Best Available Techniques (BAT) and coal fired power stations: Can the energy gap be plugged without increasing emissions?

At present, there is much anxiety regarding the security of energy supplies; for example, the UK and other European States are set to become increasingly dependant upon imports of natural gas from states with which political relations are often strained. These uncertainties are felt acutely by the electricity generating sector, which is facing major challenges regarding the choice of fuel mix in the years ahead. Nuclear energy may provide an alternative; however, in the UK, progress in replacing the first generation reactors is exceedingly slow. A number of operators are looking to coal as a means of plugging the energy gap. However, in the light of ever more stringent legal controls on emissions, this step cannot be taken without the adoption of sophisticated pollution abatement technology. This article examines the role which legal concepts such as Best Available Techniques (BAT) must play in bringing about these changes.

Legal outlier, again? U.S. felon suffrage: comparative and international human rights perspectives

The judiciousness of American felon suffrage policies has long been the subject of scholarly debate, not least due to the large number of affected Americans: an estimated 5.3 million citizens are ineligible to vote as a result of a criminal conviction. This article offers comparative law and international human rights perspectives and aims to make two main contributions to the American and global discourse. After an introduction in Part I, Part II offers comparative law perspectives on challenges to disenfranchisement legislation, juxtaposing U.S. case law against recent judgments rendered by courts in Canada, South Africa, Australia, and by the European Court of Human Rights. The article submits that owing to its unique constitutional stipulations, as well as to a general reluctance to engage foreign legal sources, U.S. jurisprudence lags behind an emerging global jurisprudential trend that increasingly views convicts’ disenfranchisement as a suspect practice and subjects it to judicial review. This transnational judicial discourse follows a democratic paradigm and adopts a “residual liberty” approach to criminal justice that considers convicts to be rights-holders. The discourse rejects regulatory justifications for convicts’ disenfranchisement, and instead sees disenfranchisement as a penal measure. In order to determine its suitability as a punishment, the adverse effects of disenfranchisement are weighed against its purported social benefits, using balancing or proportionality review. Part III analyzes the international human rights treaty regime. It assesses, in particular, Article 25 of the International Covenant on Civil and Political Rights (“ICCPR”), which proclaims that “every citizen” has a right to vote without “unreasonable restrictions.” The analysis concludes that the phrase “unreasonable restrictions” is generally interpreted in a manner which tolerates certain forms of disenfranchisement, whereas other forms (such as life disenfranchisement) may be incompatible with treaty obligations. This article submits that disenfranchisement is a normatively flawed punishment. It fails to treat convicts as politically-equal community members, degrades them, and causes them grave harms both as individuals and as members of social groups. These adverse effects outweigh the purported social benefits of disenfranchisement. Furthermore, as a core component of the right to vote, voter eligibility should cease to be subjected to balancing or proportionality review. The presumed facilitative nature of the right to vote makes suffrage less susceptible to deference-based objections regarding the judicial review of legislation, as well as to cultural relativity objections to further the international standardization of human rights obligations. In view of this, this article proposes the adoption of a new optional protocol to the ICCPR proscribing convicts’ disenfranchisement. The article draws analogies between the proposed protocol and the ICCPR’s “Optional Protocol Aiming at the Abolition of the Death Penalty.” If adopted, the proposed protocol would strengthen the current trajectory towards expanding convicts’ suffrage that emanates from the invigorated transnational judicial discourse.

No asylum for “Infiltrators”: the legal predicament of Eritrean and Sudanese nationals in Israel

This article explores the precarious status of Eritrean and Sudanese nationals in Israel. Having crossed the Israeli-Egyptian border without authorisation and not through an official border crossing, Israeli law defines such individuals as ‘infiltrators’, a charged term which dates back to border-crossings into Israel by Palestinian Fedayeen in the 1950s. Eritreans and Sudanese nationals constitute over 90 percent of ‘infiltrators’ in Israel. Their livelihood is curtailed through hostility, sanctions, and detention, while (at the time of writing) Israel refrains from deporting them to their respective countries of origin, recognising that such forced removal could expose them to risks to their lives and/or freedom. Israel was the 10th state to ratify the 1951 Refugee Convention, and has acceded to its 1967 Protocol which removed the 1951 Convention’s temporal and geographic restrictions, yet it has not incorporated these treaties into its domestic law not has it enacted primary legislation that sets eligibility criteria for ‘refugee’ status and regulates the treatment of asylum-seekers. Israeli law also fails to accord subsidiary protection status to persons that the state considers to be non-removable, whether or not they satisfy the definition of a ‘refugee’ under the 1951 Convention. Absent legal recognition of ‘refugee’, ‘asylum-seeker’, and ‘beneficiary of subsidiary protection’ statuses, Eritreans and Sudanese nationals are left in legal limbo for an indefinite period qua irregular non-removable persons. This article takes stock of their legal predicament.