Melissa Loja (PhD 2018) on Recent Engagement with International Human Rights Norms by the Courts of Singapore, Malaysia, and Philippines (International Journal of Constitutional Law)

"Recent engagement with international human rights norms by the courts of Singapore, Malaysia, and Philippines"
Melissa Loja (PhD 2018)

International Journal of Constitutional Law
Published in March 2021

Abstract: This article makes two claims about international human rights norms in three English-speaking courts in Southeast Asia. First, the courts are engaging with the norms, contrary to the prevailing view that the four-walls and dualist doctrines maintain a stranglehold on the region. Singapore courts relied on foreign case law applying the European Convention on Human Rights to rationalize a liberal interpretation of arbitration agreements; Malaysia’s Court of Appeal based its decision on the Association of Southeast Asian Nations Human Rights Declaration, despite lack of legislative incorporation; and the Philippine Supreme Court applied the Convention on the Protection of Persons against Enforced Disappearances (CPPED) as evidence of customary international law, notwithstanding that the government had repeatedly refused to ratify CPPED. Second, their engagement is characterized by inconsistency and arbitrariness as it is governed more by exigency than by human rights philosophy. The Philippine court invoked universality to give direct but selective effect to the norms. In the name of pluralism, Malaysian courts gave direct effect to the norms, but the effect has been transitory. In Singapore, the norms have teleological effect in private law cases involving commercial and investment interests, but not in public law cases involving individual and political rights. The lack of principled practice and the ensuing uncertainty undermine the ethos of human rights and raise the question of whether more practice makes right.

James Fry & Saroj Nair on Deconstructing Dud Disarmament Disputes (Journal of Conflict and Security Law)

"Deconstructing Dud Disarmament Disputes"
James D Fry & Saroj Nair
Journal of Conflict and Security Law

Published on 11 December 2020

Abstract: This Article explores the limits of judicial settlement of nuclear-weapon disputes through a case study of the Marshall Islands’ cases against India, Pakistan and the UK before the International Court of Justice in 2016. It posits that judicial settlement is limited mainly by the quality of the arguments and evidence submitted by the disputants, not by any limitations inherent in judicial settlement with such politically sensitive disputes. The lawyers in the Marshall Islands’ cases should have taken greater care in crafting their arguments and in tying them explicitly to Article VI of the Nuclear Non-Proliferation Treaty and its customary equivalent.

Sherif Elgebeily on the War Crime of Hospital Air Strikes (SCMP)

"When apologies for hospital air strikes are not enough"
Sherif Elgebeily
South China Morning Post
30 October 2015

For the second time in less than a month, Médecins Sans Frontières (MSF) is coming to terms with the fallout from errant air strikes, first by US forces in Afghanistan and, this time, allegedly by Saudi forces in Yemen. On both occasions, MSF clearly and repeatedly relayed the coordinates of their locations to all parties. The strikes, then, seem deliberate and in clear violation of international humanitarian law; the bombings appear to be war crimes.

       Article 8(1) of the Rome Statute of the International Criminal Court is unequivocal in its condemnation of "intentionally directing attacks against personnel [and] installations … involved in a humanitarian assistance" as part of an international armed conflict. While the Rome Statute is arguably an international treaty, rather than customary law which is applicable upon states irrespective of whether they have signed and ratified it, international humanitarian workers are substantially protected by the Geneva Conventions of 1949, which are universally applicable. In short, there is no escape from the wrongful act.

      Despite an apology by US President Barack Obama for the attack that killed over 20 in Kunduz, there is yet to be a transparent investigation. On Yemen, there was an admission of a "mistake" but the Saudi-led coalition has subsequently denied responsibility. Rumours are circulating that MSF improperly relayed its coordinates in Yemen, and that the targeted facilities in Afghanistan were under the control of enemy combatants and therefore lost their protected status under the laws of war... Click here to read the full article.

Sherif Elgebeily on a 'Royal Rumble' in Syria

"A 'Royal Rumble' in Syria means yet more chaos for civilians"

Sherif Elgebeily (CCPL)
The Conversation
15 October 2015

As a child, I would eagerly await the annual World Wrestling Federation (now WWE) “Royal Rumble” – 30 of the best wrestlers, all in one ring, fighting it out in a lengthy and often brutal (and yes, scripted) affair over the course of hours to be the last man standing.

     The most entertaining part, I found, were the “stables” – groups of wrestlers who joined forces only to knock out stronger opponents like Andre the Giant. At the end of the showcase, when only a few wrestlers remained, the true agenda emerged. Any “stables” forged to get this far were tossed aside like prop chairs. Without a common enemy, the wrestlers turned on each other.

     In Syria, a disastrous “Royal Rumble” is now under way.

      While working on the Iraq Team of the UN Department of Political Affairs in 2008, I learned the importance of interstate cooperation in the pursuit of a shared goal. Having also researched the decision-making process of the UN Security Council, I am aware, too, of the failures that emerge when countries cannot reach mutual agreement.

United against ISIS

Russia’s military intervention to fight the Islamic State shares some of the common goals of the anti-Assad alliance involving the US, UK, Australia, Canada, France, Turkey and no less than six regional Arab States. All sides have already intervened to varying degrees with military force, bombing or supporting the bombing of targets each claims are strategic. But strategic to whom?

     On the surface, Russian strikes can be interpreted as a lifeline for Syria against the creeping lava of ISIS, which destroys everything in its path and stubbornly solidifies. After all, anyone bombing ISIS is good news, right?... Click here to read the full article.