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In Episode 1, we speak to two academics from the Faculty of Laws, Dr Myriam Hunter-Henin and Professor Philippe Sands QC, about Democracy and Place.
Transcript
Siobhan Morris 0:05
Hello and welcome to a new podcast series, Disruptive Voices, from UCL Grand Challenges.
Nina Quach 0:10
In this new series, we'll be speaking to experts from across UCL and beyond, who will be joining us to share the innovative solutions and ideas for societal change. We'll explore topics from a cross disciplinary perspective, and encourage you, our listeners, to think differently about how we address issues of local, national, and global concern.
Siobhan Morris 0:34
In today's episode, we will be examining the topic of democracy and place, hosted by myself Siobhan Morris and my colleague Nina Quach.
Nina Quach 0:43
Today we're in conversation with Dr Miriam Hunter Henin, Reader in Comparative Law at UCL, and Professor Phillipe Sands, Professor of the Public Understanding of Law at UCL, and Director on the Project on International Courts and Tribunals.
Siobhan Morris 1:01
So to start, I wondered if I could ask you first, Miriam, if you could give a brief overview of your current areas of research.
Miriam Hunter-Henin 1:09
Good afternoon, pleasure, thanks for having me. My area of research is on religious freedom, and more recently on how religious freedom connects with democracy. And my recent book, which is entitled "Why Religious Freedom Matters for Democracy, Comparative Reflections from Britain and France for a Democratic Vivre Ensemble", is really a response to the observation of growing clashes between religion and democracy between religious freedom and competing rights. To give you a flavour of the kind of recent controversies that have reached the court and inspired my reflections in the book, take the case of the registrar who wished, for religious reasons, to be exempt from taking part in the celebration of same sex civil partnerships, against the equality interests of same sex couples. Or you have religious freedom claims coming into conflict with common national values like in the French burqa ban. I find those conflicts quite interesting, because in a way as a lawyer, well law is about trying to help solve intractable conflicts.
Siobhan Morris 2:40
Thanks, Miriam. Philippe?
Philippe Sands 2:43
Well, very good to be with you, Miriam, on this podcast. I'm delighted. So I currently am taking forward a writing project that has led me to publish four years ago book called East West Street, that looked at the origins of genocide and crimes against humanity and the role of individuals in the making of law. I followed up with a book I published this year called the Rat Line, which looks at a case in which formalized justice was not done, exploring the unintended consequences, if you like, of justice not being applied to a perpetrator. So I started work on the third book in the trilogy, which takes us up nearer to the present time, and the arrest in October 1998 of Augusto Pinochet for crimes against humanity and genocide, and the legal proceedings that were initiated in English courts culminating with a series of judgments. And I want to tell the story of those proceedings from the perspective of a number of key individuals who were invol ved on all sides. I'd say the overall theme that I'm interested in, is the role of individuals in the making and breaking of international law to move away from the idea that somehow the law is just made by states and by courts. I'm just right now finishing a series of lectures that are given the Hague in the summer of 2022. On the story of the Chagos archipelago, the detachment by the United Kingdom, the creation of a new colony, and the forcible removal of the entire population. It's really a book and a series of lectures about race, because the difference between Chagos and the Falkland Islands, where you have two communities, one of which was black, and one of which was white, was the whites were allowed to stay. And the British government invoked the principle of self determination in relation to the blacks. It did not do so. So I'm teasing out those issues. I should just say very briefly that Miriam's research area is of great relevance to me wearing another hat. I'm the president of English PEN, which is about freedom of expression. And of course, there is a very direct parallel in the case law and the sets of issues there's a rise on freedom of expression, as with freedom of religious belief, and how in a democratic society you establishes balance and limits it's it's not an easy thing.
Siobhan Morris 5:25
I completely agree. You mentioned Philippe, the Chagos Islands example. So I wonder if we can start discussion by thinking: how can place-based framings of both national and international law, as you've started to articulate there, be useful when examining national identity?
Philippe Sands 5:46
If we begin by talking about Chagos, I mean, that is a far away place from London in the Indian Ocean, a set of islands that form part of the archipelago, that were governed by the United Kingdom from 1815, up to 1965, as part of the colony of Mauritius. In 1965, Britain decided to detach and create a new colony and remove the entire population, and make the place over to the United States as a military base or as one of the islands. That was litigated in the English courts between the mid 1980s, and currently going on so nearly 40 years of litigation in which the Chagossians, the forcibly removed population, have lost a series of cases. But last year, the International Court of Justice, entered the fray and came down with a clear and decisive ruling that Chagos was unlawfully detached, it never ceased to be part of Mauritius. And therefore, the removal of the population was unlawful. And of course, built into that story - and it's a dreadful story - is a myriad of issues about place and identity and national and international courts. The English courts have gone one way, International Court of Justice has gone another way, and that raises an interesting question at the next stage of the proceedings in the English courts, which are likely to be before the Supreme Court. Does the government of Mauritius intervene in support in some way of the Chagossian population, which is now recognized by the International Court to be Mauritian nationals not United Kingdom nationals, at least as a matter of international law? Now, one country will only very rarely intervene in the courts of another country because to participate in proceedings in the United Kingdom, when the English court is in effect, to give legitimacy to the actions of those courts. So you have to ring fence the procedure but you have here a sort of multiple set of clashes. What is the power of the English courts now to rule on Chagos, when the International Court of Justice, the principal judicial organ of the United Nations, has in an advisory opinion, determined that the United Kingdom, in fact, has no rights, and the General Assembly of the United Nations has, since the ICJ advisory opinion, determined by an overwhelming majority, the United Kingdom was due to leave by last November. The United Kingdom has refused to do so. And what we get here, is opening a new vista in a sense for our conversation, is lawless Britain. This is, I think, one of the themes of our day. They now routinely choose to ignore international law, it seems, for the first time they've ignored a decision of the International Court of Justice. And this comes at the very same moment that they lay before Parliament legislation, which on its face, violates a treaty recently entered into by the United Kingdom. So one of the values of the United Kingdom, a commitment to the rule of law internationally, has been basically trashed by this government. And that causes tremendous reputational damage.
Nina Quach 9:12
So you raised an interesting point on the interaction, and sometimes clashes between national and international law. And I wondered if we could generalize that a little bit and talk about how national public values intersect with the operations and rules of international courts.
Miriam Hunter-Henin 9:32
Place-based framing, I think, can be a valuable if it's about highlighting the importance of context. My own approach tries to also include individual voices into law. And here, I think that courts can actually help giving a voice to those voices if judicial reasoning is inclusive enough. So if place based is about being attentive to the specificities of the place in which a dispute emerged, if it's about enhancing deliberation at local level, if it's about refining our understanding of the national context, the underlying factors which shape judge's decision, then it's something that I would find valuable. But often place based framing as Philippe has said it is more a matter of trying to assert national identity against commitments to international law or to human rights. And if, of course, taken in that sense, I would be far more skeptical. So my own approach is about making sure that supreme national courts are allowed to review national decisions, and that a national identity is not invoked in order to just shield areas of national law from scrutiny.
Philippe Sands 11:03
I mean, Miriam, that's a very, shall we say in this day, optimistic take on the place of international courts. I mean, for me, the starting point is there is a prior conversation to be had on the balance between the executive and the legislature on the one hand, and courts on the other, we see this most acutely in the debates in the United States on the powers and limits and composition of the Supreme Court. But you can take that discussion, then to the international level. And the essential parallel issue is in response to the question: what are the limits of the powers of international courts to make determinations that will affect a communitie's essential sense of identity? And Miriam's work on freedom of religious expression, if you like, is where the rubber hits the road. It's hard to think, for some countries, of issues which are more connected to matters of national identity than the ability to permit or refuse to permit expressions of religious belief. And you can see where this is heading, at some point, some issue is going to reach the European Court of Human Rights, the European Court of Justice, some other international court, and that court is going to come down with a ruling and say, you can or cannot do X, Y, or Z, and the country is going to go ballistic. Again, putting that in the British context, the United Kingdom was a country which in 1945 was strongly committed to a place for international courts and tribunals as playing a role in a rules based international order, which necessarily meant limits on sovereign decision making at the national level. But the United Kingdom has effectively abdicated that position, which is withdrawn from that position, it has now effectively left almost all international courts. Very shortly, it will only have a judge on the European Court of Human Rights and possibly the International Criminal Court. When I was a student of international for the first time, there was no international court pm which the British did not have a judge.
Siobhan Morris 13:29
So just to follow up on that Philippe, do you think judges can ever have a legitimate role in political debate then? And then Miriam if I may turn to you and ask for your thoughts on the same question, but from a French perspective.
Philippe Sands 13:44
In the English context, the position is, in a sense, reasonably clear. Judges do not express the views or take decisions, except on matters that relate to the interpretation or application of the law. But the law, of course, is inherently political. You know, when I went to law school back in the last year of the 1970s, and the early 80s, we were sort of taught that law and politics were separate - of course that's just nonsense. Law is politics, by another means. The issue for the judges is to frame their functioning in a way which sits squarely within the judicial function. For example, if parliament has expressed a view, that is clear, the judges plainly cannot transgress that view. But no law is ever clear. There is always room for wiggle. And that's the way in which the judges can intervene and do intervene perfectly legitimately. And if you then add on to our statutory law, the pride and joy of English law, namely the Common Law, all of a sudden, this particular government in Britain is seeing the Common Law offers much room for mischief on their view for the judges, and allows them to do things they should not be doing, for example, the decision on the prorogation of Parliament last year, which was a unanimous decision of the Supreme Court, but which of course, effected very significant political consequences. So this is a difficult and delicate issue. And it's a political issue as well as a legal issue.
Miriam Hunter-Henin 15:30
Yes, I agree entirely. And to give you a bit of context concerning France then, I would say that on the one hand, there's probably a much stronger commitment to international law. An obvious example is that international law is directly applicable. So as far as the European Convention on Human Rights is concerned, any judge in France, even at first instance, can actually set aside legislation when it is deemed to be contrary to a provision of the European Convention on Human Rights. But at the same time, in my area of research on religion, the principle of laïcité is often invoked - the French version of secularism - as a reason to shield certain national decisions from the scrutiny of supra-national courts. And European courts themselves actually take this on board and often adopt a position of restraint when laïcité is invoked. And I think it's important to underline that this position of restraint is not as neutral as one might think. Take the Achbita case, for example, which actually concerns Belgium, but which also relies on laïcité: an employee was asked to remove a hijab because it infringed the company's neutrality policy. And when she refused, she was eventually dismissed. And the Court of Justice of the European Union was asked to review the compatibility of the dismissal with an EU Directive, which established a general framework for equality in the workplace. Out of respect for the alleged constitutional underlying laïque context of the case, the court carried out minimalist review of the dismissal, adopted a position of restraint and commentators whether to hail or to criticize the decision, usually accepted that the position adopted by the European Court was one of neutrality. I would challenge that - I think it's crucial to underline that actually, laïcité was not applicable in that case at all because it was a purely private law setting. And by adopting a position of restraint, the court did not take a step back from national debates. But by acknowledging respect for constitutional laïque setting, when laïcité was not even applicable, it actually gave credit to the most virulent voices in Belgium and France, who push towards an extension of laïcité beyond its present confines. So I think that often there's a new illusion of thinking that judicial restraints from supranational courts means non interference with national debates.
Nina Quach 18:48
You both talked about the role of individuals, and I suppose groups of individuals, in creating and applying the law. I wonder if you could expand on that, and particularly in different geographical settings.
Miriam Hunter-Henin 19:02
My objective on the democratic approach I promote in the book is to bring in individual voices. So here I must clarify, of course, as you might have guessed, that by democratic approach, I do not refer to majoritarian parliamentary decisions, but to a deliberative, open and inclusive process of deliberation. And in that sense, courts can actually both the democratic deliberation, and maybe it's optimistic as you said Philippe, but can I think help individual voices be heard, and foster more inclusive approach that bring in vulnerable members of society, which might not have a say on the purely majoritarian decision making, which is the rule in parliamentary decisions.
Philippe Sands 20:02
In my world of International Public Law, until relatively recently, individuals and groups actually did not really have a place. The idea that an individual or group and association could take a case to an international court was unknown until after the Second World War. And one of the revolutions which has taken place, and it did start, actually, in Europe in the sense of the creation of the European Convention on Human Rights, and then its adoption in other regions, and at the global level through the Covenant on Civil and Political Rights and various other mechanisms was to say, for the first time, that the world of international law is not one in which states exclusively have a function and role. Individuals and groups now become the subject o f rights, and are endowed, in certain limited instances, with the ability to bring proceedings against a state. So an individual can go to the European Court of Human Rights, arguing that they have been not been allowed to act in a way that is consistent with the obligations of the country under the convention, for example, in relation to religious freedom or freedom of expression. Equally a corporation which believes that its property has been interfered with, expropriated, or treated unfairly inequitably can go to the International Center for the settlement of investment disputes and argue that his rights under international law have been violated. So this is a very significant change of conception that has taken place. And it's premised on a revolution which occurred in 1945, really, which was to say, for the first time in international law, that the rights of the Sovereign - of the government of the king of the emperor of the Empress, the queen - are no longer absolute, that the state is subject to limits under international law. You can no longer maim or kill, mistreat, etc, etc. But the corollary of that is that individuals in certain circumstances can go one step further and protect those rights that they have under international law before an international court or tribunal. And this, of course, is the very thing which some governments are now resisting. They don't like the idea that a far away court, populated by different kinds of people are taking decisions about what they can do. There's another way of looking at it. It came up in a case that I was involved in that concerns the fate of the regime of Muammar Gaddafi and his sons when they were engaged in allegations of international wrongdoing. The question arose, should they be tried criminally prosecuted in Libya? Or should they be tried criminally prosecuted before International Criminal Court? In The Hague, this is actually a really complex issue. My own sense is that if it is possible, criminal acts should be judged as close to the place of commission as is possible. But what if the country doesn't have the wherewithal to do that? So I think we are right now in a big debate about the new international law which recognizes the rights and the place of individuals and groups, but which perhaps, understandably, meets resistance from a number of countries at different times and place, about what the limits of that judicial function is going to be.
Siobhan Morris 23:47
That also links back to a previous point that was made around law and politics always being intertwined. But then, of course, we have to ask yourself, who is therefore determining our laws, and both national and international? And how representative judges are of the wider populations that they're representing? So I wonder, given what the points you've both just made, how can courts, both national and international, become more inclusive in that sense. If we're talking about as you were saying Philippe around, tribunals taking place as close as physically possible to a certain place, how can we create inclusivity and facilitate access to the highest echelons of the judiciary themselves?
Philippe Sands 24:42
I think it's a really important question how we deliver justice at the international level, just as it's an important question of how we deliver it at the national level. One aspect of that is who our judges are. And the selection of judges is, of course, an issue that is fraught with difficulty because it's here that the interface of politics and law if you like becomes clearest. The election of judges at the international level is an inherently political process. And so the qualities of the individual judge is a factor that comes into play, but is not a determinative factor. In the world that I operate in - international court of justice, tribunal for the Lord, the siege national criminal court, in particular - the appointment of judges is a heavily political activity. And we see many instances of people who on the face of it appear to be much more suitably qualified, not being elected. In some cases, you even get situations where people who aren't even legally qualified at all will get elected, for example, to the International Criminal Court in the early days, which is a pretty unfortunate situation. But I want to make sure that I put the accent not just on legitimacy on the bench, there's also an issue in my world of legitimacy of the bar. And the reality at the International Court of Justice, for example, is that the bar is tiny, it is populated almost exclusively by white, European men. And that I think, raises a fundamental challenge. And I think the generation that is now coming into activity must take ownership of that issue. You know, I've done, I don't know, 30 cases at the International Court of Justice Tribunal for the Law of the Sea. I've never been in a team which is led by a black person, or a BAME person, or by a woman. This is a real issue. And I think that the world of international law with its inherent conservatism, and if you like inherent reverence of particular types of human beings as being the repositories of knowledge, power and influence, we have to really address that. It's a serious problem, in my view, because it undermines the legitimacy of the functioning of the institution. So yes, by all means, let's look at the judges. But let's also look at the lawyers. And one could go further and say, let's also look at the teachers. The problems, I think, are not quite as acute there. But there are real issues, particularly, for example, in the teaching of international law, in the main institutions of representation, as of, should we say, non-white communities.
Miriam Hunter-Henin 27:40
I mean, it is a very important issue. My own work focuses more on accessibility and inclusivity of judicial reasoning rather than courts themselves. But of course, appointment and membership of the court will also have an impact on how inclusive judicial reasoning can be. So it's something that needs to be tackled. It's quite varied, actually, in itself from one country to the other. I think that in France, it's a bit more open because access to the judiciary is not from the bar, which in itself is quite a closed profession, but on the basis of an eliminating exam, which is a bit more open, and also means that younger people exceed to the status of judge. There's also the question we raised before as to the extent to which judges who sit at the international level, without any familiarity with the National context, have any legitimacy in ruling about a national dispute? And I think there that maybe a distinction can be drawn between deference and delegation. I think that proximity to the national context is important. But it shouldn't veer towards delegation. So what I mean by that is that deference, sensitivity to national specificities is important. Deference might be even advisable from my own deliberative perspective, if it can encourage deliberation and dialogue at local level. But delegation, that is a complete carte blanche, granted to national authorities, as soon as a constitutional identity issue is involved, for example, would not be advisable in my view.
Nina Quach 29:52
I'd like to go back to the issue of individual rights, which was raised a bit earlier. Obviously, we're recording in a very unprecedented context, and I suppose it's difficult not to address that question. We have seen in the past few months that countries with an excellent health infrastructure did not necessarily do better in terms of pandemic response and that actually the political setting and the public's trust in institutions greatly influenced the health and economic outcomes. So I wanted to ask how you thought the concepts of individual rights and democracies might evolve as a result of the COVID-19 pandemic?
Philippe Sands 30:39
Well, the question of the implications of COVID, for the subject that we're talking about, as for any subject of course, is a work in progress. And we're still in the midst of it, so it's very difficult to hazard a sense of where it goes. I think it's very striking, what has happened. If we ask ourselves which countries have done reasonably well, or less badly out of this, countries which have little respect for the rights of individuals seem apparently to have done quite well, but not in all cases. So China seems to be all right, but Russia has apparently not done so well. So it can't just be the question of disrespecting individual rights that somehow gives you a sort of golden card into success in dealing with it. It also does appear to be the case in some way, that countries that have devolved decision making on matters to a more regional level, have done better. I'm thinking here of Germany, which in particular, with its Lander provinces, having particular powers in relation to health related matters. It's quite striking how relatively well they have done not perfectly but pretty well, I think it's too early to tell. But I think there is a very good role for the Humanities, which includes law, and includes our knowledge on how rules are designed and applied on the balance of power between the individual and the state, to form a view on what the lessons are learned. But I suspect at the end of the day, and they are part of the humanities, of course, it will be for the psychologists and psychiatrists and psycho analysts, to help us to understand, for example, why it is that certain people in certain countries react better or worse, to different types of regulation. And I'm right now involved with various UCL colleagues, I'm thinking about how the humanities can contribute better, for example, to the SAGE process. In Britain, it's SAGE which has effectively provided advice to government on dealing with COVID. But it only includes scientists, it doesn't include the humanities. And I think they've missed a trick on that, because they failed to understand, for example, the significance of individual and group psychology in compliance with rules. The loss of trust is something lawyers need to understand but I think we can't do it on our own. And we have to work with colleagues in other fields, anthropologists, sociologists, historians, political scientists, psychologists, psychiatrists to look in the round as to what it is that has made some countries fare better or worse on this very difficult issue.
Siobhan Morris 33:42
So the issue of loss of trust, I think, is hugely important and will be for years to come as we start to deal with the long term consequences of COVID-19 pandemic. But I wondered, Miriam, if I may ask you, it obviously relates as well to conceptions of democracy, kind of wider, you know, trust in government relates to trust in democracy in a UK context. And that notion of the individual, the government and the state, and the kind of triumvirate views between that. So I wondered as well what your thoughts are, obviously this podcasts dealing with democracy and place, but where you see trends going in the future as a result of the COVID-19 regulations and rules and a lot of emergency legislation that's been enacted?
Miriam Hunter-Henin 34:39
It's an interesting question. And I think it all depends on what lessons we draw from COVID-19. I agree with Philippe completely that we have to look at local level and bring in the Humanities. I would personally be interested in looking, for instance, a bit more closely at how religious communities have dealt with the pandemic. Because I think they have shown a lot of initiatives in order to adapt religious practice in light of the risks, in compliance and sometimes against to government advice, but in a usually much more coherent way. They've also, against government advice, at the very beginning, shown a clear commitment to protecting the vulnerable. The government wasn't as strongly in favor of protecting the elderly, when we first had some temptation to follow herd immunity approach. So I think there would be interesting lessons to tease out as well, in terms of trust in government more generally. I think, yes, that's crucial. And it shows that the debate, again over COVID is probably too simplistic. And it's my general conclusion that we have to fight dichotomous discourses in terms of COVID. The terms of the debate have often been presented as an opposition between restriction and liberty - and of course, it's much more complex. And democracy is about trust, in my view, it's about deliberativeness. But it implies that the information we are given and we exchange is reliable. And if we want democracy, we need transparency, and reliable justification for government decisions.
Siobhan Morris 36:39
Plenty of food for thought and discussions that will not end anytime soon. Thank you both very much indeed, for joining us today. Miriam Phillipe, thank you very much, and we hope you all enjoyed listening to such fascinating discussion. Thank you.
Nina Quach 37:00
This episode of Disruptive Voices was presented by Siobhan Morris and Nina Quach, edited by Nina Quach, and produced by the UCL Grand Challenges team. Our guests today were Dr Miriam Hunter-Henin, and Professor Philippe Sands. The music is by David Szezstay. For more episodes of Disruptive Voices, visit UCL Minds podcasts or follow us on Twitter @GrandChallenges.
Transcribed by https://otter.ai