The Bonavero Institute of Human Rights and the Programme for the Foundations of Law & Constitutional Government recently launched the book Eternity Clauses in Democratic Constitutionalism (OUP 2021) authored by Silvia Suteu (University College London). The book analyses unamendability in democratic constitutionalism and engages critically and systematically with its perils. The 'dark side' of unamendability includes its propensity to insulate majoritarian, exclusionary, and internally incoherent values, as well as its sometimes purely pragmatic role in elite bargaining. The book brings to the fore a variety of case studies from non-traditional jurisdictions, for these insights from the periphery illuminate the prospects of unamendability fulfilling its intended aims – protecting constitutional democracy foremost among them. With its promise most appealing in transitional, post-conflict, and fragile democracies, unamendability reveals itself, counterintuitively, to be both less potent and potentially more dangerous in precisely these contexts. Silvia Suteu is joined by discussants Hayley Hooper (University of Oxford), Ewan Smith (University of Oxford) and Renáta Uitz (Central European University). The discussion was chaired by Nick Barber (University of Oxford).

Book Launch: Eternity Clauses in Democratic Constitutionalism

On 23 June 2021, the Bonavero Institute of Human Rights launched the book 'Standing Up for Justice: The Challenges of Trying Atrocity Crimes' by Judge Theodor Meron. For two decades, Judge Meron has been at the heart of the international criminal justice system, serving as President of the ICTY, President of the International Residual Mechanism for Criminal Tribunals, and a Judge of the Appeals Chambers of the ICTY and the ICTR. Drawing on this experience, he reflects on the rule of law, the principle of fairness in trying atrocity crimes, judicial independence and impartiality in international criminal courts, and how acquittals and the early release of prisoners interact with international justice and accountability, before addressing the all-important question: does international criminal justice work?

Judge Meron is joined by panellists Professor Catherine Redgwell (Chichele Professor of Public International Law, University of Oxford), Professor Kate O’Regan (Director of the Bonavero Institute of Human Rights, Oxford), Shehzad Charania MBE (Interim Director General and Head of the Attorney General’s Office, UK) and Dr Talita de Souza Dias (Shaw Foundation Junior Research Fellow in Law, Jesus College, Oxford). Helen Mountfield QC (Principal, Mansfield College, Oxford) chaired the discussion. Dame Hilary Boulding (President, Trinity College, Oxford) delivered welcome remarks.

Book Launch: Standing Up for Justice - The Challenges of Trying Atrocity Crimes

15 November 2022 - Mads Andenas takes issue with the argument that the European Court of Human Rights has recently been ‘walking back’ rights. His recent research, with Alec Stone Sweet and Wayne Sandholtz demonstrates that the European Court has not in fact been walking back rights in Europe. Instead of walking rights back, the European Court has simply chosen not to move forward. It is a realistic and sustainable position for the European Court to emphasise the importance of restraint, but also to take a robust approach where there has been a breach of rights. Andenas argues that a similar dynamic can be observed in the United Kingdom at present: the judiciary is under an unusual degree of pressure and its response has been to signal that the judiciary is able to exercise self-restraint and at the same time to draw a line in the sands as regards core values, such as the important (and unappreciated) value of the rule of law. But, Andenas argues, we should question legal scholarship that goes too far in urging restraint: there is a danger of undermining the judicial process.

Discussants: Gavin Phillipson & Freya Baetens
Chair: Kate O'Regan

Is the European Court of Human Rights walking back rights?

22 November 2022 - Human beings are not the only subjects who can seek protection under international human rights law. In an Advisory Opinion from 2017 and in a judgment rendered in 2020, the Inter-American Court of Human Rights indicated to include ‘Rights of Nature’ into the Inter-American system of human rights protection. The Court found that the human right to a healthy environment protects ‘as an autonomous right […] components of the environment, such as forests, rivers and seas, as legal interests in themselves, even in the absence of the certainty or evidence of a risk to individuals.’

This judicial practice mirrors a post-humanised view of rights bearers in human rights instruments. Components of the environment are obviously not human beings but nevertheless protectable in the realm of international human rights law. What type of rights bearers can ecosystems – including trees, oceans, animals, mountains – be? Are they of moral relevance as human beings are? If so, would this lead to acknowledging that they hold moral human rights? Proponents of Rights of Nature see an important commonality between human beings and nature: Stating that nature has ‘intrinsic value’ justifies nature’s moral considerability. It leads to acknowledging it as a subject of independent rights. In this ‘biocentric approach’, nature is seen as an ‘integral ecological partner’ with its own rights to exist and thrive.

In the talk, Patricia Wiater discusses if non-human subjects such as nature can hold moral human rights by referring to philosophical theories on human rights as moral rights. She thereby contrasts moral human rights with international legal human rights understood as a legal-political concept.

Discussant: Dr Giulia Saveja
Chair: Professor Kate O'Regan

Rights of Nature: A moral or a legal-political concept?

23 May 2023 - Menstruation matters, and it matters for the realization of human rights. Menstrual stigma has profound effects on the rights to health, education, work, and participation in public life, among others. As menstruation is gaining increasing attention, many organizations have adopted the framing of human rights, which holds the promise of addressing menstrual stigma. Dr Inga Winkler's presentation critically assesses the menstrual movement and its employment of human rights, examining the promises, pitfalls, and renewed potential of human rights.

Many current efforts at the global level are at risk of instrumentalization, tokenism, and reductionism. However, the menstrual movement is not monolithic, and many grassroots initiatives employ a broader and more nuanced understanding of human rights. Combined with normative arguments, this allows re-envisioning human rights in the menstrual movement (from below) to address gender injustices. At a conceptual level, Dr Winkler's work is embedded in critiques of the human rights ‘enterprise’ as risking to lose legitimacy and seeks to contribute to the emergence of a stronger human rights movement that bridges the local and the global.

Human Rights in the Menstrual Movement: Reductionism and Renewed Potential from Below

...in Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), 26 January 2024

On 26 January 2024, the International Court of Justice issued its Order for provisional measures in Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel).

Reading out the Order, ICJ President Joan Donoghue noted the 7 October 2023 attacks on Israel, calling for the release of all remaining hostages taken from Israel during these Hamas-led attacks in which some 1,200 people were massacred. Highlighting that the ICJ was ‘acutely aware of the extent of the human tragedy unfolding in the region’, Judge Donoghue said that the court remained ‘deeply concerned about the continuing loss of life and human suffering.’

The Court ordered Israel to adopt six provisional measures ‘in relation to Palestinians in Gaza’, namely to: 1) take all measures within its power to prevent genocide; 2) ensure that its military does not commit genocide; 3) take all measures within its power to prevent and punish incitement to genocide; 4) take immediate and effective measures to enable urgent humanitarian assistance and basic services; 5) take effective measures to prevent the destruction and ensure the preservation of  evidence relating to allegations of acts under article 2-3 of the Genocide Convention; and 6) report to the Court within one month about measures taken to give effect to the order. (The precise terms are available here).

The ICJ’s other recent jurisprudence under the Genocide Convention in Ukraine v. Russian Federation and The Gambia v. Myanmar reflects the increasing recourse to the ICJ and other international bodies in order to challenge atrocity crimes. So far, the ICJ’s jurisdiction in these cases was activated only  through the Genocide Convention, the wider implications for the laws of war, crimes against humanity and law on the use of force remain to be explored.

This event, organised by the Bonavero Institute of Human Rights in association with the Centre for Fundamental Rights, Hertie School, Berlin, and the Refugee Studies Centre, University of Oxford, aims to explore the legal implications of the ICJ’s Provisional Measures of 26 January 2024, in particular their implementation by Israel, third states and international organisations.

Speakers: Janina Dill, Victor Kattan, Reuven (Ruvi) Ziegler
Chair: Cathryn Costello

Implications of the International Court of Justice’s Provisional Measures... (cont. below)

...Political and associational rights and the Constitutional Court’s engagement with international and foreign law

With South Africa’s next national and provincial elections to be held on 29 May 2024, a seminar on 20 May 2024 is an apt occasion for Justice Rogers to survey the jurisprudence of the Constitutional Court lying behind the innovations which will characterise the imminent elections. The survey will start with the Court’s judgment of June 2020 in New Nation Movement [2020] ZACC 11, which concluded that South Africa’s Electoral Act was unconstitutional for failing to make provision for independent candidates. This was found to be inconsistent with the political and associational rights guaranteed in sections 19 and 18 of the Bill of Rights, viewed in the context of the Constitution as a whole. The Court had regard to international and foreign law, particularly regarding the right of association.

Following New Nation Movement, the Electoral Amendment Act of 2023 introduced amendments to cater for independent candidates in the context of a system primarily based on party contestation and proportional representation. These amendments gave rise to constitutional challenges addressed in two judgments handed down by the Constitutional Court in December last year, One Movement SA [2023] ZACC 42 and Independent Candidate Association [2023] ZACC 42. The focus of these judgments was whether the amendments violated the political rights of independent candidates and voters, particularly (a) by imposing what was alleged to be an unduly burdensome and unjustified signature requirement for the right to appear on the ballot and (b) by allegedly requiring an independent candidate, in substance if not in form, to get double the number of votes in order to win a seat. On the former question, considerable use was made, in the majority judgment, of international and foreign law.

Sfiso Nxumalo, who served as a judicial law clerk at the Constitutional Court when judgment in New Nation Movement was handed down, will be the discussant at this event.

Courts and Elections in South Africa: (cont. below)

Lessons from the implementation of the US forced labour import ban

In April, the European Parliament approved a new regulation in the EU to prohibit the sale, import and export of goods made using forced labour. Evidence on the effectiveness of these trade instruments in addressing labour rights violations remains scarce, with the United States being the only country in the world today actively enforcing a law that bans the importation of goods made with forced labor. Jennifer Gordon discusses her recent report, The US Forced Labour Import Ban as a Tool to Raise Labour Standards in Supply Chains: Strategic Approaches to Advocacy, which examines the challenges and opportunities that labor and human rights advocates and trade unionists have faced in using this provision--Sec. 307 of the US Tariff Act of 1930--in the context of campaigns to address systematic violations of workers' rights in supply chains. The report, written for an audience of advocates and policymakers, offers a new framework for strategic approaches to Sec. 307, with the goals of targeting lead firms at the top of supply chains, changing the practices of major suppliers in the center, and building worker power at the bottom.

Speaker: Professor Jennifer Gordon
Discussants: Dr Sofia Gonzalez De Aguinaga, Dr Maayan Niezna

Bonavero Discussion Group: Can forced labour import bans raise labour standards in supply chains?

On 9 April 2024 the Grand Chamber of the European Court of Human Rights ruled in the case of Verein KlimaSeniorinnen Schweiz v Switzerland that Switzerland was in breach of the right to private life under Article 8 of the ECHR for failing to take sufficiently effective measures to mitigate global climate change. The Court set out particular measures that a state needs to adopt in order to mitigate the climate crisis, for example to specify ‘a target timeline for achieving carbon neutrality’ and to set out ‘intermediate GHG emissions reductions targets’ among many others.  On 3 May 2024 in the case R (Friends of the Earth et al.) v Secretary of State for Energy Security and Net Zero, [2024] EWHC 995 (Admin) the English High Court (Sheldon J) accepted a challenge against the UK Government's  ‘Carbon Budget Delivery Plan’ finding it legally flawed in various ways under the Climate Change Act 2008 (for a second government defeat on this issue). 

Is this a new era of climate justice through strategic litigation?  Or are these modest victories, in a process that is likely to be more political than legal? Our expert panellists offer their views.

Panellists:
David Wolfe KC, Barrister at Matrix Chambers, who acted for the first claimant in in R (Friends of the Earth et al.) v Secretary of State for Energy Security and Net Zero

Professor Freya Baetens, Professor of International Law, University of Oxford & Member of the Brussels Bar

Professor Pavlos Eleftheriadis, Professor of Legal Studies, NYU Abu Dhabi, Affiliated Professor, NYU School of Law & Senior Research Fellow, Mansfield College, Oxford 

Chair:
Helen Mounfield KC, Principal of Mansfield College, Oxford & Barrister at Matrix Chambers

Bonavero Discussion Group - Climate Crisis Litigation: A new Era?

Climate change presents a pressing challenge not just to environmental governance but to the very structure of legal systems worldwide. It is legally disruptive - forcing lawyers, legal scholars, and courts to reconcile novel climate-related issues with existing legal frameworks. This disruption has led to new legal regimes, an increasing number of climate-related disputes and a rethinking of fundamental legal concepts.

This panel will explore how universities, as key knowledge hubs, should respond to this disruption. How should climate change be integrated into legal education? How can interdisciplinary collaborations between law, science, and civil society shape legal knowledge? What role do universities play in closing the expertise capacity gap and ensuring legal systems evolve to meet the challenges of climate change? The discussion will bring together legal scholars and practitioners to reflect on these issues from a comparative and global perspective, offering insights into how legal education and research can drive meaningful change.

This event is convened in collaboration with the University of Cape Town and Oxford Sustainable Law Programme.

 

This event is held in association with the Right Here, Right Now Global Climate Summit, as part of the Oxford Local Programme of events themed around climate change, human rights, and climate justice.

Implications of the International Court of Justice’s Provisional Measures... (cont. below)

Bonavero Institute

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