In response to a 2013 Court of Final Appeal ruling, Hong Kong established a “Unified Screening Mechanism“ (USM) to assess claims by refugees and other migrants seeking protection in Hong Kong. The mechanism considers non-refoulement claims based on (1) risk of persecution; (2) torture; or (3) cruel, inhuman or degrading treatment or punishment. During the...
Transparency and Participation in Courtroom: A Guangzhou Story
Looking at the Chinese judiciary‘s role in expanding governmental transparency the past five years, this paper observed the expanded governmental transparency in Guangzhou city in forms of both transparency and participation. It argues that while the failure and success still mix, Chinese courts have successfully expanded powers over administrative agencies‘ decision-making. The political talent judge...
Transplanting Identity Language – The Migration of “Constitutional Identity“ in European Constitutional Law
The migration of constitutional ideas is characteristic for the legal integration within the European Union. EU law and domestic law are closely intertwined, enabling permeability between the participating legal orders. This allows for constitutional ideas to migrate between these orders. A prominent examples is the jurisprudence of the domestic constitutional courts establishing limits to the...
Twilight of the Idolized: Hong Kong’s Legal and Judicial Cultures under Stress
HK‘s judges and lawyers have often been hailed as a source of resilience against encroachments on the rule of law. I argue this “idolized“ expectation has been misplaced. Actions taken by Beijing have constrained or been perceived as valid constraints on the courts. The maturing of the Mainland legal services market, amongst other things, led...
Transforming an Informal Political Grouping into a Legalized Intergovernmental Organization: Overcoming Legal, Capacity, and Cognitive Dissonances in Building a Rules-based ASEAN
While there are contemporary signs of ‘authoritarian pushback‘ eroding global governance in the ‘liberal‘ world, the converse seems to be happening in ‘soft authoritarian‘ Southeast Asia. Since the ASEAN Charter (2007), ASEAN members have strived to reform their intergovernmental grouping into a formal rules- and institutions-based regional organization that stands credibly in the international legal...
This is Very Urgent Indeed‘: How the 2015 ‘Refugee Crisis‘ Justified Departing From Established Processes of Law-making
During the 2015 ‘refugee crisis‘ Sweden adopted one of the strictest asylum policies in the EU through temporary legislation. A feeling of urgency marked the drafting process. Key elements of the law-making process were disregarded: e.g. rapidly drafted proposals with no analysis of the consequences and the proportionality of the measures suggested, extremely short deadlines...
The Tripartite Implications of Brexit: Framing Law, Regulation & Justice
This paper considers the implications of Brexit as an interplay of law, regulation and justice, using a tripartite conceptualisation. First, as an EU Member State, the UK has been involved in EU law-making as EU ‘rule-maker‘. However, within this first conceptualisation, in many instances, existing EU rules entrenched into domestic law will continue to apply,...
The Use of Autonomous Weapons Systems in Domestic Law Enforcement Operations: Testing the Resilience of International Human Rights Law
The compatibility of AWS with International Human Rights Law (IHRL) is nowadays largely unexplored. Plausibly, the reason can be find in an apparent lack of practice related to the use of AWS outside the context of an armed conflict. Moreover, contrary to International Human Rights Law, IHRL does not contain specific limitations on the use...
The Special Criminal Court: Hollowing out the Right to Trial by Jury in Ireland
The Irish Constitution, Bunreacht na hÉireann, was adopted via plebiscite in 1937. It guarantees a right to jury trial. The drafters, acutely aware of the threats to security which had stalked the precursor Irish Free State, included an emergency powers clause & the ability to legislate for non-jury trial where the ‘ordinary courts’ were deemed...
The Systemic Approach to Human Rights
In contrast to the more traditional, liberal approach to human rights, epitomized by the work of the European Human Rights System, a more systemic approach has evolved within the Inter-American and African regional systems. This paper highlights the manner in which that approach has evolved through those systems‘ encounters with massive violations, transitional moments, and...