyer (one that is trying to find the best solution to a problem that affects people), a humanist (there is no doubt a need for empathy and humility in these circumstances) and a ‘questionnaire’ (a person who asks questions) and thus a ‘wandering lawyer’. In his opinion this ‘wandering lawyer’ has a fundamental political and moral obligation to remember, think, defend and realise the key destiny of a lawyer: social justice. As a result he/she must revise his/her vision of the law, its essence, substance and form. Four main research themes derive from this stance towards law and the role of the lawyer: 1) the commons, the harmony between nature, humanity and values (justice); 2) the nature and the content of the law (juridicity); 3) the tools for implementing the law and 4) the methodologies of knowledge of law.

Dr Karpe presented some of the results of his reflection, explaining that the law should not be in the form of specific provisions, that the new ‘Common Law’ should correspond to a right of communion, a transcendental right and that the new Common Law must correspond to an idea, that of a community of life. Under the Common Law individuals enjoy the same rights and there is no hierarchy of rights. That being established, Dr Karpe questioned the way law is created, articulating the idea that law is often crafted by a certain type of persons for a certain type of person and for a specific objective and that consequently law may not be really that ‘common’ in fact.

As Dr Karpe left UWE he had made contact with many colleagues in the Bristol Law School and hoped to be able to involve these colleagues in his work. He proposed to establish an opened think-thank on the Commons, the Wandering Lawyer, Law and the Juridicity, named: “the Rainbow Team”. Discussions were also had about future collaboration notably in the form of common projects relating to the protection of the environment, biodiversity and conflict. It was with regret that we had to let Dr Karpe go back to his work as it was such a pleasure to talk to him on a variety of topics.

 

Guest Talk – Dr Jane Rooney: Article 2 of the European Convention on Human Rights in Armed Conflict

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By Noelle Quenivet:

The International Law and Human Rights Unit of the Bristol Law School welcomed on 14 March 2018 Dr. Jane Rooney, Lecturer at the University of Bristol, who presented a paper on ‘Article 2 of the European Convention on Human Rights in Armed Conflict’. Dr. Rooney began by explaining that she was challenging the commonly held view that human rights law (and the European Convention on Human Rights more particularly), subject States to a higher threshold than international humanitarian law.

Continue reading “Guest Talk – Dr Jane Rooney: Article 2 of the European Convention on Human Rights in Armed Conflict”

Roundtable Assessment – ‘The Future of the Commons’ with Keynote Speaker David Bollier

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Elena Blanco, Associate Professor on International Economic Law, assesses this February event

On 28 February 2018 while Dr Philippe Karpe, Visiting Scholar of the Environmental Law Research Unit (ELRU) and International Law and Human Rights Research Unit (ILHRU), stayed at UWE Elena Blanco chaired and organised a roundtable on ‘The Future of the Commons’ as one of the events during his month long stay.

Philippe Karpe’s work for CIRAD in Kenya on natural resource management and his scholarship had touched and explored this alternative, sustainable discourse of ‘The commons’ not just as a natural resource management tool but, more importantly, as a challenge to traditional law practice and a re-framing of law as an instrument of social and environmental justice.

We were extremely fortunate to have David Bollier, the main authority in ‘The Commons’ scholarship and practice, to accept our invitation and join us via (green) Video Conferencing to share his latest work on the understanding of ‘value’ and its influence and articulation in policy. David has inspired a large number of researchers and activists through with his best known work ‘Thinking Like a Commoner’ and, after his keynote, he engaged in a lively discussion with invited participants and discussants.

With a topic as poignant as this paradigmatic ‘Commons Thinking’ we decided that this first roundtable (we would like more events like this to follow) would be critical and conceptual while a later event (which will be organised by the ELRU in June) will engage with practical perspectives and activism. Hence, the invited discussants to this event were critical thinkers and theorists like Dr Sam Adelman (Associate Professor at the School of Law of the University of Warwick), Dr Vito de Lucia (Researcher at the KG Jebsen Centre for the Law of the Sea, UiT Arctic University of Norway) and Professor Anna Grear (Professor at the School of Politics and Law of the University of Cardiff) to join Dr Philippe Karpe and his very interesting practical and theoretical insights into the potential of ‘commons thinking’. The audience included members of the ILHRU, the ELRU, FET and the Bristol Business School, including our doctoral students.

The workshop began with David Bollier’s keynote speech. He pointed out that that there are a multitude of ways to approach the concept of the common. Whilst many politicians and individuals working on issues relating to economics and property rights focus on the resources aspect of the commons it should in fact be viewed as a social system with a community of values, rules and practices relating to resources. Traditionally, natural resources such as fisheries, farmland and wild game have never been considered as significant for economic purposes because there is no direct cash attached to it. Anthropologists appear to be the ones most able to understand the concept as they view the commons as a food system in a community, be it in an urban or agricultural setting. Indeed the commons can be seen as a new movement enabling ordinary people to use and more importantly share and manage resources (eg community garden, public common partnership, wifi nets, etc). Often, the key features of these communities are open design and sharing.

David Bollier stressed that there is a burgeoning world of very diverse commons initiatives, all based on shared benefit, fairness, equality and inclusive participation which are the core elements of the commons. The idea is that individuals negotiate, collaborate and come to an agreeable conclusion. As a result the commons create social bonds, a social movement that exists outside of the State and politics. However, because it is non-conventional it is often viewed as irrelevant. Yet, this discourse and vehicle of expression can be used to counterbalance the politics of market. It is a new vision and paradigm of politics and governance as it is a politics of belonging. The commons are a different philosophy of human aspiration and existence, away from the capital market and liberalisation philosophies and values. In this view radical individualism is destroying social bonds.

That being said, the commons is not only a critique that challenges the systemic limitations of the neoliberal economics and political culture but also an inspiring platform for reform. A long history of the commons allows for the concept to be anchored in political and legal tradition. As the concept of the commons allows for transnational collaboration it reimagines the State and law more generally. It opens up spaces that are contextual. Moving forward, David Bollier suggested that the next step should be to bring together small initiatives with a view to develop horizontal relationships between the movements. This would allow the organisation of politics beyond political parties as well as be the opportunity to create a theory of values that focuses on non-monetarised elements. David Bollier concluded his keynote speech by sounding a note of caution: by ushering the commons into mainstream it should not lose its true meaning.

Several important insights arose from the event including many critical ‘cautions’ such as the danger of top-down (even if green) approaches, the need for participatory structures, the importance of formulating alternatives to development and the importance of escaping the ‘value trap’ that dominates all aspects of our lives at the moment.

The idea of ‘Legal Hacks’ was discussed at the end of the event and put forward by David as a way of transitioning to a sustainability informed, participatory approach to social, economic and environmental approaches. He also linked his work to that of his good friend George Monbiot who as a public figure regularly formulates alternatives to mainstream destructive economic approaches.

We think we speak for others when we say we left the event inspired, hopeful and determined to take this thinking and scholarship further. Elena Blanco was able to bring some of the insights of the day to the ‘Repair Acts Network’ event which took place in 13 March (see separate post).

If anyone is interested in participating in a ‘local-global’ commons inspired multidisciplinary project, please get in touch with Elena Blanco at Elena.Blanco@uwe.ac.uk.

Elena Blanco (Associate Professor on International Economic Law, Acting Head ELRU) and Noelle Quenivet (Associate Professor in International Law, Head ILHRU)

Brexit and Trade Relations

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This panel discussion with Christian Dadomo, Dr Clair Gammage and Dr Maria Garciatalk was organised by the lecturers of the module ‘EU Law’ offered to Year 3 students and the International Law and Human Rights Unit of the Centre for Applied Legal Research.

Since the beginning of this academic year 2017/2018 third year students on the LLB degree have had the opportunity to listen to a number of internal and external speakers on the issue of Brexit. On 16 February 2018 the team teaching EU law convened a panel discussion on ‘Brexit and Trade Relations’ comprised of Christian Dadomo, Senior Lecturer at UWE, Dr Clair Gammage, Lecturer in Law at the University of Bristol, and Dr Maria Garcia, Senior Lecturer in International Political Economy at the University of Bath. Each of them shared his/her thoughts on the topic and the session was then run in a Question Time format as students had been asked to send questions in advance to the chair, Dr Noëlle Quénivet, Associate Professor in International Law.

Dr Garcia began the session by setting the scene of the Brexit campaign and Brexit in relation to trade. She pointed out that whilst contestation of trade was a global trend and protests and concerns had been voiced against eg genetically modified organisms, chlorinated chicken, the privatisation of the NHS no such discussion was held during the Brexit campaign. Brexit did not seem to be about contesting global trade and its effects but migration and ‘taking back control’. The fact that there was so little discussion on trade might be explained by the fact that trade negotiations could only be held once the UK had left the EU since the EU has exclusive competence in negotiating trade agreements. Also she explained that if references were made to trade during the campaign it was usually about agreements with other States rather than trade as such. As a matter of fact the best prediction about individuals voting leave/remain was not the trade issue but education, attitude towards migration, etc. In preparation to Brexit trade has been becoming increasingly important as Prime Minister Theresa May referred to it in her Lancaster and Florence speeches and Foreign Minister Boris Johnson talked about it to recently. This has no doubt shifted the debate. Still, no discussion is being had on the contestation of trade policies. Dr Garcia suggested this might be due to the fact that it is too early to do so in light of other significant and more urgent problems. It might also be the case that the government has no clear idea of the precise content of future trade agreements. Moreover the UK government appears to send mixed messages, asking for a seamless trade relationship and yet being unable to adopt a clear position on how to tackled the issue of the two land borders through which it will trade (between Ireland and Northern Ireland and between Gibraltar and Spain). The UK White Paper on Trade reflects an inclusive and pro-development approach to trade that will however be difficult to deliver. Indeed, it appears that at the moment the UK is training individuals on issues relating to financial services rather than goods that are key to trade agreements with development features. Further, if the aim of Brexit is to regain sovereignty why should the UK accept American standards as well as dispute settlement mechanisms enshrined in trade agreements? Dr Garcia explained that it appeared that the UK was in fact anchoring itself in a thinking that supported what Steven Gill has described as the constitutionalisation of a neo-liberal regime through trade agreements.

The next speaker, Christian Dadomo, shared his thoughts on what the deep and comprehensive trade agreement favoured by the UK government could look like. Mr Dadomo first explained that before even starting discussions on such an agreement the UK and the EU needed to negotiate and agree on a withdrawal agreement focusing on three priority issues: EU and UK citizens’ rights, a financial settlement and the situation in Northern Ireland. The result of these negotiations were presented in a joint report on 8 December 2017. Such agreement also needs to take into account the future framework arrangements. As Mr Dadomo observed a number of elements are known. First, all free trade agreements the EU has negotiated are different: there is no one, unique solution as it is important that such agreements fit the various interests of the parties. The UK claims that as a soon-to-be former Member State of the EU it already complies with EU law and thus it should not be difficult to agree on such a trade treaty. Any solution between the UK staying a party to the European Economic Area Agreement to the UK applying the World Trade Organisation rules is on the table. On one end of this continuum of solutions is a very close association with the EU. Yet, it is already known that as the UK wants free trade and control over immigration it has expressed its clear wish to leave the Customs Union and the Single Market. Yet, the EU has specified no cherry picking is possible. It is also known that the UK rejects the Norway model as it would mean paying to get access to the Single Market whilst having no say in the law-making process and being obliged to comply with all EU rules, including those on the free movement of persons. On the other end of this spectrum lies the application of WTO rules which is often viewed as the worst scenario possible as it involves the imposition of tariffs on trade and rules of country of origin. In between these two extreme options two types of agreements, modelled on either the EU-Canada Comprehensive Economic and Trade Agreement (CETA) or the EU-Ukraine Deep and Comprehensive Free Trade Area, are available. Mr Dadomo contrasted the two agreements: whilst Ukraine accepts the acquis communautaire, Canada does not; whilst CETA is focused on trade (goods, intellectual property) the agreement with Ukraine also includes provisions relating to security, home affairs and justice. The key problem is that it is still unclear which kind of agreement the UK wishes to have with the EU apart from a ‘deep and comprehensive one’. The possibility of a ‘CETA +++’ has also been formulated. Mr Dadomo stressed that in any case the agreement will have to be bespoke but the possibility to customise some elements also means that conditions can be attached to them. The Swiss model that is highly bespoke is off the table as the EU does not wish further agreements of this type to be negotiated. Mr Dadomo finished his presentation by stating that until the UK clearly specifies what it wishes the agreement to contain it is difficult to provide a legal commentary, ascertaining whether the EU first can legally enter into such an agreement and second would be amenable to conclude such an agreement.

Dr Clair Gammage then turned her attention to the impact of Brexit on trade and human rights. She highlighted the complexity of the issue as it covers a variety of legal regimes and political opinions greatly differ on the subject-matter. First, she reminded the audience that the UK is still a member of the World Trade Organisation in its own right but that negotiations at the WTO are undertaken by the EU. Second, she pointed at the lack of understanding of how trade works on a multilateral level and that the lack of expertise in the UK relating to negotiating trade agreements. Indeed, tariffs (of eg agricultural products) are set by the EU in the WTO and these will need to be renegotiated by the UK. Tariff-free trade might be a solution. The UK has submitted a solution to the split between the EU and itself but other WTO members (eg the US) have already voiced their concerns or even opposition to the proposal. Unfortunately for the UK it is not allowed to discuss any trade agreements until it is outside the EU and this is not only due to the exclusive competence of the EU but such negotiations would also violate WTO rules. The WTO recognises two forms of free trade agreements: free trade areas and customs unions, both covering a wide range of treaties which means that the UK is likely to negotiate successful suitable trade agreements with third parties. The problem is time as such treaties take several years to be negotiated and concluded. Another problem faced by the UK relates to the existing free trade agreements between the EU and third parties. Dr Gammage shared her view that there is no automatic roll over for such treaties which means that they would need to be renegotiated. As for trade standards, she explained that the UK will be bound by WTO standards (including those relating to sanitary and phytosanitary regulations) and, should it wish to export its goods to the EU, such goods would need to comply with EU law. Dr Gammage then moved on to discussing the effects of Brexit on human rights, arguing that at first sight it appears that there is no erosion of rights. Yet, the situation relating to Northern Ireland that is regulated by the 1998 Peace Agreement is not entirely clear. Further and more generally, the Charter of Fundamental Rights of the European Union will not apply in the UK anymore. This needs to be given proper consideration as a number of rights enshrined in the Charter are not protected elsewhere (eg in the Convention for the Protection of Human Rights and Fundamental Freedoms) and even though the government is committed to retaining EU law it should be borne in mind that such laws can be changed both by Ministers and Parliament and that devolved administrations might not be involved in such decisions. This will have considerable impact on economic rights but could, as Dr Gammage argued, be included in the withdrawal agreement. Moreover the right to equality does not exist as such in the UK as it is entirely based on EU law. Such a right, different from the prohibition of discrimination based on various factors, could be lost. As for the interrelationship between Brexit, trade and human rights Dr Gammage explained that changes in trade relations should be made with great care as a viable economy is of paramount importance. A further complication relates to accepting, even if reluctantly, trading standards in free trade agreements that might directly impact on the local population. For example, the issue of trade in agricultural products must be carefully thought through as the mass import of agricultural goods may lead to less employment which itself can bring salaries and wages down. Also the UK could be bound by trading standards that apply extra-territorially (eg EU animal welfare rules). Dr Gammage thus suggested it might be better to align UK standards on EU regulations for such matters. However, in the grand scheme, the UK will have to find funds to cover for the lost trade and subsidies to eg agriculture and such funds might in fact be divested from assistance to eg disabled and homeless persons. Dr Gammage concluded on the sad note that the UK will in the long term be vulnerable to internal and external troubles.

After the presentations questions from the floor focused on (1) the impact of Brexit on the 1998 Northern Ireland Peace Agreement, (2) the potential checks at the border between the EU and the UK, (3) the impact of Brexit on trade between the UK and South America as well as (3) the future shape of trade agreements between the UK and African States and the Commonwealth.