In the latest issue of the London Review of Books I have a short piece discussing the first-ever case decided by the European Court of Human Rights, Lawless v. Ireland. Lawless was a former IRA militant detained by the Irish government when attempting to travel to Great Britain. This was done under an emergency law allowing detainment without trial of persons “engaged in activities which, in his opinion, are prejudicial to the public peace and order or to the security of the state.” In short, the Court accepted the Government’s argument and the derogation from the rights of the Convention. This case has been pivotal, not only in the history of the Court in general, but in the case law on states of emergency and derogations under such circumstances.
The piece critically discusses the judgment and connects it to concepts such as legal black holes, permanent states of emergency, and sovereignty. It draws on the work of Alan Gross, Fiona Ní Aoláin, Alan Greene, Martin Loughlin, David Dyzenhaus, and Giorgio Agamben.
My conclusion is:
Lawless’s name foretold his treatment as an outlaw, a person placed in a legal grey hole. … Lawless’s internment was an action supported by the whole legal edifice. The state was the lawful actor, sovereign and backed by the law.
You should head over to LRB and read it.
Tormod