M a r c h 2 0 1 7 I s s u e 1
King's Student Journal for
Politics, Philosophy and Law
E d i t o r : P e n n y T r i d i m a s King’s Journal for Politics Philosophy and Law
Aims and Objectives
The King’s Student Journal for Politics, Philosophy and Law (KSJPPL) is a King’s College London student-run journal that explores key political, philosophical and legal issues, and how they intersect. The journal is a forum for systematic analysis and fosters the exchange of thought between students and academics from these disciplines. It aims to inform and stimulate the interest of readers, and debate policy issues using inter–disciplinary methodological approaches. Diversity of thought and expression is a founding principle of the Politics, Philosophy and Law, LLB degree at KCL; the KJPPL is in the same spirit. Contributions are invited from the entire community of students and researchers of King’s College London, and especially Law, Social Sciences and Public Policy.
The inaugural 2017 volume features ten papers spanning from issues such as Brexit, the International Criminal Court, the refugee crisis engulfing Europe, and the punk movement.
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Published in the United Kingdom by the King’s Student Journal for Politics, Philosophy and Law, King’s College London, Strand, London, WC2R 2LS
All rights reserved.
No part of this publication may be reproduced, transmitted, in any form or by any means, electronic, mechanical, recording or otherwise, or stored in any retrieval system of any nature, without the prior, express written permission of the King’s Student Journal for Politics, Philosophy and Law. Within the UK, exceptions are allowed in respect of any fair dealings for the purpose of private study, or criticism or review, as permitted under the Copyrights, Designs and Patents Act 1988. Enquiries concerning reproducing outside these terms and in other countries should be send to the Editor-in-Chief.
©King’s Student Journal for Politics, Philosophy and Law, 2017
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Contents
1. Foreword from the Editor – p. 5 2. Sovereign Debt and Vulture Funds – Eugenia Caracciolo-Drudis – pp. 6-31
3. The International Criminal Court and the Justice versus Peace Debate – Natalia Kubesch – pp. 32-59 4. Explaining the EU’s Ineffectiveness as an International Actor in Countering Terrorism – Rhea Franke – pp. 60-86 5. Brexit Referendum: An Incomplete Verdict – Penny Tridimas and George Tridimas – pp. 87- 104 6. Brexit and Free Movement of People: Frameworks and Legal Bases of Possible Migration Controls – Zuzanna Bobowiec – pp. 105-129
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7. Brexit, the Good Friday Agreement and the Northern Ireland Act 1998 – Lucas Nacif – pp. 130-150 8. A Threat to Human Rights in Europe – the Refugee Crisis – Anna Watkinson – pp. 151- 173 9. The Single Transferable Vote and the Need for Electoral Reform in the UK: Is the System Too Complex? – Christopher Banks – pp. 174-198 10. Two of English Private Law’s Anachronistic Remnants of a Bygone Misogynistic Era – Nicolás Schuscheim – pp. 199-216 11. The Hegelian Dialectics of Punk – Melanie Sabbah – pp. 217-242
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Foreword
In just seven months, KSJPPL has grown from an exciting, yet daunting, idea on the drawing board into a fully-fledged Journal in print and electronic form. It was an ambitious effort and I am immensely proud of this collective achievement. I am grateful to all the people involved, the PPL Society, the Dickson Poon School of Law and the contributors to this inaugural volume. Special thanks are due to the President of the PPL Society, Jonny Mcgurk, for his time and enthusiasm in launching the Journal. All our efforts have come to fruition. It has been a privilege to work with all student writers, academics and Society members.
I hope and trust that KSJPPL will grow in the years to come. Penny Tridimas Founding Editor and Editor-in-Chief
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Sovereign Debt and Vulture Funds Eugenia Caracciolo-Drudis1
To dismiss the role of vulture funds in the international sovereign debt process is to fundamentally oversimplify the sovereign debt process and misrepresent borrowers (i.e. sovereigns) and creditors (i.e. banks; private equity houses; governments; trusts) as mutually exclusive in their status of victimhood. This can be illustrated by the 2001 Argentinian financial crisis whereby it is to mischaracterise vulture funds and the Argentinian socio-political situation as causes of victimisation. Rather, they are effects of a larger cause: the current institutional framework governing the sovereign debt restructuring process. For the purposes of this essay, the current
1 Dickson Poon School of Law, King’s College London, Strand, London, WC2R 2LS, email Eugenia.Carracciolo- [email protected]
6 King’s Journal for Politics Philosophy and Law institutional framework is defined in terms of its legal features: the nature of the contractual debt relationship between parties and the international legal structure governing sovereign debt restructuring (SDR).
As this essay will demonstrate, incomplete contracts existing within an international legal vacuum engender inefficiencies, perverse incentives and uncertainty, producing an environment in which vulture funds and socio-political discontent thrive. Restructuring therefore comes “too little, too late” and takes “too long”, harming both debtors, who suffer from severe economic distress and creditors, who stand to lose out on their investment in the process.2 The essay will begin by contextualising SDR within the Argentinian case study in order to demonstrate how incomplete
2 Guzman and Stiglitz, 2015:3
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contracts and the lack of an international legal framework victimise sovereign debt actors.
Argentina provides a particularly interesting case study, illustrating the collective action problem creditors face in the event of sovereign debt default. In 2001, Argentina went through the largest sovereign debt default in history, leaving international creditors with drastically reduced returns on their investments. By placing creditors in this position, certain ‘rogue’ creditors were incentivised to take advantage of the system, selling their over-valued bonds at a discount to so-called ‘vulture funds’ who could then sue the Argentinian government for repayment. Using the Argentinian example, the essay will unpack the theoretical assumptions behind the statement, questioning its apparent reliance on a realist model of International Political Economy (IPE), before turning to the
8 King’s Journal for Politics Philosophy and Law future to ask where there is potential for meaningful reform.
SDR is the renegotiation and settlement process for debt repayment prior to, or in the event of a default. That is, where a borrower is no longer willing or able to repay the debt they issued to creditors at the terms negotiated in the debt contract.3 As the current institutional framework for SDR stands, where a borrower breaches, or intends to breach the terms of his debt contract, he is subject to the renegotiation or settlement of their outstanding debt, potentially lowering or extending the repayments. While simple enough in theory, with contracts governing myriad forms of debt issued to thousands of creditors across a large number of jurisdictions, in practice, SDR negotiations become highly disordered, politicised
3 Das, Papaioannou and Trebesch, 2012
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and time-sensitive.4 Negotiations carried out against a setting of conflicting national legal regimes, with parties holding varying degrees of political power, leads to outcomes that rely more on power dynamics than legal and economic principles.5
Sovereign Debt Contracts – Complex or Careless?
Looking first to the nature of the contractual relationship between parties, it will be argued that the problem of incomplete contracts creates gaps in the SDR architecture which incentivise short-term utility maximising self-interested behaviour on the part of creditors, while simultaneously constraining debtor behaviour.6 Incomplete contracts is a concept borrowed from the microeconomics
4 Tomz 2007:3 5 Guzman and Stiglitz, 2015: 3 6 Ibid.:4
10 King’s Journal for Politics Philosophy and Law literature, that explains contractual arrangements will necessarily be incomplete as they lack the capacity to anticipate all contingencies that may arise with regards to the terms of the arrangements.7
In SDR, contractual incompleteness manifests itself in the insufficient protections granted to majority creditors against potential holdout behaviour by minority creditor groups in the restructuring process. Holdout behaviour refers to the incentive for a minority of creditors to refuse negotiations/settlement in an attempt to claim full payment or secure more than their originally contracted share of the eventual settlement pay- out.8 With debt contracts during the Argentinian crisis primarily being drafted with ‘unanimity clauses’, in order for negotiations to be completed,
7 Hart (1995) 8 Schwarcz, 2012:98
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all creditors across all kinds of credit had to agree to the changes discussed, giving holdout creditors a great deal of influence over negotiations. At their most destructive, these holdouts can buy up cheap sovereign debt with intention to bring litigation in a creditor-friendly jurisdiction, claiming full repayment of the debt, as NML Capital Ltd. successfully did in the case of Argentina.9 In doing so, these creditors – also referred to as vulture funds – go one step further, bypassing the formal creditor repayment structure, undermining the provisions governing creditor priority in repayment, and the contracts as a whole.10
Were these contracts drafted more effectively, minimising their degree of incompleteness, they could mitigate uncertainty by disincentivising holdout behaviour and facilitating
9 Vernengo, 2014:47 10 Ibid.
12 King’s Journal for Politics Philosophy and Law negotiation across different sets of creditors.11 The contracts governing Argentinian debt were unable to discinentivise holdouts or facilitate negotiations, as they used unanimity clauses to govern the decision-making procedures for renegotiation of debt terms12; in other words, these contracts failed to mitigate uncertainty. Due to the ineffective contractual structure, constructive negotiations between creditors with different interests become much more difficult, resulting in restructuring that comes “too little, too late and … too long”.13 Therefore, while Argentina cannot be said not to be a victim of so-called vulture funds, given their holdout behaviour, as motivated by personal interests, this behaviour can be understood as actually being engendered by the contractual
11 Tomz, 2013:12 12 Guzman and Stiglitz, 2015:11 13 Ibid.:3
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framework in which vulture funds (and creditors more generally) operate.
On the other side of the drafting table, incomplete contracts have important implications for debtors as well. As inefficiencies in the negotiation process at creditor-level draw out the SDR process, social and political preferences at the government-level are apt to change. The longer a debtor takes to restructure, the higher the actual costs of restructuring and foregone costs of domestic investment become.14 An important distinction arises here between the international lenders on one hand and domestic creditors on the other. With domestic creditors often holding a large proportion of a sovereign’s debt, default proceedings directly affect the national economy in
14 Krueger (2002)
14 King’s Journal for Politics Philosophy and Law terms of these loans as well.15 By overlooking the effect of domestic creditors on SDR, the statement mischaracterises Argentina as wholly refusing to meet their loan obligations, suggesting an unwillingness to repay anyone, a characterisation which essentially misjudges the Argentinian socio- political situation in 2001.
Facing both internal and external pressures, governments in dire economic straits appear to be faced with a choice between protecting their citizens and protecting their external relations. While it may make more sense to repay foreign creditors first, protecting the domestic creditors from a default16, States often choose to treat domestic creditors more favourably than foreign creditors.17 This was the case in Argentina, with
15 Erce and Diaz-Cassou (2011) 16 Broner, Martin and Ventura (2010) 17 Tomz, 2013: 23
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domestic residents being afforded the opportunity to switch their debt into new legal instruments, which later received better treatment than the foreign-held instruments.18 Hence, governments are forced to choose between servicing foreign or domestic debt. Given the inefficient and time- sensitive nature of the current SDR process, SDR exacerbates political tensions, pitting desperate sovereign States on the brink of economic collapse against creditors with much larger pockets.19 Microeconomic contract theory provides further insight into this deep political and economic imbalance, claiming that at the point of renegotiation, parties with access to external assets (i.e. money) hold superior bargaining power in incomplete contracts.20
18 Gelpern and Sester, 2004:794 19 Guzman and Stiglitz, 2015:19 20 Hart (1995)
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Therefore, although the Argentinian people may have chosen not to repay, it is unclear to what extent their choice was entirely their own. It would be to overlook the nuances of SDR to Exclusively focus on international lenders and assume Argentina simply ‘refused’ to repay its debts. A more complete understanding of the institutional SDR framework demonstrates that as opposed to prioritising short-term self-interest maximisation, directly causing international lenders to suffer, the Argentinian decision was caused by the larger institutional inefficiencies of SDR – thereby indirectly harming lenders by effect.
Anarchy in the SDR
As such, if incomplete debt contracts allow vulture funds to arise and force governments into difficult choices, without mechanisms to oversee
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and enforce these debt contracts, vulture funds derive the means through which to survive within the institutional SDR framework. Then, governments may not have the incentives to follow through on their contractual promises.
Interestingly, vulture funds have defended their actions as providing sovereigns with a form of accountability for their borrowing patterns through their litigation processes.21 While it is questionable to what extent they succeed in providing such accountability, this justification raises important questions regarding international accountability more generally. Just as borrowers should be held to account for implementing morally hazardous fiscal policies22, so lenders should be held to account for their predatory behaviour. Without an international mechanism through which to be held
21 Moore (2014) 22 Schwarcz, 2012:97
18 King’s Journal for Politics Philosophy and Law formally accountable for their decisions, lavish spending habits, irresponsible taxation policies and relaxed fiscal discipline take place without concern for the future.23 Argentine officials made the decisions they did, surrendering the sovereignty of future governments in return for easy money, with no “shadow of the future” to constrain them24, knowing the costs of restructuring would likely be borne by future governments.
In light of the latter, the assumption of short- term self-interested utility maximisation on behalf of both creditors and debtors appears to naturally indicate the application of realist theory to SDR. Without an international legal framework to operate within, and self-interest as the sole guide for actor behaviour25, one would be forgiven for
23 Blustein, 2005:6 24 Axelrod, 1984:12 25 Donnelly, 2000:131
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hastily characterising the world of SDR as a realist world. However, as soon as this assumption is called into doubt, realism looks increasingly like an overstatement of the perils faced by actors in SDR, overlooking that existing structures guide actor behaviour far more than pure self-interest. Given the hostile institutional framework in which the Argentinian crisis took place, this essay argues that where short-term self-interested utility maximisation takes place, it is caused by something other than the realist race to survive in a world constantly at war. Instead, it is the lack of legal frameworks and incomplete contracts which give rise to holdout creditors and constrain government behaviour, in turn engendering situational short- term self-interest utility maximisation. SDR, after all, is not a zero-sum game.26 Cooperation and negotiation are not only possible in SDR, but
26 Guzman and Stiglitz, 2015:24
20 King’s Journal for Politics Philosophy and Law desirable – where they cannot take place, it is because actors are prevented by their institutional frameworks.
Questioning the necessary conditions to allow cooperative agreements to be reached, maintained and enforced27, rationalist institutionalism provides a more truthful model for SDR, placing it within its appropriate context. Where they work effectively, institutions (i.e. contracts and international legal structures) help mitigate adverse negotiating environments and reduce transaction costs of exchange.28 In so doing, they enhance efficiency while simultaneously addressing uncertainties and providing positive incentives for parties to negotiations. Nevertheless, the realist might question to what extent institutions are able to affect the behaviour of
27 Cooley, 2010:48 28 Keohane (1984)
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international entities – how can we be sure it is not just that actors are inherently self-interested, seeking to maximise their short-term utility?29
Considerations of State reputation demonstrate that short-term utility maximisation is not inherent to international actors in SDR, hence addressing this concern.30 In theory, consideration for reputation of States suggests that actors should cooperate today to ensure good relations in the future and the avoidance of political or economic sanctions by upset parties.31 Reputation is particularly important in the SDR context, as both parties have a vested interest in continuing the creditor/debtor relationship into the future, even if the current institutional framework does not accommodate for these future interests. As will be
29 Mearsheimer, 1995:7 30 Tomz, 2007:6 31 Ibid.:2
22 King’s Journal for Politics Philosophy and Law explored in more detail below, even with the flawed institutional structure in place, actors have taken concerted steps to implement reforms. This movement for reform itself provides compelling evidence for the argument that there is a meaningful dialogue between actors, institutions and actual circumstances; one far more in line with the rational institutionalist (or even perhaps constructivist) than the realist model of IPE.
Too Little, Too Late, Too Long
So far, this essay has set out the case for how incomplete contracts in a legal vacuum create vulture funds (including holdout behaviour more generally) and engender socio-political problems within debtor governments. In this SDR world, creditors and debtors alike appear too interested in maximising their own short-term objectives,
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ignoring the long-term benefits of an orderly and timely restructuring process. The foregoing may paint a bleak picture of the sovereign debt landscape, but it is important to keep in mind the dialogue between actors, institutions and actual circumstances. has manifested itself in the push for institutional reforms taking place within SDR since 2001.
While the international community has yet to implement an international legal structure for SDR, important progress has been made in reviewing the language of sovereign debt contracts. To protect majority creditors from holdout behaviour, Collective Action Clauses (CACs) have been introduced into contracts.32 The Argentinian debt crisis itself appears to have been an important driving force in this progress, with 95% of New
32 Guzman and Stiglitz, 2015:15
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York-issued debt excluding CACs pre-Argentina, compared to only 21% post-Argentina.33 Such provisions allow a supermajority of creditors to agree to changes in arrangement terms, effectively overruling holdout creditors attempting to block negotiations.34 This is not to say all sovereign debt contracts are created equal; as the aforementioned 21% evidences, CACs are still not always included in contractual arrangements, with potentially disastrous consequences. In Greece alone, approximately 90% of debt was not governed by CACs.35 However, continued calls for reform have been taken up by the International Monetary Fund and the International Capital Markets Association respectively.36
33 Choi, Gulati and Posner (2012) 34 Ibid. 35 Schwarcz, 2012:105 36 IMF 2014; ICMA 2014
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Nonetheless, contracts are still only as strong as the enforcement and oversight structure in which they exist. With or without CACs, parties have no higher legal authority to turn to, in the event of a breach of contract by either side. This issue has been recognised throughout the SDR world, beginning with Krueger’s appeal to the international economics community to architect a new structure for SDR in 2002, culminating in the 2014 General Assembly resolution 68/304 ‘Towards the establishment of a multilateral legal framework for SDR processes’. Drawing inspiration from the US Bankruptcy Code, the proposed framework aims to encourage an orderly and timely restructuring process through facilitated negotiations, guarantees of debtor protection from holdout behaviour, along with creditor protection from unfair treatment by debtors.37 By introducing
37 Krueger (2002)
26 King’s Journal for Politics Philosophy and Law international legal principles and obligations to SDR, parties are incentivised to cooperate, given the high actual and reputational costs of failure to uphold contractual promises.38
Conclusion
With its incomplete contractual arrangements and lack of international legal framework, the current SDR system engenders, if not entirely encourages self-interested behaviour in both debtors and creditors, placing a premium on the achievement of short-term objectives over long- term goals. As such, it is not that the Argentinian government victimises creditors or that vulture funds victimise the Argentines, rather it is the system that victimises them all. It is important to note that this is not to absolve Argentina or vulture
38 Schwarcz, 2012:114
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funds of responsibility, but to understand the underlying structure of SDR in order to prevent another Argentina or another set of vulture creditors from arising in the future. Institutional features, rather than individual intentions appear to have a stronger role in shaping actor behaviour in SDR, allowing us to isolate important areas in need of institutional reform in the hope that future countries with a similar experience to Argentina, will have strong contractual arrangements and an international legal framework within which to enforce them, rendering questions of ‘who is a victim of whom’ irrelevant.
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References Al Jazeera (2014) “The end of vulture funds?”, available at http://america.aljazeera.com/articles/2014/3/22/the -end-of-vulturefunds.html Axelrod, R., (2006) The Evolution of Cooperation (New York, NY: Basic Books) Blustein, Paul., (2005) And the Money Kept Rolling In (And Out) (Cambridge MA: Perseus Books) Blyth, M. (ed.)., (2009) Routledge Handbook of International Political Economy: IPE as a Global Conversation (Abingdon UK: Routledge) Broner F., Martin A., Ventura J., (2010) “Sovereign Risk and Secondary Markets” American Economic Review, 100, 1523-55 Choi SJ, Gulati GM, Posner EA. (2012) “The Dynamics of Contract Evolution” NYU Center for Law, Economics and Organization Working Paper 12-16 Das, Udaibir S., Michael G. Papaioannou and Christopher Trebesch (2012) “Sovereign Debt Restructurings 1950- 2010: Literature Survey, Data, and Stylized Facts”. IMF Working Paper/12/203. August. Donelly, J., (2000) Realism and International Relations (Cambridge UK: Cambridge University Press) Erce A, Diaz-Cassou J., (2011) “Selective Sovereign Defaults” Unpublished manuscript, Banco de España Gelpern A, Setser B., (2004) “Domestic and external debt: the doomed quest for equal treatment” Georgetown Journal of International Law, 35, 795-814 Guzman, M., and Stiglitz, J. E. (2015). ‘Fixing Sovereign Debt Restructuring’, Too Little, Too Late: The Quest to
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Resolve Sovereign Debt Crises Columbia University. July Hart, O., (1995) Firms, Contracts, and Financial Structure. (Oxford: Oxford University Press) ICMA, (2014). “Standard Collective Action and Pari Passu Clauses for the Terms and Conditions of Sovereign Notes” IMF, (2014). ‘Strengthening the Contractual Framework to Address Collective Action Problems in Sovereign Debt Restructuring’. October Keohane, R. O., (1984) After Hegemony: Cooperation and Discord in the World Political Economy. (Princeton PA: Princeton University Press) Krueger, A., (2002) “International Financial Architecture for 2002: A New Approach to Sovereign Debt Restructuring”, Address to the National Economists’ Club, AEI, Washington 26th November 2001. Mearsheimer, J. J., (1995) “The False Promise of International Institutions” International Security, 19(3), 5-49 Schwarcz, S. L. (2012). “Sovereign Debt Restructuring Options: An Analytical Comparison” Harvard Business Law Review, 2, 95-121. Tomz, Michael. (2007) Reputation and International Cooperation: Sovereign Debt across Three Centuries. (Princeton PA: Princeton University Press). Tomz, Michael, and Mark LJ Wright. (2013). Empirical research on sovereign debt and default. National Bureau of Economic Research, Paper No. w18855. UNGA Res 68/304 (17 September 2014) UN Doc A/RES/68/304
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Vernengo, Mark. (2014). “Argentina, Vulture Funds, and the American Justice System”. Challenge, 57(6), 46- 55.
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The International Criminal Court and the Justice vs. Peace Debate Natalia Kubesch1
Introduction
Critics of the International Criminal Court (ICC) have long considered it to be an impediment to peace negotiations and regional stability.2 Focusing in particular on the ICC’s intervention in Uganda and the Democratic Republic of Congo (DRC) they have contended that prospects of prosecution risk jeopardising fragile peace talks, thus prolonging or even intensifying violent conflicts.3
1 Dickson Poon School of Law, King’s College London, Strand, London, WC2R 2LS, email [email protected] 2 Siriam, 2009:305 3 Human Rights Watch (HRW), 2009:1
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This paper challenges this claim by portraying the ICC as a crucial mechanism of transitional justice with the potential of achieving positive peace.4 To this end, first, it will outline the concept of transitional justice then explain how it determines a new approach to the ‘peace-versus- justice’ debate. It will subsequently provide an overview of the relevant provisions of the Rome Statute relating to this debate. Finally, it will look at the ICC investigations in Uganda and DR, as these cases demonstrate the Court’s contribution to encouraging peace negotiations, promoting the rule of law and deterring atrocities; in a word, peace- building.
4 Okafor and Ngwaba, 2015:1
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Transitional Justice and the ‘Peace-versus-Justice’ Debate
The claim that the ICC pursues justice at the expense of peace rests on the idea that justice and peace are mutually-exclusive objectives in the context of armed conflicts.5 In this ‘peace-versus- justice’ debate, those favouring justice, on the one hand, emphasise the prosecution of serious crimes in order to deter their future occurrence.6 Peace proponents, on the other hand, regard the risk of prosecution as a dangerous obstacle to conflict resolution.7 They argue that war criminals would have no incentive to lay down their arms, unless they believe that they will not face trials.8 Thus, they consider amnesties to be necessary for
5 Kerr and Mobekk, 2013:2 6 Fischer, 2011:409 7 HRW, 2009:1 8 Ibid.
34 King’s Journal for Politics Philosophy and Law achieving peace9, which in turn excuses a suspension of justice.
The transitional justice (TJ) literature challenges this ‘peace-versus-justice’ dichotomy. TJ describes a set of judicial and non-judicial mechanisms that engage with a legacy of human rights violations so as “to ensure accountability, serve justice and secure reconciliation.”10 It seeks to promote peace and strengthen the rule of law in post-conflict environments. Proponents of TJ support a “peace and justice continuum” position.11 They propose that peace-building initiatives and justice mechanisms compliment and reinforce each other.12 Neither peace nor justice can exist without the other. This position is founded upon holistic understandings of peace and justice. Peace is
9 Fischer,2001:409 10 UNSC, Report of the Secretary-General S/2004/616 11 Simpson, 2008:74 12 Ibid.
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understood in a positive sense, to mean the presence of social justice, equal opportunities and human well-being.13 Unlike negative peace, which prioritises the cessation of violence in the short- term, positive peace seeks to achieve sustainable peace by addressing the underlying causes of violence.14 Building positive peace requires diverse justice mechanisms.15 Justice is understood as including elements of retributive as well as restorative justice. As such, mechanisms of justice are not limited to criminal prosecutions but also involve ways of addressing fractured relationships, such as truth-seeking projects, victim reparations and institution-building.16
In this framework, the ICC assumes an important role. With its mission to put an end to
13 Galtung, 1964 14 Simpson, 2008:74 15 Ibid. 16 Ibid.
36 King’s Journal for Politics Philosophy and Law impunity, the Court is considered capable of creating an atmosphere conducive to conflict reduction and peaceful co-existence. It is said to have the capacity to facilitate peace negotiations, institutionalise the rule of law in war-torn societies and reduce long-term violence by raising the risk of prosecution. In short, the ICC helps lay the foundations for positive peace. This paper assesses these ‘capabilities’ and identifies the extent to which the Court has carried them out during previous investigations.
The Rome Statute
Prior to considering cases of ICC investigations, it is vital to outline the provisions of the Rome Statute that reflect the compromise between peace and justice inherent to the
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establishment of the Court.17 These provisions relate to the Court’s jurisdiction and its relationship with the Security Council of the UN.
The Rome Statute of 1998, which came into force in July 2002, established the ICC.18 According to the Statute, the ICC is an independent, permanent court mandated to try persons for genocide, war crimes and crimes against humanity19, with the overarching aim to protect peace.20 As a treaty-based court, it does not have universal jurisdiction. It may only exercise its jurisdiction if the accused is a national of a State Party, the crime took place on the territory of a State Party or the Council has referred the situation to the ICC Prosecutor. In addition, the ICC operates under the principle of complementarity,
17 Kerr and Mobekk, 2013:59 18 International Bar Association, 2006 19 Rome Statute, 1998: Art. 1 20 Ibid. Preamble
38 King’s Journal for Politics Philosophy and Law making it a court of last resort.21 Thus, it cannot act if a domestic court is investigating a case, unless the national proceedings are not genuine.22 These jurisdictional provisions limit the ICC’s power over States with a view to protect national sovereignty. Furthermore, the principles of state consent and complementarity ensure that the ICC neither supplants the national justice systems nor imposes justice. Rather, it acts as an extension of national criminal jurisdictions, helping those that exist to fulfil their international law obligations.23
The link between justice and peace in the Statute is best illustrated by the ICC’s relationship with the Security Council. For example, Article 16 allows for a twelve-month suspension of investigations on the basis of a resolution adopted
21 Ibid. 22 Ibid. Art.17 23 Bassiouni, 2010:181
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under Chapter VII of the UN Charter. Chapter VII empowers the Council to take measures to maintain peace where it considers it to be at risk. As such, the Statute safeguards the Council’s primary responsibility in matters of international peace, and even encourages intervention where prosecutions are considered detrimental to peace and stability.24
Contribution to Peace Negotiations
The ICC’s arrest warrants for war criminals are often criticised on the grounds that they will lead to further violence.25 However, experience of ICC involvement illustrates that such claims are not true.26 In fact, criminal indictments can facilitate peace negotiations by marginalising suspected
24 Kerr and Mobekk, 2013:71 25 HRW, 2009:19 26 Ibid.
40 King’s Journal for Politics Philosophy and Law criminals and changing power dynamics.27 Therefore, insisting upon justice can be instrumental to peace and stability.
The case of Uganda provides an important example of where the ICC’s investigations played an active role in encouraging peace negotiations.28 The war between the Lord’s Resistance Army (LRA) and the Ugandan army spanned three decades and was one of Africa’s longest and most violent conflicts.29 The LRA is a heterodox Christian Cult and military group that was founded by Joseph Kony in 1988 in northern Uganda, with the aim to overthrow President Yuweri Museveni’s government and rule Uganda according to the Ten Commandments and Acholi nationalism. LRA soldiers soon became known for their brutality,
27 Ibid. 28 Grono and O’Brien, 2008:15 29 Bundeszentrale für Politische Bildung, 2013
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killing, mutilating, and torturing of thousands of civilians. During the conflict, at least 25,000 children were abducted and used either as sex slaves or child soldiers.30
Uganda’s referral to the ICC made it difficult for the Lord’s Resistance Army (LRA) to receive support from its key ally, Sudan. Beginning in 1994, the Sudanese government had provided Kony with weapons, training and transportation.31 The ICC’s involvement, however, raised the stakes for Sudan. As Khartoum feared being targeted by the ICC’s investigations in Uganda for supporting the LRA32, it terminated its relationship with the rebel group and decided to cooperate with the Court. As a result, the LRA was forced into a
30 Bundeszentral für Politische Bildung, 2013 31 Grono and O’Brien, 2008:15 32 O’Brien, ICG, 2007
42 King’s Journal for Politics Philosophy and Law temporary “survival mode”.33 Its isolated position triggered a number of defections, made continuing war extremely costly and therefore provided an incentive to negotiate peace.34
Furthermore, the ICC’s investigation attracted the attention of the international community to the Ugandan civil war, which had previously been described as “the biggest, forgotten emergency in the world today.”35 Greater awareness resulted in international financial and political contributions that helped address humanitarian needs and furthered the peace talks.36 Finally, the ICC’s attempt to prosecute LRA leadership helped entrench accountability into the peace negotiations. In 2008, the parties accepted
33 HRW, 2009:32 34 O’Brien, ICG, 2007 35 Agence France-Presse, 2013, quoting Jan Egeland UN under- secretary-general for humanitarian affairs 36 HRW, 2009:33
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that accountability for crimes committed during the war should be achieved via a special division of the High Court and community-based rituals.37 The ICC’s impact was noticeable given that similar accountability mechanisms had not featured in previous peace initiatives with LRA or other rebel groups in Uganda during Museveni’s presidency.38
Despite the fact that the peace negotiations eventually failed due to Kony’s refusal to sign the final agreement, two distinct conclusions may be drawn from the Court’s course of action. First, the ICC cannot be charged with having prevented peace talks. To the contrary, the Court’s involvement helped pressure the LRA to the negotiating table and raised the necessary resources for sustaining the talks. Second, the ICC’s arrest
37 Agreement on Accountability and Reconciliation between the Government of the Republic of Uganda and the Lord’s Resistance Army, 2007 38 Grono and O’Brien, 2008:16
44 King’s Journal for Politics Philosophy and Law warrants spurred debates on accountability.39 The final agreement acknowledged the need for accountability and designed a framework in which non-formal justice mechanisms would operate supplementary to judicial mechanisms rather than as alternatives.40 As such, the ICC was important in developing accountability as a norm in conflict resolution, which is instrumental to achieving sustainable peace.
Rule of Law
The ICC’s contributions towards ensuring criminal accountability comprise one branch of its wider aim to strengthen the rule of law and enhance the enforcement of domestic law in post- conflict environments. The principle of the rule of law provides justice, social stability and individual
39 Otim and Wierda, 2008:27 40 Ibid.
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freedom.41 It dictates that everyone is subject to the law – one must respect the rights of others and resolve conflicts in accordance with the law. Given this function, the rule of law can be considered a necessary principle that guides peace-building initiatives.42 One may even contend that peace is where the rule of law governs.43
The mandate of the ICC is to establish and strengthen the rule of law in war-torn societies that lack the adequate constitutional frameworks needed to prosecute serious crimes. It is expected to promote international legal standards and engage in ‘capacity-building’ of domestic justice mechanisms, to ensure future, peaceful co- existence. The ICC successfully carried out this mandate in Uganda, where its investigations had a
41 Shinoda, 2001 42 Ibid. 43 Nouwen, 2012:4
46 King’s Journal for Politics Philosophy and Law far-reaching impact on the country’s domestic justice mechanisms for international crimes.
First, ICC intervention triggered the adoption of the International Criminal Court Act (2010). This Act incorporates the laws of the Rome Statute into domestic law and allows Ugandan courts, for the first time, to try war crimes, crimes against humanity and genocide. It also excludes the application of the death penalty for international crimes; as this would be inconsistent with the Rome Statute.44 As such, the Act reforms the substantive laws of the Ugandan criminal code and contributes to the observance of international criminal law.
Second, the ICC catalysed the creation of the “International Crimes Division” (ICD) of the
44 Parliament of the Republic of Uganda, 2010
47
High Court of Uganda. This division has the authority to prosecute the most serious crimes and is modelled upon the structure of international criminal tribunals, that is to say, the judges, prosecution, defence and registry sit under “one roof”.45 The ICD was essentially a product of the LRA peace talks and although the final accord has not been signed, the court has commenced its work.46 However, as only one case of LRA member Thomas Kwoleye has reached the trial stage of the division so far, it remains to be seen whether the ICD is capable of delivering credible justice to victims.47 Nonetheless, its establishment marks a significant step towards eliminating impunity for human rights abuses in Uganda.
45 Nouwen, 2012:10 46 HRW, 2012:1 47 Ibid.
48 King’s Journal for Politics Philosophy and Law
Finally, the ICC may be commended for raising awareness of international legal standards of procedure.48 The principle of complementarity has fostered a belief amongst Ugandan officials that if they are to remain outside the ICC’s jurisdiction, their domestic court proceedings must attain the same standard as ICC proceedings.49 As one official put it “We have to be complementary to the ICC, even with sentences, otherwise we have to justify why we differ.”50
To conclude, the ICC helped institutionalise the rule of law in Uganda by improving its justice mechanisms for international crimes. Its intervention has led to a new act, a new criminal court and increased observance of international
48 Nouwen, 2012:10 49 Ibid.:11 50 Ibid. quoting interview with senior JLSO official
49
standards.51 These reforms represent important advancements in addressing impunity and protecting human rights in Uganda. Even though these changes have been partial – i.e. the reforms only address laws relating to war crimes – they nonetheless suggest a move towards a judicial system that resolves conflicts peacefully and in accordance to international standards.
Deterrence
A final argument relating to the ICC’s contribution to peace is that prosecution can deter international crimes and therefore reduce violence in the long-term. The ICC raises the risk of punishment, which can factor into the strategic calculations of an abusive leader and “tip the cost- benefit scale away from the commission of a war
51 Ibid.12
50 King’s Journal for Politics Philosophy and Law crime.”52 However, given that deterrence only has a negative proof (i.e. that an event did not occur)53 finding factual evidence of it remains problematic. In addition, the ICC is still a young institution that has not yet been able to establish a conclusive track record of deterrence. Nevertheless, there is some anecdotal evidence that suggests that the risk of ICC prosecution gives rise to some deterrence benefits.54
In the DRC, the ICC’s arrest warrant for Thomas Lubanga on charges of conscripting children as soldiers had a deterrent effect and educational impacts on army and rebel leaders. Lubanga was the founder of the Union of Congolese Patriots, a military group in the DRC and a key figure in the Ituri conflict. Rebels who
52 Grono, ICG, 2012 53 Ibid. 54 HRW, 2009: p.123
51
were under his command were accused of large- scale human rights violations, including ethnic massacres, torture and forcibly conscripting child soldiers. Following Lubanga’s conviction, Human Rights Watch noticed a fear of arrest among Congolese army leaders, as well as an increased interest in what constituted a war crime.55 Lubanga’s arrest furthered the army’s and the rebel group’s awareness that the use of child soldiers was a war crime, which would result in prosecution.56 According to the report of the UN Secretary- General on children and armed conflict in DRC, the recruitment of child soldiers decreased by eight percent a year after the arrest warrant.57 Moreover, the Lubanaga case had a similar spill-over effect in the Central African Republic (CAR). Upon learning that the use of child soldiers violates
55 Ibid. 56 Ibid. 57 UNSC, S/2007/391:5
52 King’s Journal for Politics Philosophy and Law international law, rebel groups in CAR justified their conduct by “unawareness” and immediately offered to demobilise their child soldiers, which they later did.58
Clearly, the effectiveness of deterrence always depends on the degree of certainty of future prosecution.59 The ICC currently suffers from a lack of enforcement mechanisms. It enforces arrest warrants exclusively through the cooperation of its member States, which have not always been willing to help.60 Given these deficiencies, the ICC must expand and strengthen enforcement mechanisms in order to achieve effective deterrence.61
58 HRW, 2009:127 59 Ibid.:123 60 Barnes, 2011 61 Ibid.
53
Nonetheless, these examples do indicate that credible threats of ICC prosecutions can influence leaders of warring parties in their policy choices and prevent them from committing war crimes.62 In the long-term, prosecutions may help the entrenchment of human rights norms and thus discourage future generations from the commission of such crimes.63
Conclusion
An assessment of the ICC’s impact in Uganda and DRC illustrates the Court’s capacity to “accommodate the need for peace with the demands of justice.”64 First, ICC prosecutions were able to enhance peace prospects by driving conflict parties to the negotiating table. Second, its
62 Grono, ICG, 2012 63 Ibid. 64 Grono and O’Brien, 2008:19
54 King’s Journal for Politics Philosophy and Law investigations influenced domestic legal systems and jurisprudence. It increased awareness regarding accountability, human rights values and international legal standards, thus helping the creation of a system based on the rule of law. Lastly, it has had the potential to reduce long-term violence, by raising the risks of punishment. Together these achievements have laid the foundations for positive peace and thus emphasise the ICC’s crucial role in peace-building initiatives. In sum, the ICC’s insistence on justice promotes rather than threatens peace.
55
References Agence France-Presse (2003) “War in northern Uganda world’s worst forgotten crisis”, available at: http://reliefweb.int/report/uganda/war-northern- uganda-worlds-worst-forgotten-crisis-un Agreement on Accountability and Reconciliation between the Government of the Republic of Uganda and the Lord’s Resistance Army, Juba, Sudan, June 2007 Al Jazeera (2014) “Profile: The Lord’s Resistance Army”, available at: http://adexchangeprediction.com Barnes, G. P. (2011) ‘The International Criminal Court’s Ineffective Enforcement Mechanisms: The Indictment of President Omar Al Bashir’ Fordham International Law Journal, 34(6), 1584-1619 Bassiouni, M. (2010) Introduction to International Criminal Law, (Boston: Martinus Nijhoff Publishers) Bundeszentrale für Politische Bildung (2013) “Interstaatliche Konflikte: Nord-Uganda”, available at: http://www.bpb.de/internationales/weltweit/innerst aatliche-konflikte/54675/nord-uganda Fischer, M. (2011) Transitional Justice and Reconciliation: Theory and Practice, in B. Asutin, M. Fischer, H.J. Giessmann (eds.) Advancing Conflict Transformation: The Berghof Handbook II, (Leverkusen: Barbara Budrich Publishers), 406-430 Galtung, J. (1964) ‘An Editorial’ Journal of Peace Research, 1(1):1-4 Grono, N., O’Brien, A. (2008) Justice in Conflict? The ICC and Peace Processes, in N. Waddell, P. Clark
56 King’s Journal for Politics Philosophy and Law
(eds.), Courting Conflict, Justice, Peace and the ICC in Africa, London: Royal African Society, 13-20 Grono, N., International Crisis Group (ICG) (2012) The deterrent effect of the ICC on the commission of international crimes by government leaders, (New York: ICG), available at: http://www.crisisgroup.org/en/publication- type/speeches/2012/grono-the-deterrent-effect-of- the-icc.aspx Human Rights Watch (HRW) (2009) Selling Justice Short: Why Accountability Matters for Peace, New York: HRW, available at: https://www.hrw.org/report/2009/07/07/selling- justice-short/why-accountability-matters-peace Human Rights Watch (HRW) (2012) Justice for Serious Crimes before National Courts, Uganda’s International Crime Division, New York: HRW, available at: https://www.hrw.org/sites/default/files/reports/ugan da0112ForUpload_0.pdf International Bar Association, (2006) ICC Structure, available at: http://www.ibanet.org/ICC_ICL_Programme/Abou t_the_ICC/ICC_Structure.aspx Kerr, R., Mobekk, E. (2013) Peace and Justice, (London: Wiley) Nouwen, S. (2012) The ICC’s Intervention in Uganda: Which Rule of Law Does it Promote?, (Cambridge: University of Cambridge, Faculty of Law)
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O’Brien A., International Crisis Group (ICG) (2007), The UN Security Council (2007) Report of the Secretary- General on children and armed conflict in the Democratic Republic of the Congo, S/2007/391, available at: http://www.un.org/en/ga/search/view_doc.asp?sym bol=S/2007/391 Impact of International Justice on Local Peace Initiatives, New York: ICG, available at: http://www.crisisgroup.org/en/publication- type/speeches/2007/obrien-the-impact-of- international-justice-on-local-peace-initiatives.aspx Okafor, O.C., Ngwaba, U. (2015) The International Criminal Court as a ‘Transitional Justic’ Mechanism in Africa: Some Critical Reflections, International Journal of Transitional Justice, 9, pp. 90-108 Parliament of the Republic of Uganda, Parliamentary Debates, Hansard Official Report, Wednesday 10 March 2010. Shinoda, H. (2001) Peace-Building by the Rule of Law: An Examination of Intervention in the Form of International Tribunals, Hiroshima: Hiroshima University, Institute for Peace Science Simpson, G. (2008) One among Many: The ICC as a Tool of Justice during Transition, in N. Waddell, P. Clark (eds), Courting Conflict, Justice, Peace and the ICC in Africa, London: Royal African Society, pp. 73-79 Sriram, C.L. (2009) Conflict Mediation and the ICC: Challenges and Options for Pursuing Peace with Justice at the Regional Level, in K. Ambos, J. Large
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and M. Wierda (eds.), Building a Future on Peace and Justice: Studies on Transitional Justice, Peace and Development – The Nuremberg Declaration on Peace and Justice, New York: Springer, pp. 303-319 UN General Assembly (1998), Rome Statute of the International Criminal Court (last amended 2010) UN Security Council (2004) Report of the Secretary- General: The rule of law and transitional justice in conflict and post-conflict societies, S/2004/616, available at: http://www.refworld.org/docid/45069c434.html Wierda, M., Otim, M. (2008) Justice at Juba: International Obligations and Local Demands in Northern Uganda, in N. Waddell, P. Clark (eds.), Courting Conflict, Justice, Peace and the ICC in Africa, London: Royal African Society, pp. 21-28
59
Explaining the EU’s Ineffectiveness as an International Actor in Countering Terrorism Rhea Franke1
Since the terror attacks on 9/11, the European Union (EU) has enacted an ever increasing number of counterterrorism (CT) policies, in a continuous attempt to ‘add value’ to this policy area. The following essay will critically evaluate how far the EU has been effective as an international actor in CT and whether this can be explained by neo-functionalism. I argue that even though there have been some positive developments, especially post-Lisbon Treaty, there are clear limits to integration in this area since member States (MS) are often unwilling to give up power, rendering EU-level CT policy largely ineffective. It is asserted that the theoretical
1 Dickson Poon School of Law, King’s College London, Strand, London, WC2R 2LS, email [email protected]
60 King’s Journal for Politics, Philosophy and Law assumptions of neo-functionalism largely fail to explain the lack of integration in CT.
This essay is structured as follows: The first section provides the framework for analysis by defining terrorism as well as setting out the approach by which effectiveness is assessed, going beyond statistical analysis, and explaining neo-functionalist assumptions. The second part analyses the general development of EU CT policy according to the criteria for effectiveness (set out in section one) and applies a neo-functionalist explanation. The final section looks deeper into one of the most developed CT institutions, Europol.
The effectiveness of CT measures may be assessed in many different ways. Firstly, in terms of terrorism ‘outcomes’ (e.g. whether the number of attacks has gone up or down, how many suspects were arrested e.t.c.). Here, it might be helpful to
61
consider statistics. For example, whilst in comparative terms Europe and Western countries in general only account for a small number of terrorist targets – 2.6% of all terrorism-related deaths over the last 15 years2 – the annual European Terrorist Situation and Trend Report (TE-SAT) produced by Europol reveals a general increase in terrorist attacks in recent years. This is especially sharp in the category of jihadist terrorism; in 2011, there were 122 jihadist terror attacks in Europe, while in 2015 this number has gone up to 687.3
However, there are numerous problems with over-reliance upon statistical data for the purpose of assessing effectiveness. First, the reliability of Europol data can be questioned given its dependence on MS’s input, whose intelligence agencies might be cautious about disclosing data.4 For despite the “2002
2 Global Terrorism Index, 2015:49 3 TE-SAT, 2015:23 4 This discussed in more detail in the subsequent paragraphs
62 King’s Journal for Politics, Philosophy and Law common definition” there may potentially be more legal-technical problems about whether national enforcement agencies interpret a certain incident as a terrorist attack. Second, there is a lack of causative evidence. That is to say, whether or not terrorist attacks have increased depends on a number of factors, possibly, but not necessarily, including EU- level action (e.g. it might also be due to terrorists targeting non-EU States or MS initiatives). Third, and most importantly, statistics are superficial in that they do not reveal anything about: (i) the methods and structures of EU CT, (ii) the actors and processes involved and; (iii) whether specific policies have been effective.
Therefore, my analysis will move beyond statistics by evaluating the EU’s self-set goals in combating terrorism and whether they have been fulfilled. The influential ‘Counter-Terrorism Strategy 2005’ (CTS) sets out policies under the four main
63
headings: prevent, protect, pursue and respond5 and these will be used as the main basis. Moreover, the CTS also contains the strategic commitment “to combat terrorism globally”6 and there is indeed a range of other terrorism legislation, which reiterates similar goals.7
Additionally, it should be noted that the CTS specifically limits the EU’s role in CT by stating that MS retain “the primary responsibility for combating terrorism” but that “the EU can add value”.8 When evaluating the effectiveness then, the EU’s view of their own limitations should be kept in mind. The
5 Counter-Terrorism Strategy, 2005:5 6 Ibid.:2. The CTS also commits the EU to respecting human rights when developing CT policy, however whether this actually enhances or hampers with effectiveness is a matter of debate beyond the scope of this essay, so it is not considered in detail here. 7 See for instance the recent European Council’s ‘Strategic Guidelines in the Area of Freedom, Security and Justice’ (2014). 8 Counter-Terrorism Strategy, 2005:4
64 King’s Journal for Politics, Philosophy and Law following analysis will thus consider two inter-related measures of effectiveness: i) Do EU CT policies ‘add value’ to one or more of the four pillars? ii) Do EU CT policies have an element aimed at globally combating terrorism, in other words, do they have an external dimension?
These criteria for effectiveness can be linked to a theoretical assessment of why EU CT has developed the way it did, using a neo-functionalist approach. At the core of this theory lies the integration mechanism of ‘spill-over’ which entails that cooperation in one policy area necessarily leads to cooperation in other areas.9 Moreover, neo-functionalism assumes that States are rational actors and that institutions can develop an independent capacity.10 Integration is perceived as being more than a zero-sum game and according to the neo-functionalist founder Haas “the
9 Jensen, 2016:54 10 Nieman and Schmitter, 2009:48
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end result (…) is a new political community superimposed over the pre-existing ones”.11 Whilst applying neo-functionalism to an area of ‘high politics’ might be unusual12, its general merits in explaining European integration justify this novel approach. Moreover, it responds to some critics’ arguments about case selectivity when evaluating theories of regional integration.
Effectiveness of EU CT Policy
Before 9/11 there was “little coordinated legislative activity at the EU level”13 so the analysis of the effectiveness of EU CT policy according to the above analytical framework will start from 2001. After the September attacks, EU CT rapidly developed, producing 239 instruments until 2013
11 Haas, 1958:16 12 Traditionally neofunctionalism has been associated with ‘low politics’ (Nieman and Schmitter, 2009:48). 13 Guild, 2008:178
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(including resolutions, directives, international agreements etc.)14 and an increase in spending from ca. 5.7m € in 2002 to around 93.5m € in 2009.15
A major development in CT was the changes incurred by the Treaty of Lisbon (ToL) that abolished the complicated pillar system. Specifically, for CT policy, the pillar system had led to overlapping competences and incoherence between the Justice and Home Affairs (JHA) (from 2003 on called Police and Judicial Co-operation in Criminal Matters) and the Common Foreign and Security Policy.16 The objectives of the post-Lisbon Area of Freedom, Security and Justice (AFSJ) display a strong “internal-external nexus”, especially in the area of CT17 - terrorists do not stop at EU borders - and thus CT is often classified together with other
14 Hayes and Jones, 2013:22 15 Wensink et al, 2011:21 16 Lavenex, 2015:458 17 Smith, 2014:176
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foreign policy objectives such as development or enlargement.18 Nevertheless, in general, the development of CT policies has been pushed on the internal dimension (rather than the external dimension) and this can be contributed to the “perception of terrorism as a law enforcement challenge” rather than an US-style ‘war on terror’.19
The ToL also introduced legislative changes, owing to the fact that the AFSJ is now part of the ordinary procedure (whereby the Council and the European Parliament (EP)) have shared consequences).20 Albeit, these legislative improvements are limited due to the opt-outs of Denmark, the UK and Ireland, as well the possibility for a quarter of MS to initiate policies.21 EU CT now
18 Rees, 2011:37 19 Monar, 2015:338 20 Lavenex, 2015:375 21 Bache et al, 2015:465
68 King’s Journal for Politics, Philosophy and Law involves a “complex patchwork of actors”22 including the European Commission, the Council and (increasingly since 2009) the EP, as well as specialised institutions and actors such as Europol, Eurojust or the Counterterrorism Coordinator.
Having established that EU CT policy has immensely evolved over the past 15 years, the question is how effective it has been according to the two-limbed test outlined above. First, on the one hand, it can be argued that the EU plays a successful role in coordination between MS’s CT policies23, for instance judicial cooperation via Eurojust adds value to the ‘pursue’ pillar. Furthermore, cross-MS working groups such as the Commission sponsored Radicalisation Awareness Network (RAN) (European Commission, 2016) enables practitioners
22 Lavenex, 2015:373 23 Ibid.: 383
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to exchange their insights with each other as well as politicians and thus adds to the ‘prevent’ pillar.
However, the emphasis on cooperative successes already points out the limits of CT effectiveness. While on a rhetorical level (e.g. via the CTS) MS continuously emphasises the importance of closer integration in CT, this does not manifest itself in their actions. Thus, Bures famously termed EU CT a “paper tiger”24, strong in rhetoric, but weak in execution. While this evaluation may be a bit of an exaggeration, it serves to illustrate the implementation weaknesses EU CT displays, leading an internal EU assessment paper to classify implementation as “slow, poor and inadequate”.25 Whilst some attribute this to a general “structurally inherent” flaw of the whole EU26, such generalisations are unhelpful especially considering
24 Bures, 2006:57 25 European Commission, 2004 26 Zimmermann, 2006:134
70 King’s Journal for Politics, Philosophy and Law that the CT as part of the AFJS should be analytically differentiated. This is because unlike other policy areas it is more significantly affected by MS’s reluctance to give up power in favour of supranational institutions as security policy is at the core of nation- state sovereignty. Hence, I argue that whilst the EU has played a limited cooperative role, it has not been able to substantially add value to the field of CT. This is especially problematic given the bulk of instruments passed and the immense increase in spending.
Second, the EU’s external face may be evaluated more positively than other elements of the CT. The “rhetorical spill-over” from internal to external concerns has been astonishing27. This further emphasises that the ToL changes have led to more coherence and have been very beneficial for dealing with non-EU States which have appreciated the EU
27 Argomaniz, 2012:36
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as an important actor in CT.28 On the other hand, problems persist due to the AFSJ’s nature of “shared competence”. This means that MS can still resort to bilateral negotiations and agreements which undermine the EU as being seen as one united international actor. Hence, the EU can certainly be described as an international actor with some effect on third States; but, at the same time, as being somewhat limited by its own internal capability problems.29
Overall, the analysis has shown that there has been some effectiveness in cooperative terms, but the EU’s role in CT policy in general remains weak. From a neo-functionalist standpoint however, there is evidence of spill-over effects from the freedom of movement and the EU’s open market economic cooperation to more security integration, the former
28 Monar, 2014:150 29 Beyer, 2008:314
72 King’s Journal for Politics, Philosophy and Law being the crucial “internal motor”.30 Neo- functionalists would explain this spill-over from ‘low’ to ‘high politics’ integration by MS having recognised the functional necessity of security cooperation for the protection of the internal market. Thus, it is rational to transfer some power to the EU level and entrust the established institutions such as the EP, as well as new ones like Eurojust, with this power. Moreover, these institutions, especially the Commission, were able to play an increasing role, being driven by an “institutional self-interest” which is in fact somewhat independent of the MS.31
There are, however, clear limits to a neo- functionalist analysis of the development of EU CT policy. Effectiveness has been criticised so heavily as being poor because of MS’s reluctance to give up power in the area of security. The EU’s CT
30 Lavenex, 2015:369 31 Monar, 2014:155
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development has been severely restricted due to MS’s “reluctance to engage in hard supranational legislation”32 thus limiting the explanatory merits of functional spill-over. Even though it would be rational to integrate more closely on a European level, the MS’s self-interested stance prevents this and thus intergovernmental governance remains the primary mode of policy cooperation.33 Indeed, institutions have not been able to develop a sufficiently independent capacity and evidently MS have not seen the potential of CT integration as being more than a zero-sum game. This has lead the EU to fail at being a “decision-maker in its own right”.34
Therefore, an alternative explanation for the development of EU CT policy might be provided by a more intergovernmental approach, placing power in the hands of MS. On the other hand, a more
32 Lavenex, 2015:368 33 Ibid. 34 Zimmermann, 2006:124
74 King’s Journal for Politics, Philosophy and Law constructivist perspective might provide a different explanation for the limited integration that has taken place, namely that certain events such as 9/11 and the bombings in Madrid (2004) and London (2005) have led to a “common EU threat perception”35 which in turn have furthered integration up to a certain point. Whilst the strengths and weaknesses of these two alternative theories cannot be developed any further at this point, it is important to bear in mind that the neo-functionalist explanations of spill- over applied to CT limited integration can in fact be challenged.
Europol
Having examined the general framework, the analysis will now turn to one specific actor that has emerged out of the EU CT efforts: Europol, which has been named the “most ambitious and significant
35 Monar, 2015:335
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[achievement] to date”.36 Terrorism is a ‘borderless’ crime, so intelligence cooperation should also be ‘borderless’; eventually the role of facilitating this cooperation was passed to the initially small and purely “drug-crime” focused37 institution: Europol. The 2009 Council Decision 2009/371/JHA reformed the framework of Europol’s role, and listed as its task: (i) information exchange (incl. personal data), training and technical cooperation and; (ii) in general supporting MS’s efforts in fighting crime. Though Europol does not have independent investigative competences (like the FBI), some MS have iterated support for a reform towards a more executive function. However, most MS do not want to empower Europol in such a way.38
Indeed, Europol’s limited competences and enforcement mechanisms are severely hampering its
36 Zimmermann, 2006:132 37 Bures, 2016:59 38 Zimmermann, 2006:135
76 King’s Journal for Politics, Philosophy and Law effectiveness. Whilst there is some evidence that its power has been improving39, generally Europol suffers from a lack of MS’s willingness to share information on a supranational level and cooperate on an institutional basis. There is a persistent underlying lack of trust among the MS which, according to Europol’s Director Wainwright, has led to a great ‘amount of conservatism (…) at a national level’.40 MS do not perceive Europol as a value-adding institution but rather as an “optional bonus”41 and often opt for a bilateral, more informal approach when it comes to intelligence sharing42, for instance in the Club de Berne. This undermines Europol’s role in this policy area and its ability to prevent, protect, pursue and respond, as well as the fact that it adds to the already existing complexity of CT.
39 Gerspacher 2005:424 40 Chevallier-Govers, 2012:140 41 Müller-Wille, 2004:26 42 Bures, 2016:62
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Europol’s problems are thus twofold: (i) the general unwillingness of MS to fully commit to it and; (ii) its lack of enforcement mechanisms to change this. As to its external dimension, Europol has been quite active, currently having concluded operational agreements with 14 States.43 This shows some effectiveness as an international actor, since third- States seem to recognise the opportunity of negotiating with one institution instead of 28 separate MS.
When evaluating the theoretical explanations for Europol’s development using the neo-functionalist approach, one should differentiate between two issues: firstly, the existence of Europol as such and secondly, how it has evolved. The fact that Europol even exists and holds “a degree of authority (…) far greater than that possessed by any other international
43 Europol, 2016
78 King’s Journal for Politics, Philosophy and Law organisation”44 points towards States realising that it is rational to transfer some power to the supranational level and that they actually benefit from it, rendering it a positive sum game. Whilst Europol does depend on MS’s input, it has developed some independent capacity with regards to international cooperation with third States. This is remarkable given that it started as a purely drug-crime focused institution. These developments can be explained once again by the spilling-over of more economic cooperation in the freedom of movement to a more political, security- focused cooperation needed to protect the internal market from terrorists’ abuse.
On the other hand, neo-functionalism reaches its limits when attempting to explain Europol’s subsequent slow evolution and lack of power. When it comes to intelligence there is a “persistent national
44 Walsh, 2006:633
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sovereignty concern of States”45 which results in an unwillingness to share information and a turn towards informal forums. The spill-over from the internal market is thus very minor and it also shows that States do not behave rationally when deciding to keep information to themselves. Europol has not developed a comprehensive independent capacity but heavily relies on MS who therefore retain most of the power. It is unlikely that Europol will develop into a more supranational institution anytime soon; instead it will probably remain an intergovernmental optional policy tool.
Conclusion
The analysis of the EU as an international actor in the field of CT has shown that integration in this area is rather limited, despite some cooperative competences being transferred to EU level. I have set
45Chevallier-Govers, 2012:140
80 King’s Journal for Politics, Philosophy and Law out the criteria for effectiveness in a twofold way, rejecting a purely statistical analysis, before discussing CT terrorism generally and then considering a specific actor, Europol. In terms of ‘adding value’ the EU has been able to demonstrate its competence as an actor and to some extent, (post-ToL) more cohesiveness. However, it often suffers from a lack of implementation as well as MS unwillingness to engage in CT policies on a European level. In developing its external face, the EU can claim its greatest successes, also enabled by the ToL pillar abolition and as third countries seem to appreciate dealing with the MS collectively, despite the persistence of bilateral agreements.
Neo-functionalism is only able to explain the early developments of EU CT and Europol. Even though “spill-over” theory can explain why this policy area has evolved in the first place, its subsequent stagnation on an intergovernmental level
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rather than further development on the supranational level, shows its weaknesses. Europol and other institutions have not been able to develop an independent capacity but largely depend on MS cooperation. Haas’ prediction of a supranational community is very far from being accomplished. In further analysis, it would be interesting to apply other regionalist integration theories such as liberal inter- governmentalism or social constructivism to the EU CT policy area to determine whether they are better at explaining the arguably irrational lack of integration in CT.
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Bibliography Argomaniz, J., (2012) “A Rhetorical Spillover? Exploring the Link between the European Union Common Security and Defence Policy (CSDP) and the External Dimension in EU Counterterrorism” European Foreign Affairs Review, 17 (2/1): 35–52. Bache, I., George S., Bulmer, S. and Parker, O. (2015) “Freedom, Security, and Justice” in: Politics in the European Union. 4th ed., Oxford: OUP. pp. 451-474. Beyer, C. (2008) The EU as a Security Policy Actor: The Case of Counter-Terrorism. European Foreign Affairs Review 13: 293-315. Bures, O. (2006) “EU Counter-Terrorism Policy: A Paper Tiger?” Terrorism and Political Violence, 18 (1): 57- 78. Bures, O. (2016) “Intelligence sharing and the fight against terrorism in the EU: lessons learned from Europol” European View, 15: 57–66. Chevallier-Govers, C. (2012) Antiterrorism Cooperation between the EU and ASEAN. European Foreign Affairs Review, 17 (1): 133–156. Council of the European Union (2005) The European Union Counter-Terrorism Strategy. Available at:
83
European Commission, (2016) Radicalisation Awareness Network (RAN). Available at: < http://ec.europa.eu/dgs/home-affairs/what-we- do/networks/radicalisation_awareness_network/inde x_en.htm> European Council, (2002) Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism. available at: < http://eur- lex.europa.eu/legal- content/EN/TXT/?uri=celex:32002F0475> European Council, (2009) Council Decision 2009/371/JHA establishing the European Police Office (Europol). OJ L 121/38. European Council, (2014) Strategic Guidelines in the Area of Freedom, Security and Justice, EUCO 79/14. available at:
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Haas, E. B., (1958) The Uniting of Europe (Stanford: Stanford University Press) Hayes, B. and Jones, C. (2013) Catalogue of EU Counter- Terrorism Measures Adopted since 11 September 2001. SECILE, available at:
85
Nieman, A. and Schmitter, P.C., (2009) Neofunctionalism. in: Wiener, A. and Diez, T., (eds.) European Integration Theory. 2nd ed., (Oxford: OUP) Rees, W. (2011) “The External Face of Internal Security” In: Hill, S. and Smith, C., (eds.) International Relations and the European Union (Oxford: OUP) Smith, K. E., (2014) “The Fight Against International Crime” in: European Union Foreign Policy in a Changing World. 3rd ed., (London: Polity Press) Walsh, J. I. (2006) “Intelligence Sharing in the European Union: Institutions Are Not Enough” Journal of Common Market Studies, .44(3): 625-643. Wensink, W., van de Velde, M. and Boe, L., (2011) Estimated costs of EU counterterrorism measures. available at:
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Brexit Referendum: An Incomplete Electoral Verdict C Penny Tridimas1 and George Tridimas2
The purpose of this paper is to use the insights of collective choice theory to examine the format and outcome of the Brexit Referendum. It is argued, first that the question asked by the Referendum was incomplete for it failed to address the choice between “Hard” and “Soft” Brexit resulting in a deficiency of legitimacy. Second, this observation gives rise to the question of the actor who can remedy the deficiency, either the electorate in an additional referendum on the form of Brexit, or Parliament in an active role in negotiations.
1 Corresponding author, Dickson Poon School of Law, King’s College London, Strand, London, WC2R 2LS, email [email protected] 2 Department of Accounting Finance and Economics, Ulster Business School, Shore Road, Newtownabbey BT37 0QB, UK
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The Brexit Referendum
The decision of the UK electorate to leave the EU following the “In-Out” Referendum of 23rd June 2016 has led to a debate regarding the terms of future relationship between the UK and the EU. Specifically, the debate can be summarised as a conflict between “Hard” and “Soft” Brexit.
“A ‘soft Brexit’ is commonly taken to mean continued Single Market membership, including free movement of not only goods, but also services, capital and labour- as the non-EU States Norway, Iceland and Liechtenstein have. The hardest ‘hard Brexit’ is usually understood to mean the UK having no preferential relationship with the Single Market and relying only upon World Trade Organisation (WTO) rules. This implies not merely non-membership of the Single Market (meaning the potential for non-tariff barriers to be
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adopted, hindering trade) but also the imposition of tariffs on at least some trade in goods between the UK and the EU.”3
The question put to the UK electorate was “Should the United Kingdom remain a member of the European Union or leave the European Union?”. 52% of the electorate voted to leave the EU, while 48% chose to remain a member. It is clear that the “Leave” answer did not specify what the future relationship with the EU would be. It is the contention of this paper that had the two options regarding the nature of that relationship been included, the referendum result would have been radically different. Further, and perhaps more controversially, the absence of such a choice lends no democratic legitimacy to either “Hard” or “Soft” Brexit.
3 Political Studies Association, 2016
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Referendums are thought to provide policy outcomes that reveal the preferences of the majority of voters. The reason is that when voters are perfectly informed about the issue at hand, they circumvent the principal-agent problem that may bedevil the relationship between constituency voters and their MPs, where the discretion afforded to the latter may be abused to the detriment of the interests of the former.4 However, the paper argues that the Brexit Referendum did not fully benefit from these advantages. Judging from the accusations that each side hurled to the opposition regarding scenarios of economic meltdown and unsubstantiated claims of the costs of EU membership, it is debatable whether voters were perfectly informed.
4 An enormous literature has developed on researching this and related issues, see amongst others Mueller (2003), Matsusaka (2004), Tridimas (2007) and Bogdanor (2009) and the literature therein.
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A further reason for an incumbent to call a referendum is to resolve questions which cut across partisan lines where the governing party and / or the opposition are split on the issue5, like constitutional questions regarding sovereignty, e.g. Scottish independence, and of course UK membership of the EU. Since 1972, the date of UK’s entry to the European Economic Community, both the Conservative and the Labour parties have been split on the issue of European Union membership. The presence of intra-party rifts in the 2015 Conservative Government is corroborated by the fact that the then Prime Minister, David Cameron, was forced to allow his party, MPs and Cabinet to campaign on different sides of the Referendum question, instead of imposing party discipline in support of his declared position of “Remain”.
5 Ibid.
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Theoretical Considerations of Voter Decision- Making
The Brexit Referendum can be modelled as a sequential game of two stages. In the first stage, there are two possible outcomes, “Remain” and “Leave”. If the result is “Remain” the game ends. If the result is “Leave” then a second stage follows, where the options are “Hard” and “Soft” Brexit. However, as things are now, it is not clear whether the second stage will be decided by the electorate upon holding a second referendum, by the Prime Minister, or by Parliament. In addition, the uncertainty regarding the second stage outcome implies that at the beginning of the game, that is when the “In-Out” Referendum was held, voters were imperfectly informed about the settlement following an “Out” result. This in turn leaves open the possibility that a different outcome might have prevailed were the voters fully informed that a
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“Hard” rather than a “Soft” exit was the likeliest outcome. These considerations imply two lines of inquiry, first, the type of settlement with the EU, and second, the actor who approves the settlement.
Figure 1 graphically shows the Referendum outcome as a two-stage game. The top node, “Remain”, shows the outcome and percentage of votes polled, and indicates that the voting game reaches an end where no other actions are taken. The bottom node, “Leave”, is followed by two different outcomes. The upper node shows an outcome of “Hard Brexit” receiving !% of the popular vote; the lower node shows an outcome of “Soft Brexit” receiving #% of the popular vote. With ! + # = 52%. It is therefore unclear how much electoral support each of the latter two options received.
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Figure 1: Brexit Referendum Outcomes and Voter Choices
Remain – 48% Voter Hard Brexit – X% Leave 52% Soft Brexit – Y%
More specifically, since the “Leave” option received 52% of the vote, a rather small fraction above the required majority threshold of 50% + 1 votes, one may reasonably assume that neither the “Soft” nor the “Hard” exit options commanded the 50% + 1 majority. In fact, it is more likely that they both polled less than the 48% received by the “Remain” option. It may however be more difficult to establish whether the “Hard” or the “Soft” option was more popular than the other. As a result,
94 King’s Journal for Politics, Philosophy and Law we can represent the Referendum outcome in descending order of votes as {48, !, #} or 48, #, ! . In light of these observations, the following two interrelated inferences are derived regarding the format of the referendum and the actor responsible for negotiating the final settlement between the UK and the EU.
Implications for Format
Had the Referendum offered a three-way choice instead of a binary choice, and a rule of first- past-the-post applied, the UK would still be a member of the EU. This rests on three arguments. First, the incompleteness of the binary nature of referendums; second, the validity of Independence of Irrelevant Alternatives; and third, the type of majority rule applied. With respect to the first, we
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note that since “Leave” is only an intermediate stage, offering three choices each representing a final outcome, a three-question Referendum is justified. Further, a three-question Referendum would have provided a more accurate recording of the majority preferences of UK voters. Of course, there is no international precedent of a three- question referendum. Nevertheless, an “In-Out” EU membership referendum was unprecedented, so changing the question format would not have been as outlandish as it may first appear to be.
Evidence that a three-question referendum would have offered a more accurate picture of popular preferences comes from the split of the Euro-sceptic camp into two groups, the official “Vote Leave” Campaign headed by Conservative Ministers Michael Gove and Boris Johnson, and the “Leave.EU” Campaign headed by the Euro-sceptic
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MEP and then-leader of UKIP Nigel Farage. The former is presumed to have been more sympathetic to the “Soft” Brexit option than the latter. It follows that a three-question referendum may have improved the information available to the voters. Arguably the presence of two Campaigns on the “Leave” side obfuscated information and might have erroneously led some voters to vote as if they were deciding the second, not the first, stage of the game.
Second, for “Remain” to win a three- question Referendum, that is, “Remain” still receives 48% support using a first-past-the-post voting system, the Independence of Irrelevant Alternatives condition must not be violated.6 The condition requires that despite the presence of two alternatives for “Leave”, those in favour of
6 For more details on the Independence of Irrelevant Alternatives, see Mueller (2003)
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“Remain” still regard “Remain” as the most preferable option. In other words, full EU membership is preferred to any other relationship with Europe presented in the Referendum.
Third, with respect to the type of majority rule, if assumptions regarding the constellation of voter preferences as above are correct, then there is no doubt that use of first-past-the-post would have rejected “Leave”. This conclusion illustrates the tension between the simple-majority voting rule and first-past-the-post. Further evidence of the presence of the tension comes from comparing the voting outcomes of the constituent nations of the UK. The “Out” option was supported by 53% and 52% of the English and Welsh electorate respectively. On the contrary, “Out” received only 38% and 42% support in (the less populous) Scotland and Northern Ireland correspondingly.
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Arguably, applying a voting rule that would have accounted for the varying preferences of the constituent nations may have strengthened the legitimacy of the outcome and reduced constitutional strains relating to the devolved settlements of the UK.
First-past-the-post is not the only electoral rule that produces a single majority outcome required for the type of choice examined (proportional representation systems cannot be used in referendums because they do not generate a clear winner). Using the Alternative Vote system would have also produced clear-cut results.7 However, the actual outcome is not predictable. The reason is that the Referendum did not record a full ranking of voter preferences (that is, how each voter ranked “Remain”, “Soft” and “Hard” Brexit).
7 For an introduction to the AV system, see Electoral Reform Society (2011).
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Hence, we do not know which alternative is eliminated and how votes are transferred to the rest. This means that it is not possible to establish what the outcome of a three-question Referendum using the AV system would be.
Implications for Actor
Our previous analysis identified a serious deficiency of the Referendum process: the Referendum has not produced a democratic mandate for either “Hard” or “Soft” Brexit. To determine which of the two commands greater popular support, either a second referendum is needed to legitimise the negotiated relationship with the EU, or the House of Commons must be actively involved in the objective of the negotiations. The latter route begs the question of whether the sitting Parliament voted in 2015 before
100 King’s Journal for Politics, Philosophy and Law the Referendum or a new Parliament with a fresh mandate votes on the objective of the negotiation. Irrespective of whether a general election is called, the analysis implies that MPs have the authority to remedy the above deficiency, since they are representatives of their constituents. This is in accordance with the principle of Parliamentary Sovereignty enshrined in the UK Constitution. Henceforth, due to the ambiguity regarding preferences for “Hard” or “Soft” Brexit, and contrary to the benefit of referendums to sidestep the problems of the principal-agent relationship, the UK Parliament must play an active role in the negotiation of the UK’s relationship with the EU.
In R (Miller) v Secretary of State for Exiting the European Union, the Supreme Court held that the Prime Minister does not have the prerogative power to trigger Article 50 TEU (which provides
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the legal process for a Member State to follow if it wishes to leave the EU), but must seek Parliamentary authorisation. Our analysis suggests that regardless of whether such power rests with the Prime Minister, and in the absence of an additional referendum, the involvement of Parliament in the process would enhance democratic accountability and strengthen the legitimacy of the final outcome of the negotiations.
Conclusions
This paper argued that the question asked in the Brexit referendum was incomplete. The “Leave” verdict begs the question of what relationship the UK will have with the EU, which suggests that a complete set of questions should have included three options, “Remain”, “Soft” or “Hard” Brexit. In view of the small margin of votes
102 King’s Journal for Politics, Philosophy and Law by which the “Leave” option won, we advance two arguments. First, “Leave” would not have won if a first-past-the-post rule over had been applied over the three options. Second, since the division of the support of “Leave” between “Hard” and “Soft” is not known, either a second referendum is required to determine the preferred settlement, or Parliament must be involved in the decision making process.
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References Bogdanor, V., (2009) The New British Constitution. (Portland, Hart Publishing) Electoral Reform Society, (2011) “Introducing the Alternative Vote” available from http://www.electoral- reform.org.uk/sites/default/files/introducing-the- alternative-vote.pdf Matsusaka, J.G., (2004) For the Many or the Few: The Initiative, Public Policy, and American Democracy. (Chicago: University of Chicago Press) Mueller, D.C., (2003) Public Choice III. (Cambridge, Cambridge University Press) Nurmi, H., (1997) “Compound majority paradoxes and proportional representation” European Journal of Political Economy, 13, 443-454 Political Studies Association (2016) “Brexit and Beyond How the United Kingdom Might Leave the European Union. A Report.” available from https://www.psa.ac.uk/psa/news/new-report-brexit- and-beyond-how-uk-might-leave-eu Tridimas, G. (2007). “Ratification through referendum or parliamentary vote: When to call a non required referendum?” European Journal of Political Economy, 23, 674–692.
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Brexit and Free Movement of People: The Frameworks and Legal Bases of Possible Migration Control Zuzanna Bobowiec1
Much of the public debate after the Brexit vote has concentrated on the apparent incompatibility of policies limiting migration and the UK’s continued access to the single market. Indeed, the principle of the free movement of people has repeatedly been described as a paramount principle within the European four freedoms, and it has been widely accepted that any of the UK’s future participation in the single market would be contingent upon its acceptance of all four of them. On the other hand, some of the EU officials have hinted at possible limitations to free movement, even within the current frameworks of
1 Dickson Poon School of Law, King’s College London, Strand, London, WC2R 2LS, email [email protected]
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the EU.2 This, however, has led many to question what forms such migration controls may take. One possibility that has been discussed was putting ‘an emergency brake’ on the incoming migrants (as opposed to the brake on the social benefits access for arriving migrants as negotiated by David Cameron before the vote). Detailed proposals have been put forward by the Institute for Public Policy Research suggesting that the brake could be applied, for instance, if the influx of EU migration meets a certain quota, if there is clear evidence of downward pressure on wages in particular sectors, or if the proportion of EU migrants in certain areas reaches a specified level.3
2 https://www.theguardian.com/world/2016/jul/24/brexit- deal-free-movement-exemption-seven-years 3 See the proposals of the Institute for Public Policy Research available at: http://www.ippr.org/news-and-media/press- releases/ippr-proposes-emergency-brake-on-free-movement-as- it-sets-brexit-options-for-theresa-may
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While the analysis of possible new migration policies is to be welcomed, it predominantly tends to focus on their political and economic aspects, ignoring the legal implications of their implementation. The aim of this article is to analyse and clarify legal frameworks within which a country may impose migration restrictions while retaining access to the single market in various forms. First, the current arrangements under the European legislation will be analysed. Next, the EEA ‘emergency brake’ clause will be reviewed along with the bilateral arrangements currently applicable to the case of Switzerland. The conclusion will be that although imposing any quantitative restrictions would most certainly be impossible while retaining access to the single market, the EEA Agreement and Swiss bilateral arrangements are capable of offering more opportunities for addressing migration questions
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that have often been assumed to be irreconcilable with free movement requirements.
Possible Migration Controls Under the European Treaties
The free movement of people within the EU is secured both by the Treaties and secondary legislation. The Treaties provide for a right to move and reside freely, which is supplemented by the principle of non-discrimination on the grounds of nationality.4 The provisions are further specified for particular groups of citizens to exercise their rights; namely, workers, those who are self-employed, service providers, students and those able to remain self-sustained in secondary legislation (predominantly the Citizens’ Rights Directive).5
4 Art. 3(2) TEU, Art. 21 TFEU 5 Art. 45 TFEU, Citizens’ Rights Directive 2004/38/EC
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However, the free movement rights of EU citizens are not absolute. First, Article 21(1) TFEU provides that the rights to move and reside freely within the EU will be “subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect”.6 Second, these conditions are further spelled out in the Citizens’ Rights Directive which stipulates that Member States may restrict the freedom of movement and residence of Union citizens on grounds of public policy, public security and public health.7 Third, CJEU jurisprudence has offered guidance on the interpretation of public policy and public security as, unlike public health, they are not defined in the Directive.8 While Member States will essentially retain the necessary discretion in determining the requirements of public policy and
6 Art. 21(1) TFEU 7 Citizens’ Rights Directive 2004/38/EC, with the exact same wording found in Art. 45(3) TFEU 8 Ibid. Art. 29
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public security in accordance with their national needs, those requirements must be “interpreted strictly”, and “their scope cannot be determined unilaterally by the Member State without any control by the Community institutions”.9 This, for instance, will mean that the CJEU will require any public policy derogations to be based on conduct that is clearly defined by the Member State as punishable by law or by other repressive or genuine and effective measures applicable to its own nationals10, and that the derogation on the grounds of public security must apply to “a particularly serious threat to one of the fundamental interests of society, which might pose a direct threat to the calm and physical security of the population”.11 Importantly, although the Directive does not specify what forms of measures could be
9 Jipa C-33/07 [23] 10 Adoui and Cornuaille C-115/116/81 11 P.I. C-348/09 [28]
110 King’s Journal for Politics, Philosophy and Law implemented, Article 27 provides that any derogation will not be justified by economic ends, and that measures taken on grounds of public policy and public security shall be based “exclusively on the personal conduct of the individual concerned”. Moreover, “justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted”.12 In essence, this means that any restriction on the rights to move and reside freely within the EU must be evaluated on a case- by-case basis, and that any quantitative restrictions or ‘emergency brake’ clauses applicable indiscriminately to the incoming EU citizens would be incompatible with the current EU law provisions.
12 Art. 27(2) Directive 2004/38/EC
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Some commentators have suggested that applying an emergency brake on free movement could be still attainable under similar transitional arrangements like those introduced by some countries after the 2004 and 2007 accessions, which effectively restricted labour market access for migrants arriving from new member States for the period of up to 7 years. However, it is clear that those arrangements were introduced because of the clauses contained in the Treaty of Accession 2003 and 2005, that provided for a transition period before workers from new member States could be employed on equal, non-discriminatory terms, specifically designed for reliance only upon the accession of the new member States. As opposed to Germany and Austria, the UK chose not to introduce any freedom of movement restrictions at that time; instead it relied upon welfare access limitations. Those provisions are clearly no longer
112 King’s Journal for Politics, Philosophy and Law enforceable. The case remains that whatever the strength of the political will on both sides of the negotiations, unless the Treaties are amended or a new Protocol added to them, no quantitative restrictions or ‘emergency brake’ clauses could be implemented within the EU law framework.
This, however, does not mean that other less restrictive measures would not be accepted within the EU law framework. Although they might not constitute direct controls of migration, they are widely believed to be discouraging it, as such measures limit the entitlements of Union citizens exercising their freedom of movement right. In particular, rules relating to the access to State benefits are generally detailed in secondary legislation and are thus amendable by a less onerous procedure. Similarly, other changes could be brought by a shift in the jurisprudence of the CJEU
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itself, which, despite tending towards an expanded interpretation of rights secured by the freedom of movement provisions, has in the past taken a less generous view with regard to the free movement rights of convicted criminals and access to welfare benefits by job seekers.13 Changes in both secondary legislation and CJEU jurisprudence are generally limited in scope, as well as not constituting measures directly limiting free movement of people. However, unless the Treaties are amended, they constitute the only plausible mechanism of possible indirect migration controls that would secure the current access to the single market for the UK.
13 M.G. C-400/12, Onuekwere C-378/12, Dano C-333/13
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‘The Norwegian Model’ – ‘Emergency Brake’ Clause Provisions and Access to the Single Market
The approach taken by Norway following its 1994 referendum has often been invoked as the least damaging for the British economy, securing almost full access to the single market.14 Under this model, the UK would re-join the European Economic Area under the EEA Agreement 1994, in effect opting-out from the policies not covered by the Agreement, including agricultural and fisheries policies, as well as the customs union, common trade and security arrangements. The UK would be free to set its own laws in those areas, but would no longer benefit from EU subsidies, notably in the area of agriculture. Crucially, the UK would be obliged to retain legislation relating to the EU’s four fundamental freedoms, including provisions
14 https://www.ft.com/content/eb8dbe8c-3d0c-11e6-9f2c- 36b487ebd80a
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regulating the freedom of movement of persons. Although there exist subtle differences regarding the implementation of the Citizens’ Rights Directive and the concept of Union citizenship within the EEA, the EEA Agreement essentially mirrors the freedom of movement provisions of the European Treaties.15 This means that the freedom of movement must not be restricted, and that the contracting parties are precluded from adopting any quantitative limitations that would discriminate against other EEA citizens, unless the EEA Agreement is formally amended.
However, unlike the Treaties, the EEA Agreement does contain an ‘emergency brake’ safeguard clause embedded in Article 112 of the
15 Although Art. 28 of the EEA Agreement essentially mirrors TFEU’s Art. 45, the concept of the Union citizenship was initially rejected. However, when applying the EEA provisions the EFTA court significantly paralleled the development of rights derived from the concept of citizenship.
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Agreement, which provides that in the circumstances of “serious economic, societal or environmental difficulties of a sectorial or regional nature”, a contracting party may unilaterally take appropriate “safeguard measures” to restrict the rights in the Agreement. The EEA contracting party must notify and consult with the rest of the EEA, wait for a period of one month before the implementation. Then, the measures implemented are subsequently monitored every three months. Importantly, the agreement makes it clear that the safeguard measures should not, either in scope or duration, exceed what is necessary to remedy the relevant difficulties, and if measures taken create an “imbalance between the rights and obligations under this Agreement” then the other EEA members are entitled to take reciprocal measures.16 Accordingly, in practice the procedural
16 Art. 114 of the EEA Agreement. Reciprocal measures may constitute similar restrictions to the single market.
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requirements are stringent and reciprocal restrictions can be instituted if the measures taken by an EEA member are not well-justified. It is not clear what sorts of measures would be accepted by the EEA Council and given the precedents discussed below, it would indeed be very challenging for the UK to rely on the clause. However, the point remains that institutionally there exists an example of an ‘emergency brake’ clause which may serve as a possible guiding point of reference, of even a template, for any future agreements concluded on behalf of the UK.
Liechtenstein has often been invoked as an example of an EEA country that has successfully secured the application of quantitative limitations of new residents, seasonal and frontier workers, as well as the application of its own nationals regulating the entry, residence and employment of
118 King’s Journal for Politics, Philosophy and Law other EEA nationals.17 Initially on a temporary basis under Article 112, since January 1998, Liechtenstein’s opt-out has, however, remained in force after 1998 by reason of Annex VIII of the EEA Agreement which provides that its national provisions will remain in force on a permanent basis, but will be reviewable every five years.18 However, the reviewable standards have only been applied to Liechtenstein because of its circumstances as an exceptionally small area and distinct geographical location making it particularly vulnerable to high populace inflows, as was repeatedly emphasised by the EEA Council.19 It is hard to see that similar considerations would be applicable to the UK, as it would be difficult to adduce comparable evidence given the size of its economy. This does not rule out the possibility of
17http://www.theguardian.com/politics/2016/oct/09/liechtenst ein-solution-key-to-softer-brexit-tory-mep 18 Annex VIII to the EEA Agreement 19 Decision of the EEA Council of March 1995 No 1.95
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the UK being able to make use of the EEA’s ‘safeguard measures’ clause, but it does suggest that this will be very challenging. As mentioned above, the clause could be used as a template for any future agreements concluded by the UK outside the EEA, or, potentially, as a clause of a negotiated Protocol to the EEA Agreement applicable to the UK. However, it is safe to assume that the EEA Council would not be particularly willing to renegotiate a well-balanced and tested agreement just to give further concessions on a paramount principle to the UK. As for now, it remains for the future negotiations to show under what circumstances would the UK be allowed to limit the migration while retaining its access to the single market, and therefore whether a modified ‘emergency brake’ clause would be accepted.
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Does the Swiss Model Offer Any Solutions?
The arrangement between Switzerland and the EU, the so-called ‘bilateral model’, consists of a complex system of more than 120 agreements. Free movement is an integral part of those bilateral arrangements and is provided by the Agreement on Free Movement of Persons (AFMP), which entered into force in 2002. It extends the part of the EU’s internal market concerning free movement of natural persons, i.e. free movement of workers, freedom of establishment of natural persons, and partly freedom of services of natural persons to Switzerland. Crucially, the AFMP contains a ‘guillotine mechanism’ which comes into effect with the termination of all other agreements once the AFMP discontinues to be applied.
In the 2014 referendum, the Swiss
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population voted in favour of introducing mandatory quotas for foreign residents, including EU citizens. These quotas would have needed to be introduced as amendments to the Swiss Federal Constitution. Such provisions would have been incompatible with the bilateral arrangements with the EU. Hence, in October 2015, the Swiss Parliament sought to reconcile the outcome of the referendum with continued access to the single market by introducing new provisions focused on a staged approach to manage migration, namely by giving recruitment preference to current residents (irrespective of their citizenship) and introducing quotas as the very last resort.20 In the government’s opinion, this approach would safeguard the principle of free movement and therefore satisfy the EU, helping to circumvent the EU’s reluctance to
20 Quotas for EU citizens would be imposed only in cases where immigration reaches levels that are no longer in line with Switzerland's overall interests.
122 King’s Journal for Politics, Philosophy and Law arbitrary quotas. Indeed, after extensive talks about the new provisions, Jean-Claude Juncker, the European Commission’s President, has already signalled that the new legislation should satisfy the contractual obligations of both parties.21 The talks, however, halted after the UK Brexit referendum, and it remains to be seen whether these provisions will be accepted in their current form.
However, that being said, one conclusion that can be drawn from the case of Switzerland is that it may be an available basis for negotiating the balance between freedom of movement and access to the single market for the UK outside the EU. However, the bilateral arrangements between Switzerland constitute a long and complicated patchwork of agreements established over
21 https://www.theguardian.com/world/2016/sep/22/switzerland -votes-for-compromise-to-preserve-relations-with-eu
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extensive periods of diplomatic negotiations, requiring constant reparations and compromises. One example of this might be the suspended negotiations on Swiss access to the liberalised electricity market and its exclusion from the 2020 university research grants that followed as some of the upshots of the referendum vote.22 The UK will therefore have to evaluate carefully what its position in negotiations with the EU would be as a non-member State, taking into account that any disproportionate non-observance of the EU’s fundamental principles might result in reciprocal restrictions to the single market.
A Way Forward?
The aim of this article was to analyse and clarify the legal frameworks within which a country
22 http://energyandcarbon.com/brexit-impact-switzerland/
124 King’s Journal for Politics, Philosophy and Law may impose migration restrictions whilst retaining different forms of single market access. Clearly, as shown, unless the Treaties are amended, no quantitative restrictions or ‘emergency brake’ clauses could be implemented within the current EU law framework. This, however, does not mean that other less restrictive measures, such as those relating to access to benefits, would not be accepted. Crucially, although imposing any quantitative restrictions would most certainly be impossible while retaining full access to the single market outside the EU, the EEA Agreement and Swiss bilateral arrangements are capable of offering more opportunities for addressing migration questions than has often been assumed. The EEA Agreement does offer an ‘emergency brake’ clause that could be used as a template for future agreements concluded on behalf of the UK. Similarly, the experience of Switzerland proves
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that the EU is willing to accept more lenient restrictions. As for now, only future negotiations will show whether the UK will follow a similar, or perhaps even a more open-ended path.
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References Adoui and Cornuaille C-115/116/81 [1982] Campaign for an Independent Britain (2015) “Some Restriction on Free Movement of People is Possible Within the EEA” available at
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The Financial Times (2016) “Brexit: The Norway Option is the Best Available for the UK” available at
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Jipa C-33/07 [2008] M.G. C-400/12 [2014] Migration Watch UK (2016) “An ‘Emergency Brake’ on EU Migration” available at
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Brexit, the Good Friday Agreement and the Northern Ireland Act 1998 Lucas Nacif1
Introduction
Following the ‘Brexit’ referendum a contentious issue that has arisen is the impact that the United Kingdom’s exit from the European Union (EU) will have on the devolved regions, particularly Northern Ireland and Scotland, (who each voted to ‘remain’). A cross-party group in Northern Ireland and Raymond McCord, a local activist, have brought judicial review proceedings to the High Court in Belfast2 regarding the legality of the Prime Minister exercising her prerogative power to invoke Article 50 of the Treaty on European Union (TEU). They were also allowed the right to a
1 Dickson Poon School of Law, King’s College London, Strand, London, WC2R 2LS, email [email protected] 2 McCord’s (Raymond) Application [2016] NIQB 85
130 King’s Journal for Politics, Philosophy and Law hearing before the United Kingdom (UK) Supreme Court following the High Court judgment in Belfast. The objective of this article is to analyse the reasons why there are constitutional implications leaving the European Union that affect the devolution settlement in Northern Ireland. This article will also reflect upon the judgment of McCord’s (Raymond) Application3 and the submissions made by the counsel for the appellants and the respondent in the UK Supreme Court, since, at the time of writing, the ruling from the Supreme Court is yet to be published.
Good Friday Agreement and the Northern Ireland Act 1998
The Good Friday Agreement gives the people of Northern Ireland the right to self- determination when dealing with the constitutional
3 [2016] NIQB 85
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status of their region. Specifically, this refers to the question of whether Northern Ireland should continue to be a part of the United Kingdom or if it should unite with the Republic of Ireland.4 The Northern Ireland Act 1998 ratifies the Good Friday Agreement into domestic law5 and hence it reaffirms the right to self-determination of the State of Northern Ireland by ensuring that the question of Irish unification is dealt through a popular referendum in Northern Ireland.6 The Agreement also led to the creation of a North/South Ministerial Council7 (NSMC), an institution created to promote cooperation and dialogue between Northern Ireland and the Irish government with regards to policy areas including the implementation of EU policies in Ireland and
4 Agreement Between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland, Art. 1(i)(ii) 5 Maguire J in McCord’s (Raymond) Application, [42] 6 Northern Ireland Act 1998, section 1(1) 7 Strand Two – North/South Ministerial Council
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Northern Ireland.8 Withdrawing from the EU would hinder the functioning of the NMSC, since only one party would be bound by EU law, and so cooperation would be limited because the NMSC focuses largely on the implementation of EU policies9. According to Lord Bingham, the Northern Ireland Act 1998 serves as a written constitution for the devolved region and thus the Act should be “interpreted generously and purposively, bearing in mind the values which the constitutional provisions are intended to embody”.10
The Northern Ireland Act 1998 states that subordinate legislation made by a Minister or a Department in Northern Ireland cannot be incompatible with EU law, meaning that individual
8 ibid, paragraph 3(iii), paragraph 17 9 Anthony, 2016:65 10 Lord Bingham in Robinson v. Secretary of State for Northern Ireland and Others [2002] NI 390 at 398, [11]
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rights protected by the European Union are ingrained in the devolution settlement.11 Inevitably then, invoking Article 50 and the passing of a “Great Repeal Bill”12 in the UK Parliament might mean that the Act of 1988 may face the risk of being amended. Although this is legally permissible, it might give rise to political disputes in Northern Ireland. Furthermore, Article 1 of the Good Friday Agreement recognises the right for all Northern Irish persons to choose between Irish or British citizenship or take up both.13 The right to possess Irish citizenship means that under the Good Friday Agreement, a person born in Northern Ireland has the right to EU citizenship, because according to the Treaty on the Functioning of the European Union (TFEU), “every person holding
11 Northern Ireland Act 1998, section 24(1)(b) 12 Douglas-Scott, October 2016 13 Agreement Between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland, Art. 1(vi)
134 King’s Journal for Politics, Philosophy and Law the nationality of a Member State shall be a citizen of the Union”.14 Most importantly, any ‘Union citizen’ is entitled to the rights and duties that the Treaty provides15, such as the right to “move and reside freely within the territory of the Member States”.16 Therefore, the protection of rights enshrined by the EU is implied in the devolution settlement of Northern Ireland. This is because the Republic of Ireland became an important political actor in shaping the Good Friday Agreement.17
Anthony argues that withdrawing from the EU would impact the devolution settlement of Northern Ireland since it would deprive the region from the EU funding originating from the Special European Union Programmes Body, which has
14 ‘Consolidated Version of the Treaty on the Functioning of the European Union’ Article 20(1), page 25 15 Ibid., Article 20(2), page 25 16 Ibid., Article 20(2)(a), page 25 17 Campbell, September 2016
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sponsored cross-community reconciliation programmes in the region.18 Furthermore, many areas of human rights law in the Northern Irish jurisdiction draw their origins from EU law.19 Human rights enshrined by case law originating from the Court of Justice of the European Union (CJEU) would either be ignored by the courts or be seen as “persuasive precedent”.20 This implies that parts of the Northern Ireland Act 1998 intended to enshrine equality laws21 are at risk.
Raymond McCord’s Application
Maguire Judge delivered the judgment of the judicial review applications made by Raymond McCord and the cross-party group in Northern
18 Anthony, 2016:66 19 Ibid.:67-68 20 Ibid.:68 21 ‘Part VII – Human Rights and Equal Opportunities’ of the Northern Ireland Act 1998. Refer to section 75 and section 76.
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Ireland regarding the legality of the Prime Minister’s use of the royal prerogative to invoke Article 50 of the TEU.22 The applicants argued that because of the Northern Ireland Act of 1998 and the Good Friday Agreement23, a motion of legislative consent must be passed by the Northern Ireland Assembly24 before the UK potentially triggers Article 50 of the TEU.25 Furthermore, because leaving the EU would lead to a change in Northern Ireland’s constitutional status, there is an expectation that Article 50 can only be triggered if
22 McCord’s (Raymond) Application, [1] 23 Ibid. [19a] 24 To read more on this issue, refer to the ‘Sewel Convention’. Although the Parliament in Westminster is supreme, it has agreed that it will seek the consent of a devolved assembly before legislating on a devolved matter. Bradley, Ewing and Knight, 2015:39. Refer also to paragraph [119] of McCord’s (Raymond) Application, which discusses the conventions that existed between Northern Ireland and Westminster before the Sewel Convention, when a devolved assembly created by the Government of Ireland Act 1920 was under effect from the early 1920s-early 1970s. 25 McCord’s (Raymond) Application, [19b]
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the people of Northern Ireland give consent to it.26 Hence, according to the applicants, the Northern Ireland Act 1998 displaces the executive’s prerogative power to trigger Article 50.27
Whilst there was “… a working assumption that both states [the UK and Ireland] were likely to remain in the EU”28 and also that none of the States involved in the Good Friday Agreement would “at a later date…decide to leave [the EU]”29, the court held that the prerogative power to withdraw from a treaty was not displaced by the statute30, and that the notification under Article 50 does not change the law of the United Kingdom. Instead, it only marks the beginning of a process whereby changes to domestic law will likely be controlled by the UK
26 Ibid. [19e] 27 Ibid. [66] 28 Ibid. [97] 29 Ibid. [97] 30 Ibid. [108]
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Parliament.31 Regarding the argument that a legislative consent motion is required if an Act of Parliament is used to invoke a notification under Article 50, the court took the stance that such legislation would be dealing with an excepted, and not a devolved matter. Furthermore, conventions, like the Sewel convention32, are not legally enforceable by the courts33. The court was reluctant to intervene on the issue of exercising the prerogative in the field of foreign affairs, as doing so would require a “political judgment”34, which is an area deemed non-justiciable.35
Hence, the High Court did not consider the withdrawal from the EU to be a devolution issue.36 Moreover, invoking Section 1 of the Northern
31 Ibid. [105] 32 See footnote n24 33 McCord’s (Raymond) Application, [121] - [122] 34 Ibid. [129] 35 Ibid. [131] – [134] 36 Ibid. [144]
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Ireland Act 1998 to ensure that the Northern Irish would give consent to leaving the European Union was rejected on the basis that a national referendum had occurred months before the judgment. Furthermore, it was held that there were no provisions in the Good Friday Agreement or in the Act of 1998 that allowed for the organisation of a referendum concerning any constitutional change occurring in Northern Ireland.37 The court therefore interpreted Section 1 of the 1998 Act in the literal sense, instead of taking the purposive approach espoused by Lord Bingham in Robinson v. Secretary of State for Northern Ireland and Others. It is worrying that the court considered this issue “non-justiciable”. While the question of EU membership can be seen as a foreign-policy issue, it does have implications for the protection of human rights of the Northern Irish, as discussed above.
37 Ibid. [152]
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Submissions Made by the Attorney-General for Northern Ireland in the Supreme Court
The Attorney General for Northern Ireland in the Supreme Court affirmed the decision in McCord’s (Raymond) Application. The Attorney General applied a literal interpretation of the Northern Ireland Act 1998 by arguing that Section 1 only deals with “the status of Northern Ireland within the UK”38, instead of the wider notion that Section 1 may be applied with any constitutional change affecting the devolution settlement of Northern Ireland. The Attorney General also interpreted the 1998 Act in the sense that it does not impose the requirement that EU membership must be maintained39, and that it also does not set
38 R (on the application of Miller and Dos Santos) v Secretary of State for Exiting the European Union and associated references transcript, Tuesday 6 December 2016, pg. 120 39 Ibid.: 131
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any requirements regarding how Article 50 of the TEU can be triggered.40
Unlike Maguire J41, the Attorney General was willing to concede that the issue of invoking Article 50 with the royal prerogative is a justiciable issue42, and that in the present case the claimant must prove that the “statute expressly, or where by necessary implication, has taken away the prerogative in that sphere”.43 It was particularly interesting that the Attorney General submitted that withdrawing from the EU would not impact the functioning of the NMSC, on the basis that “as long as one State remains, there will in all likelihood remain EU matters to be discussed..44
40 Ibid.: 132 41 McCord’s (Raymond) Application [129], [131]-[134] 42 R (on the application of Miller and Dos Santos) v Secretary of State for Exiting the European Union and associated references transcript, Tuesday 6 December 2016, pg. 137 43 Ibid. 44 Ibid.: 127
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This is in direct contrast to the views of Professor Gordon Anthony, who contends that when the UK leaves the EU, the “mutual bind” behind the NMSC would be non-existent.45
Submissions Made by the Appellants, the Cross- Party Group46 and McCord in the Supreme Court
Consistent with the analysis above David Scoffield QC, representing the cross-party group, submitted that the Northern Ireland Act 1998 is like the European Communities Act 1972 as the issue of membership in the EU is not a “neutral” question47. Scoffield argued that the 1998 Act serves as a “further conduit” to ensure that EU law
45 Anthony, 2016:65 46R (on the application of Miller and Dos Santos) v Secretary of State for Exiting the European Union and associated references transcript, Wednesday 7 December 2016, pg. 112 47 Ibid.: 113
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is properly applied within the UK.48 Unlike the submissions from the Attorney General for Northern Ireland, Scoffield saw the NSMC not as a “talking shop”49, but as an executive body whereby EU membership is a vital component to ensure the implementation of its policies.50 One of the boldest submissions made by Scoffield is that foreign relations is not a fully reserved matter, since Paragraph (3) Schedule(2) of the Northern Ireland Act 1998 transfers certain elements of foreign affairs to the devolved institutions. This not only refers to the cooperation under the NMSC, but also to the duty that the devolved authorities must observe and implement obligations that arise from EU law.51
48 Ibid.:115 49 Ibid.:122 50 Ibid. 51 Ibid.:129-130
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An important submission raised by Ronan Lavery QC, who represented McCord, is that Section 1 of the 1998 Act transferred sovereignty over constitutional changes from the UK Parliament to the people of Northern Ireland52, and that triggering Article 50 using this prerogative would violate the principle of consent and self- determination that is ingrained in the devolution settlement of Northern Ireland.53 Section 1 of the Northern Ireland Act 1998 in effect allows the region to be a member of the United Kingdom on a voluntary basis.54 This conclusion seems to be consistent with the purposive approach that Lord Bingham supports in Robinson v. Secretary of State for Northern Ireland and Others.55 Controversially, Mr. Lavery defies the Diceyan notion of
52 Ibid.:133 53 Ibid.:143 54 Ibid.:136 55 [2002] NI 390 at 398, [11]
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parliamentary sovereignty56 by asserting that because of the devolution arrangement in Northern Ireland, legislative supremacy in the United Kingdom is no longer existent.57
Conclusion
Leaving the European Union means that the foundations of the devolution settlement in Northern Ireland are at stake, because the rights and obligations arising from the United Kingdom’s membership from the European Union were influential during the creation of the Good Friday Agreement and the Northern Ireland Act 1998. The recent litigation that arose in the Belfast High Court and the Supreme Court questions the status
56 Dicey, 1959:39-40 57 R (on the application of Miller and Dos Santos) v Secretary of State for Exiting the European Union and associated references transcript, Wednesday 7 December 2016, pg.134
146 King’s Journal for Politics, Philosophy and Law that devolution has within the UK’s constitution. Furthermore, interpreting Section 1 of the 1998 Act in a broad and purposive approach might also defy constitutional principles such as parliamentary sovereignty, as suggested in Ronan Lavery QC’s submissions. Until the Supreme Court Justices provides a judgment to this case, the questions associated with these constitutional implications remain largely unanswered.
Therefore, it can be argued that if Britain’s membership of the EU was not treated neutrally when creating the devolution settlement for Northern Ireland, it is justified to interpret the Northern Ireland Act of 1998 in a wide and purposive approach. The legal disputes that arose following the Brexit referendum which questioned the constitutional role of devolved regions of the United Kingdom, specifically Northern Ireland,
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shows that the UK will face a challenging process negotiating its exit from the European Union, in addition to potential domestic challenges.
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Bibliography Bradley A.W., Ewing K. D, and Knight C, S, J., (2015) Constitutional and Administrative Law 16th edn, (London: Pearson) Consolidated Version of the Treaty on the Functioning of the European Union [2008] OJ C115/13 Dicey A. V, (1885, 1959) Law of the Constitution E.C.S. Wade (ed,) 10th edn, (London: Palgrave Scholarly) Gordon Anthony, ‘A View from Northern Ireland’ in A. Biondi and P. Birkinshaw, ed., Britain Alone? The Implications and Consequences of the UK Exit from the EU (Wolters/Kluwer, 2016) McCord’s (Raymond) Application [2016] NIQB 85 Northern Ireland Act 1998 Robinson v. Secretary of State for Northern Ireland and Others [2002] NI 390 R (on the application of Miller and Dos Santos) v Secretary of State for Exiting the European Union and associated references transcript, Tuesday 6 December 2016 R (on the application of Miller and Dos Santos) v Secretary of State for Exiting the European Union and associated references transcript, Wednesday 7 December 2016 UK Constitutional Law Association (2016) “Sand in the Gearbox: Devolution and Brexit” available at
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Crisis?” available at
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A Threat to Human Rights in Europe – The Refugee Crisis Anna Watkinson1
Upholding and protecting human rights is the mark of a modern liberal democratic society. Yet, the recent flow to Europe of a significant number of refugees fleeing armed conflict or looking for a better life has tested this long-held view. Questions can be raised about the moral, economic and political issues regarding the treatment of refugees, the sacrifices that domestic nationals are prepared to make, the rule of law and international cooperation. More modestly, the present essay inquires how far the refugee crisis strains the application of human rights protection both in respects of the refugees, EU and third country nationals (TCN).
1 Dickson Poon School of Law, King’s College London, Strand, London, WC2R 2LS, email [email protected]
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Refugees
According to the United Nations Refugee Agency’s report (UNHCR) a record of 65.3 million people were displaced at the end of 2015, of whom 16.1 million were estimated to be refugees under the UNHCR’s mandate.2 Syria, Afghanistan and Somalia account for more than half of these refugees worldwide. Long-lasting conflicts in Somalia and Afghanistan; armed conflict in the Middle East; new conflicts in countries, such as Central African Republic and Yemen; and the decline in the rate of solutions being sought for refugees, all contribute to the worsening refugee crisis.3 Indeed, “we are facing the biggest refugee and displacement crisis of our time. Above all, this
2
152 King’s Journal for Politics, Philosophy and Law is not just a crisis of numbers; it is also a crisis of solidarity.”4
Since 2011 there has been an increasing number of migrants and refugees from the Middle East, South East Asia and Africa arriving into Europe.5 The peak was reached in 2015 when over one million migrants reached Europe.6 Migrants fleeing war, poverty, and human rights abuses have attempted to get to their destination by land or sailing across the Mediterranean. The voyage is treacherous: the International Organisation for Migration estimates that in 2015, 3770 migrants died or went missing attempting the journey, whereas in 2016 the number increased to over
4 Ban Ki Moon, the United Nations Secretary General cited in (no 1) 5
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5000. 7 A single incident in April 2015, where a crammed fishing boat sank, killed 772 migrants.8 Europe’s sense of empathy was awakened overnight, although only for a short time, when the picture of a dead little Syrian boy washed on the shore of Turkish coast was published in September 2015, an image which became the symbol of the refugee crisis.9
Arguably, in Europe the biggest threat to the human rights protection of refugees is apathy and lack of political will to uphold the rights of the most vulnerable. This is due to the European leaders bowing down to the anti-immigration sentiments at the expense of human rights protection. While changing political views,
7 Ibid. 8 Ibid. 9
154 King’s Journal for Politics, Philosophy and Law economic volatility, and threat of terrorism among other challenges remain a reality, the vulnerable still need protection.
Legal instruments
When migrants reach Europe, the United Nations Refugee Convention 195110, the European Convention of Human Rights (ECHR), and EU law may all be relevant. Under the UN Refugee Convention, States have legal obligations to protect refugees who are forced to flee their countries due to a threat of persecution which they are not protected from by their own States.11 The 1951 Convention grants refugees rights, such as not to be punished for illegally entering the contracting State
10
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(Article 31) and right to housing (Article 21).12 Migrants who leave their country for employment, study or family reunification purposes and who continue to be protected by their own government are not covered by the Refugee Convention.13 Article 1 of the ECHR imposes an obligation on the parties to the Convention to respect human rights of everyone within their jurisdiction14, including migrants and refugees. Yet, there is tension between immigration control and respect for human rights in Europe, demonstrated by cases coming to the European Court of Human Rights dealing with deportation of migrants and refugees (Hirsi Jamaa and Others v Italy15; L.M. and Others v Russia16).
12 Ibid. 13 Ibid. 14 47 European Countries are signatories to the ECHR 15 [2012] ECHR 1845, 55 EHRR 21, (2012) 55 EHRR 21, 33 BHRC 244 16 [2015] ECHR 908
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Furthermore, EU law regarding asylum applications has blurred the line of responsibility between the States of arrival and final destination. The Dublin III Regulation (Regulation 604/2013) is used to determine which State is responsible for the processing of an asylum application.17 Costello regards the Dublin System as a “significant barrier” to human rights due to its prolonged procedures and its requirement of asylum seekers to stay put in States “where their claims are likely to be rejected for want of proper examination”.18 Indeed, the Regulation allocates responsibility to the State where the asylum seeker has irregularly entered the European Union (Article 13, §1)19, thus placing immense pressure on the entry States, such as Italy
17 Council Regulation (EU) 604/2013 of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast) 18 Cathryn Costello, 2015:322 19 Dublin Regulation 604/2013 (no 16)
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and Greece. Yet, according to Costello, the role of the European Court of Human Rights (ECtHR) has been pivotal in exposing and limiting human rights breaches resulting from the Dublin System.20 In M.S.S v Belgium and Greece, the ECtHR found that Belgium, despite the Dublin II Regulation (as it was then), violated Article 3 of the ECHR by sending the applicant back to Greece which exposed him to the defects in the asylum procedure in Greece, where the detention and living conditions were in breach of the ECHR.21 Under the UN Refugee Convention those who meet the definition are regarded as refugees. However, within the EU, the asylum process appears to be driven by immigration control even at the expense of human rights protection. Costello argues that the European migration control as a whole violates human rights of the refugees, because safe and legal access to
20 Costello, 2015:322 21 App No 30696/09 (ECtHR, 21 January 2011)
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Europe does not exist, and when reaching Europe, often the asylum claims are not recognised, resulting in detention.22
Immigration Control-Driven Solutions
There have been some efforts to ease the pressure caused by the flow of migrants and the use of Article 13 of the Dublin Regulation on the entry countries. Germany, under the leadership of the Chancellor Angela Merkel, suspended the use of the Dublin protocol in August 2015 in respect of Syrian asylum seekers.23 Furthermore, in September 2015 EU ministers voted to relocate
22 Costello, 2015:326 23
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120,000 refugees EU-wide.24 Yet, by December of 2016 the EU had only relocated 5% of its target.25
However, borders were shut for migrants trying to reach Northern and Western Europe: Balkan countries26 and Austria closed their borders in March 2016.27 In the same month the EU struck a deal with Turkey, prescribing: the return of all new irregular migrants back to Turkey; Turkey to prevent migrants crossing to Greece, in exchange for relaxing visa restrictions for Turkish nationals; financial aid for the refugees in Turkey; and a
24
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‘Syrian refugee swap’, that is, for each Syrian returned to Turkey, another Syrian from Turkey will be resettled in the EU.28 All returns are to be done in accordance with EU and international law. However, if this is to be taken seriously, Elizabeth Collett, a Director of the Migration Policy Institute Europe, doubts whether reception conditions and protection in Turkey satisfy the required human rights standard. 29 Furthermore, the majority of arrivals are likely to be awarded protection under Dublin Regulations if fleeing war. Moreover, the current volatile situation in Turkey begs the question of whether the human rights of migrants and refugees will be protected. Collett argues that EU leaders have sent a message “that providing protection to large populations is a fungible task:
28
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should governments face the prospect of domestic unpopularity, the obligation to protect becomes secondary.”30 Indeed, “the problem has once again been squeezed elsewhere rather than resolved.”31 Worryingly, there has been talk of the EU also partnering with Libya to reduce the number of migrants and refugees arriving in Italy, raising further legal concerns.32
The flow of migrants has decreased since its peak in 2015. The number of asylum seekers in Germany decreased by 600,000 in 2016.33 There were less than 400,000 arrivals into Europe in
30 Ibid. 31 Ibid. 32
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2016.34 Some could hail this as a small victory of efficient co-operation and immigration policy. Yet, it is anything but. While Europe looks the other way, there are over 75,000 migrants and refugees stranded in Greece, former Yugoslav Republic of Macedonia, Serbia, Slovenia, Croatia, Hungary and Bulgaria, whose lives are on hold. They have no access to housing or schooling, fear for their physical safety and deportation, are susceptible to human traffickers35, and faced the prospect of freezing to death.36 Human rights law protection seems to have failed the refugees because the solutions adopted by European States have been driven by concerns for immigration control, which also motivated the deal with Turkey, instead of
34
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application of international human rights law instruments.
EU Nationals and TNCs: Terrorism and Surveillance
There is also a threat to the human rights of EU nationals and third country nationals (TCN). Since Europeans awakened to the plight of the refugees, their compassion has been tested. Some of the terrorist attacks in France and Germany in 2015 and 2016 were committed by asylum seekers37 and radicalised EU nationals who boasted that they using migrant routes to access Europe.38 Indeed, according to a survey by the Pew Research Centre, conducted in Germany, Sweden, the
37
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Netherlands, Britain, France, Spain, Italy, Greece, Hungary and Poland in April/May 2016, a median of 59% of the respondents feared that the presence of refugees will increase the likelihood of terrorism in their nations.39
Yet, a UN report found little evidence that asylum seekers are inclined to be radicalised, or that terrorist groups systematically use migration flows for their purposes.40 The latter was also supported by the Europol’s 2016 European Union Terrorism Situation and Trend Report.41 However, anti-migration policies may actually increase that risk. Ben Emmerson, the Special Rapporteur on
39
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counter-terrorism and human rights for the UN emphasised: “What is clear is that policies that respect human rights, justice, and accountability, and that manifest the values on which democracy is founded, are an essential element of effective counterterrorism policies.”42 Measures by States to keep migrants out, such as fences, push-back operations and criminalising irregular migration, play a part in creating chaos and covert movements of people, including trafficking, which may facilitate terrorism.43
Worryingly, the response by the governments in safeguarding their citizens may actually endanger the human rights of those being protected. Although, surveillance by the governments is essential in acquiring intelligence
42 Ben Emmerson cited in (no 40) 43 < https://documents-dds- ny.un.org/doc/UNDOC/GEN/N16/285/61/PDF/N1628561. pdf?OpenElement> accessed 3 February 2017
166 King’s Journal for Politics, Philosophy and Law and tackling terrorism, there has been an increased worry that measures taken by governments have been excessive. For example, the Investigatory Powers Act 2016 passed by the UK Parliament has been criticized for allowing the intrusion into the private life of citizens. According to Jim Killock, the executive director of Open Rights Group, “the UK now has a surveillance law that is more suited to a dictatorship than a democracy. The State has unprecedented powers to monitor and analyse UK citizens’ communications regardless of whether we are suspected of any criminal activity.”44 Indeed, it is questionable whether accessing ordinary citizens’ information is necessary for the interests of national security and public safety, as per Article 8(2) of the ECHR.
44
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Conclusion
Undoubtedly, Europe is dealing with complex issues in relation to the refugee crisis, such as distinguishing refugees from economic migrants, the effect on local economies, the perceived and real threat of terrorism, the rise of the far right, and searching for solutions in the origin countries of the refugees. Yet, there are urgent matters that call for immediate action, such as refugees freezing to death in sub-zero temperatures, and refugees, including unaccompanied children going missing and being forced into slavery by predatory human traffickers. However, the political will to take responsibility in finding solutions that uphold human rights seems to be lacking. Europe is responding to those who shout the loudest and not to those who most need protection. Instead, Europe should be a leader in defending the human rights of
168 King’s Journal for Politics, Philosophy and Law the vulnerable, and uphold the legacy and resolve of the European statesmen after the Second World War, which saw the creation of the ECHR.
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References BBC News (2015) ‘Migrant crisis: Why EU deal on refugees is difficult’ available at
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The Financial Times (2017) ‘Europe remembers its forgotten crisis’ available at
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The Telegraph (2016) ‘Austria closes its borders to almost all asylum-seekers’ available at
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Single Transferable Vote and the Need for Electoral Reform in the UK: Is the System too Complex? Christopher Banks45
Introduction
Like the UK’s future relationship with the EU, electoral reform threatens to be an issue in British politics that will not go away. In the 2011 Alternative Vote (AV) Referendum, the UK voted by 68% against replacing the first-past-the-post (FPTP) system with AV. Yet, the prediction of Matthew Elliott, the victorious director of the ‘No’(pro-FPTP) campaign, that the decisive result would “settle the debate over changing our electoral system for the next generation”46, appears
45 Dickson Poon School of Law, King’s College London, Strand, London, WC2R 2LS, email [email protected] 46 Matthew Elliott, 7/5/2011
174 King’s Journal for Politics, Philosophy and Law to have been slightly premature. Just a few months ago it was back on the agenda in Parliament, through an Early Day Motion proposed by Chuka Umunna that called on the government to “introduce a system of proportional representation”.47 While Early Day Motions are historically ineffective ways of actually forcing legislation through Parliament, the wide-ranging support that it received from across parties indicates that, at the very least, Elliott was wrong in assuming the issue would simply disappear. Yet despite the continuing calls for a change to the UK’s electoral system, political discussion rarely progresses to the stage of considering viable alternatives. In this piece, I will examine the Single Transferable Vote (STV), one of the alternatives to the FPTP system. In doing so, I will, first give an assessment of the need to alter the current system,
47 Early Day Motion 591, 25/10/2016
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in order to establish the aims that should be considered when deciding on the most effective electoral system for the UK. Applying these aims to the STV, I argue it would be the most suitable electoral system to guarantee both an increased degree of proportionality and maintain direct accountability of all Members of Parliament to the electorate.
First-Past-the-Post and the Need for Reform
It often seems as though desire for electoral reform in the UK is driven more by dislike of the current system than any specific passion for a new system. The most obvious problem with FPTP is its “disproportionate…translation of votes into parliamentary seats” leading to “a number of highly significant ramifications with regards to the composition and operation of Britain’s
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Parliament”.48 Duverger’s Law states that plurality- rule electoral systems with a single ballot, like FPTP, are likely to favour a two-party system, as “parties with similar tendencies regroup their forces at the risk of being overwhelmingly defeated”.49 Even where a third party does begin to challenge this duopoly, “voters tend to abandon the third party in order to concentrate their votes on the two strongest parties”50 due to the risk of a “division of votes” that might favour a “common adversary”.51 Traditionally in the UK, the Labour and Conservative Parties have benefited from this phenomenon.
Majoritarian systems can throw up imbalances outside of the two party. Duverger’s Law does not stand where there are strong regional
48 Blackburn, 1995:362 49 Duverger, 1972: 23-32 50 Ibid. 51 Ibid.
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minority parties,52 like the Scottish National Party (SNP), which can also disproportionally benefit from the system. This can be seen in the 2015 general election where the SNP saw their 4.7% of the vote translated into 56 parliamentary seats, whilst the United Kingdom Independence Party (UKIP) won 12.6% of the vote but only one parliamentary seat. The difference between the two parties being that the SNP’s support was localised in Scotland, whereas UKIP ran a more nationally spread campaign.
Given that electoral systems can be conceived as a method of turning political votes into Parliamentary seats, such obvious discrepancies can indicate FPTP no longer serves the UK’s voting behaviour suitably. Indeed, Wade argued “if it is accepted that a democratic
52 Rae (1971)
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Parliament ought to represent so far as possible the preferences of the voters, this system is probably the worst that could be devised”.53 FPTP is a system tailored to a two-party system of government that has traditionally reflected the political cleavages in the UK. The increasing tendency of the UK electorate to vote for smaller parties however culminated in the 2015 election, where one in three UK voters chose not to side with the traditional ‘Big Two’ of UK politics.
This trend away from bipartisan UK politics has major consequences for FPTP. First, an increasing number of votes are ‘wasted’. That is to say, votes that do not count towards a winning candidate in constituency contests and thus, arguably in effect, do not count directly towards the result of the election. UKIP, for example, in
53 Wade, 1980:10
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2015 came first in one constituency, Clacton, but second in 120 other constituencies54. Therefore, in practice, it was only Clacton that counted towards their one seat in Parliament and all their other votes were, in effect, wasted. The Electoral Reform Society posit that 52.8% of all votes cast in the 2010 general election were wasted.55 These wasted votes are cast in ‘safe seats’, a staple feature of UK democracy. These are seats with voter preference so far in favour of one party that the result of the constituency election is almost certain. As a result, it is likely that voting for any other party will be a wasted vote. Before the 2010 election the Electoral Reform Society successfully predicted the results of 380 safe seats.56
54 Steven Ayres (2015) available at http://blogs.lse.ac.uk/politicsandpolicy/ukip-came-second-in- 120-constituencies-in-2015-will-this-be-a-springboard-for-the- party-in-2020/ 55 The Electoral Reform Society (2015) 56 The Electoral Reform Society, (2015)
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The idea of wasted votes is controversial. Dummett described it as a “useless concept”, countering that “if a voter knew for certain what the outcome of the election would be, whether he voted or not, he would not trouble to go to the polling station”.57 However, such a characterisation seems to ignore the fact that millions of Britons do precisely that. To say that every Green Party or UKIP voter went to the polls in 2015 thinking that their party had a chance of winning is a fantasy. The point of a wasted vote is every vote cast for a non-winner is wasted, even if there is just a one- vote margin between the winner and the loser. A corollary of wasted votes is tactical voting whereby a person’s vote does not express their preference but is cast to prevent their least favourite candidate from winning. For there are indeed many people that may vote for a winning candidate and thus
57 Dummett, 1997:138
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their vote ‘counts’, but it is a tactical vote. Curtice and Steed estimated that at the 1997 General Election tactical voting against the Conservative Party by Labour and Liberal Democrat voters cost the Conservative Party as many as 25 seats.58
There can be no denying that the effect of the ‘safe seat’ on election campaigns is profound. Whole swathes of the country can be ignored by parties that are either sure of retaining their seats, or parties that know that they have no chance of making gains. In this way, it can also be argued that not all votes are equal as a person’s vote in a marginal constituency will count for more than a vote case in a safe seat. This means that increasingly parties, while nominally fighting national campaigns, are focusing their efforts disproportionately around ‘swing seats’ like. These
58 Curtice and Steed (1997)
182 King’s Journal for Politics, Philosophy and Law factors alone indicate there is a need to move away from FPTP.
The Aims of Reform
Before turning to the question of what form of reform is required, clear aims must be established as to why and how the system should be improved. First, the disproportionate distribution of seats must be addressed. A new system should significantly shift the percentage of seats allocated closer to the percentage of votes actually received by each party. This appeared to be one of the frustrations of the problems the electorate had with AV in the 2011 referendum: AV would have done little to address voting imbalances. Under the models used by the Electoral Reform Society for the 2015 election59, AV may in fact have given the
59 The Electoral Reform Society (2011)
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Conservative Party a more disproportionate majority than under FPTP. Second, a new system should address the issue of wasted votes, by eliminating or at least reducing the amount of ‘safe seats’, if the constituency-based structure is retained.
Considerations for reform should, however, not only be based around eliminating FPTP’s weaknesses, but also around retaining its strengths. One of FPTP’s major democratic assets is its direct link between the MP and its constituency. Constituents can attend their MP’s surgeries with specific queries relating to public services which the MP can take to Parliament. Furthermore, there is an element of direct accountability between the MPs and their constituents. If a constituency is displeased with their MP, for example, due to unsatisfactory work or a scandal, that electorate
184 King’s Journal for Politics, Philosophy and Law can, in theory, directly remove the MP at the next election. This was demonstrated in 2010, when sharp media focus on MPs embroiled in the expenses scandal contributed to MPs, such as former Home Secretary Jacqui Smith, losing their seats.60 Indeed, if one thinks of MPs as employees of the public, it makes sense that the public should be able to single out individuals to remove from office if they are dissatisfied with their service. However, the accountability mechanism is limited where the seat is safe and the MP benefits from the support of the party machinery. This can be illustrated by the experience of Theresa May, whose 2011 border control scandal did not see her lose her seat. Nevertheless, to avoid a system that leaves MPs detached from the people they represent, a new system should retain at least some
60 The Telegraph, 8/5/2010
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aspects of direct individual accountability to the electorate.
The Case for STV
STV uses multi-member constituencies, usually consisting of three or four members. As such, a certain consequence of using STV would be constituencies at least three or four times larger than what they are currently. Multi-member constituencies allow parties to put forward multiple candidates. Voters rank the candidates on the ballot paper in order of preference, marking 1, 2, 3 e.t.c. next to their choices. The voter can usually stop allocating preferences at any point, although to maximise utility of votes, jurisdictions sometimes choose to demand a minimum number of preferences. To be elected, a candidate must reach
186 King’s Journal for Politics, Philosophy and Law the quota, calculated according to the formula below:
Total number of valid ballot papers Number of seats available + 1
Vote distribution starts with distribution of the first preferences. Any candidate above the quota wins a seat and their surplus votes are distributed according to the second preferences of the surplus voters. If no candidate is above the winning quota, the candidate with the least number of votes is eliminated and their second preference votes are distributed to other candidates. This process continues until as many candidates are over the quota as there are seats available.61
61 The Electoral Reform Society (2016)
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STV addresses the two issues of proportionality and wasted votes. First, “there is little doubt that STV tends to produce a high degree of proportionality between national votes and party representation”.62 The Electoral Reform Society predict that had STV been used in the 2015 general election, assuming the electorate would not have changed the way they voted if faced with a different electoral system, UKIP would have won 54 seats (up from one), the Liberal Democrats 26 seats (rather than eight), and Greens three (from one). 63 Perhaps, more significantly, the SNP would no longer hold such an artificial dominance of Scottish seats, moving down from 56 to 34. While not completely proportionate, these new figures show that STV is a significant step away from the injustice of the current system.
62 Blackburn, 1995:373 63 The Electoral Reform Society (2015)
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Second, as a system designed to avoid wasted votes, it unsurprisingly performs well on this criterion. A voter can vote for a smaller party, such as the Greens, in the knowledge that if that party does particularly badly in their constituency, their vote will most likely be redistributed when the candidate is eliminated, rather than ceasing to be relevant if their candidate loses. There are also considerably fewer safe seats under STV. The increase in constituency size means that the parties which, under FPTP, could have relied on smaller portions of the vote in many smaller constituencies to achieve a plurality, will need greater support to retain all the seats in a multi-member constituency. Tactical voting is also no longer necessary as under STV it seems “to make little sense to do anything other than register a sincere preference for the party they would most like to see win”.64
64 Bowler and Grofman, 2000:268
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STV also retains the constituent-MP link. Each MP must attract personal votes from constituents. A specific MP affected by a scandal will still stand for re-election making him/her vulnerable to constituent backlash. Further, arguably, this link gives STV the edge over other forms of proportional representation. Both complete ‘party list’ and mixed member systems would remove the accountability between the MP and constituent, removing the ability of people to hold to account national politicians on the basis of local issues.
Is STV Worth its Drawbacks?
Despite these positive aspects of STV, the system remains unpopular. The Jenkins Commission rejected it on the grounds of “its large
190 King’s Journal for Politics, Philosophy and Law constituencies, its complex counting system and a tendency towards parochial politics”.65 However, these issues can all be addressed. First, while constituencies would encompass considerably larger areas and constituents would have multiple MPs, this could lead to a more ‘competitive’ dynamic of local constituency work. This is because MPs may seek to maintain a high profile in the constituency to ensure they are viewed favourably in relation to their fellow MPs in that area, and so will be re-elected. On the other hand, the latter makes it difficult for MPs to combine national issues with local issues, a problem which also relates to the third parochial complaint, as they would be disproportionally encouraged to focus on local issues to remain locally favourable. However, this criticism appears to be overstated though. Under FPTP, MPs in marginal seats also have this
65 The House of Commons Library, 10/12/1998:77
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problem as the challenging candidate at the next election can focus entirely on local issues throughout the parliamentary term whilst the incumbent is busy with national issues. Hence, safe seats allow for MPs to focus on national, and party, issues. However, if the price for an MP to spend more time on national issues is to allow complacency on their part with regard to local issues and a large amount of wasted votes, then the democratic price is too heavy.
A similar argument can be made against those who see the strength of FPTP in its tendency to produce stable majority governments: the democratic price of disproportionality and wasted votes is too high. Further, the link between FPTP and stable governments can be questioned. According to Lijphart in his comparison of consensus and majoritarian democratic systems,
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“the superior performance of PR with regard to political representation is not counterbalanced by an inferior record on governmental effectiveness”.66 Lijphart’s conclusions are certainly controversial and anecdotal evidence from countries such as Italy can show that coalitions springing out of proportional electoral systems can lead to inconsistent and fluctuating governments. However, the generalisation that majority governments are always more stable than coalitions is not necessarily robust: for example, the UK, a country supposedly alien to coalition government, saw a coalition last a full parliamentary term, 2010- 2015, contrary to many expectations.
Second, the complex counting system has led to the accusation that STV is too complex and distinct a policy for the electorate to engage with.
66 Lijphart, 1994:8
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The Plant Commission on electoral reform criticized the process on the basis that its principles “rest on procedures which few might understand”.67 This concern must be taken seriously, given that understanding of the voting system is key to voter participation. Yet, to prioritise a condition such as simplicity “can be (and is often) at the cost of fairness”.68 However even when disregarding the cost to proportionality brought about by prioritising simplicity, evidence to suggest that the adoption of STV would lead to widespread confusion is scarce. STV benefits from a simple voting process. The action of ranking candidates is not in itself complex. Most complexities arise at the later counting stage. Simply, any transition to STV would need to be accompanied by a comprehensive information campaign by the government. Indeed, Farrell notes
67 The House of Commons Library, 10/12/1998:76 68 Farrell, 2011:23
194 King’s Journal for Politics, Philosophy and Law that it is hard “to find any evidence of higher levels of voter confusion in other countries”69 that use more complex systems than FPTP. Bogdanor also observes that when Northern Ireland switched to STV for its assembly elections “the system (did not) prove complicated for voters”70 and that there was no significant increase in invalid ballots that might have been expected. It appears therefore that the Plant Commission was perhaps not giving the UK electorate enough credit when concluding that the mechanisms would be too complex for ordinary people to understand.
Conclusion
STV is the only current system that can guarantee increased proportionality in voting and maintain the direct accountability of all MPs to
69 Ibid. 70 Bogdanor, 1981:147
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their electorate; hence, it addresses the two most common complaints against FPTP. The main barrier however to any form of voting reform remains the benefit that FPTP confers on the dominant parties in Parliament. This however is changing. After their collapse in Scotland, the Labour Party can no longer rely on FPTP to act in its favour. The SNP, despite benefiting from the system, still back reform. In addition, the Liberal Democrats, UKIP and the Green Party have supported electoral change for a while. While the Conservatives are yet to be convinced, a shift in public opinion brought about by a grossly disproportionate election result could change that. The fact that electoral reform is back on the agenda so soon after the 2011 Referendum indicates that it may well be a matter of when, not if, reform will come about.
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Bibliography BBC (2015) “Election Results 2015” available at
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Early Day Motion 591: Voting System for General Elections: 25/10/16 The Electoral Reform Society (2015) “Safe Seats” available at http://www.electoral-reform.org.uk/safe- seats The Electoral Reform Society (2016) “Single Transferable Vote Explained” available at https://www.electoral-reform.org.uk/single- transferable-vote Farrell, D, M. (2011) Electoral Systems: A Comparative Introduction, 2nd Edition (Basingstoke: Palgrave Macmillan) Gallagher, M and Mitchell, P (2005), The Politics of Electoral Systems (New York: Oxford University Press) The Guardian (2012) “Coalition government will not survive until 2015 election, voters predict” available at https://www.theguardian.com/politics/2012/aug/12 /coalition-government-brink-collapse-voters LSE Blogs (2015) “UKIP came Second in 120 Constituencies in 2015. Does this point to more seats in 2020?” available at http://blogs.lse.ac.uk/politicsandpolicy/ukip-came- second-in-120-constituencies-in-2015-will-this-be-a- springboard-for-the-party-in-2020/ Lijphart, A (1994) Electoral Systems and Party Systems: A Study of Twenty-Seven Democracies, 1945-1990. (Oxford: Oxford University Press)
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Two of English Private Law’s Anachronistic Remnants of a Bygone Misogynistic Era Nicolás Schuscheim1
Introduction
As a result of England’s common law system, until a factual scenario is tried in the higher courts of the judicial hierarchy, or until Parliament legislates, the law remains unchanged. This means that in some obscure areas, there is no applicable legislation restricting what citizens, and the government, may or may not do; the concept of residual liberty.2 This also means that, in some areas where Parliament legislated centuries ago, no legislation has amended, repealed, or complemented those archaic statutes. The law
1 Dickson Poon School of Law, King’s College London, Strand, London, WC2R 2LS, email [email protected] 2 Beatty v Gillbanks [1882] 9 QBD 308
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tends to be a good indicator of social and cultural norms of the time of its enactment, but as such, it is faced with the challenge of adapting to new sociocultural environments. For the purposes of this article, we will focus on the patriarchal remnants of the private law, beyond the ambits of criminal or family law. As such, this article will examine two scenarios of the sort: (1) undue influence in the case of providing surety for a bank and (2) the presumption of advancement on a gift.
At the outset, it is key to bear in mind that both these scenarios work by way of a presumption. A presumption in law arises merely by the presence of certain fact patterns rather than by proving certain evidence or satisfying certain legal tests, shifting the burden of proof from the defendant to the claimant. In other words, if a presumption arises on the facts, instead of the
200 King’s Journal for Politics, Philosophy and Law defendant needing to show proof evidencing that the claimant is at fault, the claimant will have to prove to the court that he is not at fault. Although these presumptions are meant to benefit the claimant by shifting the burden of proof, this article will, through the examples of undue influence and the presumption of advancement, attest that some presumptions clearly and crudely highlight societal stereotypes.
Undue Influence
A transaction will be voidable, that is to say it can be chosen to be void and be set aside, if completed under undue influence. Undue influence is an equitable doctrine attempting to prevent the exploitation of a weaker party by a stronger party; where the stronger party is presumed to have said influence, and where there is a transaction that calls
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for an explanation, a presumption of undue influence arises.3 Equity here is not attempting to intervene due to the stronger party’s positive, albeit perhaps innocent, mislead the weaker party, but rather, because the stronger party clouded the weaker party’s judgment. The weaker party’s right to set aside the transaction, because of a presumption of undue influence, arises without requiring the claimant to show that in the absence of the undue influence, he/she would have acted differently.4
Although undue influence could be proven as actual undue influence, most cases will involve influence by means other than threats and fall into the category of presumed undue influence. Undue influence will be presumed irrebuttably for some relationships such as that of parent-child, solicitor-
3 Royal Bank of Scotland plc v Etridge (No 2) [2001] UKHL 44 4 UCB Corporate Services Ltd v Williams (2003) 1 P & CR 12
202 King’s Journal for Politics, Philosophy and Law client, or doctor-patient.5 Under these relationships, it cannot be disproven that there was influence; the only question is whether it was undue. Fortunately, that of a husband and wife can indeed be rebutted, like it was in the case of Midland Bank v Shepherd,6 as it falls within the remit of the presumed undue influence where a relationship of trust and confidence is evidenced. If we were to irrebuttably presume that a husband will always have influence over his wife, it would not only question every potential decision undertaken in a private household, but also, undoubtedly admit in law that the wife will always be the weaker party in a marriage.
A typical factual scenario, like that of Barclays Bank v O’Brien,7 CIBC Mortgages v Pitt,8
5 Ibid. 6 Midland Bank v Shepherd [1988] 3 All ER 17 7 Barclays Bank plc v O’Brien [1994] 1 AC 180
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and Etridge (No 2),9 with the latter being the leading authority, involves a married couple seeking to acquire a mortgage from a bank. The bank, for reasons of protecting its own insolvency, will ask someone to stand for surety, or to offer up their own asset as security to secure another’s loan. Generally, it has been the wife that stands for surety. In a case where the one spouse goes insolvent, the bank can simply seize the other spouse’s asset. Sometimes, a husband, will, sometimes unknowingly, pressure the wife into standing as surety, providing her asset as security for his loan, and exerting his undue influence upon the wife’s mind.
Assuming wives will feel pressured against denying their husbands’ wishes to provide a surety and acquire the mortgage for their family home, it
8 CIBC Mortgages plc v Pitt [1994] 1 AC 200 9 Ibid. 1
204 King’s Journal for Politics, Philosophy and Law is acceptable for the law to protect women. Yet in Barclays Bank v O’Brien, Lord Browne-Wilkinson attributed this “special tenderness of treatment afforded to wives” to two factors: (i) a demonstration by the wife in question that she placed full trust and confidence into the husband for financial matters, and; (ii) the sexual and emotional ties between the parties providing a ready weapon for the husband to exert his influence. Although the second limb of his argument is sound, the first is highly questionable, almost assertive of the fact that women could not possibly handle financial matters. Yet it seems somewhat patronising that a presumption can arise and that the courts will presume the wife to be the weaker party, flailing and in desperate need of protection. In other words, the courts will presume undue influence, without requiring proof, if a
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husband influences his wife to acquire a surety on his behalf, a seemingly sexist presumption.
To be egalitarian and non-sexist, if the wife was to unduly influence her husband to provide surety for a mortgage, the same legal considerations should abound. Otherwise, there would be clear discrimination in the treatment of the sexes in these cases. In the only case where this has been treated, Barclays Bank v Rivett, the first instance court simply asked the man to “grow some balls” and “man up”.10 How could the wife ever handle financial affairs? How could the husband be influenced by his wife? The Court of Appeal fared better, claiming that undue influence could potentially be proven, but it would be harder to prove. In Buckley J’s words, “as a matter of evidence, a wife may more readily persuade a court
10 Barclays Bank plc v Rivett (1997) 29 HLR 893
206 King’s Journal for Politics, Philosophy and Law that she placed trust and confidence in her husband in relation to her financial affairs”.11 It is clear that the court thinks men are best suited to handle financial affairs. This ‘tender’ treatment of women is patronising, sexist, and discriminatory.
The Presumption of Advancement
When property is transferred from one person to another without an explanation or reason as to why it was transferred, a resulting trust is presumed to arise: in the absence of there being a clear intention for the transfer to have been gifted, the property is placed on resulting trust back to the transferor. In other words, the recipient is bound under law to return the property back to the giver, under the assumption that it was never intended to be given away. This ‘give back’ presumption can
11 Barclays Bank plc v Rivett [1999] 1 FLR 730
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be reversed by the presumption of advancement: if the property is passed from a husband to a wife or from a father (or a stand-in parent as loco parentis) to his child without an explanation, then the presumption to return the property will be extinguished on the basis that it is presumed that the transferor (the husband or father) must have intended an absolute gift. Although debate has ensued as to whether there is a general presumption of resulting trust,12 or a general presumption of intent, exemplified by the advancement presumption,13 the sexist nature of the presumption of advancement still persists.
The first typical scenario concerns a wife transferring property to her husband without explanation. According to Mercier v Mercier,14 a
12 Swadling (2008) 13 Chambers (2010) 14 Mercier v Mercier [1903] 2 Ch 98
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1903 case, and Heseltine v Heseltine,15 a 1971 case, no presumption of advancement arises to reverse the presumed resulting trust. It is extremely alarming that the court failed to take into account the evolution and adaptation of social norms— perhaps we are waiting for a case to climb up the court hierarchy to change the law. But what if, in scenario two, and crucially, a mother transfers property to her child without explanation? The presumption of advancement originated on the basis of relationships where one party felt a moral duty to provide for the other, “[presuming] the recipient of a donor obligation to establish the recipient in life”.16 In other words, advancement was presumed in cases of advancing the family line, hence the name. It would thus raise the proposition that obviously, the family line could never advance from the mother. Yet, as James Brightwell points
15 Heseltine v Heseltine [1971] 1 WLR 342 16 Glister (2010)
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out, it is parents in general that intend to make gifts to their children — it is not as if it is an exclusive action permitted to the father.17
Recent Supreme Court case law in Laskar v Laskar in 2008, has suggested obiter that the presumption of advancement is “between parent and child”, but Neuberger LJ in that case fails to clearly and expressly claim an extension of the presumption to mothers.18 The High Court in 2010 in Close Invoice Finance v Abaowa suggested, also obiter, that the presumption of advancement now applies to mothers anyway; yet that case’s ratio decidendi was based on the fact that counsel for the mother conceded that the mother stood in loco parentis, in the place of a parent.19 In other words, the mother’s gift passed not because she was the
17 Brightwell (2010) 18 Laskar v Laskar [2008] 1 WLR 2695 19 Close Invoice Finance Ltd v Abaowa [2010] EWHC 1920
210 King’s Journal for Politics, Philosophy and Law child’s mother, but rather because she was standing in for the father. No court has ever outright stated in binding terms that the presumption of advancement will arise in the case of a mother and her child; in other words, the courts have not helped address this issue.
Obviously, Parliament could legislate on the matter to resolve the inherent discrimination borne by the presumption of advancement. Indeed, Parliament tried to do this when passing the Equality Act 2010, whereby section 199 abolished the above presumption of advancement as a whole because of its anachronistic misogynistic features.20 Alysia Blackham argues abolition as envisioned by the Equality Act to be a far better alternative than extending the presumption, as it would then
20 Equality Act 2010, s199
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generate indirect gender discrimination.21 It is her view that the harsh reality is that the gender wealth gap has not equalised, and to extend the presumption would unjustifiably fail to protect women in presuming advancement instead of a resulting trust. However, as espoused above with undue influence, it is not the law’s place to be patronising towards women. Rather, the law should place women on an equal legal footing with men, whether that means abolition or extension of the presumption of advancement.
As such, with section 199, it would seem as if the issue had been solved, but optimism is easily defeated. Section 199 of the Equality Act, amongst others, is yet to come into force, as a result of political disagreements between parties in Parliament. Once again, it is politics hindering the
21 Blackham (2015)
212 King’s Journal for Politics, Philosophy and Law process of ridding the law of sexism. For instance, in Australia, where the resulting trust is based on the model existent under English law, the presumption was extended to mothers on a federal level in Nelson v Nelson,22 and at the New South Wales level, in Brown v Brown.23 Without major substantive differences between gender equality norms in England and Australia, there is little substantiation for the presumption’s continued existence. After all, the presumption itself has limited impact in litigation,24 and merely represents a remnant of England’s discriminatory past.
Conclusion
Gender equality means equality in law and in fact. It may be difficult to influence and change
22 Nelson v Nelson (1995) CLR 538 23 Brown v Brown (1993) 31 NSWLR 582 24 Ibid.
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discrimination in fact, but it is far easier to influence and discard prima facie discrimination in law. Under English law, it takes a judge, when hearing a case, or Parliament, to do so. The two examples explained above may seem far-fetched and technical, but they are fairly typical in everyday life: a wife often stands as surety on behalf of her husband’s mortgage, and there are numerous unexplained gifts made from wives to husbands, mothers to children, as well as husbands to husbands and wives to wives. There are numerous other areas in English law that have sexist issues not mentioned here, notably in the law of sexual offense and rape where section 1 of the Sexual Offenses Act 2003 defines rape as ‘with his penis’.25 To think that even the private law of England and Wales has anachronistic remnants of a bygone misogynistic era is frightening. After all, if we were
25 Sexual Offenses Act 2003, s1
214 King’s Journal for Politics, Philosophy and Law to dig deep through all the legal archives, could we find more? We need not come across anymore surprises — instead we need a proactive Parliament and an adamant judiciary, to counter said gender inequality engrained in English law, be that trusts or property, family or criminal, public or private.
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Bibliography Blackham, A. (2015) “The presumption of advancement: a lingering shadow in UK law?”, Trusts & Trustees 21(7), 786-801 Brightwell, J. (2010) “Good Riddance to the Presumption of Advancement?” 16 Trusts & Trustees 627 Chambers, R. (2010) “Is There a Presumption of Resulting Trust?” in C. Mitchell (ed.), Constructive and Resulting Trusts (Oxford: Hart) Glister, J (2010) “Section 199 of the Equality Act: How Not to Abolish the Presumption of Advancement” 73 Modern Law Review 807 Swadling, W (2008) “Explaining Resulting Trusts” (2008) 124 Law Quarterly Review 72
216 King’s Journal for Politics, Philosophy and Law
The Hegelian Dialectics of Punk Melanie Sabbah1
By the summer of 1976, the music which had been the driving force and epitome of the 1960’s utopian vision and revolutionary-minded social and political protest, appeared to have become an out of touch industry, disconnected from everyday reality. Against this backdrop, punk unleashed its unfurling rebellious energy, and “created moral panic” before quickly “degenerating into a freak show for the voyeuristic”.2 A quintessentially counter-cultural movement characterised by the downright rejection of conformity, punk’s youthful energy is a product and legacy of rich cultural and philosophical traditions. In an attempt to understand and learn from such a movement, philosophical analysis
1 Dickson Poon School of Law, King’s College London, Strand, London, WC2R 2LS, email [email protected] 2 McNair (2006)
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emerges as an unusual, albeit effective, method. Punk is an archetypal and particularly visually distinctive example of enduring behaviour in cultural trends. It is with reference to Hegel’s exposition of Dialectics, bearing in mind the particular function Art occupies in his philosophical system, that I shall seek to explain and understand punk. Further, it is through the lens of punk that I shall seek to best understand the operation of Hegel’s dialectics and the timeless relevance and presence of punk as cultural-defying attitude.
Hegel’s Intellectual Framework
Hegel’s logical doctrine has three sides, Understanding, Dialectical and Speculative, which “do not make three parts of logic, but are stages or ‘moments’ in every logical entity, that is, of every
218 King’s Journal for Politics, Philosophy and Law notion and truth whatever”.3 Dialectics are the manner in which life operates and moves forward, and the logical process by which reason manifests itself. They are the process by which the notion of the historical unfurling of the Absolute Idea, central to Hegel’s philosophical system, is manifest. Indeed, “wherever there is movement, wherever there is life, wherever anything is carried into effect in the actual world, there Dialectic is at work”.4 In the Hegelian system, dialectics are the logic which permeate development. “It would be truer to say that Dialectic gives expression to a law which is felt in all other grades of consciousness, and in general experience”.5 This attests to the constant forward movement of society and of thought. Further examination of this notion of dialectics, with reference to the role art and philosophy play in
3 Hegel, 1830, §79 4 Ibid., §81 5 Ibid.
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Hegel’s system, helps understand social and cultural processes.
The first side of Hegel’s logical doctrine is Understanding. “Thought, as understanding, sticks to fixity of characters and their distinctness from one another”.6 Understanding pertains to a premise, a state of affairs in the world. In the Dialectical stage “these finite characterisations or formulae supersede themselves, and pass into their opposites”.7 By Dialectic, Hegel means the “indwelling tendency outwards by which the one- sidedness and limitation of the predicates of Understanding is seen in its true light, and shown to be the negation of them”.8 By studying the things in their “own being and movement”, dialectics “demonstrate the finitude of the partial categories
6 Ibid., §80 7 Ibid., §81 8 Ibid.
220 King’s Journal for Politics, Philosophy and Law of understanding’.9 It brings to light the inherent tensions, negations and one-sidedness of any given predicate. The final stage is the Speculative stage, that of positive reason. It “apprehends the unity of terms (propositions) in their opposition”.10 The result of this has a definite content, and is something that is reasonable, and involves the logic of Understanding.11 The speculative stage in a certain sense unifies the previous stages in a way that both “preserves them and avoids their different forms of one-sidedness”.12 The Speculative stage will in turn serve as its own predicate, and as the source of a new dialectical unfurling.
9 Ibid. 10 Ibid., §82 11 Ibid. 12 Singer, 1983:102
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Why Punk?
2016 marked the fortieth anniversary of the first ‘Summer of Punk’. As a cultural phenomenon, punk was much more than just a musical movement. “Just as the rudimentary DIY snarl of first wave punk bands was a refutation of decadent stadium rock ostentation and novelty hit banality – popular music’s order of the day mid-1976 – so its visceral manifestation was equally raw, visceral, dynamic and homespun”.13 Much of punk music has not, as standalone art, stood the test of time. What remains in collective imagination is punk’s performative aspect, its loud and firm rejection of the Establishment and its vociferous outrage. Music and other art forms were the means of expression of social strife. Mid 1970’s Britain was “still dominated by a suffocating conservatism inherited
13 Sheppard, 2016:12
222 King’s Journal for Politics, Philosophy and Law from the 1950s”.14 Young people were bored and resigned to their fate. The nihilism that defined punk was a direct challenge to this state of mind, “restoring a sense of danger and excitement to the business of being young”.15 Punk emerged as a product of a social context and expressed both a certain worldview and the rejection of another. As such, punk epitomises what counter-culture is.
“Behind the façade of ‘punk’ remains a generation that felt compelled to question the systems and beliefs that had cohered in Britain as 60’s counterculture optimism inexorably ossified into dreary 70’s pessimism; a generation whose desire for change would challenge the social constructs that defied ‘the norm’ across music, art, politics, fashion, beauty and sexuality”.16 We recall punk as
14 McNair (2006) 15 Ibid. 16 Lara Monro:41
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being the proper of young “nihilistic hooligans, spitting and slam dancing in sweaty back rooms, angry at the world, and seemingly angry with each other”.17 We think of its deliberate provocation, for provocation’s own sake, and of its distinctive aesthetic, of which DIY was an essential component. Yet, the way we remember it is somewhat nostalgic, and removed from the society- shaking movement it was.18 “Punk quickly becomes that which it sought to destroy if we drape it in Union Jacks and consign it to tourist-friendly retrospective exhibitions”.19 It was a movement that sought to undermine the status quo and expressed itself through art. Such an attitude cannot be said to be the proper of punk alone. As an attitude, rather than a specific cultural subset, the word punk “might be used as a lazy shorthand
17 Edwards, 2016:38 18 Ibid. 19 Holman, 2016:18
224 King’s Journal for Politics, Philosophy and Law for a catch-all fuck-you attitude”.20 Indeed, “at the very core of punk is a pearl of energy and a passion that can only be celebrated”.21
Art and Self-Expression in the Hegelian System
Hegel’s lectures on Aesthetics are the “culmination of a tradition that assigned immense importance to art in the historical advance of mankind and of his awareness of the world and his place in it”22, asserting the mutual influence of art and society. Art, for Hegel, has a dual role in producing social harmony and driving social change: its true task is to “bring to consciousness the highest interests of the mind”.23 Art, as expression and sensuous embodiment of Geist (the Absolute Idea), articulates the worldview of its time and leads to an
20 Edwards, 2016:38 21 Ibid. 22 Inwood, 1993:xii 23 Hegel, ILOA, XXII
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understanding and acquaintance with the Absolute Idea: it is central to bringing society into its worldview. “It is in works of art that nations have deposited the profoundest intuitions and ideas of their hearts; and fine art is frequently the key to the understanding of their wisdom and of their religion”.24 This sets forth art as a driver of social change; when the worldview it expresses is no longer adequate, art will be a means by which a new social dialectic is expressed, potentially leading to social breakdown, allowing progress in the development of human self-consciousness.
Hegel demonstrates an understanding of the influence art can have in shaping society, bringing people into the worldview, and in driving social change. Art recognises the human need to self- perfect, by outgrowing its understanding, and to
24 Ibid.
226 King’s Journal for Politics, Philosophy and Law express its self-consciousness in an objective, external, and sensuous manner. This understanding is pertinent in understanding the punk movement as a whole, as well as punk as an attitude of defiance which necessarily must be expressed for a dialectical forward moving of society.
“Punk’s Spiritual Mothership”
Jamie Holman sees the first glimmer of the punk ethos in the responses to the industrial slaughter of the First World War.25 He credits the Dada movement as being “punk’s spiritual mothership”. Dadaism was “about more than making provocative art in exile”. As Dadaist Hugo Ball expressed it, “for us, art is not an end in itself (…) but an opportunity for the true perception and
25 Holman, 2016:18
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times we live in”.26 The direct links between punk and Dada are quite obscure, but it is the attitude it reflects which is strikingly similar. Both movements espouse ideas that reject dominant cultural trends, in their broadest sense, encompassing the arts but also the political and social landscape. Both reflect a broader dissatisfaction with the dominant worldview. Such dissatisfaction is an essentially dialectical manifestation, and hence is not limited to a place in time. Andrew Hussey credits the Situationists, a movement spearheaded by Guy Debord from 1957 to 1972, for introducing the “real” politics into punk.27 The Situationist movement “believed in cultural subversion and changing the world through art”.28 It stressed the importance of the individual, and the critical creative outlet art can provide to all: “Everyone
26 Ibid, quoting Hugo Ball 27 Monro, 2016:41 28 Ibid.
228 King’s Journal for Politics, Philosophy and Law will be an artist… everyone will construct his own life”.29 This idea of “making daily life a creative, continuously original experience”30 has informed much of the art which emerged in Europe from the 1960’s onwards.
Punk was not the first, nor the last, counter-cultural movement to shape the twentieth century. Before it came 1960’s counter-culture, credited with bringing “a healthy distrust for the Establishment”.31 Counter-cultural movements are characterised by a way of life and set of attitudes opposed to or at variance with the contemporary social norm. It is common wisdom that each new generation will reject the previous one, and this tendency is observed and verified through such movements. It is the attitudes observed within
29 Monro, 2016:41 30 Ibid. 31 Miles, 2016:117
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them which remains a constant, rather than what the movements espouse. Barry Miles defines the 1960’s underground as “a catch-all sobriquet for a community of like-minded individuals, most of whom had a common interest in recreational drugs”.32 This counter-culture eventually congealed, and in contrast to it, as a means of self- expression rising in a context where future prospects seemed dire rather than tainted with hope, emerged punk. “Bands were the [1960’s] counter-culture’s greatest artistic contribution”33, challenging popular music stereotypes, transforming rock and roll into a standalone art form. “Rock lyrics became the main way that the new ideas were spread”.34 60’s counter-culture was at its core utopian, optimistic and idealistic. Punk emerged in stark contrast then, as it rejected the
32 Ibid.:98 33 Ibid.:111 34 Ibid.
230 King’s Journal for Politics, Philosophy and Law bleak future its youth was presented with. Yet still central to it, as evidenced by the provocative sonorous performances of the Sex Pistols, was the idea “music was the main vehicle for the dissemination of counter-cultural ideas”.35 The connection to politics was playful in 1960’s counterculture; punk was at its core a downright rejection of the political Establishment.
The relationship between punk and contemporary culture is one which continues to be explored. Music journalist and cultural critic Greil Marcus has developed it at length in Lipstick Traces, in which, starting from the event of the Sex Pistols’ last concert, he places rock within a broader social, political and cultural framework. Marcus identifies the fact that “various kinds of angry, absolute demands – demands on society, art, and all the
35 Ibid.:116
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governing structures of everyday life – seem to be coded in phrases, images, and actions passed on invisibly, but inevitably, by people quite unaware of each other”.36 Marcus points to the idea of a unity of voices heard throughout vociferous counter-cultural movements, which echo one another, seemingly unrelated.
The Dialectical Essence of Punk
The insight Marcus has resonates with an understanding of punk which goes beyond a context-specific counter-cultural movement. Punk is itself reflective of an attitude of defiance, rising up against what the prevalent norms and ideas of society are. Such an attitude is, in essence, an application of the dialectical phenomena Hegel makes explicit, in a counter-cultural context. The
36 Monro, 2016:42
232 King’s Journal for Politics, Philosophy and Law dialectical movement is one which reveals the tension inherent in a premise. More precisely, it is this tension which reveals itself, making explicit what is latent. Indeed, Hegel claims to be observing the self-movement of ideas, driven forth by self- consciousness. The “pearl of energy”37 that is punk is in essence a manifestation of the way in which society moves forward in its self-expression, and the way in which an idea, such as the established culture, reaches its limits. Counter-cultural movements follow an indwelling tendency to themselves become antiquated as rebellion, and in turn elicit a response to their own limits. This is evidenced by punk’s short lifespan, and by how little of its art exudes timelessness. Yet, what is common across counter-cultural movements and evident in punk, is the rejection of the Establishment, the expression of its inadequacies
37 Edwards, 2016:38
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and the refusal to abide by it: a powerful sentiment which resonates strongly. Punk as a counter- cultural movement embodies the tensions and limits themselves contained in the ideas which are prevalent in the mainstream society. This is essentially what Hegel identified as the dialectical stage of his logical doctrine.
Punk and Counter-Culture: Moving Forward
Hegel is the “philosopher of Geist and inventor of philosophical art history”38, setting forth the idea of the work of art as not only a mirror, but the “matrix of the culture’s self-understanding as a coherent form of life”.39 As man and the human world change with and because of the culture they belong to40, the worldview expressed in art is
38 Rutter, 2010:2 39 Ibid. 40 Inwood, 1993:xxii
234 King’s Journal for Politics, Philosophy and Law appropriate and properly understood in its own time alone. The Homeric worldview for instance was the “truth of its age”, and a necessary stage in a development of a stronger truth.41 Hegel is a seminal figure of German Idealism, which cannot be detached from the Romantic era it was a part of. He saw his own era as one of artistic decline, in which art could no longer satisfy the higher aims of humanity. In the Philosophy of History, Hegel states that the vitality and inventiveness of a civilisation is signalled by the flourishing of its fine arts.42 But this disenchantment with his own time seems to suggest his historical idealisation comes from a place of “Mal du Siècle”. Man’s essential sensuousness is the main objection to debates around the “death” of art. More plausible is the reading that “history has exhausted all the possibilities we can presently
41 Inwood, 1993:xxiii 42 Kaminsky, 1962:171
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conceive”43, signifying that for Hegel, the role of art was diminished in his own time, and is no longer adequate to present the “supreme need of the spirit”.44 All he can advance is that in his time history and philosophy have reached a peak, whilst art has declined.45 But such a reading is best understood in light of the Romantic “Mal du Siècle”, whereby artists and philosophers see their own century as one of decline, idealising those of the past, and projecting a future which can be no more than idealised theoretical fiction, which Hegel appears to have been unable to avoid.
Not everyone was, or indeed is, a punk. Even though counter-cultural movements occupy an important role in collective imagination, they represent a reactionary faction of the population,
43 Inwood, 1993:xxxii 44 Ibid. 45 Ibid.
236 King’s Journal for Politics, Philosophy and Law despite informing the current status quo. In any tense social landscape, “some unrepentant punk attitude might be just what we need to stir everything up again and remind us of our rights, encouraging social discourse and sending a much- needed counter-shock through the system.”46 Punk as an attitude hence epitomises the Dialectic, the negation and rejection of entrenched discourse and of the Establishment. It seems somewhat ironic then, that punk as a cultural movement of the 1970’s, has in the manner it is remembered, lost the tenacious and visceral energy that characterised it. It has itself become part of the Establishment, its 40th anniversary has been celebrated by the very institutions it once abhorred. “The original punks, famous for pissing on the rule book, would certainly loathe the very idea of celebrating its fortieth
46 Cullen, 2016:30
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anniversary”.47 Joe Corre certainly showed this, by publicly declaring he would burn his personal collection of punk memorabilia, worth an estimated £5m. “Like most subcultures and movements that initially survived on the margins of society and took pride in so doing, punk has been inexorably adapted, adopted and accepted by mainstream culture”.48
Patricia Cullen points to the resonances punk ideology has with the “fractious contemporary political landscape”.49 The mid-1970’s were characterised by political conflict, collective disorder, joblessness fuelling a general turmoil which “incites lethargy and boredom as much as protest”50. Informed by a strong desire for autonomy and self-expression, punk reverberated
47 Ibid. 48 Monro, 2016:42 49 Cullen, 2016:29 50 Ibid.
238 King’s Journal for Politics, Philosophy and Law onto the wider artistic scene. “From its inception, punk was as much a fashion (or anti-fashion) statement as it was a music genre demanding independence from the older generation and expressing anger and frustration with individuals and institutions in power.”51 Moving forward, expecting a new emanation of what has already been observed, we can hope to see a new artistic and creative scene emerge as an outlet to respond to current trends of political disenfranchisement and discontent. This thought is an optimistic one; if such an analogy holds true, such emerging counter- cultural trends will in time gain more mainstream support, and themselves become antiquated and be surpassed. And further along the road, this new scene may be a source of a golden age of longing.
51 Ibid.
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Conclusion
Looking outward then, the Hegelian dialectics observable in punk give a hope of a constant rejuvenation of cultural participation. Looking at this process gives the certainty and reassurance that through art, as an expression of a worldview, criticism of the mainstream will surface, and will be expressed with vociferous energy. “Whenever there is political upheaval, revolt and change, new art surfaces that reflects the times”.52 Hegel’s aesthetics and dialectics appear to be validated and observed in counter-cultural movements which at first glance seem far removed from the realm of 19th century German Idealism.
52 Monro, 2016:41
240 King’s Journal for Politics, Philosophy and Law
Bibliography Cullen P. (2016) “God Save Democracy” in The Saatchi Gallery Magazine: Art & Music, No. 35 – Autumn 2016 Edwards D. (2016) “Pre-Teenage Kicks?” in The Saatchi Gallery Magazine: Art & Music, No. 35 – Autumn 2016 Hegel G.W.F., (1820, 1993) Introductory Lectures on Aesthetics, M. Inwood (ed.), translation by B. Bosanquet, (London: Penguin Classics) Hegel G.W.F., (1830, 1975) Encyclopaedia of the Philosophical Sciences, Part One, Trans. W. Wallace (Oxford: OUP) Holman J., (2016) “Da dum da dum (da da dum dum)”, in The Saatchi Gallery Magazine: Art & Music, No. 35 – Autumn 2016, Inwood M. (1993) “Introduction” in Hegel, Introductory Lectures on Aesthetics, M. Inwood (ed.), Penguin Classics, 1993 Kaminsky J., (1962) Hegel on Art: An Interpretation of Hegel’s Aesthetics, (Albany, NY: State University of New York Press) Sunday Herald (2006) “Punk Lives The Summer of 1976 Gave Birth to Punk and Changed the World. Brian McNair watched it Happed and 30 Years Later Celebrates its Legacy. Plus: What Happened to the Movement’s Main Players?” available at http://www.heraldscotland.com/news/12429537.Pu nk_Lives_The_summer_of_1976_gave_birth_to_pun k_and_changed_the_world__Brian_McNair_watche
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d_it_happen_and_30_years_later_celebrates_its_lega cy__Plus__what_happened_to_the_movement_apos_ s_main_players_/, Miles B., (2016) “The Counter Culture”, in You Say You Want A Revolution? Records & Rebels 1966-1970, V Broackes, V. and Marsh, G. (eds.) (London: V&A Publishing) Monro L., (2016) “Art Attacks” in The Saatchi Gallery Magazine: Art & Music, No. 35 – Autumn 2016 Rutter B., (2010) Hegel on the Modern Arts (Cambridge, Cambridge University Press) Singer P., (1983) Hegel: A Very Short Introduction, (Oxford, Oxford University Press)
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