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  • C O'Regan, 'The Universal Declaration of Human rights at 70: A time to look back, and a time to look forward' (2018) 6 Journal of the British Academy
    Anxiety about the future of democracy and human rights is widespread. To provide a framework within which to assess that anxiety, this article explores the history of the Universal Declaration of Human Rights, which was adopted seventy years ago by the General Assembly. The article outlines the traditional, rather whiggish, account of that history, which asserts that the project of proclaiming and protecting human rights in international law has seen steady improvement and expansion since 1948. The article argues that this account is at least partly misleading and that the history of the international human rights project since 1948 has been more complex, contingent and uneven. The article concludes by suggesting that recognising that the history of the international human rights project has been beset by difficulties and uncertainties may make it easier both to assess—and respond to—contemporary challenges.
    ISBN: 2052-7217 Anxiety about the future of democracy and human rights is widespread. To provide a framework within which to assess that anxiety, this article explores the history of the Universal Declaration of Human Rights, which was adopted seventy years ago
  • S Atrey, 'Women’s Human Rights: From Progress to Transformation, An Intersectional Response to Martha Nussbaum' (2018) Human Rights Quarterly 859
  • S Theil, 'An Aversion to Weimar: German Constitutional Hesitance on Dissolving the Bundestag' (2017) UK Constitutional Law Blog
    Now that the next German government is unlikely to be formed, Germany is left with two equally unattractive options: a minority government under CDU/CSU leadership or fresh elections following dissolution of the Bundestag. The procedure for both is complicated under the German constitution, and this post will seek to shed some light on the constitutional hurdles. There are broadly speaking two scenarios in which the Bundestag may be dissolved and fresh elections sought, as well as a minority government formed.
  • S Theil, 'Is the ‘living instrument’ approach of the European Court of Human Rights compatible with the ECHR and International Law?' (2017) 23 European Public Law 587
    The article offers a rebuttal of prominent criticisms directed against the ‘living instrument’ interpretative approach of the European Court of Human Rights. The article initially introduces the basic application of the interpretative approach as adopted by the Court and then considers whether it is compatible with the Convention and broader International Law. The article argues that the Preamble, subsequent State practice and preparatory work offer inconclusive evidence to both critics and supporters of the ‘living instrument’. However, the interpretative approach can claim democratic endorsement through States, while arguments based on the necessity to consider domestic interpretations of the European Convention on Human Rights (ECHR) cannot support a restrictive interpretation as a matter of International Law. The ‘living instrument’ further appears compatible in the context of state sovereignty in International Law, and broader institutional concerns with the role of judges in the adjudication of rights. Ultimately, the ‘living instrument’ interpretative approach therefore appears legal under the Convention and relevant International Law.
    ISBN: 1354-3725
  • S Theil, 'A vote of confidence for the German democratic order: the German Federal Constitutional Court ruling on the application to ban the National Democratic Party' (2017) U.K. Constitutional Law Blog
    On 17 January 2017, the German Federal Constitutional Court (FCC) ruled on the application of the German Federal Council to find that the far right National Democratic Party of Germany (NPD) unconstitutional pursuant to Article 21 para. 2 of the German Basic Law. This constituted the second such party ban application against the NPD after the initial attempt in 2001 had failed on procedural grounds, chiefly due to the involvement of domestic intelligence agency informants in the higher echelons of the party. Having been assured that these informants were no longer operating, the most recent application passed the admissibility hurdle, but was ultimately not successful on the substance: the FCC found that while the NPD was clearly determined to undermine and abolish key features of the free democratic basic order of Germany, its actions had such little prospect of success that it could not be deemed unconstitutional.
  • S Theil, 'Neither full independence, nor perfect union: Constitutionalism as a Third Way for the future of Scotland' (2017) LSE British Politics and Policy Blog
    With Scotland now to seek a second independence referendum, the debate is framed around two extreme options: independence or union. Stefan Theil writes that a third option is available if both sides are prepared to make concessions. He explains how constitutionalism, paired with a federal settlement, could come to offer a viable long-term solution for Scotland.
  • C O'Regan, 'A Tribute to Justice Dikgang Moseneke' [2017] Acta Juridica 273
    ISBN: 0065-1346
  • Malcolm Evans, Javaid Rehman, Fabio Petito and Thiago Alves Pinto, Article 18: From Rhetoric to Reality (All Party Parliamentary Group for International Freedom of Religion or Belief 2017)
  • C O'Regan, 'Fidelity to Law: How Bram Fischer illuminates a perennial debate' (2017) Oxford University Commonwealth Law Journal 1
  • S Atrey, 'Fifty Years On: The Curious Case of Intersectional Discrimination in ICCPR' (2017) 35 Nordic Journal of Human Rights 220
  • TAO Endicott, 'Lawful Power' (2017) 15 New Zealand Journal of Public and International Law 1
  • TAO Endicott, 'Lord Reed's Dissent in Gina Miller's Case and the Principles of our Constitution' (2017) 8 UK Supreme Court Yearbook 259
    Lord Reed’s convincing dissent in R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 shows that the majority decision belongs to a long tradition of landmarks in constitutional adjudication (including the Case of Proclamations (1611) 12 Co Rep 74) for which there was no legal authority. I argue that such decisions are best understood as exercises of a judicial constituent power – that is, a power to make new constitutional rules. And then, the problem with the majority reasons in Miller is not that there was no legal authority for what the Court decided; it is that the novel decision depended on the idea that there was a constitutional need, in the interests of responsible government, for the judges to require legislation to authorize the triggering of art 50 of the Treaty of European Union. As Lord Reed implied and as Lord Carnwath explained, there was no such need.
    ISBN: 9781911250166
  • S Atrey, 'Redefining Frontiers of EU Discrimination Law' [2017] Public Law 185 [Case Note]
  • L Lazarus, 'The Right to Security' in (ed), Max Planck Encyclopedia of Comparative Constitutional Law (Oxford University Press 2017)
  • TAO Endicott and P Oliver, 'The Role of Theory in Canadian Constitutional Law' in N Des Rosiers, P Macklem, P Oliver (ed), The Oxford Handbook of the Canadian Constitution (Oxford University Press 2017) (forthcoming)
    Constitutional theory has been institutionalized in distinctive ways in Canada. The Constitution Act, 1867 (formerly the British North America Act, 1867) created unique opportunities and imperatives for political leaders, advocates, judges, scholars, law students and others to articulate their understanding of Confederation. And even while the country chose a parliamentary form of government very different from American republicanism, Confederation generated a set of entrenched rules defining the powers of the federal and provincial governments, which would give judges a hand in the law of the Constitution that judges had not had in the United Kingdom. Moreover, Canadian federalism generated an extraordinary statutory provision for references (i.e., requests for advisory opinions) to the Supreme Court of Canada on matters of law and fact, including (as it would turn out) matters of convention. The judges’ reasons for decision involve them in the theoretical task of articulating the basis of the Constitution. The Constitution Act, 1982 further enhanced the judges’ role as theorists of the Constitution, through their role in the interpretation and elaboration of the Charter of Rights and Freedoms. We aim to illustrate ways in which both express theorizing and inarticulate theoretical assumptions have shaped Canadian constitutional law, and we argue that good theorizing is essential for the sound development of the law and practice of the Constitution. Keywords: Canadian Constitution, constitutional theory, parliamentary government, federalism
  • TAO Endicott, 'The Rule of Law and Online Dispute Resolution' in Alessia Fachechi, Timothy Endicott, and Antonio Estella de Noriega (eds), Online Dispute Resolution: virtud cívica digital, democracia y derecho (Fundación Universitaria San Pablo CEU 2017)
    There is a tension in the rule of law between the need for dispute resolution, and the need for conformity to law. The tension arises because conformity to law can require cumbersome processes that stand in the way of dispute resolution. I address the capacity of Online Dispute Resolution (ODR) to advance the rule of law by providing resolution of disputes that cannot effectively be resolved through the judicial paradigm of dispute resolution. And I point out pathologies of ODR, that can lead to one of the two antitheses of the rule of law: anarchy, or the arbitrary exercise of power. I conclude that ODR is not necessarily contrary to the rule of law, and may be a huge advance in the rule of law. But its potential failings are potential failures in the rule of law.
    ISBN: 8416477701
  • S Atrey, 'Through the Looking Glass of Intersectionality: Making Sense of Indian Discrimination Jurisprudence under Article 15' (2017) 16 Equal Rights Review 160
  • S Theil, 'Introducing the Environmental Minimum' (2016) University of Cambridge Faculty of Law Research Paper
    This paper will present the core argument in favour of establishing the environmental minimum as a framework for the relationship between the protection of the environment and human rights. In simplified terms, the environmental minimum seeks to protect those basic environmental conditions that are necessary for the meaningful enjoyment of human rights, chiefly by providing a framework that fosters an active engagement with environmental degradation, its regulation and enforcement.
  • S Theil, 'A union of states, constitutions, administrations and judiciaries: some initial thoughts on the OMT ruling of the German Constitutional Court' (2016) U.K. Constitutional Law Blog
    In the midst of the all-consuming Brexit Referendum Debate, and the unfortunate vote by the United Kingdom to Leave the EU, one might be forgiven for having overlooked this particular piece of European integration litigation. If nothing else, this recent decision by the German Federal Constitutional Court (FCC) demonstrates that even in a difficult constitutional relationship, the spirit of cooperation and pragmatism can triumph over ideological differences. In that sense, the FCC has long been a sturdy pillar in the European constitutional order, one that the remaining member states and the EU can rely on for stability in the uncertain months and years that are sure to follow the invocation of Article 50 TEU.
  • TAO Endicott, '"This Ancient, Secretive Royal Prerogative"' (2016) United Kingdom Constitutional Law Blog United Kingdom Constitutional Law Blog
    This note sketches reasons of constitutional principle for the Crown to have the authority that it has in the UK constitution in 2016. Those reasons undermine the interpretation of the European Communities Act 1972 on which the Divisional Court’s decision depended in R (on the application of Miller) v Secretary of State for Exiting the European Union [2016] EWHC 276.