Ius Gentium

University of Baltimore School of Law's Center for International and Comparative Law Fellows discuss international and comparative legal issues


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British Cabinet Drops Its Obligation to International Law from Code

Shane G. Bagwell

David Cameron has led the British Parliament since 2010 and, since that date, has not shied away from controversy. Policies such as increases in tuition fees for university education, privatization of the National Health Service, and military action in Libya have led to protests in the streets. While his leadership has been unpredictable and his policies at times self-contradicting, he has grown the Conservative Party to the point where it holds an outright majority in the House of Commons. His most recent controversy involves the Government’s self-proclaimed obligations (or lack thereof) to protect and uphold international law.

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The Cabinet of the United Kingdom is the collective decision-making body of Her Majesty’s Government of the United Kingdom, made up of the First Lord of the Treasury (also known as the Prime Minister), and members of Parliament appointed by the Prime Minister to lead government departments.[1] Though typically selected from the House of Commons, it is not entirely uncommon for members of the House of Lords to be selected for certain posts. The most senior members of the Cabinet are the Deputy Prime Minister, Foreign Secretary, Chancellor of the Exchequer and Home Secretary.[2]

            Unlike in the American system, Cabinet Ministers are not necessarily experts in their field, and rely heavily on the input of members of the Civil Service for developing and implementing policy.[3] Additionally, members of the Cabinet in the United Kingdom have joint responsibility for government departments, and may, pursuant to the Ministers of the Crown Act 1975:

(a) provide for the transfer to any Minister of the Crown of any functions previously exercisable by another Minister of the Crown;
(b) provide for the dissolution of the government department in the charge of any Minister of the Crown and the transfer to or distribution among such other Minister or Ministers of the Crown as may be specified in the Order of any functions previously exercisable by the Minister in charge of that department;
(c) direct that functions of any Minister of the Crown shall be exercisable concurrently with another Minister of the Crown, or shall cease to be so exercisable.

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Cabinet Ministers are bound by the Ministerial Code, which provides ethical guidelines for the performance of their duties and outlines their relationship with Parliament. The first sentence of the Ministerial Code reads, “[t]he Ministerial Code should be read against the background of the overarching duty on Ministers to comply with the law and to protect the integrity of public life.” This is not how the sentence has read historically, however. Until October of 2015, the Ministerial Code began with providing an obligation for members of the Cabinet “to comply with the law including international law and treaty obligations…” On October 22, the Guardian published an article noting the deletion of references to international law from the Code.[4] As an executive body of the British system of government, this change (though subtle) has potentially enormous implications for the United Kingdom’s relationship with the rest of the world. Philippe Sands QC, a professor of law at University College London, said the change was “shocking. Another slap to Magna Carta and the idea of the rule of law. A government that wants to ditch Europe and sever the connection with the European Convention on Human Rights now wishes to free itself from the constraints of international law and the judgments of international courts.”[5] Ken MacDonald QC, a former director of public prosecutions, piled on to the mounting criticism of the Government’s move, stating that “[i]t is difficult to believe that this change is inadvertent. If it’s deliberate, it appears to advocate a conscious loosening of ministerial respect for the rule of law and the UK’s international treaty obligations, including weakening responsibility for the quality of justice here at home.”[6]

Mr. MacDonald’s claim that the Government’s change in policy was deliberate doesn’t require particularly deep research to back up. The Tory website hosts a pamphlet called “Protecting Human Rights in the UK : the Conservative’s Proposals for Changing Britain’s Human Rights Laws,” in which the party promises that “[w]e will amend the Ministerial Code to remove any ambiguity in the current rules about the duty of Ministers to follow the will of Parliament in the UK.”[7] The Conservative Party has a fair amount of support from Euroskeptics, and has attempted to woo voters away from the UK Independence Party (UKIP) by not-so-subtly promoting an anti-EU agenda. With an upcoming referendum on the UK’s continued membership in the EU, the Conservative party has crafted its international law obligations to reflect their desire for Parliament to once again be the supreme body of law, without interference from Brussels.

What is extremely troubling about this is that the European Union is already on shaky ground with the recent crises surrounding Greek debt, the influx of Syrian refugees, and others. The Cameron Government’s decision to distance itself from the international community is a regressive policy which stands only to harm British interests. Without a strong commitment to establishing itself as a participating member of the international community, let alone a voice within the European community, the Cabinet finds itself in the precarious situation of being Europe’s least social member. As the world becomes more interconnected and reliant on international commerce, Britain’s continued aversion to participation could spell out its downfall from the international stage. While Britain retains a seat on the U.N. Security Council, it appears to be a holdover of those lost days when Britain held its head high as a global power and exercised itself as a force for good. While David Cameron backs both horses and pledges personal loyalty to the EU, yet simultaneously dismantles Britain’s obligations to the mainland, he belittles Britain’s prestige, rather projecting his country to the world as a manic and indecisive antique, wrestling with the opposing forces of its colonial past and potentially tumultuous future.

Shane Bagwell is a 3L at the University of Baltimore School of Law, and a graduate of West Chester University with a Bachelor of Arts in Political Science. He currently serves as the President of the Military Law Association. His interests are Middle Eastern politics, international conflicts, and the law of land warfare. He is currently a law clerk for the Office of the State’s Attorney for Baltimore City, Economic Crimes Division.

[1] http://www.parliament.uk/mps-lords-and-offices/government-and-opposition1/her-majestys-government/

[2] http://www.historylearningsite.co.uk/british-politics/the-executive-in-british-politics/the-cabinet-and-british-politics/

[3] http://www.parliament.uk/about/faqs/house-of-commons-faqs/members-faq-page2/

[4] http://www.theguardian.com/law/2015/oct/22/lawyers-express-concern-over-ministerial-code-rewrite

[5] Id.

[6] http://www.theguardian.com/law/2016/feb/11/no-10-legal-challenge-ministerial-code-rewrite-international-law

[7] https://www.conservatives.com/~/media/files/downloadable%20Files/human_rights.pdf


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Eliminating the IS Threat – Why a U.S. Led Coalition Was the Only Way It Would Work

Lindsay Stallings

The Islamic State (IS), also known by the acronyms ISIS (Islamic State of Iraq and Syria) or ISIL (Islamic State of Iraq and the Levant), has been growing in their power and their influence around the Arab world. However, while they are creating a daily panic in Syria and Iraq, they are causing great concern for the rest of the world.  IS is largely autonomous. They have stolen, robbed, or bartered for their money, weapons, and even slaves. The international concern for IS’ activities stems not only from their humanitarian violations against those in Syria and Iraq; but more, the fear that comes from their sheer power. It is for this reason that President Obama, who had once had been so adverse to relying on the 2001 and 2002 AUMFs, felt it necessary to rely on these very legal instruments to bolster his arguments for air strikes against IS. In doing so, he has made his smartest and most mature foreign policy decision of his Presidency – taking charge and leading a coalition of states in eliminating the IS threat.

In the middle of August of 2014, IS released their first viral video – the beheading of American journalist James Foley, who was beheaded for the sins of the Americans. They have beheaded innocent people, have raped and pillaged villagers, and have terrorized countless populations; and there seems to not be an end in sight. [1] President Obama has admitted that US intelligence on the strength of IS was lacking.[2] Over the past few years of Syrian unrest, IS has been able to use widespread lawlessness to recruit and develop their jihad. The United States, along with five Arab nations and France,[3] began air strikes against IS two weeks ago. From outside reports it seems that strikes are currently being aimed at infrastructure and oil strongholds.[4] Thus far, there is a general avoidance of targeting individuals and more of a focus on materials. This makes it clear that the US and their allies recognize the importance of IS’ resources. It is obviously important to not underestimate the strength of IS’ message, both in the Arab world and globally, but their resources will run out long before their passion for the advancement of the Islamic State and, in reality, the loss of resources will hurt them first.  However, to compound the obvious hole in U.S. intelligence, an IS combatant has publicly stated that IS was prepared for the U.S. airstrikes, claiming they have been ineffective against IS.[5] _77944799_iraq_syria_air_strikes_624_01_10_14_v2 The US made the first move on the airstrikes and did so without the full support of the international community. Should the world and, potentially more importantly, US citizens take notice of this deviation in President Obama’s approach to unrest in the Middle East? In a time when the US is fighting an image battle in the Middle East, this was a bold move, and one that seems to have been made less for political reasons than it was for moral ones. It is worth a great deal of commendation that our administration is willing to take this step. Mind, we are not doing this alone, there are multiple Arab countries fighting for their own borders, along with French, British, Belgium, and Danish support, a total of fifty countries have signed on to support the airstrikes.[6] This support comes in the form of ground support, air support, and of course, political support. But, this all began before President Obama went to the United Nations. Before he was forced to explain why the US thought they could, should, and had the right to get involved. The event to be considered here is why the President of the United States decided to commence air strikes and then, at least two weeks later, plead with the international community for their support and encourage action to be taken against ISIS. During the course of his presidency, President Obama has rarely taken international action without wandering around the world, garnering as much support, either implicit or explicit, as he could. But here, he essentially said, “World, we know what we are going to do to deal with this -what are you going to do?” UN-SECURITY COUNCIL-OBAMA This shows a certain level of foreign relations maturity on the part of POTUS. He and his advisors made a decision that we could not stand by and let ISIS terrorize Iraq, Syria, Christians, Jews, the Yazidi (a Kurdish ethno-religious community who practice Yazidism in Iraq), and threaten to lash out at America, without doing something. The President ran his first campaign on the auspices that the “War On Terror” must end. He ended the war in Iraq, he started to pull out of Afghanistan – and is continuing that effort for all intents and purposes – but the Middle East is still in constant, bubbling, turmoil. And, in the end, the US is the US. The world’s savoir, the moral-driven, freedom to all races and creeds-focused, rescuer of all, right!? But, is that our job? Is that the job of the American Armed Forces to step in and save all of those deemed unable to save themselves? I think that President Obama’s decision to direct airstrikes against IS is indeed his most mature foreign policy move to date. He did not wait for the rest of the world powers to support him, he did not ask permission from anyone aside from Congress[7], and did what was right for the United States and the areas in the Arab world we have taken responsibility for over the last ten years. It would have been sadistic on the part of the U.S. to just sit back and watch as Iraq, a country we essentially decimated over the past decade, to struggle to fight this new radical bastardization of Islam that currently terrorizes them. The US took on this responsibility in 2001. We tried to establish communities and governments that would help the weakened and tired populations of the Arab world. We tried to empower them and build democracy. It has not worked yet and we are, clearly, not done. So, when a new group rises up, a group more terrifying than Al-Qaeda has ever been, we cannot step away. The President put on his ‘I am a world leader’ pants and he worked with those who were suffering the most. He created a coalition of the willing and took responsibility for the role the United States played in allowing this to happen. French When President Obama spoke to the United Nations he did not tell the world that we were doing the right thing for everyone. He made it clear that this was important to the US, and why. He did not tell the United Nations that the US was better than the rest of them for taking action; he actually made clear that the US has struggles too.[8] There are school shootings, race riots, militarizing police forces, renegade shooters targeting law enforcement officers, individuals setting wild fires – the list of domestic struggles the US is facing is not less than that of any other country. And finally, President Obama recognized that by not pretending we were better than every other country, those countries were more willing to listen to our silent pleas for help. The President was begging for other countries to step in, to step up and recognize that the threat from IS is not just against those in the Arab world or just against the US, it is a threat to the general level of safety most citizens of the world feel as they go about their daily lives. The French joined in the airstrike offensive on September 19 with the US and Arab partners.[9] Thus far, France has only acted in Iraq, wary to move into Syria and encourage any more disturbances. However, as of Friday, September 25, they have said they are considering moving into Syria on the tail of a French tourist’s beheading by an Algerian terror organization.[10] Yesterday, the UK carried out its first air strikes in Iraq[11]  after voting last Friday to authorize action in Iraq.[12] No mention was made of the UK going into Syria, which shows that they too are wary of moving into an area where they are not invited. UK Parliament Each country currently involved or considering involvement in this offensive is doing so for country-specific reasons, not based on the perceived duty owed to the international community as a whole. A sense of general duty did not work as well as they hoped ten years ago in Iraq, but maybe this time there will be more successful. Personal involvement, a sense of devotion the protection of oneself, will hopefully deal with this matter with less bureaucracy and more effectiveness. Only when there is an understanding that this is not only a worldwide threat but also a worldwide responsibility can we finally defeat IS.

Lindsay Stallings is third year student at the University of Baltimore School of Law, planning to graduate in May 2015 with a J.D. and concentration in International Law. She graduated from The Ohio State University in June of 2011 with a Bachelors of Science in Political Science with minors in Sociology and International Studies. She has also studied  Spanish and Arabic language and culture extensively. While at The Ohio State University, she was a member of the International Affairs Scholars program, through which she studied abroad in Bulgaria. She was active in the Undergraduate Student Government and was a member of various academic and student life university-level committees.  Her primary interests are international law, national security, and U.S. Military and diplomatic policies. Through her coursework and relationships with our international law faculty she has developed a more focused interest in the policies surrounding international conflict and the capabilities of international courts. Lindsay currently serves as the Careers Director on the International Law Society and is a Staff Editor on the Journal of International Law. Her legal coursework and extracurricular activities have given her the opportunity to mold her passion for cultural studies and problem solving into an exciting international legal career.

[1] Rod Mills, Family anguish over Glasgow schoolgirl turned jihadi (Sep. 4, 2014) http://www.express.co.uk/news/uk/506765/Family-anguish-over-Glasgow-schoolgirl-turned-jihadi; Teenage jihad: 2 Austrian girls stopped en route to join ISIS, (last edited Sep. 10, 2014) http://rt.com/news/186536-austria-schoolgirls-join-isis/.

[2] Stephen Rex Brown, President Obama admits U.S. ‘underestimated ISIS’ strength – but knocks other superpowers for failure to act (Sep. 28, 2014) http://www.nydailynews.com/news/politics/obama-admits-u-s-underestimated-strength-rise-isis-article-1.1955804.

[3] France Says Carried Out Air Strikes In Iraq September 25 (Sep. 25, 2014) http://www.rferl.org/content/iraq-france/26605701.html.

[4] Scott Neuman, Airstrikes Move to Syria, Target More Than Just ISIS (Sep. 23, 2014) http://www.npr.org/blogs/thetwo-way/2014/09/23/350820165/airstrikes-move-to-syria-target-more-than-just-isis; New airstrikes, new tactic to beat ISIS (Sep. 25, 2014) http://www.cbsnews.com/news/u-s-arab-allies-airstrikes-target-isis-oil-refineries/.

[5] Arwa Damon and Holly Yan, ISIS fighter says U.S. airstikes aren’t effective (Sep. 29, 2014) http://www.cnn.com/2014/09/29/world/meast/isis-fighter-and-defector-interviews/index.html?hpt=hp_t1.

[6] Stephen Castle and Steven Erlanger, Nations Offer Limited Support to Attack on ISIS (Sep. 26, 2014) http://www.nytimes.com/2014/09/27/world/europe/british-parliament-vote-isis-airstrikes.html?_r=2; Michael Pearson, Greg Botelho, and Ben Brumfield, Anti-ISIS coalition grows, but that doesn’t mean victory is near (Sep. 27, 2014) http://www.cnn.com/2014/09/26/world/meast/isis-syria-iraq/index.html.

[7] Lisa Mascaro, Congress mostly approves of airstrikes in Syria so far (Sep. 23, 2014) http://www.latimes.com/nation/politics/politicsnow/la-pn-congress-syria-airstrikes-20140923-story.html (explaining that Congress approved of support of training and equipping moderate Syrian rebels).

[8] Stewart M. Patrick, President Obama’s UN Speech: Defending World Order (Sep. 24, 2014) http://blogs.cfr.org/patrick/2014/09/24/president-obamas-un-speech-defending-world-order/.

[9] France Carried Out Airstrikes, supra note 2.

[10] Id.; France Considers Airstrikes Against ISIS in Syria After Beheading (Sep. 25, 2014)  http://www.nbcnews.com/storyline/isis-terror/france-considers-airstrikes-against-isis-syria-after-beheading-n211221.

[11] Jenny Gross, U.K. Carries Out First Airstrikes in Iraq (Sept. 30, 2014) http://online.wsj.com/articles/u-k-ministry-of-defense-raf-carried-out-its-first-airstrikes-in-iraq-1412097556

[12] Nicholas Winning and Jenny Gross, British Parliament Approves Airstrikes in Iraq Against Islamic State (Sept. 26, 2014) http://online.wsj.com/articles/david-cameron-calls-for-u-k-parliament-to-vote-for-iraq-airstrikes-on-islamic-state-1411725035


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National Security Outweighs Travel Rights: The Confiscation of Passports as a Necessary Response to Increased Terrorist Threats in the U.K.

Natalie Krajinovic

The recent conflicts in Syria and Iraq have had a substantial impact on the domestic policy of foreign nations. It was recently announced that the U.K. has raised its terror level threat to “substantial” following these conflicts.[1]  Specifically, British Prime Minister David Cameron has voiced his intent to enforce new legislation that would make it easier for U.K. authorities to confiscate passports from individuals who are travelling abroad to fight in the conflicts.[2] These temporary powers granted to officials would involve powers to seize the passports of British nationals fighting in the Middle East who are attempting to return to the U.K. to conduct terrorist operations.[3]

Under the Royal Prerogative, U.K. authorities already have the power to confiscate an individual’s passport if it is in the public interest to stop that individual from travelling.[4] Passport confiscations have occurred twenty three (23) times since April 2013 in order to prevent individuals from travelling abroad for alleged terrorist-related or criminal activity.[5] These new measures, however, are aimed specifically at eliminating terrorist threats stemming from extremist groups, such as ISIS. In particular, news of the British national, who is suspected as the member of ISIS responsible for the brutal killings of American journalists, has undoubtedly raised concerns for the U.K. in heightening security standards.[6]

The confiscation of passports, whether indefinite or temporary, has serious implications not only for the individual from whom the passport is confiscated, but also for the global community as a whole. By allowing officials to confiscate passports from individuals suspected of terrorist acts, the U.K. government is sending a clear message that public security outweighs the free movement of individuals. An individual’s ability to exit and re-enter a given country is a deeply respected aspect of belonging to a nationality. To overly control an individual’s ability to travel to foreign nations encroaches upon jurisdictional concerns, particularly when an individual holds dual citizenship.

POLITICS Passport 1

 

It is imperative that the screening process to determine whether an individual has substantial links to an extremist group and poses a terrorist threat be well-developed. There exists the risk that passports may be confiscated without properly substantiating the individual’s terrorist threat. There must be a line drawn between substantiated confiscations for public protection and premature preventative confiscations based on unfounded predictions. Prime Minister Cameron has stated that confiscating passports of suspected terrorists would not apply to British nationals who hold one passport since the confiscation of their passport would render the individual stateless.[7] Therefore this initiative would only apply to British nationals who hold two passports.[8] By limiting passport confiscation to individuals with dual nationality, it appears as though the U.K. government is targeting individuals with close, direct ties to areas suspected of terrorist activity.

These recent developments ultimately demonstrate that possessing a passport requires that individuals respect the value and implications of national citizenship. As a member of the European Union, the U.K. has a distinct awareness of foreign regulation for the prevention of terrorist activity. For example, the European Union’s counter-terrorism strategy specifically aims to “pursue and investigate terrorists, impede planning, travel and communications, [and] cut off access to funding and materials and bring terrorists to justice.”[9] The curtailing of terrorist and criminal acts are extremely valid reasons for the confiscation of passports by U.K. authorities. Such measures are imperative for the control of domestic terrorist acts and for the prevention of the movement of individuals to foreign states for the purpose of terrorist and illegal activity on a global level.

The current crises in Syria and Iraq, and increased threat of terrorist activity resulting from these conflicts, also have serious implications for the United States. While the U.S. has not increased their threat level, White House Press Secretary Josh Earnest has recently stated that American and British officials have been in contact in order to evaluate terrorist threats posed by Western-born foreign fighters in Syria returning home.[10]

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The close monitoring of these threats and any increase in danger will likely result in the U.S. making comparable policy and legal determinations as the U.K. The crux of the current U.K. legislation is aimed at U.K passport confiscation based upon preventing individuals who are attempting to return to the U.K. after having traveled from engaging in terrorist regimes. Under current U.S. law, “a person’s naturalization can be revoked either by civil proceeding or pursuant to a criminal conviction,” and cases typically involve the individual falsifying information to fraudulently procure U.S. citizenship.[11]  It would be reasonable for the U.S. government to strengthen their passport confiscation scheme for the purpose of limiting terrorist activity in the U.S. Public safety certainly trumps a suspected terrorist’s ability to enter the country using a valid passport. The U.S.’ reliance upon passport confiscation should seek to curb potential terrorist threats both domestically and internationally.

Ultimately, the need to preserve public safety outweighs an individual’s capacity to possess a passport. The protectionary measures taken by U.K. authorities are a reasonable and necessary response to terrorist activity. As tensions rise with extremist groups in Islamic regions, it is likely that more nations will rely upon stricter policies that forbid certain individuals connected to extremist groups from entering their borders.

 

Natalie Krajinovic is a University of Baltimore School of Law J.D. candidate (’15), with a concentration in Business Law. She holds an Honors Bachelor of Arts in English and East Asian Studies from the University of Toronto, St. George. Natalie has always had an interest in international law and policy. While studying at the University of Toronto, she was the Editor-in-Chief of the Toronto Globalist, an international relations magazine with chapters across the globe. She currently serves as the President of the International Law Society and as the Comments Editor for the Journal of International Law at the University of Baltimore School of Law. Natalie is also a law clerk for John H. Denick & Associates, P.A., a business law firm in downtown Baltimore.

 

[1] UK terror threat level raised to ‘severe’, BBC (Aug. 29, 2014), http://www.bbc.com/news/uk-28986271.

[2] Id.

[3] Kim Hjelmgaard, British terror suspects may be stripped of passports, USA Today (Sept. 1, 2014), http://www.usatoday.com/story/news/world/2014/09/01/uk-anti-terror-powers-cameron/14921581/.

[4] UK terror threat level raised to ‘severe’, BBC (Aug. 29, 2014), http://www.bbc.com/news/uk-28986271.

[5] Id.

[6] Jessica Elgot, Who Is The Hip Hop Jihadi Abdel-Majed Abdel Bary, Linked With James Foley’s Murder? Here’s 9 Things We Know, The Huffington Post UK (Aug. 24, 2014), http://www.huffingtonpost.co.uk/2014/08/24/abdel-majed-abdel-bary-hip-hop-jihadi-is-james-foley_n_5705043.html.

[7] Kim Hjelmgaard, British terror suspects may be stripped of passports, USA Today (Sept. 1, 2014), http://www.usatoday.com/story/news/world/2014/09/01/uk-anti-terror-powers-cameron/14921581/.

[8] Id.

[9] Crisis & Terrorism, European Commission Home Affairs (May 28, 2014), http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/crisis-and-terrorism/index_en.htm.

[10] Michael Walsh and Rich Shapiro, UK raises threat level to severe, PM blames ‘poisonous ideology of Islamic extremism’ — U.S. level stays same, New York Daily News (Aug. 29, 2014), http://www.nydailynews.com/news/world/britain-raises-threat-level-severe-terrorist-attack-highly-article-1.1921283.

[11] USCIS Policy Manual, U.S. Citizenship and Immigration Services (Aug. 26, 2014), http://www.uscis.gov/policymanual/HTML/PolicyManual-Volume12-PartL-Chapter1.html#text:note-ID0EMP2Q.