On the authority to secure

Finnane: ‘On the authority to secure’ – draft only, not to be cited without permission. 30 July 2013

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University of Western Sydney

Research Workshop: The State as the Public Authority in the Era of Globalization

12-14 August 2013

On the authority to secure

Mark Finnane

Griffith University

In this paper I seek to examine the authority exercised by supra-national bodies that seek to

protect shared civic norms (eg of individual and collective security, of personal integrity)

through decisions that rely for their effect on the voluntary agreement of sovereign state

actors or their proxies.

I will propose that one way of answering questions like ‘how [are we] to think about public

authority in circumstances where authority seems not to be aligned directly to the state’ or

‘how are we to conceptualise the authority of international and trans-national institutions’ is

historical. It may even be that the most productive way of answering such questions is

historical, eg by tracing the conditions of success and failure in adopting particular tactics for

the protection or advancement of shared norms.

Two kinds of authority will be examined through exemplar studies. In the first I will consider

injunctions against torture that have been exercised by the European Court of Human Rights,

eg famously in the judgment adverse to the government of the United Kingdom in respect of

its security actions against Irish republican activists in the 1970s. In the second I will examine

another kind of security objective, that protecting international travel, which has been

‘governed’ since the 1930s by the International Civil Aviation Organisation (a body of the

UN after 1948) and its associated conventions and rules.

This historical investigation will seek to identify the norms in play in decisions of such

bodies, the modes of action embraced by the organisations, and the conditions (and limits) of


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acceptance of their authority. Such an investigation of the operations of supra-national bodies

of generally post-war provenance might usefully provide a base for reviewing our

understanding of the scope of ‘public authority’ in an era of still sovereign states.

Bio

Mark Finnane is ARC Australian Professorial Fellow and a Professor of History at Griffith

University, in the ARC Centre of Excellence in Policing and Security (CEPS). He has

published widely on the history of criminal justice, policing, punishment, and criminal law in

both Australia and Ireland. His books include Police and Government: Histories of Policing

in Australia (OUP: 1994) and JV Barry: a Life (UNSW Press: 2007), a study of the judge,

civil libertarian, historian and criminologist Sir John Barry. With Heather Douglas he has

published Indigenous crime and settler law: white sovereignty after Empire, a study of

Australian Aboriginal experience of criminal jurisdiction, published in 2012 by Palgrave

Macmillan. His current research includes a focus on the governance of terrorism and political

violence. He has recently been awarded an ARC Laureate Fellowship (2013-18) to research

the history of prosecution and the criminal trial in Australia.


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I

In this paper I want to explore the material conditions that make possible forms of inter-

national governance that sidestep questions of sovereignty, or perhaps better said, work

around and within their constraints, while simultaneously asserting the value of authority

embedded in the state.

By material conditions I mean to emphasise not some historical socio-economic

arrangements, but something more concrete than this – the institutional conditions and

understandings that are achieved as a consequence of conventions, treaties, and declarations,

and which enable the work of setting standards or norms, and making decisions or judgments

that have an impact in the international sphere.

In approaching the question of public authority in this way I want to emphasise the

achievements as well as limitations of aspirations to international order that are reflected in

both critiques of the behaviour of states in their own and other countries, and

acknowledgment of their shortcomings in managing the challenges of global (cross-border)

movements of people, goods and services.

This then will be a paper that does less to engage philosophical or theoretical postulates about

the scope and nature of the public authority than to investigate how institutions that sit

outside the control of specific states manage all the same to reach back inside the workings of

those states.

In examining the cases I consider below it also becomes clear that these extra-sovereign

entities (international courts and organisations established by inter-state conventions and

treaties) in fact work by invoking, prodding, shaming or otherwise activating the capacity of

states to use their authority to achieve ends that have been settled by international (though

certainly not comprehensive) agreement.

II

Two recent international stories might serve as epigrams to this working paper which is

concerned with the scope and modes of public authority as they affect decisions about

security in contemporary life.

On 7 July this year the radical Muslim cleric Abu Qatada was deported from Britain to Jordan.

The deportation was the culmination of a decade long effort by the British government which


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considered the cleric a security risk. Abu Qatada was wanted in Jordan on terrorism charges

relating to events in 1999. He was also alleged to have praised the efforts of the 9/11

hijackers. In May 2013 he appealed against the Home Secretary’s deportation order, on the

grounds of the risk he faced in Jordan in a trial on evidence that had been produced by torture

of the potential witnesses. Abu Qatada subsequently reported his willingness to leave the UK

if Jordan would guarantee that he would not face a trial on evidence produced by torture.

When the UK in fact secured an extradition agreement with Jordan, the cleric agreed to leave.

The British Prime Minister declared that his blood boiled over the delays in the deportation;

the Home Secretary Teresa May declared that all options were open in a reconsideration of

the UK’s relation to the European Court of Human Rights. Quite what this might mean

remains unclear, as does the fate of Abu Qatada in Jordan and the capacity of that state to

honour its bilateral agreement which alters its legal procedures for one man. A question for

this paper might be – how does one state’s criminal law procedure come to be governed by ad

hoc agreements with another state, and how is the question of torture brought into play in this

arrangement.

A second event has drawn much greater international attention and remains unresolved at the

time of writing (late July 2013). In June 2013 Edward Snowden revealed that United States

intelligence agencies were collecting data on the country’s citizens as well as conducting

covert intelligence operations against a large number of friendly nations. The information

was less surprising than the enormous reaction that followed. But I am less concerned here to

document this case than to turn attention to Moscow’s Sheremetyovo Airport where Snowden

arrived in transit in late June after fleeing Hong Kong where he feared US success in

extraditing him. Snowden’s residence in the airport, variously reported as the transit lounge,

but perhaps accommodated more securely with the assistance of the Russian security service,

became a cause celebre, not only in the ground but in the air. Bolivia’s President Morales was

forced to take a long detour home after US authorities persuaded friendly powers that an

aircraft he was flying might have Snowden on board. The possibility that Snowden could

remove himself from the commercial airport to another Moscow airport used by diplomatic

plans was reported to be impossible as he would have to pass through passport control and

this was unlikely to be possible since the Russians were regarding his presence largely as a

problem, an unwelcome Christmas gift as President Putin remarked to a group of students.

Snowden’s problems in getting out of an airport and Morales’ problems in flying home are

the consequence of a set of arrangements that I want to consider in this paper as another


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dimension of the ambiguous modes of public authority in our time. So another question to be

considered by this paper might be – what does Edward Snowden’s residence in the curious

sterile space of the contemporary airport transit lounge tell us about security in transit

between countries, and between the space of the aircraft and our ultimate destination,

somewhere distant from the airport?

No doubt it would be possible to approach a discussion of these cases in terms that might

attend to the subjectivity of these two men, judged security risks by various powers, and

caught in a maelstrom only partly of their own making. It is however a question of authority

that we are being asked to explore in this workshop. It is the business of institutions at work

in and between countries, within and beyond sovereign states, that will concern us here. And

I will approach that business through examining some of the conditions for a governance of

these spaces (the airport lounge, the airplane that flies over territory) and practices

(detention and torture as policing and security practice). How far such an approach can

enlighten our understanding of the public authority in the contemporary age I am not sure –

but if one of our questions is ‘how [are we] to think about public authority in circumstances

where authority seems not to be aligned directly to the state’ or another is ‘how are we to

conceptualise the authority of international and trans-national institutions’ then I have

proposed that we should do so at least in part in the historical mode. It may even be that the

most productive way of answering such questions is historical, eg by tracing the conditions of

success and failure in adopting particular tactics for the protection or advancement of shared

norms.

On the other hand it is also the case that approaching the work of considering the problem of

authority in this way in some ways exemplifies the kind of undertaking that has been

considered by Martti Koskenniemi as characteristic of the field of international law (and

perhaps, I suggest, of the wider field of security studies). In a recent essay he highlights the

importance of the dual character of international law, idealist and realist, abstract and

concrete, normative and case-bound. ‘The tension in international law between the needs for

normativity and concreteness explains at least in part why its ideas always appear in pairs,

one side of which represents international law’s idealist aspiration, the other its realist

awareness’1 . To engage in international law, argues Koskenniemi, ‘ is not to be part of some

1 Crawford and Koskenniemi, The Cambridge Companion to International Law, 61.


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world-wide effort to construct a harmonious system of rules but to take part in controversies

about how to prioritise matters of international concern…’.2

Just so, the cases that one might choose to explore in understanding the scope and effect of

authority in matters that lie beyond the reach of any one state sovereign jurisdiction also

constitute examples of a working out of rules and constraints and practices in often highly

contested spaces. And the particular cases I choose to discuss here suggest the capacity of the

imperfect and constantly adjusting institutions of regional or international reach to effect

change through regulation or judgment. In neither case are changes possible through the act

or decision of a sovereign authority representing the international body. Change nevertheless

is effected through the marshalling of the limited resources of authority embedded in treaties,

courts, international assemblies and bureaucratic assemblages. Whether this amounts to

functionalism3 or something more ennobling is not an issue for me here – instead I want to

emphasise how individual and community security might be negotiated by such institutions,

enjoying as they do an authority that is embedded in legitimacy flowing from the consent of

self-interested states.

III

My first example considers the international arrangements that facilitate air travel, something

that enabled Edward Snowden to quickly reach a Moscow airport and then limited his

freedom of action once he got there. These arrangements extend from a consideration of the

so-called ‘freedoms of the air’ (up to nine of them) under which aircraft may access different

countries, through agreement on international navigation routes and rights of passage over

territory, to crime-prevention and security provisions that seek to limit hijacking and other

attacks on aircraft. The peculiarities of a new technology and its uses of the airspace above

sovereign territory help explain the kinds of arrangements that have come to characterise the

regulation of international air travel. The institutions that govern these arrangements have

however been developing slowly over the last 90 years, and repay attention for what they tell

us about the possibilities of a security that is obtained by hard-won administration and

imperfect agreement.

This is not the place to abstract a chronological history of the international framework that

governs the commercial and civilian use of airspace. Rather I want to highlight a number of

2 Ibid., 59.

3 See eg Jan Klabbers, ‘International institutions’, in Ibid., 230, 242.


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features of this history that will perhaps assist us to understand what kind of authority might

be said to lie in the imperfect governance of air travel. The centrepiece still of civilian air

travel is the Chicago Convention on International Civil Aviation of 1944, which authorised

the establishment of the International Civil Aviation Organisation, headquartered since 1950

at Montreal. The Convention is an international instrument, only binding on those states

ratifying it. It was three years before it came into force with the signature of the twenty-sixth

state, the United States, in 1947.4 Like the League of Nations and other inter-war

international institutions the Convention succeeded other less effective instruments of trans-

national governance. Although aircraft and air security (one of the reasons for my considering

the subject here at all) was to become an important preoccupation in later decades, the

Convention Debates at Chicago in November and December 1944 were more centred on

commercial questions. Predictably enough, the dominant air powers, the United States and

the United Kingdom, proposed quite different treatments of the key issue, the freedom of the

air. The US wanted maximum freedom of commercial aviation, consistent with their already

dominant position in air transport; Britain wanted an effective international regulation, and

sufficient barriers to the US position to enable it to organise its own protected zone of interest

in its imperial sphere, which also included the Dominions. The convention failed to achieve a

multilateral agreement on the organisation of commercial aviation. The settlement of the

requisite freedoms of the air left largely to bilateral agreement between sovereign states such

as that achieved between the US and the UK at Bermuda two years later.5 But the Chicago

international meeting nevertheless resulted in a Convention that put in place the foundations

of an international co-operation in the regulation of air travel that remains with us.

At almost every point in the subsequent half-century, attempts to achieve a more

comprehensive international regulation were extremely hard won. Typically there were two

modes – a setting of technical standards by a multitude of specialised committees operating

through the ICAO bureaucracy and endorsed through the ICAO Assembly; and development

of protocols on specific policy matters, as annexes to the Chicago Convention. The

Convention itself, and then the amending protocols, depended always for their effect, on

ratification by a significant number of states to achieve a status that we might consider as an

authority for norm setting that would play a compelling role in subsequent regulation of air

travel. All the same the procedures and practices remained the prerogative of states.

4 Milde, International Air Law and ICAO, 297.

5 MacKenzie, “Wartime Planning for Post‐war Commercial Aviation,” 67.


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This was evident in the difficulty faced by ICAO in achieving agreements on sanctions

against states that failed to set in place effective security arrangements or were implicated in

terrorist actions against civilian air traffic. Sometimes, as in the early 1970s, third parties

proved important aids to the authority of ICAO – hence the intervention of the Pilots

Association in the early 1970s in response to a wave of hijackings and bombings of aircraft.

At this point in time it seems barely conceivable that the security of civilian air travel should

have faced such obstacles as it did in the 1960s down to the 2000s so I want briefly here to

indicate the steps along the way.

Although assaults on aircraft, including bombing and hijacking, went back to the 1930s, they

were comparatively rare, and in the post-war years relatively detached from political

motivations. Their frequency increased in the United States after the Castro Revolution in

Cuba, but there was little generalised anxiety arising from what was seen as a regional

problem. The ICAO’s response was low level but set the mechanism that would operate in

later years – the drafting of a new Convention and its subsequent ratification. The 1963

Tokyo Convention originated not as a security measure so much as one about the legal status

of aircraft and appropriate jurisdiction, to settle seemingly remote questions including the

status of contracts or marriages concluded on board an aircraft in flight. In due course the

Convention covered issues including the definition of the pilot as air commander and

determined the state of registration of an aircraft, from which followed various procedures in

relation to jurisdiction over offences on the aircraft and the right of return of an aircraft

seized.6 The Convention’s ratification was very prolonged – only two states had signed by

1966 and it was not until 1969 that the United States signed as the twelfth signatory, bringing

the Convention into force. Although the debates around the drafting of the Convention had

been mindful of the impact of hijacking, it has been suggested that the decline of these

incidents for the few years after 1962 contributed to the lack of urgency in ratifying the

Convention.7

By 1969 a different set of circumstances had changed the political atmosphere around aircraft

security. Cuba had been complacent and even hostile in relation to hijacking in the early part

of the decade but it was the Cuban representative at the 1968 ICAO Assembly who prompted

a new look at hijacking – reportedly because the country was having difficulty meeting the

cost of aviation fuel to return aircraft which had been seized over American airspace and had

6 Milde, International Air Law and ICAO, 212–219.

7 Mackenzie, ICAO, 254–5.


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to be returned from Cuban airfields!8 In itself this story signals the normative impetus of the

international arrangements that now had been put in place, even at a time of otherwise

poisonous bilateral relations between two countries like Cuba and the United States. As a

result of the Cuban intervention the ICAO began to consider a new Convention that would

address what Tokyo had not – the actual seizure of an aircraft. The result was a further

Convention for the Suppression of Unlawful Seizure of Aircraft, agreed at The Hague

Diplomatic Conference in December 1970.

Other changes within ICAO were a symptom of the changing security situation – in 1969 the

Council decided after protracted debate to establish a ‘Committee on Unlawful Interference

with Aircraft’ that was ‘to do for the council on security matters what the ANC [Air

Navigation Committee] does on technical issues’.9 Such an institution was however also

constrained by the limits on its freedom, defined by the self-denying principles of

international diplomacy that made an organisation like ICAO possible at all. This was above

all evident in the provision that this new committee was to ‘refrain from considering any case

which may involve the Committee in matters of a political nature or of controversy between

two or more States’.10

Such a norm was advanced as a way of sustaining the limited authority

that might be expected of an international organisation seeking to tread its way through a

minefield; it was a way of constructing a field of action that enabled the ICAO to expand its

capacity to improve security. In an atmosphere heated by the increasing inventiveness of

terrorist actions of Palestinian militants and their Arabic and other supporters, the ICAO was

challenged by the difficulty of distancing the discourse against terrorism from the imperative

of political agnosticism. In The Hague Convention of 1970 (with its agreement on universal

jurisdiction over hijackers by extradition or prosecution) and in the succeeding Montreal

Convention of 1971 (agreeing on the similar obligations of states dealing with saboteurs of

aircraft) the ICAO nevertheless managed to obtain very substantial agreement across a large

number of countries including those divided by the Cold War.

The division between the two sides of the Cold War was however nothing compared to that

increasingly dividing Israel and the Palestinian liberation movement. The disastrous outcome

of the Munich Olympics hostage taking in 1972 again prompted ICAO debate the possibility

of sanctions against states suspected of aiding or harbouring terrorists. Like the United

8 Milde, International Air Law and ICAO, 210–11.

9 Mackenzie, ICAO, 257.

10 Ibid.


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Nations in the same year, the ICAO proved unable to surmount the ideological divide that

pitted defenders of anti-colonial struggle against the rest, at least for the time being. It was

not until the late 1980s that the more drastic intervention of sanctions on civil aviation

operations could be brought against a state that sponsored terrorism involving aircraft, the

case of Libya in the Lockerbie attack. Yet ICAO proved better able to change many of the

practices of international and even domestic air travel through its other more technical

approach to standard setting through its technical committees. Hence Annex 17 of the

Chicago Convention had far-reaching impact through its definition of standards that would

improve air safety and security. These included matters such as the separation of transit from

other passengers, the screening of baggage, including the requirement to off-load the baggage

of non-boarding passengers, and eventually, especially post 9/11, the security screening of

passengers.

The consideration of security needs addressed by an international institution like the ICAO

highlights the ways in which a public authority is exercised through multilateral agreement

on polices and standards, rather than any exercise of a sovereign power. The success of this

endeavour has flowed in part from the painstaking construction of legitimacy, effected in part

through constant adjustment of the scope of negotiation and a determined agnosticism in

relation to contentious political divisions. Over time the result has been an intensified regime

of security that has changed the experience of passengers using the freedoms of the air – and

yet remarkably acquiescent in the acceptance of constraints on movement imposed by the

authorities, private and public as they are. Some constraints have been very visible and

provoked more discussion – cabin baggage and personal body inspections notably. Others

have been more subtle as they have been built into the very design of airports – Edward

Snowden’s accommodation in a transit lounge is an effect of a new architecture of security

developed in the 1970s to separate passengers in transit from those entering and exiting the

airport.11

The changes are mundane – and might be seen as simply the work of a purely

functional administration of international air travel. I hope to have shown some reasons why

this would be an inadequate understanding of a very complex and sensitive assignment that

was set in place by the work begun at Chicago in December 1944.

11

For a discussion of the impact of 1970s security planning on the design of airports and transit procedures in Australia, see Mark Finnane, ‘Terrorism and government: between history and criminology’ ANZ Journal of Criminology , Vol. 46, No. 2 (August 2013, forthcoming).


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IV

This first case has been primarily concerned with the negotiation of the freedoms of travel, a

negotiation I have suggested which proceeds through the exercise of authority by persuasion

and the setting of normative standards, which are nonetheless powerful for all that. In a

second case I wish to consider briefly the course of a quite different international negotiation

aimed at the elimination of torture, another dimension of the politics of security.

Historically torture was an element of the law of proof. The legal historian John Langbein has

argued at length the case for considering the demise of torture in modern Europe not as a

product of the Enlightenment and the emergence of a romantic sensibility (as suggested more

recently by Lynn Hunt) but as the effect of a change in the law of proof.12

By the time

Voltaire condemned torture, suggests Langbein, European legal systems had already

signalled its demise; and England had replaced torture with the jury hundreds of years before

this. Langbein’s argument is however more relevant to law than to the history of security –

for considering modern European empires alone, torture was a notorious instrument of

domination and a practice of police investigation and intelligence gathering. There is an

element of semantic confusion that bedevils discussion of torture, a legacy of its location in

law on the one hand and security on the other, not to speak of its referent in inter-personal

violence detached from these public purposes.

The post-war development of a human rights agenda found expression in two international

proclamations that have played a crucial role in advancing protections against torture. Article

5 of the 1948 Universal Declaration of Human Rights declared (without defining the term)

that ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or

punishment’. While the declaration was agreed by the United Nations there was no

mechanism by which allegations or complaints of torture might be made or the practice

sanctioned. It was otherwise with the proclamation in 1950 of the European Convention of

Human Rights. Article 3 of the Convention repeats for the most part the language of Article 5

of the Universal Declaration (excepting the word’cruel’). But the Convention, which

otherwise allowed derogation in times of emergency from state obligations in respect of

many of the human rights protections, accented the prohibition on torture by exempting

Article 3 (along with the Right to Life provision in Article 2, Article 4(1) against slavery and

Article 7 against punishment without law) from Article 15. This exemption turned out to be a

12

Langbein, Torture and the Law of Proof; Hunt, Inventing Human Rights.


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powerful stimulus to litigation once the associated institutions of the European Commission

of Human Rights (1954-1999) and the European Court of Human Rights (1959-) were

established.

Pursuit of complaints over infringement or abuse of the protected rights arose from either

states or individuals. Importantly, by virtue of Britain’s still extensive empire the decision by

the United Kingdom to admit the Convention’s authority over its colonial domains made the

European instrument one of much broader and controversial international significance. By

contrast France, although an original signatory to the Convention, failed to ratify before 1974

- meaning that its behaviour in Algeria was isolated from any challenge through the European

institutions.13

Critical to the status of the Convention in its capacity for grounding claims was

the opening up beyond states to individuals as complainants. The United Kingdom proved

resistant to the right of individuals to petition, a provision under Article 31 of the Convention

but not agreed by the UK until 1966.14

Most complaints over the long term were by

individuals, many thousands of them, though fewer ended up in the court; only 13 states had

brought cases before the Commission or Court up to 1997.

To get some sense of the scope of authority in play under the sway of the Convention we can

consider briefly four different challenges to state actions under conditions of emergency,

three of them bearing on torture. First, the acceptance that the protection of the Convention

extended to its colonial dependencies opened up the United Kingdom to challenge by another

state as early as 1956 when Greece brought a case over violations of the protected rights in

Cyprus. The British government was shocked by Greece’s action, which was also targeted at

the Cyprus government’s arrest and banishment of Archbishop Makarios, who agitated the

case for the unification of Cyprus with Greece. In 1957 a further complaint by Greece

alleged torture by UK forces. In Cyprus and in other parts of the empire the government

reduced its vulnerability to such actions by entering derogations from the Convention under

the Article 15 provisions relating to states of emergency. The European Commission

wondered whether it was within power to inquire into a sovereign state’s justification of

derogation, viz whether there were circumstances justifying a government’s declaration of an

emergency threatening the public life of the nation. While the Commission did indeed

consider that it had the authority to inquire (as it eventually did, on site) and form a view, it

also developed a jurisprudential principle, the ‘margin of appreciation’, which acknowledged

13

Simpson, Human Rights and the End of Empire : Britain and the Genesis of the European Convention, 1077. 14

Ibid., 707–9, 1090–2.


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the conditions under which a government might decide the necessity of a suspension of rights.

There was no conclusive outcome of the torture complaint which was eventually withdrawn

by agreement of the two sides, but Simpson suggests that the effects of these challenges by

Greece were felt in modifications to the management of emergency in Cyprus. An important

element of the entire process was the normative pressure created by an inter-state challenge to

the freedom of action of a sovereign state – the United Kingdom had been a prime mover in

the creation of the European Convention and was now forced to face questions over the

actions of its own colonial government and security forces. At some heated moments during

these years, internal rumblings in the UK bureaucracy and cabinet suggested that the

government should denounce the convention, and in particular its extension to the colonies.15

The unintended consequences of a sovereign state committing to an international agreement

that embraced human rights norms were thus starkly exposed by Greece’s challenge to the

United Kingdom over Cyprus.

The capacity of an individual complainant to challenge emergency provisions was tested in

1960-1 in the first case heard by the newly established European Court of Human Rights. The

eponymous Gerard Lawless, a member of the IRA, had been detained without trial in Ireland

in 1957 under the Offences against the State Act, having been arrested the year before with a

number of other IRA men in possession of ‘a Thompson machine-gun, six army rifles, six

sporting guns, a revolver, an automatic pistol and 400 magazines’. The Irish government

however had entered a derogation under Article 15 and the Court found there was no

violation of the ECHR. The attempt of the Irish government to argue that the ‘Convention

organs’ had no jurisdiction to review its decisions relating to the emergency powers was

rejected. But the Court agreed that there were conditions justifying the derogation, namely ‘a

public emergency in the Republic of Ireland threatening the life of the nation’.16

The Republic of Ireland itself was the complainant in one of the most important Court

decisions when it challenged in 1971 the conditions of interrogation against detainees under

internment in Northern Ireland. The torture and ill-treatment of a number of detainees by the

British army deployed in response to the deteriorating security situation became a cause

celebre and a provocation in domestic and international relations between Ireland and the

UK. The Irish government argued that Article 3 protections had been breached. The

15

Ibid., 983–4. 16

Bonner, Executive Measures, Terrorism and National Security, 84–5; Simpson, Human Rights and the End of Empire : Britain and the Genesis of the European Convention, 1082. Lawless v Ireland, 1961, ECtHR.


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possibility of just such an intervention over Northern Ireland had been contemplated within

the Foreign Office during the years of the Cyprus emergency, being cited as another reason

why the UK might consider denouncing the Convention.17

By the time the case was

eventually adjudicated in 1978 the United Kingdom had itself taken action to review

detention and interrogation procedures; as in Cyprus two decades before some of the security

force personnel were prosecuted over their treatment of detainees. As also with Greece in the

1950s, there were strong domestic political reasons for the Irish government in the 1970s to

pursue the British government over its actions in Northern Ireland. The Irish case was

pursued in the European Court of Human Rights, producing eventually an equivocal

judgment around the Article 3 issues. An inquiry by the Commission had found evidence of

torture but the Court (by 13 to 4) declined to agree that the practices amounted to torture; a

single judge of the 17 (the sole British judge) was the only dissenter from the Court’s

conclusion that the United Kingdom had breached Article 3 in respect of practices of

inhuman and degrading treatment.18

Rights lawyers may find in this outcome another

example of the deferential approach of the Court, leaning too far towards the government and

its security forces acting in conditions of emergency. On the other hand we might also see in

the process of inter-state litigation under the Convention a further noteworthy development in

the normative conditions that define the possibilities of government and the actions of

security and policing agencies in such emergencies.

An extended review would continue this line of cases around the absolute prohibitions

contained in Article 3 on torture and unhuman treatment, the background to the recent

controversy over the expulsion of Abu Qatada. However ‘deferential’ the Court may have

appeared in its earlier judgment regarding the IRA detainees in 1971, the authority of the

Court to judge whether or not treatment breached Article 3 provisions had been established

since the Cyprus cases – and so continued in an expansion of the protection of Article 3 to

cover persons in danger of torture or ill treatment if deported. The Soering case in 1989

(blocking extradition to the United States of someone facing capital charges in a death

penalty state) and that of Chahal in 1996 (barring deportation to India of a converted Sikh in

fear of persecution if he was returned) were signals of the kind of reasoning that were likely

to have encouraged Abu Qatada to challenge his deportation to Jordan. In this respect then,

we might suggest that this particular international institution, the European Court of Human

17

Simpson, Human Rights and the End of Empire : Britain and the Genesis of the European Convention, 983. 18

Mowbray, Cases and Materials on the European Convention on Human Rights, 145–54; Bonner, Executive Measures, Terrorism and National Security, 96–8. Ireland v UK (1978) ECtHR


15

Rights, has exercised an increasingly persuasive authority that expands the reach of a new

norm that purports to allow no exception, the prohibition of torture and inhuman treatment

even of those threatening the life of the nation.

V

(in conclusion)

In this paper I have sought to address a question about the scope of public authority in the

contemporary (post-World War II) era. I have suggested that understanding authority in a

time of globalising relations, political as well as economic, is usefully addressed through

historical study of institutions that have been tasked to oversight, though not direct, public

and commercial activity. Such institutions were shaped at a time of profound trauma, the

consequence of war and totalitarianism, and countervailing idealism, sometimes masking

more or less aggressive self-interest. Shaped by such forces, it is not surprising to see that the

authority exercised by the resulting arrangements has been often uncertain, very protracted in

its development, but arguably consequential in its shaping of norms and practices.

Two quite different institutions have been considered, primarily through the lens of their

impact on individual and collective security. The ICAO was shaped by forces similar to those

producing the United Nations, of which it became an agency. Its object was of course more

limited, the development of an agreed set of international understandings for air traffic in the

post-war world. While it struggled to forge a multilateral agreement on international aviation,

it proved more successful in establishing the technical standards that enabled such aviation to

develop safely and securely, generally within bilateral agreement. By attaining the required

degree of political and ideological agnosticism, its assemblies and committees managed over

the longer term to develop significant new norms for the improvement of aircraft and airport

security, though more often lagged by reason of the challenge of dealing with emotionally

charged issues like terrorism. Over time ICAO also forged a capacity to broker international

aid for the development of more secure air services in countries with limited ability to pay for

the infrastructure and training required. If security of air travel seems a mundane interest in

the high-minded domain of internationalism, it is nevertheless a vital achievement suggesting

the possibilities of an international institution exercising normative functions that over time

reach a threshold of imperative authority.


16

Turning to the evidently more virtuous world of human rights protection I have considered

some aspects of the adjudication of human rights complaints by the European Court of

Human Rights. Considering mainly the effects of this adjudication with respect to the

question of torture we have seen that the non-derogable Article 3 of the European Convention

of Human Rights has produced from the beginning a qualified set of decisions. Yet over time

it can be also seen that the norm embraced by both the Universal Declaration and the

European Convention has had significant effects in constraining the actions of parties to the

Convention. The very process of litigation arguable exercised its impact through restraining

British security forces in both Cyprus and in Northern Ireland from gross excesses in

detention and interrogation. In spite of the political embarrassment caused the United

Kingdom as an original signatory to the Convention the authority of the European organs

charged with protecting human rights has been preserved. As much as human rights lawyers

might regret the failure of the European Court to pronounce more vigorously on some of the

cases before it, it is arguable that a more sustainable legitimacy has emerged through the

Court’s caution and legalism, too much for some no doubt and never enough for others.

I want to finish with a final speculative comment that seeks to analogise the course of these

experiments in international governance to an early modern history of the state in the face of

the demands of religious enthusiasm. It will be evident from what I have said about both

ICAO and the European Court of Human Rights that certain steps of self-abnegation have

been vital to the sustainability of the institutions, ie, I suggest, to their capacity to exercise a

certain authority that will not dissolve the conditions of their existence. In the case of the

ICAO we may find this abnegation in what I have called its political agnosticism. As for the

European Court of Human Rights might we see in the development of the doctrine of ‘margin

of appreciation’ not so much a failure of an institution to assume its full potential to inquire

into the machinery of a sovereign state as a recognition of the impossibility of judging over

all the circumstances of a moment when a state has been brought to declare an emergency,

which may be the lesser of two evils? On such decisions, it has been argued, here rest the

possibility of exercising a kind of authority attuned to the less than sovereign powers of an

international institution.

On the authority to secure

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