Papers by Carmen Draghici
Contents: 1. Overview of contentious UK anti-terrorism legislation. 2. Human rights standards of ... more Contents: 1. Overview of contentious UK anti-terrorism legislation. 2. Human rights standards of protection in the UK’s legal system. 3. Inconsistencies between the UK’s human-rights obligations and anti-terrorism provisions emerging from the case law. i. The discrimination of foreign nationals suspected of involvement with terrorism. ii. Admissibility of “third-party torture” evidence and deportation based on “no torture” diplomatic assurances. iii. Proscription lists and fair trial guarantees. iv. Control orders as preventative punishment. v. The absence of safeguards against the arbitrariness of police “stop and search”. vi. The elusive boundaries of «encouragement of terrorism». 4. Concluding remarks on the judicial protection of human rights against the excesses of counter-terrorism.
In the struggle against apartheid, journalists willing to report the truth were among our most im... more In the struggle against apartheid, journalists willing to report the truth were among our most important allies, and we knew that they often took great personal risks to do so. The right of journalists to report freely is of vital importance to people in all parts of the world, and those who use violence, assassination or detention to try and intimidate journalists must be held accountable for their actions. The high toll of deaths and injuries among media workers around the world in recent years is outrageous and unacceptable. I appeal to governments everywhere to ensure that law-enforcement and judicial authorities protect journalists' rights and take action to end impunity for such crimes." www.city.ac.uk/lawjusticejournalism www.cfom.org.uk
International Journal of Law, Policy and the Family
This article criticizes the exclusion of the relationship between parents and adult children from... more This article criticizes the exclusion of the relationship between parents and adult children from the purview of Article 8 ECHR in Strasbourg judgments, save for exceptional cases of dependency, narrowly defined (in practice reduced to disability). The author notes that this restrictive approach has been developed in the politically sensitive area of immigration policy and might stem from judicial pragmatism. She supports a more inclusive interpretation of 'family life', on two grounds. Firstly, it would align the Court's stance on adult relatives with its well-established purposive reading of the notion of 'family life'. In fact, family arrangements between adult relatives usually continue to exhibit the 'signposts' of family life identified in landmark decisions: genetic filiation, emotional bonds and effective ties; moreover, in cases without a cross-border element, the Court has recognised the applicability of Article 8 to close bonds with near relatives, such as grandparents. Secondly, bringing adult relatives within the scope of Article 8 would avoid the gap between the legal interpretation of 'family life' and the sociological understanding of the family as a group defined by a shared identity, caring, economic cooperation (including financial support, domestic labour, childcare and elderly care), sometimes co-residence. Whilst the Court may accommodate legitimate State interests when assessing the merits of a complaint, the failure to acknowledge the relationship between parents and adult children as 'family life' at the admissibility stage does not reflect social reality and prevents any judicial scrutiny over measures interfering with the normal development of such relationships. I.
Fifty Years of the Divorce Reform Act 1969, 2022
British and Canadian Public Law in Comparative Perspective, 2021
The fact that heterosexual couples still cannot form civil partnerships after the introduction of... more The fact that heterosexual couples still cannot form civil partnerships after the introduction of gender-neutral marriage contravenes Articles 8 and 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. Albeit optional under the Convention (like adoption, parental leave or child benefits), civil partnership is an institution engaging the right to respect for family life and its domestic regulation demands conformity with Convention principles, including non-discrimination. This article contrasts states' wide margin of appreciation in matrimonial matters under Article 12 with the limited discretion under Article 8 and discusses the strict proportionality test applicable to differences in treatment exclusively based on sexual orientation. It dismisses the justifications espoused by executive and judicial authorities in recent litigation for the indefinite postponement of reform, namely the overestimated costs of legislative amendment, the ...
The right to marry is guaranteed under the European Convention on Human Rights ECHR)in art.12, wh... more The right to marry is guaranteed under the European Convention on Human Rights ECHR)in art.12, which reads: "Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right". This provision was given effect in the UK through the enactment of the Human Rights Act 1998, which incorporated ECHR rights, allowing domestic litigants to rely on them before the British courts. The express referral to "national laws" in art.12 indicates that States may legitimately impose restrictions on the exercise of this right, such as bars on marriage between persons who fall within the prohibited degrees of a relationship, a minimum marriageable age, and the requirement to comply with certain formalities for the valid celebration of marriages. The Convention institutions maintain, nevertheless, the power to scrutinise any such restrictions, and ensure that domestic law strikes a fair balance between...
Synopsis: 1. The absence of a right to adopt under the European Convention on Human Rights. 2. El... more Synopsis: 1. The absence of a right to adopt under the European Convention on Human Rights. 2. Eligibility to adopt, civil status and sexual orientation. 3. Rights of the natural parents with regards to adoption proceedings. 4. Dispensing with parental consent to further the best interests of the child. 5. The (almost) equal standing of biological and adoptive families under Article 8. 6. Recognition of foreign adoptions. 7. Conclusions: the demise of the margin of appreciation doctrine?
This article, somewhat against the trend in that growing body of scholarship in this area, argues... more This article, somewhat against the trend in that growing body of scholarship in this area, argues that there is a role for a new international instrument targeting the harassment of and violence against journalists. It supports this position by a review of UN and regional human rights jurisprudence, with an emphasis on hitherto undiscussed weaknesses, as well as by an analysis of loopholes in international humanitarian law. It concludes with suggestions for a new instrument, providing better safeguards for both journalists and societal interests in the media, and highlights how such an instrument would tackle the problems in the existing framework.
1. Aspects introductifs : relevance internationale du principe et tentative de mise a niveau de l... more 1. Aspects introductifs : relevance internationale du principe et tentative de mise a niveau de la Charte arabe. 2. Une amelioration incontestable : la clause de nondiscrimination (article 3, alineas a) et b)) et le principe de l’egalite devant la loi (article 11). 3. L’introduction de la parite des sexes (article 3 alinea c)) et les droits de la femme dans les rapports familiaux (article 33) : des dispositions problematiques. 4. Les discriminations manifestes contre les non-ressortissants (articles 24 f), 34 a), 36, 41). 5. Considerations conclusives : les espoirs de modernisation sous le spectre des principes chariatiques premodernes.
The article analyses the ramifications of the Supreme Court’s 2014 Nicklinson judgment. It argues... more The article analyses the ramifications of the Supreme Court’s 2014 Nicklinson judgment. It argues that the majority approach to a declaration of incompatibility as judicial incursion into legislative territory does not rest convincingly on the distribution of power envisaged by the Human Rights Act. Contrasting the domestic courts’ wider prerogatives to develop human rights with the self-restraint of the Strasbourg Court, driven by the margin of appreciation, the author contends that the judgment fails to protect the right to personal autonomy. Unlike the Strasbourg Court, reserved in matters pertaining to the sensitive field of bioethics, where no European consensus can legitimise progressive judgments, domestic courts have more leeway to signal to the legislature that the manner in which discretion was exercised does not strike a fair balance between competing interests. A development in this direction would find support in the general Strasbourg approach to blanket bans in other ...
SUMARIO: INTRODUCCIÓN.-A) ELEMENTOS COINCIDENTES. 1. La estructura de la disposición. 2. La ausen... more SUMARIO: INTRODUCCIÓN.-A) ELEMENTOS COINCIDENTES. 1. La estructura de la disposición. 2. La ausencia de definiciones y su elaboración jurisprudencial. i. Las nociones de esclavitud y servidumbre. ii. La noción de trabajo forzoso. 3. El alcance absoluto de la prohibición. 4. Los supuestos excluidos del ámbito de la noción de trabajo forzoso. i. Trabajo exigido de las personas recluidas. ii. El servicio militar/ civil. iii. Trabajo exigido en caso de emergencia pública. iv. Los servicios exigibles como obligaciones cívicas normales.-B) ELEMENTOS SÍMILES. Esclavitud y trata de los esclavos.-C) ELEMENTOS DIFERENTES. Las salvaguardias suplementarias contra el trabajo forzoso en la Convención americana.
The Art of War in an Asymmetric World : Strategy for the Post–Cold War Era
The war on terror is a peculiar type of conflict: at times it involves military operations, subje... more The war on terror is a peculiar type of conflict: at times it involves military operations, subject to international humanitarian law, but for the most part it consists of law-enforcement action, bound to observe international human rights law. • In times of war or other public emergencies, States can lawfully derogate from some of their human rights obligations. In times of peace, some measure of interference with certain rights may also be permitted to accommodate security concerns. The proportionality of such restrictions should, however, always be respected. • The war on terror has entailed arbitrary deprivations of life and liberty, the use of torture and degrading treatment against suspected terrorists, the supression of due process guarantees, unwarranted interference with the right to private life, freedom of expression and association, as well as restrictions on the rights of aliens. • The human rights cost of the global war on terror regards both the excesses of national policies and multilateral (especially UN) action. 1. Overview The case studies discussed in the preceding chapters of this section illustrate traditional types of conflicts which may entail violations of international human rights and humanitarian law. However, it is useful to include in our overview of contemporary conflict situations which affect human rights an account of what is commonly referred to as the 'global war on terror'. The current chapter discusses the tension between the struggle to guarantee human security and the infringement of human rights stemming from anti-terrorist action, whether military or not. In this chapter we will see how counterterrorism tends to impair fundamental human rights, such as the right to life, personal liberty, humane treatment, fair trial, privacy or freedom of expression. This is caused by the emergency legislation and investigative practices adopted by governments, even in democratic countries, in order to respond to the terrorist threat, by unlawful conduct during military operations motivated by self-defence against terrorism, as well as by certain multilateral counter-terrorism strategies, most particularly through the UN Security Council.
You can now view the document associated with this citation by clicking on the "View Documen... more You can now view the document associated with this citation by clicking on the "View Document as HTML" link below. ... An interdisciplinary approach to the examination of judicial techniques balancing human rights and national security issues in the case-law of European Courts ...
Sommario: 1. La dottrina delle “mani pulite” da massima di equita nella common law a principio di... more Sommario: 1. La dottrina delle “mani pulite” da massima di equita nella common law a principio di diritto internazionale: la sua rilevanza nelle controversie interstatali alla luce della giurisprudenza della Corte Internazionale di Giustizia. 2. Il significato specifico della regola nelle controversie interstatali “indirette” derivanti da ll’esercizio della protezione diplomatica. 3. La regola delle “mani pulite” negli scritti giuridici e nei lavori di codificazione della Commissione di Diritto Internazionale. 4. Conclusioni: inesistenza della regola quale causa di inammissibilita, applicazione marginale nell’esame del merito delle controversie e non auspicabilita della sua codificazione a titolo di sviluppo progressivo.
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Papers by Carmen Draghici