This special issue explores the risks to the democratic State inherent in the attempt to divorce the notion of the democratic rule of law from respect for and adherence to peremptory international legal norms (customary and jus cogens law) that set out various of the most fundamental human rights including but not limited to the right to respect for one’s human dignity and security of the person psychologically and physically. The papers address with specific case examples in what ways the democratic rule of law within certain democratic States risks being undermined through those States acquiescing in a particular way(s) to the erosion of certain international customary or jus cogens norms in the domestic and/or international context. The special issue addresses the question then of in what way such democratic State acquiescence in effect ultimately may disrupt the investment within the State in the shared culture of core human rights values that underlie the democratic rule of law itself and highlights the fragility of that shared culture. The special issue papers thus in sum argue for a renewed commitment in principle and practice to the democratic rule of law and to its human rights international normative underpinnings.
In her paper International order, the rule of law, and U.S. departures from refugee protection Alise Coen argues that ‘international human rights norms and respect for the rule of law are mutually sustaining pillars of a liberal international order’ and that ‘State behaviors undermining customary and jus cogens legal norms are exceptionally disruptive to possibilities of global justice’. Coen advances the notion that ‘non-refoulement and a Responsibility to Protect refugees are connected to universally binding and peremptory norms in important ways such that state violations of these principles undermine the premises of international legal order’. She explores within that frame certain U.S. refugee policies under the Trump administration and their implications in her view for democratic rule of law.
Ryan Alford’s paper is titled The harbinger theory of terrorism and the rule of law: The danger of ‘balancing’ non-derogable rights against security when relying on threat assessments produced by self-interested intelligence agencies. Alford explores some problematic examples of how Canada’s security apparatus (which he holds has an inherent conflict of interest that may affect threat assessments) has addressed the threat to the Global North of mass terror attacks. He explores what he argues are the inevitable improper adverse implications for democratic rule of law of balancing non-derogable rights against State security. Alford contends that in fact the ‘new framework of “balancing” rights against security entails a repudiation of the concept of non-derogability in practice’ a cornerstone of international human rights and refugee law.
Mariette Brennan and Miriam Cohen are the co-authors of Citizenship by Descent: How Canada’s One-Generation Rule Fails to Comply with International Legal Norms. Brennan and Cohen explore how changes to Canada’s rules regarding citizenship by descent (namely ‘denying second and subsequent generations of Canadians born abroad the right to citizenship by descent’) likely would render some children stateless ‘thus violating international law and the rule of law’. Brennan and Cohen argue that Canada must introduce legal reforms to its citizenship by descent laws to ensure such laws do not contribute to statelessness and better ensure that crafting of any new laws on citizenship carefully consider the issue of statelessness lest individual basic human rights be undermined by exacerbating the problem of statelessness.
Oscar Gakuo Mwangi’s paper Securitisation, non-refoulement and the rule of law in Kenya: the case of Somali refugees explores what he maintains are violations of Kenyan domestic and of international law through the improper refoulement of Somali refugees in Kenya. That refoulement occurring under the false justification of securitisation and blanket characterisation of the Somali refugees as terrorists. His paper explores the possible role of non-state actors in challenging false blanket narratives about particular refugee groups.
Denise González-Núñez’s paper is titled The widespread use of torture in Mexico and its impacts on the rule of law. González-Núñez’s outlines the scope of the persistent problem in Mexico of the use of ‘torture … in various contexts, its use in criminal proceedings, [and] as an “illegal” method of criminal investigation to obtain confessions and incriminating statements’. She argues that the relatively unfettered use of torture in various aspects of criminal law enforcement and prosecutorial procedure in Mexico ‘has translated in an almost absolute incapacity to enforce the law according to human rights standards’ thus eroding the very notion of democratic rule of law.
The paper EU Membership Conditionality in Promoting Acceptance of Peremptory Human Rights Norms: A Case Study in Albania Considering Public Opinion authored by Ridvan Peshkopia, Drin Konjufca, Erblin Salihu and Jonida Lika explores a disconnect in certain instances in public opinion regarding on the one hand support for EU membership and such membership conditionality as an agent of democratisation in the country and, on the other, views about what constitute basic jus cogens human rights. The authors report a case study on this issue conducted using 2016 public opinion survey data collected in Albania. That data reveal that EU membership being conditioned on promoting and protecting human rights in the State in question is not consistently sufficient to promote among the populace widespread support for all EU -stipulated basic human rights.
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