Raz on rights: human rights, fundamental rights and balancing

After clarifying the outlines of Raz’s interest theory of rights and its relationship to aspects of the principles theory of rights, I consider how his recent observations on human rights fit (or fail to fit) into the interest theory. I then address two questions. First, I elaborate on Raz’s definition of morally fundamental rights, arguing that he is right in claiming that there are no such rights. I then show that the interest theory accommodates the notion that rights may take qualitative precedence over conflicting considerations – a question that has become increasingly relevant in light of recent writing on rights.

A qualified defense of American drone attacks in northwest Pakistan under international humanitarian law

Since the terrorist attacks of September 11, 2001, international law has had to grapple with the fundamental challenges that large-scale violence carried out by non-State actors poses to the traditional inter- State orientation of international law. Questions related to the “adequacy” and “effectiveness” of international humanitarian law, international human rights law and the law related to the use of force have been particularly pronounced. This paper focuses on the international humanitarian law implications of American drone attacks in northwest Pakistan. A highly-advanced modality of modern warfare, armed drones highlight the possibilities, problems, prospects and pitfalls of high-tech warfare. How is the battlefield to be defined and delineated geographically and temporally? Who can be targeted, and by whom? Ultimately, this paper concludes that American drone attacks in northwest Pakistan are not unlawful as such under international humanitarian law, though, like any tactical decision in the context of asymmetric warfare, they should be continuously and closely monitored according to the dictates of law with sensitivity to facts on the ground.

The Copenhagen principles on the handling of detainees: implications for the procedural regulation of internment

The Copenhagen Principles on the Handling of Detainees in International Military Operations were released in October 2012 after a five-year long process involving states and certain organizations. The Principles address a number of issues concerning the handling and transfer of detainees. They apply in military operations conducted by states abroad in the context of non-international armed conflicts and peace operations. This article focuses on those principles that address the procedural regulation of internment (ie preventive, security detention), as it is here that the current law is particularly unclear. On the one hand, the treaty provisions applicable in non-international armed conflicts contain no rules on the procedural regulation of internment, in comparison with the law of international armed conflict. On the other hand, the relevant rules under international human rights law (IHRL) appear derogable in such situations. This article demonstrates that the approach taken to this issue in the Copenhagen Principles is one which essentially draws on the procedural rules applicable to civilian internment in the international armed conflicts. These rules adopt standards that are lower than those under IHRL. Reference is then made to other recent practice, which illustrates that the Copenhagen Principles do not apply in a legal vacuum. In particular, two recent judicial developments highlight the continued relevance of human rights law and domestic law, respectively, in regulating detention operations in the context of international military operations. Compliance with the Copenhagen Principles may not, therefore, be sufficient for detention to be lawful.

Transitional justice in Nepal: the Commission on Investigation of Disappeared Persons, Truth and Reconciliation Act 2014

The Commission on Investigation of Disappeared Persons, Truth and Reconciliation Act 2014 is Nepal’s latest attempt to establish a transitional programme to respond to conflict era abuses. In part, the Act remedies the inadequacies of the 2013 Ordinance. It creates two commissions, on truth and reconciliation and enforced disappearances, makes provision for the establishment of a Special Court to try past abuses and incorporates systems to enable vulnerable witnesses to participate in truth seeking. Yet in a number of respects it continues to fall short of international legal standards, not least in the possibility of amnesty for international crimes and gross violations of human rights. In addition, the relationship between the three mechanisms – truth seeking, amnesty and prosecution – remains unclear and safeguards for individual rights are lacking. This paper explores these recent developments, highlighting issues that must be remedied if transitional justice objectives are to be achieved in Nepal.

Conflicts of law and the mutual recognition of same-sex unions in the EU

My thesis uses legal arguments to demonstrate a requirement for recognition of same-sex marriages and registered partnerships between EU Member States. I draw on the US experience, where arguments for recognition of marriages void in some states previously arose in relation to interracial marriages. I show how there the issue of recognition today depends on conflicts of law and its interface with US constitutional freedoms against discrimination. I introduce the themes of the importance of domicile, the role of the public policy exception, vested rights, and relevant US constitutional freedoms. Recognition in the EU also depends on managing the tension between private international law and freedoms guaranteed by higher norms, in this case the EU Treaties and the European Convention on Human Rights. I set out the inconsistencies between various private international law systems and the problems this creates. Other difficulties are caused by the use of nationality as a connecting factor to determine personal capacity, and the overuse of the public policy exception. I argue that EU Law can constrain the use of conflicts law or public policy by any Member State where these are used to deny effect to same-sex unions validly formed elsewhere. I address the fact that family law falls only partly within Union competence, that existing EU Directives have had limited success at achieving full equality and that powers to implement new measures have not been used to their full potential. However, Treaty provisions outlawing discrimination on grounds of nationality can be interpreted so as to require recognition in many cases. Treaty citizenship rights can also be interpreted favourably to mandate recognition, once private international law is itself recognised as an obstacle to free movement. Finally, evolving interpretations of the European Convention on Human Rights may also support claims for cross-border recognition of existing relationships.