The International Court of Justice this morning rendered its judgment in the Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) case (judgment; case materials). As widely expected, Germany won, and won hands down. On the main issue of jurisdictional immunity the Court decided in Germany’s favour by 12 votes to 3 (Judges Cancado Trinidade and Yusuf and Judge ad hoc Gaja dissenting; UPDATE: having skimmed the dissents, it seems that only Judge Cancado Trinidade relied on the jus cogens immunity override theory). On all other claims – immunity from enforcement, jurisdictional immunity in exequatur proceedings and reparation – the Court decided in favour of Germany by 14 votes to 1 (only Judge Cancado Trinidade dissenting). So there’s been no serious split in the Court, to the eternal regret of this year’s Jessup competitors, to whom I extend my sympathies. As is now customary, Judge Cancado Trinidade appended a jolly 88-page dissent, almost twice as long as the Court’s judgment (for what it’s worth, my sympathies equally extend to his clerks). Several other judges appended declarations or separate opinions, but less than could perhaps have been expected – again, the Court was fairly unified.

We will have more substantive commentary on the judgment in the week to follow. For now, however, I’ll just note some key paragraphs in the Court’s judgment: para. 58 (inter-temporal law), para. 60 (state acts may be unlawful but still be acts jure imperii), paras 77-78 (no territorial tort exception to immunity for the acts of the armed forces of a foreign state on the territory of the forum state in times of armed conflict; note the Court’s extensive reliance on domestic judgments and those of the European Court of Human Rights), para. 91 (no exception to state immunity merely because a serious violation of IHL or IHRL is alleged), para. 93 (no conflict between a substantive rule prohibiting certain conduct that has the status of jus cogens and the procedural rule establishing state immunity; therefore, no jus cogens override of immunity), paras. 101-102 (immunity does not depend on the availability of an alternative avenue for redress), para. 108 (because immunity is upheld, no need to examine questions whether individuals are directly entitled to compensation for violation of IHL and whether states may validly waive the claims of their nationals in such cases), para. 119 (immunity from enforcement), paras. 130-132 (jurisdictional immunity in exequatur proceedings).

A long-anticipated judgment, and one in which I think the Court both reached the correct result and did so in a well-reasoned decision – but I’m sure it’ll prove controversial nonetheless.

Iran has repeatedly threatened to close the Strait of Hormuz in response to any oil embargo or other unilateral sanctions taken against it. The Strait of Hormuz, depending on the reports you read, is at its narrowest somewhere between 17 and 30 nautical miles wide. The bordering States Oman and Iran both assert 12 nautical mile territorial seas. However, the deep water channels that are safe for tankers, used under an International Maritime Organization traffic separation scheme, are only two miles wide each. The outbound lane from the Persian Gulf passes through waters off Oman, the inbound lane through Iranian territorial waters. (Please correct me if I have any of this factual material wrong.)

What legal regime applies to the route through Iranian territorial waters? The ordinary starting point would be that a State may temporarily suspend innocent passage its territorial waters, without discrimination, for essential security reasons (Article 25(3), UN Convention on the Law of the Sea). However, as Hormuz is a strait used for international navigation, Iran lacks that ordinary power.

Under UNCLOS, where a strait is used for international navigation and there is no equally convenient route through open high seas waters, then “all ships and aircraft enjoy the right of transit passage, which shall not be impeded” (Art. 38(1)). This would seem decisively against Iran, but for the fact it is only a signatory to the UN Convention on the Law of the Sea and has never ratified it. The precise legal regime applying to Iran and the Strait of Hormuz is thus open to debate.

Some States, especially the US and UK, contend the UNCLOS regime of unimpeded transit passage is customary international law. The alternative is that outside UNCLOS there is only a customary international law right of non-suspendable innocent passage. The Corfu Channel case established in 1949 that warships, and a fortiori merchant ships, have a right of innocent passage through international straits which the coastal State may not suspend.

It was certainly held under the Corfu Channel case that in a time of heightened tensions Albania would have been entitled to regulate (though not prohibit or effectively nullify) the passage of warships through its waters. (See further the discussion in Churchill and Lowe.) Thus it is clearly arguable that under the non-suspendable innocent passage regime a coastal State retains its right to prevent non-innocent passage by individual foreign vessels; while under the UNCLOS transit passage regime it would lack any such rights of enforcement (though it would retain the right to formally regulate certain matters).

Thus, there is some basis for an argument that Iran could seek to restrictively regulate passage through its territorial sea short of suspending innocent passage – provided that as a matter of custom the Corfu Channel and not the UNCLOS rule applies.

However, in the comments to Sahib Singh’s recent post on Iranian sanctions Dan Joyner raised the question whether Iran could take countermeasures in the Strait in response to illegal interventions against its nuclear programme. Rather than close the Strait, Dan suggested Iran might be justified in seizing and confiscating vessels of the nationality of the States responsible for various illegal interventions against its nuclear programme (presuming these acts could be proven the responsibility of Israel and the United States).

Ordinarily, under the ILC Articles on State Responsibility, countermeasures must:

• be targeted only against the responsible State;
• be preceded by an offer to negotiate;
• consist only of the injured State withholding performance of one or more international obligations owed to the responsible State;
• be proportionate and readily reversible; and
• not involve the use of force.

Technically, seizing individual vessels under Dan’s scenario would not involve closing the Strait. Could it be described as suspending the right of innocent passage of certain targeted States? Perhaps, though I have some (possibly formalistic) qualms about the idea that suspending a freedom from interference can create a positive right to interfere. That aside, would seizing merchant vessels involve a prohibited use of force under the UN Charter? The majority view among scholars would appear to be that such a “police action” is not usually tantamount to a use of force (see e.g. Guyana v. Suriname), though much might depend on how such an interdiction operation was carried out.

The suggestion some vessels could be seized as a countermeasure is thus not implausible, but the real question would be sufficient proof of attribution of the complained of conduct to the targeted States.

Finally, one might note that actually closing the whole of the Strait by force could constitute a blockade of the ports of Kuwait, Qatar, Bahrain, the United Arab Emirates and Iraq. This would appear to be a prima facie act of aggression against these States as the General Assembly’s Definition of Aggression (UNGAR 3314) includes blockade of ports under Article 3(c). Such an act of aggression would, at a minimum, justify Security Council intervention though we could debate what other action might be permissible in such a case.

This is far from a fully developed analysis, so thoughts are welcome. My apologies if my replies to comments are less than timely.

Joanna Harrington is a Professor with the Faculty of Law and an Associate Dean with the Faculty of Graduate Studies and Research at the University of Alberta in Canada.

As I write this post, college instructor and former politico Léon Mugesera has, at last, been placed on a plane to Rwanda by Canadian government officials to face charges of inciting genocide stemming from an inflammatory anti-Tutsi speech delivered almost twenty years ago, and which was replayed during the height of the genocide. (Twitter has been used by Rwanda’s Foreign Minister to confirm that Mugesera is en route to Kigali.) For many Canadians – and many Rwandans – the departure of this accused genocidaire will not be mourned, with many saying that he should never have been admitted into Canada in the first place. But the latest round in the Mugesera saga does raise concerns for the domestic significance, and thus impact, of the individual complaints procedure found replicated in each of the UN human rights treaties, as well as the need for greater transparency and detailed guidance from the UN human rights treaty bodies themselves with respect to the issuance of requests for interim measures.

 The Mugesera saga

After Mugesera’s speech in November 1992, Rwandan authorities did seek the equivalent of an arrest warrant, but Mugesera had fled the country, and by mid-1993, he had secured permanent residence for himself and his family in Canada. Two years later, Canada’s Minister of Immigration and Citizenship commenced proceedings to send Mugesera back to Rwanda, having learnt of the allegations against him. Under Canadian law, a permanent resident (but not a citizen) may be deported if it is determined that before or after being granted permanent residency, the individual committed a criminal act or offence. In this case, the speech was the alleged criminal act that was committed (and not disclosed), with the speech said to constitute an act of incitement to murder, hatred and genocide, and a crime against humanity. Several years of legal proceedings then ensued, culminating with a unanimous Supreme Court of Canada decision in 2005, which also reproduces Mugesera’s speech as an appendix for all to read.

The speech, however, is not what is at issue in the latest installment in the Mugesera saga. What is at issue appears to be the issuance of a request for interim measures by the Committee Against Torture, asking Canada to hold off deporting Mugesera while a claim is pending before the Committee that Mugesera will face torture in Rwanda. (I say “appears to be” as many reports simply state that an amorphous “UN” has asked Canada to hold off deporting Mugesera, which does no favours for the UN’s reputation among its critics, while those reports that specify the Committee Against Torture, do not use the interim measures terminology.)  (more…)

My friend Vidan Hadzi-Vidanovic and I just finished an article on the classification of armed conflicts in modern IHL, which is forthcoming in a book collection edited by Christian Henderson and Nigel White. The draft is available here on SSRN, and the abstract is below. Particularly because the piece draws upon many discussions we have had on this blog, any comments would be most welcome.

With some relatively minor exceptions international humanitarian law (IHL) applies only when a certain threshold is met: the existence of an armed conflict or belligerent occupation. The purpose of this chapter is to explore the many difficulties surrounding the classification of armed conflicts in modern IHL. While the two main archetypes – international armed conflict (IAC) and non-international armed conflict (NIAC) – are reasonably clear in their basic forms, their boundaries are complex and obscure. Many recent conflicts do not fit the classical archetypes well, provoking debates on spill-over, internationalized, mixed or hybrid and even transnational armed conflicts.

The chapter strives to show that there are some differences between IACs and NIACs that cannot be erased simply by reasoning from analogy or from moral imperative, and that therefore the classification of armed conflict is an issue that matters and will continue to matter for the considerable future. The principal goal of the chapter is clarity, clarity in a conceptual and doctrinal framework which can enable legal and policy debates to be properly had and argued without their participants talking past each other. In attempting to advance such clarity, the chapter discusses the framework of war and peace in classical international law, the conceptual revolution brought about by the aftermath of the Second World War, and finally the modern law, by developing a comprehensive taxonomy of armed conflict.

The US Government recently submitted to the Human Rights Committee its fourth periodic report on its compliance with the ICCPR. On the issues near and dear to my heart – the extraterritorial application of the ICCPR and the relationship between IHRL and IHL – the new report presents a significant softening of the US position. Or, to be more precise, the report leaves the door open for a shift in the US position in the relatively near future (assuming, I imagine, that Obama manages to win re-election). Thus, paras. 504-505 of the report on extraterritoriality summarize the previous US position and those of the HRC and the ICJ, but do not contest the latter.  Paras. 506-507 on IHL are a bit more meaningful, and bear quoting in full:

506. With respect to the application of the Covenant and the international law of armed conflict (also referred to as international humanitarian law or “IHL”), the United States has not taken the position that the Covenant does not apply “in time of war.” Indeed, a time of war does not suspend the operation of the Covenant to matters within its scope of application. To cite but two obvious examples from among many, a State Party’s participation in a war would in no way excuse it from respecting and ensuring rights to have or adopt a religion or belief of one’s choice or the right and opportunity of every citizen to vote and to be elected at genuine periodic elections.

507. More complex issues arise with respect to the relevant body of law that determines whether a State’s actions in the actual conduct of an armed conflict comport with international law. Under the doctrine of lex specialis, the applicable rules for the protection of individuals and conduct of hostilities in armed conflict are typically found in international humanitarian law, including the Geneva Conventions of 1949, the Hague Regulations of 1907, and other international humanitarian law instruments, as well as in the customary international law of armed conflict. In this context, it is important to bear in mind that international human rights law and the law of armed conflict are in many respects complementary and mutually reinforcing. These two bodies of law contain many similar protections. For example prohibitions on torture and cruel treatment exist in both, and the drafters in each area have drawn from the other in developing aspects of new instruments; the Commentaries to Additional Protocol II to the Geneva Conventions make clear that a number of provisions in the Protocol were modeled on comparable provisions in the ICCPR. Determining the international law rule that applies to a particular action taken by a government in the context of an armed conflict is a fact-specific determination, which cannot be easily generalized, and raises especially complex issues in the context of non-international armed conflicts occurring within a State’s own territory.

Note how the US report has now started using the customary buzzwords of the IHL/IHRL project (‘complementary’, ‘mutually reinforcing’), while at the same time presenting its lex specialis argument in less drastic terms than before. The last sentence of para. 507 is particularly noteworthy, as the US now argues that the relationship between the two bodies of law requires a fact-specific determination in any given case, rather than just treating IHL as displacing IHRL wholesale, while it leaves room for complementary application particularly in times of internal armed conflict. (Note the construction ‘non-international armed conflicts occurring within a State’s own territory’, which is presumably meant to exclude cross-border NIACs of the sort that the US claims it is engaged in with Al-Qaeda).

We’ll see whether the US position will continute to evolve – but there is some reason here for optimism. The reference to lex specialis is still unfortunate, in my view, as that pithy Latin phrase has very little to teach on the interaction between norms (see more here, and in a more updated form in the last chapter of my book). In that regard, readers might also be interested in the debate between Gabor Rona and Jens Ohlin at Opinio Juris and Jens’ new blog, the LieberCode.

Conor McCarthy is Visiting Fellow at the British Institute of International and Comparative Law.

The European Court of Human Rights has handed down its long-awaited judgment in the case of Othman (Abu Qatada) v. the United Kingdom which, despite the initial furore that is likely to surround it in the UK, is also a case of substantial legal significance. The judgment sheds light on the circumstances in which it may be permissible under the ECHR (“the Convention”) to expel an individual to a third state where the use of torture is prevalent on the basis of assurances against torture or ill-treatment. Significantly, the Court also lays down, in emphatic terms, principles as to the permissibility of expelling an individual to face trial in a third state where evidence obtained through torture may be used in trying that person.

The Applicant’s Background

Abu Qatada is a high-profile radical Islamic cleric considered by the United Kingdom to be a threat to its national security and who is sought by Jordanian authorities (and indeed authorities in a number of other countries) in connection with a series of terrorist offences. He arrived in the United Kingdom in 1993 when he was granted asylum, having fled from Jordan where he had been tortured in detention in 1988 and 1990-1991. However, as he is regarded as a threat to national security, the UK has sought to extradite him to Jordan.

Bilateral Assurances on Torture or Ill-Treatment

As regards the question of MOUs or diplomatic assurances, some background is helpful. Following the September 11 attacks in the United States the question of the deportation of terrorist suspects, considered a threat to UK national security, to countries where they may face a risk of torture moved high on the political agenda. In 2001 the UK Foreign and Commonwealth Office advised the government that Article 3 of the Convention precluded the deportation of terrorist suspects to Jordan. However, in 2003 a Government review of the possibility of removing such barriers to removal was conducted and it was proposed that certain key countries, including Jordan, could be approached to determine whether they would be willing and able to provide assurances to guarantee that potential deportees would not be subjected to torture or inhuman and degrading treatment. Following this, the United Kingdom’s Foreign Secretary agreed that seeking specific and credible assurances from foreign governments, in the form of Memoranda of Understanding (“MOU”), could be used to enable the deportation of certain individuals from the United Kingdom and in 2003 the British Embassy in Oman were instructed to seek such assurances from the Jordanian government.

Various negotiations ensued and a MOU was agreed between the United Kingdom and Jordan in 2005. On its face, the MOU provided that a receiving state would respect its obligations under international human rights law with regard to the treatment of persons returned under the MOU. In addition, it was specified that if a returned person was detained within three years of his date of return “he will be entitled to contact, and then have prompt and regular visits from the representative of an independent body nominated jointly by the UK and Jordanian authorities”. The MOU also specified that the receiving state will not impede consular access to the sending state by a person deported under the MOU.

(more…)

The House of Commons Foreign Affairs Committee released its report on Somali piracy on 5 January 2012.* I acted as a specialist advisor to the committee, so I will not offer a full analysis but simply highlight some points of interest:

• the report is critical of the failure to contain piracy in the Indian Ocean; however, it acknowledges that absent further naval resources the only effective way to protect vessels is to allow them to protect themselves – it thus supports the use of armed guards in some cases;
• indeed, the committee notes that UK government policy on armed guards appeared to shift during its inquiry, with the release last December of a Department of Transport policy allowing the use of armed security on UK flag vessels for the first time;
• the committee calls on the government to issue clear guidance on when armed guards may use potentially lethal force, noting that Crown Prosecution Service guidance on self-defence was not drafted with armed security guards in mind (paras 35-37);
• the report includes as appendices transcripts of evidence; of particular interest is the evidence of Major General Buster Howes (head of the EU NAVFOR counter-piracy mission), Sally Healey (Somalia expert) and Paul and Rachel Chandler (piracy hostages – though some of their evidence will remain redacted until such time as no British hostages are being held);
• the committee rejects calls for an international piracy tribunal or an extra-territorial Somali court sitting in Arusha and supports “recent proposals for specialised anti-piracy courts established within regional states under ordinary national law” as the most efficient and practical option (para 92);
• the explanation of how decisions to prosecute and transfers for prosecution operate in practice is enlightening (see paras 102-3 in particular);
• the report urges the government to consider prosecuting those piracy suspects intercepted by the Royal Navy in the UK where no other State will accept the case (para 107) but notes UK law may need clarification/updating (para 84 and n. 162);
• also worth attention are the sections on “solutions on land” (noting that present “[i]nternational capacity to rebuild a Somali state is extremely limited” but supporting “community engagement” as the way forward) and on the UK government response to the Chandler case (recommending a review of procedures and lessons learned); and
• finally, there are a series of interesting tables and graphs in the report, including those at pages 30 (total attacks against shipping compared to successful hijackings), 39 (numbers of ships and hostages held by pirates over time), 53 (pirate prosecutions internationally), 56 (total ransoms paid).

One statistic evident in, but not highlighted by, the report is the success rate of pirate attacks which halved from 2010 to 2011 (see page 30). This piece of good news is probably due to a mix of factors including naval patrolling, improvements in the passive security measures taken by vessels following Best Management Practices and increasing use of armed security. None of these measures, of course, should be seen as a panacea.

*I note the House of Lords also inquired into Somali piracy, reporting on 14 April 2010.

The Cambridge Journal of International and Comparative Law is a newly established double-blind peer reviewed, open-access journal which aims to publish high-end legal scholarship. It has a broad focus on international and comparative law and a particular focus on publishing work that examines the intersection of different international, domestic and transnational legal regimes. The Journal aims to become a platform for constructive and critical dialogue between the well-established academics and practitioners on the one side and the younger generations on the other. It will have two substantive issues per year and a annual special issue, which will critically examine the decisions of the UK Supreme Court from the preceding judicial year. The CJICL is the only journal to produce a full issue review of the previous three terms of the work of the UK Supreme Court.

Sahib Singh is a Visiting Lecturer of International Law at the University of Vienna, a Visiting Fellow at the British Institute of International & Comparative Law and a PhD candidate at the University of Cambridge. The legal principles and arguments put forward are addressed far more extensively, albeit in the context of a different enquiry, in a forthcoming book chapter on Countermeasures and Non-Proliferation Law (draft here).

Since the publication of the International Atomic Energy Agency’s (IAEA) report on Iran of 8 November 2011, the Iranian nuclear issue has continued to slowly escalate.  This escalation has largely been constrained within its own narrative and of economic sanctions but, at other points, has spilled into diplomatic rows and military threats (see here and here).  In the forthcoming weeks, certainly the US, and possibly the EU, shall significantly broaden existing sanctions, introducing a spate of new sanctions as part of a marked shift in sanctions strategy.  However, despite familiar policy issues arising with such a shift, this post shall examine a foundational legal question: do states, beyond the scope of existing Security Council mandated sanctions, have standing to take unilateral countermeasures against Iran, and if so, upon which particular legal grounding?  In particular, I wish to examine the question of standing, under the law of State responsibility (particularly under Article 42(b)(ii) of the ILC Articles on State Responsibility), to respond to alleged breaches of the collective non-proliferation obligations contained in the Treaty on the Non-Proliferation of Nuclear Weapons (NPT).  The post shall determine that there is a considerable ambiguity in the law, arising from the tension between the law of treaties and the law of state responsibility, and arguably, states undertaking unilateral sanctions as a form of countermeasures against Iran may not have strict legal standing to do so (see here, pp. 10-24 for a more detailed examination).

Background & Delineating the Legal Question

Since 2002, when Iran revealed uranium enrichment facilities in Natanz and Arak that had been previously concealed for nearly 18 years, the IAEA and the international community has viewed Iran’s nuclear program with concern for its possible military dimensions.  Iran has continuously sustained its ‘inalienable right’ to peaceful use of nuclear technology (including acceptable levels of uranium enrichment) under Article IV NPT.  Despite mere suspicions and no conclusive evidence of a clandestine nuclear weapons program, and acting in discordance (although not necessarily in breach) with Article XII(c) of its Statute, the IAEA referred the case of Iran to the UN Security Council (UNSC) in February 2006.  Since the passage of UNSC Resolution 1696 (2006), Iran’s rights and obligations in relation to its nuclear program have been severely transformed, and the first of four rounds of UNSC Chapter VII economic sanctions were put in place.  The latest and most extensive of these was UNSC Resolution 1929 (2010), passed on 9 June 2010 (see pp. 39-44 of my paper for a discussion of parts of it). (more…)

Editor’s Note: This is another repeat post of an old favourite. The piece was first posted in December 2010. Roger O’Keefe is Deputy Director, Lauterpacht Centre; University Senior Lecturer in Law, University of Cambridge and Fellow & College Lecturer in Law, Magdalene College, Cambridge.

Once upon a time/Es war einmal/Il y avait une fois/C’era una volta, way back at the end of the Cold War, the Comptroller-General for the Complete System was performing his quarterly ‘stress test’ on the normative integrity of the international legal system when he detected a gap.  At first he did not believe it.  He had been taught, and throughout his professional life had encountered nothing which caused him to doubt, that such a thing was impossible.  The combination of the Lotus principle and the residual negative always provided an answer in extremis.  But the gap he was dealing with here was not that sort of gap.  Nor was it, as most supposed gaps are, merely a question of international law the answer to which is not to the interlocutor’s liking.  Here was a real gap, and an existential gap at that.  The Comptroller-General for the Complete System was perplexed.  I need some help with this, he thought.

Within a week, news of the gap was the subject of fevered speculation across the globe in faculties of law, ministries of foreign affairs, intergovernmental and non-governmental organisations and the boardrooms of multinational corporations.  From the ends of the earth, international lawyers—academics and practitioners, positivists and naturalists, doctrinal exegetes and critical theorists—gathered to discuss the unnerving development.

The first to offer an opinion were the legal advisors to the US Department of State and the multinational corporations—respectively, one should add, although it was sometimes hard to tell the difference.  To them the source and nature of the gap was obvious: it was the hole left in the international legal order by the conceptual bankruptcy of statism, a space rich in possibilities which individual and market freedoms were expanding to fill.  Having no need to hear the opinions of others, and time being money, these legal advisors then went back, perhaps not quite respectively, to drafting bilateral investment treaties.  The parole passed from the legal advisers to the various European governments, who characterised the gap as the hole left in the international legal order by the welcome collapse of anti-liberal humanist tyranny, a space rich in possibilities for the construction of a new Europe.  A spontaneous chorus of Beethoven’s Ninth rang out from Lon- … well, Paris to Berlin.  (In Warsaw, Prague and Budapest they were too busy buying colour TVs, while in Sofia, Minsk and Kiev they were standing around waiting for Beethoven’s rehabilitation.) 

Next to speak were the theorists.  Some of these read the gap as the silhouette of the Other.  A few of the women present, whom everyone had ignored until now, discerned in the shape of the gap an unmistakable phallus.  Queer theorists cheekily took to calling the gap the ‘glory hole’.  For his part, a kindly English gentleman, who, people whispered scarcely credibly, had worked for many years for the Foreign Office, divined in the gap the first breach in Vattelian international law opened up by a new self-constituting society of all societies.  A bespectacled, boyish Finn thought the gap looked kitsch.

The international environmental lawyers showed a sense of humour by likening the gap to the plug-hole down which had disappeared the emerging right to life of whales.  As the decade wore on, waggish international legal observers of western foreign policy began to liken the gap instead to the plug-hole down which had disappeared the emerging right to democratic governance.  By the turn of the millennium, an Australian professor, one of several thousand present, was remarking jokingly upon the uncanny similarity between the hole and the receptacle into which the International Law Commission had deposited the concept of the criminal responsibility of states, pulling the chain afterwards.

But none of these accounts captured the true character of the gap, which, as the Comptroller-General for the Complete System had rightly apprehended, was more essential.  Consternation increased.  The kindly English gentleman tried to sooth raw nerves by reading to everyone from his latest novel, but this only deepened the air of anxious bewilderment.  Things began to get fractious.  The hole was getting a name for itself, but no-one could agree on what that name was.

The matter was eventually referred to the United Nations General Assembly, which invited the aforementioned ILC to begin work on the topic of ‘Gaps and Silences in the Law’.  (more…)