The Advocate is an online - WordPress.com Advocate is an online publication produced by the Queen Mary Pro Bono Society. We are a team of passionate and dedicated students who seek

The Advocate is an online

publication produced by

the Queen Mary Pro Bono

Society. We are a team of

passionate and dedicated

students who seek to

share the voices of our

fellow students.

We aim to encourage

students to engage with

current legal affairs and

issues and express their

opinions on them.

We hope you enjoy

reading our publications.

The failure of the Female Genital Mutilation Act 2003 in protecting vulnerable

young girls in the UK

Zoe Chen p.3

The Distant Future: Robot Lawyers are coming

Sarah Asher p.5

The rise of Neuroethology

Daryl Old p.8

The Balance Between State Immunity and Accountability for Serious Human

Rights Violations

Marlene Ramon Hernandez p.10

Constitutionalism: An Islamic Perspective

Balqis Azhar p.14

Unelected, Unreflective and Undemocratic: Is the world’s second largest

legislative body in need of serious reform?

Alvi Sattar p.18

The Transformation of the British Party System: Building Blocks for Electoral

Reform in the House of Commons

Marta Del Barrio Gomez p.21

New Members in the United Nations Security Council

Daryl Old p.28

Welcome to Paradise City

Residents include Bono, Prince Charles and Her Majesty the Queen

Sarah Asher p.30

THE ADVOCATE NOVEMBER 2017

*

Views expressed in this publication are expressed purely in a personal capacity. The author(s) of each article appearing in this publication is/are solely responsible for the content thereof; the publication of an article shall not constitute or be deemed to constitute any representation by the editors of The Advocate that the data presented therein are correct or sufficient to support the conclusions reached. Authors are responsible for their citing of sources and the accuracy of their references. The editors cannot be held responsible for any lacks or possible violations of third parties’ rights.

Our Team:

Maria Carolina Centeno

LLB Law and Politics

Chief Editor

Frida P. Hoffmann LLB English and European Law

Sub-Editor and Writer

Marta Del Barrio Gomez LLB Law and Politics

Layout Editor

Writer

Alvi Sattar LLB Senior Status

Writer

Daryl Old LLB English and European Law

Writer

Marlene Ramon Hernandez LLB Law and Politics

Writer

Sarah Asher LLB with Global Law

Writer


QUEEN MARY PRO BONO SOCIETY Page 3

The Failure of the Female

Genital Mutilation Act 2003 in

Protecting Vulnerable Young

Girls

Zoe Chen

Female Genital Mutilation (FGM) is a

global violation of human rights of women

and children. According to the World

Health Organisation, FGM is defined as ‘all

procedures that involve partial or total

removal of the external female genitalia,

or other injury to the female genital

organs for non-medical reasons.’ The

procedure dates back to the ancient times

and was practised regularly in England

until 1860’s, today it affects more than

200 million girls and women, and is

practised in 30 countries in Africa, the

Middle East and Asia1. The UN has

estimated that 3 million girls are cut

annually in Africa alone.

The practice of FGM represents the

archaic and deep-rooted gender

inequality that still permeates the gender

roles on a global scale. The practice is

performed due to an array of social and

cultural reasons, this includes the belief

that it will reduce a women’s sexual

pleasure, and is a necessary requirement

in preparing a female for marriage.

Over the years, however, there has been

an international effort to prevent such

practices from occurring. The UN

1 Female Genital Mutilation/Cutting: A Global

Concern, UNICEF, New York, 2016

unanimously voted to work towards the

eradication of FGM on a global scale. It’s a

violation of human rights that implicates

female’s health, security, emotional and

physical integrity. Some girls suffer

tremendous pain or even death, and

childbirth is made even more difficult due

to the scar tissue that forms after the

cutting.

Further development includes the passing

of laws against FGM in 15 African

countries. Guinea had passed a law in the

1960s which prohibits FGM and under

Article 265 of the Penal Code, the penalty

for FGM would be a life sentence at hard

labour. However, despite the passing of

laws protecting females from cutting, no

case relating to FGM has ever gone to

court, and 97 percent of women and girls

aged 15 to 49 years in Guinea have

undergone cutting2. The cutting is seen as

a rite of passage, and it appears that an

international denunciation against such a

tradition had only seemed to strengthen

the practice.

FGM in the UK

Whilst FGM is a cultural practice

dominating Africa and parts of Asia, it also

occurs in the UK. Due to the lax laws

governing FGM in the UK, the rate of FGM

has increased. In England and Wales,

more than 24,000 girls are at risk and

more than 66,000 women are living with

2 Female Genital Mutilation/Cutting: A statistical

overview of exploration of the dynamics of change, New York, July 2013



the consequences of FGM3. Although

female mutilation has been prohibited in

the UK since 1985 when the Prohibition of

Female Circumcision Act was introduced,

migrants from practising countries still

perform the cutting here by taking their

female counterparts from their home

countries to the UK for it to be performed.

The Female Genital Mutilation Act 2003

repealed and re-enacted the provisions

set out in the 1985 Act. Changes include

14 years imprisonment as the maximum

penalty for FGM4 and made it a criminal

offence for UK nationals to perform the

practice overseas or take a UK national

overseas to have the procedure

performed.

Moreover, section 73 of the Serious Crime

Act 2015 also amended the Female

Genital Mutilation Act to include FGM

protection orders. Breach of an FGM

protection order is a criminal offence

carrying a sentence of up to 5 years in

prison5.

Why have domestic laws governing FGM

failed?

The survivors of FGM are most commonly

disempowered and vulnerable girls with

little knowledge, resources or confidence

to make a formal complaint to the police.

Mutilated and groomed when young, they

may fear rejection from their family

3 Alison Macfarlane, Prevalence of Female Genital

Mutilation in England and Wales: National and local estimates, 2015, 5 4 Female Genital Mutilation Act 2003, s.5(1)(a)

5 Serious Crime Act 2015, s.75(4)(5)

and/or communities if they were to speak

out. The mutilated children are also

unlikely to testify against parents or

relatives for fear of losing their family or

being rejected from their community.

It would be difficult to obtain witnesses to

testify against the defendant, these are

generally family members who had

witnessed the cutting and believe that

FGM is beneficial to the family’s social and

economic prospects. It they were to

testify, there is also a possibility of being

exiled and ostracised from their

community.

Another implication would be responsible

adults having no criminal propensity; they

are more likely to be caring parents with

no indication that they have the capacity

to commit a serious offence. This would

be difficult to build a case against the

responsible adults when there is a lack of

circumstantial evidence.

Solutions: what can we do about this?

The most effective solution to reduce the

rate of FGM is through grass-root projects

and education. By initiating dialogue

among communities who practice FGM, it

would break the taboo by discussing

cutting but also raising awareness of the

health implications that ensue from the

cutting.

Instead of imposing the western

denunciation on the practice (which could

lead to a defensive backlash in order to

preserve a deep-rooted tradition),

initiatives could be introduced for the sole



purpose of educating and informing

communities of the health risks involved

with FGM. The females are able to

preserve their autonomy and make a well-

informed decision whilst having a non-

judgemental discussion of human right

and health issues.

Another solution to encourage survivors

to make a formal complaint would be to

provide specialist support services that

cater to the girl’s medical, physical and

psychological needs. This may encourage

young female survivors to come forward,

knowing there are resources to support

them. There should also be procedures

set in place in order to protect the

witnesses (e.g. pre-recorded testimony

and witness anonymity) so they can testify

without the fear of community backlash

and ostracism.

In regards to prosecuting individuals

and/or communities that perform FGM in

the UK, the CPS has explored whether it is

possible to prosecute the responsible

adults for child abuse under other

legislation, specifically section 5 Domestic

Violence, Crime and Victims Act 2004. This

would create an offence if the defendant

caused or allowed a child or vulnerable

person to suffer serious physical injury or

die.

Granted, there is legislation in the UK

prohibiting FGM but there have also been

no convictions since its enforcement.

Whilst the UK recognises the perverse

practice of FGM happening in its country,

it must take proactive steps to eliminate

FGM. Both globally and nationally, there is

still great progress that needs to be made

in order to pave way for a world where

female sexual autonomy can be freely

exercised. The UK must honour its

international obligation. The UN had

unanimously voted to work towards its

eradication and the UK must follow its

international duties and take the

necessary steps to succeed in this aim to

empower and protect women.

The Distant Future

The Robot Lawyers are coming

Sarah Asher

Introduction – ‘Do the Robot’

As 21st century students, we enjoy the

benefits of a society improved by

technological advancements. Our notes

are taken on laptops, our lectures are

recorded, and even our essays can be

submitted from the safety of our

bedrooms. However, with these

advancements comes the inevitable

question about how far we go to improve

efficiency? Law firms are the latest to join

the ranks of the industries looking to

improve their productivity by introducing

artificial intelligence; an introduction that

on the surface appears to risk the tasks

that form the fundamentals of an aspiring

lawyer’s day. As the distant future now

becomes a reality, annual Christmas

parties may become even more awkward



when exclamations of ‘do the robot’ are

not just regarding dance moves.

The Development of AI – ‘From Shakey to

Siri’

The integration of services and tools

deemed as artificial intelligence into

society has been realised through the

contributions of a variety of different

people and influences over hundreds of

years. Early examples of replacing human

intelligence by that of machines or

artificial systems include things like the

first calculating machine in as early as

1642, and later Alan Turing’s ‘Turing Test’

in 1950. Recent developments have only

been more exponential in growth with the

establishment of the internet and more

sophisticated computer systems. The

obvious advantage of artificial intelligence

systems is that they are theoretically

capable of functioning and performing

tasks without reliance on a human

counter-part. The implications of this for

any industry is massive.

The first successful commercial

intelligence system, known as RI and

which was used by the Digital Equipment

Corporation, was estimated to have saved

the company $40m USD a year by 1986.

These achievements are still relatively

tame regarding today’s standards, where

AI is used in Billion-dollar industries, such

as Google and Apple, who have and

continue to introduce functions in all their

products that incorporate elements of

artificial intelligence. Just as Siri! The vice-

president of Google’s engineering and

artificial intelligence sectors, Anna

Patterson, has stated that: ‘AI is turning

science fiction into non-fiction, but some

of its most meaningful applications

haven’t been imagined yet.’ Therefore

suggesting, we are only just beginning to

see the benefits of a society that uses AI.

How Firms are using Artificial Intelligence

The science fiction representations of AI

are not all positive, however. One of the

film industries favourite tropes is to

imagine a future culture overly reliant on

computers to the detriment of skill-

networks, or the dramatic representation

of a murderous robotic uprising. But the

reality is not so bleak. AI provides an

effective boost to productivity, and

therefore theoretically improves a

company’s capacity to earn. Hence, Law

firms are now taking advantage of legal

AIs to insure their employees are using

these innovative techniques to approach

law. A recent competition was held in

London in October, which saw 100

lawyers face off against a relatively new

program called Case Cruncher Alpha. The

aim of the competition was to see which

of the two parties was more accurate in

determining the results of PPI claim cases

based off only a handful of facts. The

computer system won by a majority of an

86.6% accuracy rate compared to 66.3%

for the human lawyers. The results of the

competition show an interesting example

of one of technologies Law firms may be

inclined to use as more services become

available, and tailored to the profession.



One such program is that used by

Slaughter & May, is ‘Luminance’. The AI is

tasked with reading and understating legal

documents, namely contracts, to find

significant information and any anomalies.

The astounding factor of this technology is

that it is perfectly capable of being used

without any prior customisation to the

firm, and effectively opens the time of the

lawyer to focus on other important tasks.

This approach is contrary to how law firms

have run their services in the past, with

most firms running a model of lower level

employees/trainee lawyers being

responsible with these types of routine

tasks, and only a few higher partners

overseeing the whole outfit. Does this

then risk the careers of aspiring lawyers,

who are effectively seeing their workload

and potential shrunk by a computer?

Law Students and Trainees: ‘Meet

Eugene Goostman’

A report published by the Deloitte has

stated that at least 114,000 jobs in the

legal sector will be automated in the next

20 years. This is an alarming fact for any

student of law, graduate and future

trainee, who is already aware of the

limited number of positions available in

top firms. Professor Richard Susskind,

author of ‘Tomorrows Lawyers’, speaking

at the Law Society’s annual law

management conference in 2016 believes

that law students need to be taking

realistic approaches to their studies and

consider undertaking the law, not as an

ode to television favourites such Suits, but

rather attempt to get ahead now by

adapting to artificial intelligence: ‘If you

are fixed on how we are working, then

don’t go into law. Start preparing now.

We as a profession have about five years

to reinvent ourselves to move from being

world-class legal advisers to world-class

legal technologists.’

The other avenue that is being explored

by aspiring law students and lawyers alike

is to join the tech start-ups themselves.

This is growing trend and one that is

exemplified in the masterminds of Case

Cruncher Alpha, who are four law

students from Cambridge University. By

getting ahead of the trend, and being a

part of the establishment of AI in law,

those that wish to have a career in law

can make themselves invaluable in an

industry that is always looking for ways to

promote innovation and prove they can

perform for clients.

Conclusion

The role of the lawyer in the modern

setting is changing. Law firms are

introducing new technologies to develop

their practices to stay relevant in a

century that relies on the ability to have

information at the touch of a button. The

fear that these artificial systems and

technologies will replace the everyday

lawyer is real, and as seen in other

industries i.e. media, construction and

manufacturing etc, a concept that is not

unheard of. As the law industry reinvents

itself, it may be time to start thinking how

its students can also do so, as it is no

longer viable to depend on the traditional



routine of legal work. Instead, it is up to

the future of law, its students, to shape

how this path will look in the long-run.

Bibliography

Dean Sonderegger, ‘Artificial Intelligence:

An Historic Perspective’ (Above the Law,

24 October 2017)

<https://abovethelaw.com/2017/10/artifi

cial-intelligence-an-historic-perspective/ >

accessed 8 November 2017

Rory Cellan-Jones, ‘The robot layers are

here – and they are winning.’ The BBC

News (London, 1 November 2017)

<http://www.bbc.co.uk/news/technology-

41829534> accessed 8 November 2017

John Hyde, ‘Susskind: ‘you have five years

to reinvent the legal profession.’ The Law

Society Gazette (27 April 2016)

<https://www.lawgazette.co.uk/law/sussk

ind-you-have-five-years-to-reinvent-the-

legal-profession/5054990.article>

accessed 9 November 2017

Google.ai <https://ai.google/> accessed 8

November 2017

BBC, ‘AI: 15 key moments in the story of

artificial intelligence.’

<http://www.bbc.co.uk/timelines/zq376fr

> accessed 8 November

Deloitte, ‘The case for disruptive

technology in the legal profession.’

<https://www2.deloitte.com/uk/en/pages

/financial-advisory/articles/the-case-for-

disruptive-technology-in-the-legal-

profession.html> accessed 9 November

2017

The Rise of Neuroethology

Daryl Old

With technology ever evolving, it is crucial

that legal systems of the world do the

same. A particular emphasis should be put

on cybercrime. A 2016 study by Europol

predicts that by 2019, the cost of

cybercrime will be $2 trillion USD. This

puts profound burdens on both public and

private actors, with cybercrime being up

38% than the year before. The Global Risk

Report has also stated this importance by

including cyber-attacks in their top five

global risks.

Technology has the ability to greatly

improve our lives and can be used for an

untold number of human difficulties.

However, with this great power comes

grave danger. Assistive robots, of which

there are more than 500 systems6 with

direct applicability to the elderly,

especially in relation to dementia, all have

the ability to be hacked. This poses

serious ethical and legal problems, as

despite their clear use for good these

devices, upon being hacked, could have

serious consequences for their user, due

to multiple vulnerabilities they possess

such as weak frameworks and

authentication issues. Other issues arise

vis-à-vis wearable devices, such as

smartwatches. Many sources suggest that

6 Lenca et al. 2017, J Alzheimers Dis

https://abovethelaw.com/2017/10/artificial-intelligence-an-historic-perspective/

https://abovethelaw.com/2017/10/artificial-intelligence-an-historic-perspective/

http://www.bbc.co.uk/news/technology-41829534

http://www.bbc.co.uk/news/technology-41829534

https://www.lawgazette.co.uk/law/susskind-you-have-five-years-to-reinvent-the-legal-profession/5054990.article



https://ai.google/

http://www.bbc.co.uk/timelines/zq376fr

http://www.bbc.co.uk/timelines/zq376fr

https://www2.deloitte.com/uk/en/pages/financial-advisory/articles/the-case-for-disruptive-technology-in-the-legal-profession.html






these could be hacked for things such as

the location data of the user.

The rise of pervasive technologies will also

bring more problems for their users. For

example, electroencephalography devices,

or EEG’s. These brain-computer devices

pick up electrical signals from the brain

and convert them into raw data. Despite

this type of device being used in the

medical landscape for years, more and

more are being produced for the

consumer market, potentially multiplying

the risks. This type of device produces its

own unique problems such as “brain

spyware” issues, which allows third

parties to extract raw data directly from

EEG recordings and use it to guess things

such as the 1st digit of the victim’s PIN

code, with great accuracy7.

“Neurohacking” is also possible against

the device, whereby a third-party gains

access to the user’s neural information,

allowing them to manipulate or even

delete thoughts.

Despite much of this sounding futuristic

and inviable, much of this technology

exists today and are vulnerable to

hacking, with risks only increasing over

time. This is why legislators must act on

these risks now before it is too late. It

must, however, be stressed that it is not

all bad. These technologies can and must

be used for good. For example, “neuro-

marketing” enables companies to find

effective marketing strategies by allowing

7 Martinovic et al (2012) found that the chance of

success compared to random guessing of the first digit of the PIN code was 15-40%.

users to simply view different campaigns

and by recording their response to these,

eliminate the need to ask questions, on

which they might provide invalid results. It

can also be used to enhance national

security, by being able to effectively

interrogate suspected criminals or

terrorists, without the risk of endangering

human rights (such as the right to liberty),

by not detaining those which are clearly

innocent.

Therefore, there is obviously a need for

the law to regulate positive neuro-

technological uses and those which are

malicious. The implications of these

devices understandably raise legal

questions as to privacy, whereby they

pose an unprecedented degree of control

over thoughts, intentions, memories and

moods. Also to human autonomy, as

limited control of brain signals changes

the standard of consent, having various

implications for both criminal and non-

criminal activities such as sporting,

contractual engagement (waiver forms)

and sexual activity, meaning that

traditional principles do not apply.

The question then arises as to how we can

prevent these abuses. The first obvious

point to note is that the technologies

must be regulated in their design to

contain certain safeguards. Such

safeguards may include but are not

limited to “anonymizers”, which ensure

that all data that leaves the headset is

anonymous and filtering systems which,

instead of harvesting raw data, only

harvest that which is necessary for the



specific function. Criminal and civil law

must also play a part, redefining the

conditions for ownership of one’s own

brain data, and creating sanctions for

those who abuse it. Ideally, this would

need global co-operation from

governments and international

organisations across the world, as unlike

most traditional crimes, this can be done

remotely from any territory, potentially

depriving the government whose

nationals who have been targeted, of

jurisdiction.

Then there is the issue of human rights.

Do the current human rights laid down in

most constitutions and international

conventions provide adequate protection

for these abuses or do new rights need to

be created? It is clear that, for example,

the right to privacy could be interpreted

to accommodate data of the brain, but

are these enough to ensure effective

protection. New rights such as the “right

to mental privacy” derived from, but

distinct from, the traditional right to

privacy would allow protection from

unconsented intrusions from third parties

and the unauthorised collection of brain

data. However, then we must ask whether

this would be an absolute or a relative

right? Paul Wolpe thinks the former,

submitting that “*the+ skull should be

designated as a domain of absolute

privacy” and that “we should not permit

*intrusion+ with a court order” however it

is clear that if we are going to allow the

intrusion of brain data, we must too put it

to good use. Other rights such as the

“right to mental integrity” and the “right

to psychological continuity”, meaning the

protection from unconsented personality

changes, could also be possible candidates

for these new rights, but it must not be

forgotten that we then risk the possibility

of rights inflation.

Legal thought in this area is clearly more

important than ever, and this brings with

it a pressing need for governments and

legislators to engage in the debate as well.

With the internet already reducing our

privacy in an unprecedented manner, the

mind truly is the last bastion of freedom.

It is therefore of paramount importance

to realise the advantage technology

brings, but also to do so without

compromising our privacy as autonomous

human beings.

The Balance Between State

Immunity and Accountability

for Serious Human Rights

Violations

Marlene Ramon Hernandez

This will explore state immunity in civil

proceedings and state official immunity in

criminal proceedings in order to

determine whether an appropriate

balance is struck between immunity and

accountability for serious human rights

violations, namely jus cogens norms. The

view supported here is that an

appropriate balance is not maintained

where state immunity is applicable, yet



the balance is achieved regarding state

official immunity. State immunity

precludes effective access to justice and

limits redress, thus severely limiting

accountability. In state official immunity,

ratione personae and ratione materiae

work differently; this achieves a balance

as the latter is not entitled to immunity,

thereby compensating for the former’s

immunity. Throughout the analysis,

arguments pertaining to both sides shall

be presented.

Proponents of State immunity argue that

immunity and violation jus cogens norms

do not conflict as the former addresses

the procedural whereas the latter refers

to the substantive. This was echoed in

Jurisdictional Immunities of the State

(Germany v Italy), (hereinafter G v I);

‘…whether a State is entitled to immunity

before the courts of another State is a

question entirely separate from whether

the international responsibility of that

State is engaged…’. This means that

declaring immunity does not render the

act lawful, rather, ‘it is a declaration by

the judicial authority that it is not the

appropriate forum for pronouncing on the

legality or illegality of the act’. In practice

though, declaring immunity incites

legality.

Jus cogens norms represent certain values

and interests common to all. They affect

the international community and the

violation of these norms threatens peace,

security and world order. This justifies

their peremptory status in international

law. Immunity undermines such superior

laws, and the resulting ethical

consequences render the procedural-

substantive dissection artificial.

Alternatively, it could be said that the

European Court of Human Rights (ECtHR)

has attempted to strike an appropriate

balance by considering the pursuance of a

legitimate aim and proportionality to

justify the restriction on the right of

access to justice. This was seen in the Al-

Adsani case -where justice was poorly

administered at a domestic level. This

departs from the scientific approach

employed by the ICJ in G v I which was

heavily oriented towards the discovery of

state practice. Conclusively, the ECtHR

found for the State, effectively leading to

a ‘blanket application of immunity’. The

Court weighed up the competing rights

poorly and applied very concrete concepts

to International Relations, which is

inherently vague. The inappropriate

method and poor analysis have set

precedent potentially detrimental to

future victims.

It has been argued that the G v I case has

ultimately excluded the possibility of

denying State immunity in civil

proceedings. This essay heavily criticises

the Court’s judgement for being anti-

progressive and employing a stringent

scientific approach. By focusing on state

practice, the court has unnecessarily tied

its hands. As Judge Cançado Trindade

asserts in his dissenting opinion, the Court

did not look beyond the law, namely the

moral and ethical consequences which

necessarily arise in these disputes. He

claims that State immunities cannot be



observed in a vacuum as human rights are

inevitably part of the equation.

Consequently, by limiting itself to the law,

the court has denied justice to victims and

blocked potential progress in human

rights law.

Although the Court in G v I assured that

immunity did not exclude the right to

make reparations, the opportunity for

redress is limited. Firstly, Germany was

refusing to make reparations, highlighting

the general unwillingness for countries to

provide alternative forms redress.

Secondly, in cases where reparations are

made, it is doubtful that this will provide a

satisfactory remedy for those who have,

for instance, been subject to torture. This

places those involved in a perpetual state

of victimhood. Alternative forms of

redress could potentially endorse an

appropriate balance between immunity

and accountability. The State is meant to

look after individuals; what is seen

instead, is States using their power to

overcome responsibility. This underlines

the power-struggle embedded in

international law, which ultimately

questions its usefulness in asserting

justice.

The essay shall now turn to State Official

immunity. This type of immunity is

separated into ratione personae and

ratione materiae. The former applies to

immunity attached to certain state

officials as a result of their office or status.

This is limited to senior officials such as

Heads of State. The latter presents a

weaker form of immunity, which operates

during acts performed by state officials in

the exercise of their functions. Therefore,

once their official functions cease,

immunity is revoked from them.

The Pinochet case confirmed that ratione

materiae immunity is rejected in criminal

proceedings concerning serious violations

of human rights. The view taken here is

that the principle deriving from Pinochet

partly compensates for conceding ratione

personae immunity.

In Pinochet, the former leader of Chile was

prosecuted for breaching the 1984 United

Nations Convention against Torture and

Other Cruel, Inhuman or Degrading

Treatment. Not prosecuting him would

have negated the object and purpose of

the Treaty, which is not permitted under

international law. There was thus a duty

to prosecute. This line of reasoning can be

transmitted to future individuals violating

jus cogens norms. Additionally, Arthur

Watts submitted that it would be

‘unrealistic and offensive to common

notions of justice’ to attribute

responsibility to the State and not the

individual who ordered it. This is certainly

true as Pinochet was a dictator seeking to

eliminate anyone threatening his ideology

and so, must be treated separately from

the State. Conclusively, a solid argument is

provided for international law striking an

appropriate balance between state official

immunity and accountability.

The rationale for ratione personae

immunity favours its support. The



particular role Senior Officials play in

representing the state abroad, whilst

carrying out important affairs requires

immunity. It permits them to exercise

international relations smoothly.

Moreover, our increasingly globalised

world demands such immunity as

effective communication between States

is endorsed, leading to a system of

peaceful cooperation and co-existence.

The lack of immunity could deter officials

from going abroad and require them to be

a lot more cautious. This would be

counterproductive. It could be said that

the “free-pass” they are given could lead

to abuse on their behalf, yet it is unlikely

this would unfold as it would harm their

reputation.

Issues arising in this context concern the

abandonment or halting of proceedings

due to lack of evidence, death, or absence

of the accused. This shows genuine

complications in engaging in proceedings

from a logistic point of view. When the

backbone of a successful claim is absent,

prosecuting becomes practically

impossible. This points to an

inappropriate balance. Another persisting

problem is the general reluctance to

prosecute ratione materiae officials. For

instance, in France, prosecutors omitted

from initiating proceedings against US

Secretary of Defense Donald Rumsfeld on

charges of torture. Germany also halted

prosecutions towards Rumsfeld and the

former Chinese president Jiang Zemin.

In practice, most prosecutions have

tended to target junior officials. Again a

power-struggle is identified, this time

between high-ranking officials and those

with a more junior status.

In light of these difficulties, it is perhaps

more appropriate to suggest that the

dichotomy is something we must settle

for. The threshold of accountability may

be relatively weak, yet it is better than

having no form of accountability at all.

To conclude, the conferral of State

immunity undermines jus cogens norms

and precludes the victim’s access to

justice. Despite efforts by the ECtHR to

weigh up the interests of both sides, its

application of concrete terms to

international relations has been

detrimental to those who have endured

atrocities. The G v I case confirmed that

the ICJ cannot be relied upon to rule in

favour of jus cogens norms. This illustrates

an anti-progressive attitude in the Court,

and at an international level for it is a

position that most States endorse.

Accordingly, the international law fails to

strike an appropriate balance in this

domain. Regarding state official immunity,

international law provides acceptable

means of achieving a balance, through

strong rationales and logical reasoning.

Nonetheless, the problems encountered

point to a weak form of accountability and

an imbalance when it comes to

prosecuting. Finally, international law

operates in a way that favours the strong

over the weak, this is an underlying

problem with state and state official

immunity. International law is

characterised as a forum for cooperation,



but in reality, the powerful will always

win.

Bibliography

CASES

Al-Adsani v United Kingdom [2002] 34

EHRR 273

Jurisdictional Immunities of the State

(Germany v Italy) [2012] ICGJ 434, para 95

Jones v Saudi Arabia [2006] UKHL 26, para

24

R v Bow Street Metropolitan Stipendiary

Magistrate, Ex parte Pinochet Ugarte

[1998] UKHL 41

JOURNAL ARTICLES

Akande Dapo and Shah Sangeeta,

‘Immunities of State Officials,

International Crimes and Foreign

Domestic Courts’ (2011) 21(4) EJIL 815-

852, 818

Akande Dapo and Shah Sangeeta,

‘Immunities of State Officials,

International Crimes and Foreign

Domestic Courts’ (2011) 22 EJIL 851-861,

860

Alberstadt Rachel, ‘Judge Cançado

Trindade’s Dissent in Germany v Italy’

https://www.academia.edu/6266171/Jud

ge_Cançado_Trindade_s_Dissent_in_Ger

many_v_Italy accessed

McGregor Lorna, ‘State Immunity and

Human Rights: Is there a Future After

Germany v Italy?’ (2012) 11 (1) J Int.

Criminal Justice 125-145, 140

Watts Arthur, ‘The Legal Position in

International Law of Heads of States,

Heads of Governments and Foreign

Ministers’ (1994) 247 RCADI III 82-84, 84

REPORT

The Redress Trust, ‘Considering the

Relationship between State Immunity and

Accountability for Torture and Other

Serious International Crimes’ (The Redress

Trust 2005), 28

http://www.redress.org/downloads/publi

cations/Immunity_v_Accountability.pdf

accessed 16th July 2017

BRIEFING PAPER

Foakes Joanne, “Immunity for

International Crimes?” (2011) Chatham

House, 11

https://www.chathamhouse.org/sites/file

s/chathamhouse/public/Research/Interna

tional%20Law/bp1111_foakes.pdf

Constitutionalism: An Islamic

Perspective

Balqis Azhar

Constitutionalism is a doctrine that a

government’s authority is determined by a

body of laws or constitution.

Constitutionalism has always been related to

the separation of powers, human rights, rule

of law, prevention of arbitrariness by the

rulers against individual rights and democracy.

In Islam, the concept is not alien neither it is

foreign to the political thought in the religion

itself. Given the lack of attention to

discussions of Islamic Constitutionalism, this

article seeks to give an overview of public law

https://www.academia.edu/6266171/Judge_Cançado_Trindade_s_Dissent_in_Germany_v_Italy



http://www.redress.org/downloads/publications/Immunity_v_Accountability.pdf

http://www.redress.org/downloads/publications/Immunity_v_Accountability.pdf

https://www.chathamhouse.org/sites/files/chathamhouse/public/Research/International%20Law/bp1111_foakes.pdf





and political thought related to the Muslim

World.

Islamic Law (Shari’ah): An Overview

Islamic constitutionalism revolves around

Qur’an and Sunnah as the basic sources of

derivation of the law, with other sources are

recognised in Islamic jurisprudence such as

consensus (ijma’), reasoning by analogy

(Qiyas) and ‘urf (custom). In the Sunni school

of Islam, the school of law are divided into

four different madhhabs (school of law),

mainly Shafi’I, Hanafi, Maliki and Hanbali.

Shariah protects the individual in the sense

that it protects the rights of God (huquq Allah)

and the rights of the servants of God (huquq

al-‘ibad), the two conceptions working in

reciprocal and mutual.

Human Rights and Islamic Constitutionalism

One of the most important concepts found in

Islam is the concept of ‘ummah’, transcending

the nationalities of the modern nation-state, a

concept that foreign to European world today.

It was found in the later development of

Islamic political thought, which came after the

Prophet’s emigration to Madinah after 13

years of revelation. The notion of ‘ummah’ is

a theological and political concept, and when

there is a clash of interest, the public interests

shall prevail over the individual. However,

despite Islam focuses on the interests of

plurality, it only comes to a certain extent –

the extent to which the essential rights of the

individual are sacrosanct and shall not be

compromised. This is due to the fact that

Islam is a faith that is addressed to the

individual, and thus is a matter of belief and

state of mind that begins with the individual.

Objectives of shariah, often termed as

‘Maqasid Shariah’ is one of the main concepts

in protecting the fundamental rights of

individuals with its main focus largely based

on the protection of religion, life, intellect,

wealth and lineage.

Nation-State and Islam

The pre-modern Muslim was not entirely

similar to the modern Muslim World today.

Colonialism in most of the Muslim countries

has changed the landscape of nationalities,

borders and statehood. In the pre-modern

times, bureaucracy and state administration

were thin. It was restricted on matters related

to army of the rulers, tax collection and land

tenure8. Nationalities and immigration were

not documented and systematic as of today.

People were not registered at birth, they had

no citizenship status, hence they could move

freely from one place to another as there

were no passports, geographical fixations and

borders. In another word, a family from

Baghdad for example, could travel to Cairo

without applying for any visa or permission

from the ruler in order to settle down or

travel.

Islamic constitutionalism is never against the

nation-concept. Prophet Muhammad

established the first Arabian state in Madinah

and introduced the Constitution of Madinah

(sāhifah Madinah) as the law of the land to

bind everyone together, be it Muslim or

otherwise, and formed the fundamental

principles of a multi-religious Islamic state. As

Islam upholds the basic principles of good

government, equality, justice – such concepts

are expected to complement the governance

of nation-state. Meaning so, Islam and a

8Wael Hallaq, An Introduction To Islamic Law( 1

st

edn,Cambridge University Press, 2009)



nation-state can coexist, with the primacy of

‘ummah will only take place if there is a direct

clash between Islam and the nation-state.

This shall give the Muslim World a good

privilege, as opposed to Europe, where

excessive individualism takes place at the

expense of society. Fascism is widespread

among many of Western countries, as a result

of radical nationalism and no commonalities

of citizenship between all of the member

states in the European countries. However,

given the current situation today, the author

must express her disappointment over the

disunity among Muslim World, particularly

the Arab World. Saudi Arabia and Iran are

hardly to be persuaded to be one ‘ummah for

geopolitical reasons, and sectarian Sunni-Shia

conflict will be among many artificial reasons

for disunity hidden behind it many other

political and economic reasons.

An Islamic State?

One of the misconceptions of Islamic State is

always the extremists of ISIS being the image

of the ‘Islamic State’ fighters. An ‘Islamic

State’ will be imagined as a state that

practised barbaric laws such as hudud9 and no

democracy. In the Islamic constitutionalism,

there was no consensus on the concept of

‘Islamic State’ per se, but what has been

agreed was the concepts underpinning of an

Islamic State, which include justice,

consultation, consensus, equality,

9 For further reading, read Jonathan A.C Brown

“Stoning and Hand Cutting : Understanding the Hudud and the Shariah in Islam”, Yaqeen Institute for Islamic Research from https://1pjhft3ggnei4el40qfi16ch-wpengine.netdna-ssl.com/wp-content/uploads/2017/08/FINAL-Stoning-and-Hand-Cutting-Understanding-the-Hudud-and-Shariah-in-Islam-1.pdf accessed on 16th of November 2017.

accountability, leadership etc. Thus, in the

Islamic polity, the principles are essential to

be practised and conceptualised within the

constitutional text but it is not necessary to

establish a model of ‘Islamic State’ in the

inward framework of the nation-state.

Democracy is also not foreign to the Muslim

World, particularly in Muslim majority

countries in South East Asia in the likes of

Malaysia and Indonesia. Shura is the nearest

concept of democracy in Islamic

constitutionalism. It is a consultative,

participatory state as a whole, with

consultative assembly (majlis al-shura) – a

democracy. In another word, democracy is

possible to work within an Islamic State.

The government in Islam is seen as a civilian

rather than a religious institution. The

different historical context of European

modern liberal democracy and Islam’s way of

democracy must be highlighted here. The

Islamic conception of government, as I said is

not a religious institution to a point of being

theocratic but it still recognises the

metaphysical truth and the existence of God

as the highest authority by using His laws in

the governance of the state. In contrast to

European modern liberal democracy,

secularism has become the best option as a

result of Enlightenment philosophy causing a

hard line is drawn to separate religion(church)

and state.

Challenges

Despite the good objectives that Islamic

constitutionalism tries to bring, there are still

challenges in terms of practicability in the

post-modern world. First, In many of the

Muslim World countries today, constitutional

texts are less acceptable to another school of

thoughts given that they have adopted Islam

https://1pjhft3ggnei4el40qfi16ch-wpengine.netdna-ssl.com/wp-content/uploads/2017/08/FINAL-Stoning-and-Hand-Cutting-Understanding-the-Hudud-and-Shariah-in-Islam-1.pdf







as the state religion with specific madhhab

(school of thought) as the official legal school

of the state. Legal pluralism is yet a work in

progress in post-colonial times where

constitutions were written and documented.

Moreover, the institutionalisation of religious

practices is perceived as a moral dictator

rather than facilitating the administration and

governance of society by way of Shariah. This

requires good religious education among

Muslims to understand and practice the

religion as a whole, and also for the people of

other faith in Muslim majority countries to

understand the objectives of Shariah viz.

Islamic constitutionalism.

In conclusion, Islamic law is initially developed

outside the context of nation-states as

compared to the Westphalian nation-state

whereby the legal system is created within

the context of the nation-state. What we have

seen today in Europe that the nation-states

concept is deeply entrenched amongst them

to the extent of the effort to create an

institution for Europe seems to crumble and

does not materialise. Islamic

constitutionalism, with four different schools

of thought (within the Sunni context) was able

to organise itself and achieved stability in the

Islamic history. What is needed today is a

concept transcending state borders for

Europe, and for the Muslim World, to remind

themselves both nationalism spirit and

‘ummatic concept should be parallel. If not,

we are facing global challenges of radical

nationalism and disunity albeit commonalities

that we shared together.

Bibliography

Azizah Y. al-Hibri, “Islamic Constitutionalism

and the Concept of Democracy” 24 Case

Western Reserve Journal of International Law

Issue 1 (1992)

Jonathan A.C Brown “Stoning and Hand

Cutting : Understanding the Hudud and the

Shariah in Islam”, Yaqeen Institute for Islamic

Research from

https://1pjhft3ggnei4el40qfi16ch-

wpengine.netdna-ssl.com/wp-

content/uploads/2017/08/FINAL-Stoning-and-

Hand-Cutting-Understanding-the-Hudud-and-

Shariah-in-Islam-1.pdf accessed on 16th of

November 2017.

Mohammad Hashim Kamali, Tengku Ahmad

Hazri, “Islam and Constitutionalism: Interview

by the Islamic Culture Foundation(FUNCI)”

from

http://iais.org.my/icr/index.php/icr/article/vie

wFile/492/454 accessed on 16th of November

2017

Raja Bahlul, “Islamic Perspectives on

Constitutionalism” from

http://www.juragentium.org/topics/islam/law

/en/bahlul.htm accessed on 16th of November

2017

Tengku Ahmad Hazri, “Islam, the Rule of Law

and Human Rights” 4 Islam and Civilisational

Renewal Issue 1, 149-152 (2013)

Tengku Ahmad Hazri, “Islam and

Constitutions” 8 Islam and Civilizational

Renewal Issue 2, 264-267 (2017)

7.Wael Hallaq, An Introduction To Islamic Law

(1st edn,Cambridge University Press, 2009)






http://iais.org.my/icr/index.php/icr/article/viewFile/492/454

http://iais.org.my/icr/index.php/icr/article/viewFile/492/454

http://www.juragentium.org/topics/islam/law/en/bahlul.htm

http://www.juragentium.org/topics/islam/law/en/bahlul.htm



Unelected, Unreflective and

Undemocratic: Is the world’s

second largest legislative body

in need of serious reform?

Alvi Sattar

The House of Lords has made headlines

recently as a result of a report published

by the Electoral Reform Society. Darren

Hughes, the chief executive, has criticised

“Britain’s broken upper house”,

suggesting that we have a “democratic

crisis in our second chamber”. The House

of Lords, in the minds of many, represents

an archaic relic of a burdensome national

history, replete with “couch potato peers”

as Hughes describes, and outdated rituals

involving the wearing of costumes and the

use of props. The formation of this image

is contributed to by the fact of its Peers

being unelected, and the demographic

constitution of the house, which fails to

represent the nation's population and the

elected House of Commons. Although the

trend in recent history has been the

reduction in the powers of the Upper

house, and the increased concentration of

legislative and executive power in the

government, institutions such as the ERS

claim that the unrepresentative and

unelected nature of the house means that

its current powers are still undeserved.

Possible reforms to the house could

include the introduction of the elections,

reduction in the overall size, and a

curtailing of the lifelong duration of

peerages.

The representation of age groups in the

Upper House

The coverage of the recent referendum on

the EU spent much time deliberating on

the disparities of political opinion

between age groups, and an awareness of

these differences lends gravity to worries

about the comparative ages of the Peers

constituting the House of Lords. If you

were among the 73% of the of the 18 to

24-year-olds who voted to stay in the EU,

as opposed to the 60% of 65+-year-olds

who voted to leave, you might be

concerned at the fact that House of Lords

enormously under-represents younger

demographics of the UK population, 84%

of its members being over 60, and only 4%

under 50 as of 2012. Given the spectrum

of political opinion, and often conflicting

interests of age-groups within the UK, the

need for a representative parliament

seems even more prescient, and in the

light of all these considerations the

lifelong duration of a peerage responsible

for the over-representation of the older

population seems outdated, and in

serious need of reconsideration.

The counter-consideration, however, is

the wealth of constitutional and practical

life experience held amongst elderly,

committed members, that would be lost if

the duration of peerages was to be

curtailed, or an age limit installed. The fact

that peers are older is often reflected of

the peers having had careers, which

affords them a degree of expertise, which

is useful to the legislative process,



especially in subjects that bills are

concerned with, such as housing or

commerce. The expertise of a Lord in a

particular subject due to having had a

career in, or continuing to have a career in

the related field however, can often lead

to a vested interest obfuscating the due

legislative process, in that a Peer who

owns a development company might, for

example, be inclined to vote against bills

that limit the right of developers to delay

building houses on lands until it becomes

the most profitable to do so. The ERS

would also take issue with such a view, in

that they are concerned by the fact that

34% of all peers are former MP’s and

politicians, and that trades other than law,

business and banking are not adequately

represented.

The unelected nature of the Upper House

Another criticism of the Lords is that it

does not proportionally represent the

make-up of the commons, which could

only occur if elections were held for the

Lords as commonly as they were with the

commons. Ironically, given that the idea of

qualifying for a place at parliament on the

basis of your ancestry seems entirely

archaic and undemocratic; the only

elected members of the House of Lords

are the 92 hereditary peers. The bloated,

over-sized nature of the house is made

even more irksome to opponents given its

unelected nature, which is why the ERS

deems the effect the Lords have on the

legislature to be undemocratic. Baroness

King, however, a Labour peer, described

the way in which legislation arriving at the

Lords from the other end of the building is

often “garbled”, and attributes this to the

“political-point scoring” that motivates

much of its content. You could argue

based on her description, and the way in

which we observe the effect of sometimes

harmful populist sentiment on the policies

of the government, that the Upper House

is in a sense protected by its unelected

nature from having to appeal to the

sometimes odious opinions help by

percentages of the voting population.

Theresa May and the conservative

government are often criticized for

adopting hard-line attitudes towards

Brexit and immigration, especially in the

lead up to the recent snap election, in

order to secure the confidence of voters

who might otherwise have voted for UKIP.

UKIP’s significant loss, from 12% to 1.8%

of the total vote in the recent elections

can be seen to reflect the success of May

and the conservative party in this regard.

Party Representation in the Upper House

The fact that as of March 2016,

conservatives comprised the largest

group, totalling 30.8% of all available

members, is problematic in that it

impedes some of the legislative duties of

the Upper House. An important function

of the House of Lords is to hold the

government to account. You could argue

that a tendency to adhere to the party

whip amongst a section of the peers, even

if they were to inwardly oppose a bill,

means that this function will only be

adequately performed whilst the majority

of the peers in the Lords are members of



the current opposition’s party. Darren

Hughes of ERS draws attention to the

problematic party loyalty of the MP’s,

saying that “the so-called ‘independent’

chamber is packed full of party loyalists”.

Part of the problem of the current state of

the commons not being reflected in the

Upper House is that the interests of

smaller parties are often under-

represented, and this poses a possible

democratic problem. It could however be

argued that this is an advantage in the

case of fringe parties with sometimes

extremist policies, who gain seats in the

commons, whilst a certain hot-button

issue dominates discussion in the public

sphere, only to lose them in the next

election once the issue has passed from

the public conscience. In that sense, it

might be better if the House of Lords is

protected from having to induct members

of these parties for a lifelong peerage,

even once the relevance of party has

dissipated. Again, an example can be

found in UKIP, in that once their party aim

of achieving “independence” from the EU

had been completed, the party’s

relevance dwindled, and they might likely

as a result not regain any presence in the

commons. This suggests that if we were to

introduce elections, it would have to

occur at the cost of the lifelong peerage.

Are Reforms required, and If so, then to

what extent?

The question of reform in the light of all

these considerations seems far more

complicated than you might initially

imagine. Although it seems as though we

can reasonably say that the Upper House

is in need of reform, it is hard to say

exactly what the extent of those reforms

should be. Although the representation of

younger demographics is undoubtedly an

important concern, the benefits of an

introduction of limitations of duration to

peerages needs to be balanced against

the risk of losing important older

members of bodies that protect our

constitutional integrity, such as the

Constitution Committee. The introduction

of elections might also affect the integrity

and sincerity of peers, who might vote

against bills knowing that it would gain

the favour of populist groups, although

one might argue the sincerity of voting

has already been corrupted by the

adherence of peers to the party whip.

Similarly, the implementation of size-

reduction might be beneficial, if it was

done in a way that would ensure

members committed to their position, and

who contribute greatly would not be

unduly removed from their positions. The

solution seems to be a well-drafted bill

that weighs all these considerations

carefully, taking well-founded public

concerns into account. If such a bill were

to pass through the houses, it might

motivate even the “couch-potato peers”,

as Hughes calls them, to earn their

expense allowance by participating in the

legislative process.

Bibliography

http://researchbriefings.parliament.uk/Re

searchBriefing/Summary/LLN-2016-

0017#fullreport

http://researchbriefings.parliament.uk/ResearchBriefing/Summary/LLN-2016-0017#fullreport





http://www.bbc.co.uk/news/magazine-

36619342

http://www.independent.co.uk/news/uk/

politics/house-of-lords-cost-expenses-

money-taxpayer-parliament-

a8055126.html

https://www.electoral-

reform.org.uk/campaigns/elected-house-

of-lords/

http://www.bbc.co.uk/news/election/201

7/results

http://www.bbc.co.uk/news/election/201

5/results

A. Le Sueur, M. Sunkin, J. Murkens, Public

Law: Text, Cases and Materials 3rd edn

(Oxford University Press 2016)

“Meet the Lords” episode 1, first aired on

the 27th of February 2017 by the BB

The Transformation of the

British Party System:

Building Blocks for Electoral Reform

in the House of Commons

Marta Gomez

The House of Commons’ electoral system

today continues to be the historic first

past the post system (FPTP). Many

associations, such as the electoral reform

society, have criticised this system and

advocated for years for a shift to a

proportional representation system.

These criticisms are based on the fact that

the current system is not working. In two

of the three last general elections there

has been a hung parliament leading to a

coalition government, a situation which

the FPTP system had been designed to

prevent by favouring strong majorities to

avoid instability. In addition, proportional

representation, the alternative system

which critics of FPTP advocate for,

appears to be more advantageous and

democratic since it provides an accurate

representation of the preferences of the

whole of a country’s population. These

claims for formal reform are based on

Duverger’s law that the electoral system is

place will determine the party system:

“simple-majority single-ballot system

favours the two-party system” (1954:217).

However, this perspective has been

widely criticised for presenting incorrectly

how a country’s party system and

electoral system interrelate. Duverger’s

detractors believe that in fact electoral

reform only occurs as a response to the

already existing change in the party

system of that country (Colomer, 2005).

The disjuncture in the British electoral

system between the electoral and the

parliamentary arenas has led to confusion

and disagreement over Britain’s party

system (Quinn, 2013:398), as despite the

change in electoral results the

parliamentary outcomes continue to be

the same. The “remain flickers of life in

the two-party system” can be explained

by the simple plurality electoral system

acting “as an artificial life support

machine” protecting the Conservatives

and the Labour Party (Lynch, 2007:323)

and creating a distorting effect as to the

http://www.bbc.co.uk/news/magazine-36619342

http://www.bbc.co.uk/news/magazine-36619342

http://www.independent.co.uk/news/uk/politics/house-of-lords-cost-expenses-money-taxpayer-parliament-a8055126.html




https://www.electoral-reform.org.uk/campaigns/elected-house-of-lords/



http://www.bbc.co.uk/news/election/2017/results






real state of the British party system.

Through the assessment of the academic

literature concerning the issue of electoral

reform, and a closer look to the results of

recent general elections it can be

established that despite the lack of

electoral reform, the British party system

has undergone a profound transformation

which can potentially lead to future

reform.

Duverger argues that the different

characteristics of each electoral system

explains the existence of different party

systems. In plurality or simple-majority

party systems only the party with the

most votes will win the seat disputed in

each district or constituency, and all the

other casted votes for alternative parties

will not be considered in the overall

distribution of parliamentary seats. This

inevitably forces parties with similar

ideologies to regroup their forces due to

the fear of being overwhelmingly

defeated, creating two major blocs due to

the systematic repression of third parties.

The way in which parties react to the

electoral system is just the mechanical

factor. Duverger claims that the fusion

and elimination of political parties in

plurality systems “is itself the result of two

factors working together: a mechanical

and a psychological factor” (Duverger,

1954: 224). The psychological factor refers

to the effect that the electoral system has

on the voters rather than on the parties.

Even if there were more than two parties

which voters could vote for, the bulk of

the votes would still be concentrated on

two main blocs as voters will not waste

their votes on third parties which have no

real possibility of winning a seat.

Contrastingly, in systems of proportional

representation this fear is not experience,

as although your party may not win the

overall majority of votes in any region that

does not preclude it from being present in

the legislative body. The votes received in

all of the country are accumulated and the

number of seats received by each party is

proportional to the portion of the votes

obtained. Therefore, different groups,

despite having similar ideologies, are not

forced to join forces; and voters will vote

without the fear their votes not being

represented. Therefore, it is more likely

that there will be a larger number of

political parties represented in the

legislative body of a country with a

proportional representation system, than

in the legislative body of plurality systems.

In addition to determining which party

system corresponds with each electoral

system, Duverger’s theories also seem to

suggest that these configurations are

fixed. Without a reform in the electoral

system there will not be a change in the

party system as the mechanical and

psychological factors will always come

into play.

This theory, although accepted by many,

has been criticised ever since Duverger

published his work. Even its supporters

recognized certain flaws in Duverger’s

work. William Riker stated that “it is not at

all easy to straighten out the ambiguity in

*Duverger’s+ statement of the relationship

between electoral systems and the

number of parties.” (Riker, 1982:754) The



fact that Duverger uses the word ‘favours’

in his law creates uncertainty as to

whether a plurality system is a necessary

requirement of a two-party system or not;

“the claim that the relation is ‘a

sociological law’ suggests causality or a

necessary and sufficient condition,

whereas the use of ‘favours’ suggests the

relationship is at best probabilistic, not

deterministic” (Riker, 1982: 754). It must

be noted that criticism towards

Duverger’s work are not precluded solely

to the semantics of his formulation. In

fact, the most damaging criticisms to this

theory are those based around

contemporary counterexamples. India,

which has a plurality system, has around

150 active political parties; a similar thing

has happened in Canada, where there has

been an outbreak of regionalist party

politics. Cox explains this by claiming that

Duverger’s laws only apply at constituency

level. The factors propelling the

emergence of more parties does not have

anything to do with the political system,

but rather with how nationalised or

regionalised party politics are in each

country. Britain could have as many as

1292(646x2) active political parties; thus,

the shift from a two-party system to a

multi-party system can happen despite

there not being a previous reform of the

electoral system.

In addition to challenging the assertion

that only two parties can emerge in a

plurality system, Duverger’s work has also

been criticised on the basis that he

misunderstood the relationship between

electoral systems and party systems.

Duverger himself admitted that the first

effect of proportionality is to maintain an

already existing multiplicity (1954:344);

after all, from a historical narrative

perspective it can be concluded that

“chronologically, as well as logically, the

party system is prior to the electoral

system” (Lipson, 1964:343). Grumm

(1958) and Colomer argue that

proportional representation is the result

rather than the cause of a multi-party

system. Electoral systems consolidate

already existing political party

configurations, rather than creating new

ones. This proposition does not attempt

to deny the premise on which Duverger’s

work is based, but rather it attempts to

present a logical explanation as to why a

certain electoral system is established

instead of a different one. Colomer claims

that it is the political parties and the

political actors the one that chose the

electoral system and push reforms

forward to put themselves in a better

position after there has been a shift in

electoral behaviour or if coordination and

cooperation among different factions of a

major political party fails leading to

defeats and underrepresentation. He

postulates that “the large will prefer the

small and the small will prefer the large”

(Colomer, 2005:3), meaning that as long

as the two-large conflicting ideological

blocs are maintained as the party system,

small district magnitudes and small quotas

of votes for allocating seats will play in

their favour; whereas small parties will

prefer large district magnitudes and large

quotas, like those of proportional



representation, able to include them.

Thus, it is true that a plurality system

incentivises two-party systems and

proportional representation multi-

partyism; however, precisely because of

this, political actors manipulate the

electoral system to favour them,

therefore at any given time due to a shift

in the party system the electoral system

will be reformed.

The current situation in Britain, a country

in which despite the recent attempt

towards moderate electoral reform in

2011 continues to operate under a

plurality system, supports the argument

of Josep Colomer, since reform in the

party system has preceded that of the

electoral system. In 1950 election over

90% of the British voters voted

Conservative of Labour, whiles in 2015 the

Conservatives and Labour only obtained

67.3% of the votes. In the light of this

results it is quite difficult to uphold the

view that Britain continues to be a two-

party system. Thus, if Colomer is right and

what modifies a country’s party system is

the change in the electoral behaviour this

could mean that electoral reform in the

UK is on its way.

The change in British electoral behaviour

can be explained by the increase in

partisan dealignment. Dunleavy

(2005:510) explains that the process of

partisan dealignment in Britain

encompasses four changes: the continued

detachment of party supporters from

traditional class and social location; the

increase in political issues which fall

outside the traditional left-right spectrum;

the repositioning of the two major parties;

and the increasing disillusionment of the

British voters with the two main political

parties. Partisan dealignment has been a

process which has happened slowly but

steadily during the last fifty years.

However, it has only recently started to be

discussed about because the British

Electoral Study during the 1980s and

1990s, was dominated by a group of

“electoral orthodoxy fundamentalists”

(Dunleavy, 2005:510) which denied the

evidences that pointed to a process of

class dealignment. It was only recognized

after the 1992 Black Wednesday when

this process could no longer be denied. In

2001 the BES reported that although,

four-fifths of the voters did identify

themselves with one of the three major

political parties; only two-fifths of the

voters were actual stable partisans of the

party they identified with (Dunlevy,

2005:511). The high percentage of party

identification can be explained by the fact

that the myth of party identification had

not been denied yet, as party

identification had been central in

orthodox voting studies. There is a great

difference between what people think

and what they do, hence although British

voters may claim to identify themselves

with a certain political party, as that is

what they were led to, their actions do

not seem to support that claim. Butler and

Stokes (1974:36) mystical account of how

British electoral behaviour works by using

the analogy of s ‘hero’ in explaining how

the British public identifies with a political



party, is quite far-fetched, but

nonetheless is a good representation of

the misconceptions around British

electoral behaviour.

The main reason behind partisan

dealignment would be the emergence of

new political and ideological cleavages

which cut across traditional left and right

and socio-economic differences, such as

materialism vs post-materialism, sub-state

nationalism vs unionism, or European

integrations vs national sovereignty

(Inglehart, 1990). Party dealignment

explains the swings in votes and the low

electoral turnout as a way of expressing

dissatisfaction with the main parties.

However, new parties such as UKIP, SNP

or the Greens, have emerged not only due

to increasing dissatisfaction among voters,

but because the traditional parties have

been unable to tackle these new issues,

opening the door for these new parties to

step in. The main two cleavages have

been those relating to devolution and the

European Union.

The nationalist vs unionist cleavage, has

led to the formation of numerous political

parties: SNP, DUP, Plaid Cymru, Sinn Fein,

UUP and SDLP. These parties play an

influential role mainly in their respective

devolved assemblies; but although it may

seem as their agendas and policies are

limited to a regional level, the power of

these new parties must not be

underestimated. The SNP received 3% of

the votes in the last general elections and

35 seats in the House of Commons, whiles

the Liberal Democrats only obtained 4

seats for 7.4% of the vote. However,

subnational elections are also significant

when assessing the relation of electoral

reform and the British party system

because lections for devolved assemblies

currently use a system of proportional

representation, rather than the traditional

plurality system used for Westminster

elections. These elections provide a true

reflection of how the party system would

look like if the British general elections

system was changed to a proportional

one. We can see that the multi-patryism

would consolidate. In Scotland, the

coalitions and minority governments have

been common; as well as in Wales. It

must be noted that in Norther Ireland

governments must be formed in coalition

to ensure cooperation between the

unionist and nationalists; because of this

we must be cautious when using the

experiences in Northern Ireland as it is an

anomalous system; however, the fact that

there are more than simply two distinct

blocs, the unionist vs the nationalist,

supports the argument that Britain is

turning away from a two-party system.

The fact that systems of proportional

representation are used only at

subnational or supranational level has

meant that the shift in the outcome of

those election to a multi-party system has

been disregarded, because they are

perceived as ‘second order election’.

They are regarded as less relevant and

influential to public policy, hence the low

turnout and lower support for the main

parties. Because they are regarded as less

important people think that the difference



in outcome in comparison to general

election can be explained due to the

different state of mind of voters. It has

been put forward the theory that voters

use these elections as a way of punishing

the main parties, and therefore in times of

general elections voters go back to

supporting the main parties, as although

they may be discontent their support to

the party has not actually changed.

However, the supposedly low turnout in

these elections is not in fact that low, as

although in the case of Scotland, for

example, turnout did decrease from 71%

in 1997 in the general election to 59% for

the first Scottish Parliament, it must be

noted that that the turnout for the

subsequent general election went down

by 1% in comparison to the 1999 Scottish

Parliament election. The 1997 election

was an anomaly, and if you compare the

levels of turnout in subsequent elections

that difference in turnouts does not

happen again. Therefore, the argument

that sub-national elections are perceived

as second-class election does not sustain

itself and it seems to be just “a

crystallisation of the electoral studies

orthodoxy’s prejudice” (Dunleavy,

2005:519). In addition to this, it must also

be noted that the alternative political

parties still retain much of the votes in

general election as it is the case with the

SNP.

The second cleavage which has dominated

the political debates the last years and

which major parties have not been able to

deal with has been the European

integration vs the national sovereignty.

This cleavage has created internal

divisions among major parties and it has

led to the consolidation of UKIP, a minor

party. In the 2014 elections for the

European Parliament UKIP received 27.5%

of the votes, whiles the Labour Party only

received 25.4% and the Conservatives

23.9%. Similarly, in the 2015 general

election, although UKIP did not receive

more votes than Labour and the

Conservatives, it received an astonishing

12.6% of the votes, putting UKIP clearly in

front the Liberal Democrats, the

traditional third party. After the Brexit

referendum, the future of UKIP seems

uncertain. In the 2017 elections UKIP lost

its only seat in the House of commons;

however, even if UKIP loses support, the

impact that its rise has had on the current

British party system cannot be undone.

Despite the rise in support for alternative

parties the Labour and the Conservative

parties continue to win most the seats.

This happens not because the support

received by alternative parties is

insignificant, but because the current

electoral system plays in favour of the

major parties. In 2015 the Conservative

party won 50.9% of the seats in the House

of Commons, although it had only

received 36.9% of the votes; and the

Labour party obtained 35.7% of the seats

whiles only winning 30.4% of the votes. In

the case of the Liberal Democrats and

UKIP they won 7.9% and 12.6% of the

votes, whiles only receiving 1.2% and 0.2%

of the seats respectively. However, if we

focus on the electoral results, rather than

on the parliamentary results, it is obvious



that we can no longer talk of a two-party

system; especially if we look at the figures

of Colomer’s research table in which he

compares the effective number of parties

(ENP) of different countries before and

after they underwent electoral reform.

(Colomer, 2005:20).

Overall, despite the disjuncture between

the electoral and parliamentary results it

is clear that the British party system has

already changed. Although, many

‘electoral orthodoxy fundamentalists’ may

still claim that “the established party

system has not changed, but it has been

fragmented not overturned” (Heffernan,

2003:121), the fact that without electoral

reform the mechanical and psychological

factors have not prevented the

emergence and endurance of alternative

political parties is a strong sign that

Duverger’s theory is wrong. The fact that

the need for coalitions has returned after

the 2015 Conservative majority; and that

for the first time the parties with the

largest number of seats in each of the four

British nations are different: the

Conservatives in Westminster, Labour in

Wales, the SNP in Scotland, and DUP in

Norther Ireland; and the fact that there

are four ENP indicates that the two-party

system is history in the UK. This state of

affairs will inevitably lead to reform in the

electoral system since the current system,

which has remained unchanged despite

the change in electoral behaviour, will

continue to provide unsatisfactory results.

Bibliography:

Butler, D., Stokes, D. (1974)‘ Political

Change in Britain.’ Macmillan.

Colomer, J. M. (2005) ‘It's Parties that

Choose Electoral Systems (or Duverger's

Law Upside Down).’ Political Studies, Vol

53, pp.1–2.

Cox, A. (1997) ‘Making Voters Count:

Strategic Coordination in the World’s

Electoral System.’ Cambridge: Cambridge

University Press.

Dunleavy, P. (2005) ‘Facing Up to Multi-

Party Politics: How Partisan Dealignment

and PR Voting Have Fundamentally

Changed Britain’s Party Systems.’

Parliamentary Affairs Vol 58, No.3,

pp.503-532).

Duverger, M. (1954) ‘Political Parties: their

organization and activity in the modern

state.’ New York: Wiley, Science Ed.

Garland, J., Terry, C. (2015) ‘The 2015

General Election - A Voting System in

Crisis.’ Electoral Reform Society

Grumm, J. (1958) ‘Theories of electoral

systems.’ Mid-west Journal of Political

Science, Vol 2, pp.357-76

Heffernan, R. (2003) ‘Political Parties and

the Party System.’ Ch.7 in Dunleavy, P.,

Gamble, A., Heffernan, R., Peele, G. (eds),

Development in British Politics 7, Palgrave-

Macmillan

Inglehart, R. (1990) ‘From Class-Based to

Value-Based Politics’, in P. Mair (ed.) The

West European Party System, Oxford:

Oxford University Press, pp. 266–282.



Lipson, L. (1964) ‘The Democratic

Civilization.’ New York: Oxford University

Press.

Lynch, P. (2007) ‘Party System Change in

Britain: Multi-Party Politics in a Multi-

Level Polity.’ British Politics, Vol2, pp. 323-

346

Riker, W. H. (1982) ‘The Two-party System

and Duverger's Law: An Essay on the

History of Political Science.’ The American

Political Science Review, Vol 76, No. 4, pp.

753-766

Quinn, T. (2013) ‘From Two-Partism to

Alternating Predominance: The Changing

UK Party System, 1950–2010.’ Political

Studies, Vol 61 pp. 378–400

New Members in the United

Nations Security Council

Daryl Old

The United Nations Security Council

(UNSC), the post-war world’s answer to

maintaining international peace and

security. These are at least the aims of the

council, as enshrined in the UN charter. It

is composed of a total of 15 members, 5

of these permanent members holding a

veto power over resolutions adopted. At

the San Francisco conference, which is

widely hailed for the UN’s genesis, it was

decided that the United States, China, the

Soviet Union and the United Kingdom

would lead the new international order.

With the addition of France, these five

states would be given the power of veto in

the Security Council. However, we live in a

very different world now from when the

Council was created in 1945, and due to

this, whether the Council should be

reshuffled, giving permanent member

status to other major states.

Countries that tend to be thought as of

having a potential spot on the Council are;

Germany, Brazil, India and Japan. These

countries have strong economies, large

land mass and in some cases huge

populations. The problem faced by this

group, sometimes referred to as the G4, is

that Article 108 of the Charter states that

two-thirds of the General Assembly (GA),

including all permanent members must

consent to new ascensions. Although each

of these countries may have allies in the

security council, it is clear that there are

other members of both the UNSC and the

GA that may be opposed to the expansion

of permanent members, as illustrated by

Italy, Mexico and Egypt in their “Uniting

for Consensus” initiative. The change of

constitution of the Security Council occurs

very infrequently, as to date, there has

only been one overall change. This

occurred with a 1965 General Assembly

resolution expanding the Council’s non-

permanent seats from 6 to 10, mainly to

promote confidence in the UN among its

new members following decolonisation.

The Case for Brazil

Ideally, the SC should have members in

each continent of the globe to ensure

threats to the peace do not break out in

any region, however, it is traditionally



neighbouring countries in direct

competition of these potential candidates

that oppose their ascension. Brazil has the

highest population, land mass and GDP in

all of Latin America, so it is clearly the

dominant force. It has been elected 10

times for its non-permanent seat and has

contributed peace-keepers to a range of

efforts from Haiti to East Timor. It is the

7th biggest net contributor to the UN’s

budget, which is bigger than Russia, who

is a permanent member and therefore

clearly has an interest in greater powers

on the Council. Its case for permanent

membership is also backed by the US, UK,

France, Russia and a range of other non-

permanent members, showing a growing

consensus for this development.

The Case for Germany

Due to the circumstances around the

creation of the UNSC, it was clear from

the start Germany would not be a

permanent member. However, the world

has developed since the post-war period

and there is a growing consensus for

Germany to gain this status. Germany is a

major world economy with GDP nominal

outstretching the majority of permanent

members. It is the 4th biggest contributor

to the UN’s budget and has also

contributed more peacekeepers than all

permanent members but France, an

important measure considering it is the

UNSC tasked with

deployment/organisation of peacekeeping

missions. Its bid is also supported by many

major UN countries such as the UK, France

and Russia, however, the USA’s support

coming from the Clinton Administration

was removed by George W Bush.

The Case for India

India is probably the closest to gaining a

permanent seat on the Security Council

out of all discussed. This is due to the

backing of all permanent members,

including the Obama administration, and

China if it promises to not back Japans

ascension. India has the world’s second-

largest population and has contributed

significantly to UN peacekeeping

initiatives. This was one of the main

arguments made by Barak Obama in a

speech supporting India’s invitation. It has

the world’s 5th largest (by some sources)

GDP nominal, the third largest active army

and also possesses a nuclear arsenal.

From this, it is clear that India’s bid for a

permanent seat is something worth

consideration due to the possibility of

contribution if the use of force is required

and also the large consensus backing its

claim.

The Case for Japan

With a confident newly re-elected Prime

Minister Shinzo Abe, who is a keen

supporter of Japans ascension, and an

alternative, more western looking

perspective in the far east, the chances of

Japan joining the Security Council as a

permanent member does not look too

remote. The only problem is China. China

has frequently suggested it would veto

Japans attempt of joining and has

colluded with other members to try and

ensure this does not occur. Despite Abe’s



attempt at justifying why it deserves a

seat, from its track record on resolving

issues in Africa and the middle east to its

huge financial populations and its support

from major countries in the region and

the world, there are still some issues that

remain. Another factor against Japan

joining is their lack of legitimate power to

use their Self-Defence Force (SDF), despite

having a potent military, they are not

officially allowed to use this outside of

Japan and therefore allowing them to

have a say on the maintenance on

international peace and security would

seem somewhat perverse. What needs to

be said however is with Abe’s landslide

majority, allowing him to alter the

Japanese constitution, this military

covenant might just be altered, paving the

way for a very different international

outlook.

Despite there being a strong case for

those four countries, it is clear that they

are not alone. Africa, the second most

populous continent on the planet,

comprising of 54 states is totally excluded

from having a permanent seat on the

Council. There have been calls from the

African Group for permanent

representation of two rotating seats,

however to date, this has never been

achieved. Reform of the Security Council

is, therefore, clearly required and

certainly on the horizon; however, despite

these initiatives, the highly political

character of reform is likely to lead to

considerable challenges before they can

formally materialise.

Welcome to Paradise City

Residents include Bono, Prince

Charles and Her Majesty the Queen

Sarah Asher

Introduction – What are the Paradise

Papers?

Over the last few weeks, investigations

have been conducted into a massive

financial leak regarding the off-shore

dealings of several high net-worth

individuals, companies and politicians. The

leak has specifically revealed numerous

strategies used to dodge paying higher

taxes due to prosperous incomes and

holdings. Although using these types of

strategies are not illegal, they do pose

many questions about the fairness of

using off-shore jurisdictions to avoid tax.

This inequality comes at an even greater

emphasis, as revealed by the Paradise

Papers, that The Queen and institutions

such as Oxford University have been

complicit and benefited from their use.

With importance currently being put on

the need to strengthen the United

Kingdom’s economy, due to the

implications of leaving the EU, should

more be done to ensure that the upper

echelons of British industry and society

are made to pay their taxes?



Tax Havens, OFCs and the meaning of

Paradise

Off-shore financial centres (OFC) are the

establishments in off-shore jurisdictions

that companies and individuals can use to

avoid paying tax, by essentially moving

their money outside of the UK’s tax

regulations. Colloquially these systems of

financial manipulation are called tax

havens, and are often depicted in films as

being used by the villain to finance

dastardly plans. These locations are often

small islands, hence the moniker of

‘Paradise.’

One of the principal methods used to

facilitate tax avoidance through OFCs is

corporate profit shifting. This involves

companies registering their headquarters

in a low-tax authority, then recording its

profits in this location, rather than in the

country in which it does its dealings.

Recognizable examples of this include

Facebook, Google and Nike. The other

significant method utilized is where

individuals put some of their assets into

‘trust’ to be managed by third-parties in

these locations, with the ‘profits’ received

by nominated beneficiaries. The ‘profits’

received from this method are subject to

income tax, but not capital gains or

income tax on the actual investment. This

makes them a key advantage for

individuals that wish to keep more of the

income from their investments in their

own pocket.

Who is Involved? – The Leak and The Tax-

dodgers

The Paradise Papers are the world’s

second biggest data leak, with first having

come one year earlier in the publication of

the ‘Panama Papers’. Both leaks were

acquired by the German newspaper,

Süddeutsche Zeitung, who then shared

the data with the International

Consortium of Investigative Journalists.

This prompted collaborative investigations

from around 96 other media

organisations, including ‘The Guardian’

and ‘BBC News’. The revelations in the

current Paradise leaks have been touted

to be more prevalent than the past

exposés, as they disclose the details of an

offshore empire that far exceed initial

depictions of complexity and those

involved. Some of the more shocking

admissions have come in the form of

details about millions of pounds from The

Queen’s private estate having been

invested in previously undisclosed

offshore projects, Oxbridge universities

offshore investments, and many other

high profile British individuals.

Implications

The public and parliamentary reaction to

the leak of the Paradise Papers has been

very disapproving, and calls have been

made from across Europe and within

British society for stricter controls to be

put in place. An open letter from over 30

MEPs (Member of the European

Parliament) has been published, imploring

governments into finally acting and



provide legislative provisions to regulate

the use of OFCs. Notably, former prime

minister Gordon Brown has been one of

the more vocal members of British society

also calling for governments to form a

stricter stance when it comes to these

offshore jurisdictions. “First of all, they

have got to outlaw these tax havens, they

have got to threaten to sanction them,

they have got to punish them with,

potentially, arrest warrants in some cases

where people are breaking the law,” as

stated by Brown.

The condemnation of such financial

practices comes as a matter of morality

and fairness as the techniques used by

these groups and individuals are not

illegal. However, in the current welfare

economy of the UK where extensive cuts

are being made to institutions such as the

NHS which provides healthcare to the

public, it can be remarked that now more

than ever is when the tax of the wealthy

should be put to helping society as a

whole. The debate is one with far-

reaching roots that branches far beyond

the financial leaks of today, but is one that

needs to be addressed in the future to

promote a fair and transparent society.

David Cameron’s government began

making headway into the issue of tax

evasion with agreements within some of

the offshore jurisdictions to share and

exchange information, but little else was

done to make significant and binding rules

upon the practice

Conclusion

The leak of the Paradise Papers has

exposed a profoundly shadowy aspect of

British society that without the lack of

government intervention has been

allowed to become only more uninhibited

in its manipulation of finance. Tax

avoidance is a grey area regarding the law

surrounding it, but is extremely black and

white when it comes to the morality of its

use; the Papers clearly illustrate this

growing inequality and questionable

morality, with the emphasis persisting

that the elite are continuing to the take

advantage of an unbalanced system. The

Conservative election manifesto promised

a ‘vigorous action against tax avoidance

and evasion’; it could be suggested that

now is their opportunity to show it.

Bibliography:

Paradise Paper reporting team, ‘Paradise

Papers: Queen’s private estate invested

£10m in offshore sfunds,’ BBC News (UK,

6 November 2017)

<http://www.bbc.co.uk/news/uk-

41878305> accessed 11 November 2017

Ewen MacAskill and Hilary Osborne,

‘Britain criticised by MEPs for failing to

take action on tax havens,’ The Guardian

(London, 10 November 2017)

<https://www.theguardian.com/news/20

17/nov/10/britain-criticised-meps-action-

tax-havens-paradise-papers > accessed on

11 November 2017

Nick Hopkins, ‘Why we are shining a light

on the world of tax havens again,’ The

Guardian (London, 5 November 2017)

http://www.bbc.co.uk/news/uk-41878305

http://www.bbc.co.uk/news/uk-41878305

https://www.theguardian.com/news/2017/nov/10/britain-criticised-meps-action-tax-havens-paradise-papers






17/nov/05/why-shining-light-world-tax-

havens-again-paradise-papers> accessed

11 November 2017

Ed Pilkington, ‘From Harvey Weinstein to

Shakira, the celebrities with offshore

interests,’ The Guardian (New York, 8

November 2017)


17/nov/08/harvey-weinstein-shakira-

martha-stewart-madonna-nicole-kidman-

offshorem > accessed 12 November 2017

https://www.theguardian.com/news/2017/nov/05/why-shining-light-world-tax-havens-again-paradise-papers



https://www.theguardian.com/news/2017/nov/08/harvey-weinstein-shakira-martha-stewart-madonna-nicole-kidman-offshorem




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