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Introduction   Frans Hals was a mildly successful seventeenth-century Dutch old master who specialised in portraits. Few of his works have persisted in popular cultural consciousness in the intervening 400 years. One exception is the Laughing Cavalier,  painted in 1624, which remains on display in the Wallace Collection in London. The Laughing Cavalier  was once described by the Harvard art historian   Seymour Slive as ‘one of the most brilliant of all Baroque portraits’.[1] But interest in Hals’ work since has been limited mostly to fine art specialists and investors.[2] This year saw the fruits of that interest in a claim against the auction house Sotheby’s. The subject matter was Hals’ Portrait of a Gentleman, half-length, wearing Black , believed to have been   painted around 1650 .  It is a rather boring work. The subject matter is a grim, wealthy Dutch aristocrat, whose only redeeming aesthetic quality seems to be the fine robe he can afford. Beyond that there is little to spark one’s interest. But luckily the artwork has generated an interesting case, engaging, in an art law context, principles of agency, partnership, witnesses of fact, and contractual construction of state of scholarship clauses. The case also provides a key moment to re-evaluate whether there are any unique or common principles which animate this area of the law. I argue that there are such principles in the final section. First, however, it is necessary to begin with the historical context of Mark Weiss  and auction house claims more broadly.   Historic auction house claims   The vast majority of claims before English courts against auction houses have taken place in the last 30 years.[3] This has corresponded with the growing commercialisation of the fine art market internationally. In the 1990s there was a movement from the culture of gentlemanly handshakes to one of increasing legal formalisation. Martin Wilson, previously Co-Head of Legal and Compliance at Christie’s, noted that in 1998 Christie’s had only three people working in its legal department. ‘By the time I left Christie’s in 2017’, he recently wrote, ‘the legal department numbered 40 employees’.[4]   Since the mid-1990s, claims against auction houses have involved mixed allegations of breach of contract and tort.[5] A useful mixed example is the 1995 case of De Balkany v Christie Manson and Woods .[6] This case was about a work by Egon Schiele, an Austrian   Expressionist protégé of Gustav Klimt, purchased in 1987 for the reserve sale price of £500,000 plus the hammer price and buyer’s premium. By 1991 the buyer believed that it was a forgery, and contacted Christie’s requesting a refund. Christie’s’ terms and conditions generally excluded liability. There was only a limited right to obtain a refund if the item was a forgery, defined with the classic term of being a piece created with an ‘intention to deceive as to authorship, origin, date, age, period, culture, or source’. But that right was further limited by the requirement that, if the sale had been in line with general scholarship at the time of sale, no refund would be possible. Christie’s argued that there had not been an intention to deceive, nor was it contrary to the state of scholarship when sold.   The judge disagreed. He found that 94% of the painting had been overlaid by someone other than Schiele, with ‘E’ and ‘S’ initials being added ex post as part of that conservation. He rejected Christie’s’ argument that no amount of overpainting could turn it into a forgery, and held that whoever had overpainted clearly intended to deceive, otherwise they would not have added the monogram. The judge also held that irrespective of the state of scholarship, the detrimental overpainting and intended forgery of Schiele’s signature would have been clear to Christie’s on inspection, hence the ‘state of scholarship’ clause could not prevent liability from attaching. Beyond just these contractual provisions, in tort, the judge went on to apply Hedley Byrne v Heller [7] to find that there had been an assumption of responsibility from the catalogue preparations by Christie’s. In effect, Christie’s comprehensively lost in both contract and tort.

A central image in the consideration of law is the totemic figure of justice—Justitia—the blindfolded Roman goddess of justice. Often appearing in statue form in many courthouses and carrying a sword and scales, she heralds the idea of law as impartial and unseeing, of law as a system that, theoretically at least, is open to all—democracy as a form of blindness. The irony of this sightlessness will not be lost on artists, who tend (with good reason) to think of law as oafishly clunking behind them, laughably out of touch with contemporary artistic form, ideas, and methods, and unconversant with the light-fingered nimbleness of creative work. Law generally confines creative freedoms, increasingly in the interests of the gods of corporatised intellectual property. Artists often see law as dry and administrative, as an expensive threat, or something to be resisted (with the usual artistic-anarchic leanings), rather than, dare I say it, a source of curiosity, or a medium for them to work with, like paint.   Justice’s blindness is said to represent objectivity—since postmodernism, another enemy of artists. Justice must be seen to be done, thereby allowing public access to many trials, and the principle of ‘open justice’, but law privileges language and the written word over images and aesthetics. In this era of McLuhanesque visuality-over-orality, in which Instagrammability has tended to trump criticality, this seems especially absurd. Legal theorist Peter Goodrich asserts that Justitia’s blindfold ‘marks an exclusion, an indication that mortals should keep out’[1]—a class issue with which most of us can sympathise. Nevertheless, from the perspective of visual artists, or perhaps only us perverse ones, all this might represent temptation, in terms of a rich subject. Law may have been termed an ‘empire’[2] (and that idea in itself should act as artistic provocation) but its gaps, elisions, and silences—and there are many—are lacunae, or a form of social-sculptural negative space. Law has an unconscious—we just need to analyse it.   Law’s inherent relationship to performance could be seen as further enticement. The courtroom can of course be seen as a ‘theatre’ of judgment, centring on the performance of authority and the fragile recall and transferral of mental images by witnesses and defendants as well as jury, judge, and litigants. Law’s many performative statements, in which speech becomes act—‘I sentence you’, etc—have been termed ‘superperformatives: performatives backed by force’,[3] evoking law’s complex relation to the body and the physical. Law’s inherent violence, its state- or sovereign-backed ability to remove a person from life, society, family, home, and possessions, is Foucault’s ‘technology of power over the body’.[4] But we should not forget that the law also includes a liberatory potential, a choreographic circumscription of individual agency, rights, promises, and liberties. Fig 1. Carey Young, Palais de Justice (still), 2017. Single-channel HD video (from 4K); 16:9, colour, quadraphonic sound; 17 mins 58 secs. © Carey Young. Courtesy Paula Cooper Gallery, New York.

The origins and definition of the word ‘Americanitis’ are opaque at best. It is generally believed to have appeared in medical journals of the late nineteenth century, describing a particular nervous ailment found in the inhabitants of the United States of America. Thought to cause disease, heart attack, nervous exhaustion, and even insanity, Americanitis was seen as a serious threat to the American public. In fact, in 1925, Time  Magazine reported that Americanitis was responsible for claiming up to 240,000—white—lives a year.[1] Nevertheless, with the passing of the Great Depression, its position as a legitimate disease faded in the public eye. Now virtually forgotten, I wish to resurrect it, and propose that it be used to describe a disease that truly does claim lives: white supremacy.   Currently, the Merriam-Webster Dictionary defines ‘Americanitis’ as ‘excessive nervous tension’ and an ‘enthusiastic or aggressive advocacy of Americanism’.[2] In my reinterpretation, I would like to expand upon this definition to describe Americanitis as a structural disorder which plagues American society at large, as opposed to a disease that merely infects individuals. I will argue it is an entanglement of power, fear, and amnesia that writhes under the surface of the American landscape. The foundation upon which white supremacy stands is a polarised sense of white identity as virtuous yet vulnerable to the supremacy of Black identity, which is regarded as impure and violent. It reinforces hierarchies by instilling a fear—indeed, an ‘excessive nervous tension’—of Black assault on white structures, people, and spaces. It fabricates a link between the upward mobility achieved by Black Americans with the violent invasion of white spaces. What belies its tactical purpose is that it has been repeatedly harnessed by white supremacist hate groups— ‘aggressive advocates of Americanism’—to endorse racial violence as a defence strategy. Paired with mass media and its falsified depictions of Black violence, they seek to use this to justify attacks against Black communities and their spaces.   Mutative expansions of Americanitis have cycled since Reconstruction. In the twentieth century, cinema, television, and the Internet have emerged as effective platforms to spread a fear of encroaching Blackness through representations of architectural destruction. Cinema’s maturation in the early 1910s transformed the Neoclassical architecture of Southern plantations into a symbol of white supremacy and confederate nostalgia. Half a century later, at the height of the Cold War in the 1950s and 1960s, the television was used to associate the Civil Rights Movement to the dread of imminent nuclear annihilation of racially segregated neighbourhoods by Soviet forces. Half a century after that, during the Obama era and the Trump era, the Internet and its social media platforms have allowed an association to be constructed between increased diversity, as well as movements like Black Lives Matter, with social discord and detriment to America’s structures. In this essay, I will explore each of these expansions, and the resulting white supremacist violence, in an effort to show how the through-line of Americanitis has been an essential tool for spreading and maintaining white supremacy. I will conclude with the recent white supremacist attack on the Capitol on 6 January 2021, to illustrate how this ‘disease’ very much affects the nation to the present day. Fig 1. Lincoln Memorial (Nicolas Canal Tinius 2021, from photograph by Martha Raddatz 2020).

Professor Andreas Rahmatian is Professor of Commercial Law at the University of Glasgow School of Law. Originally from Vienna, he obtained his first degree in law and a PhD in Private Law from the University of Vienna, and completed another degree in musicology and history there. He holds an LLM from the University of London. He worked as an associate attorney-at-law in Vienna and qualified as a solicitor with a City firm in London before he became a full-time academic. He has been a fellow at the Institut d’études avancées in Nantes, France. His research focuses on intellectual property law and commercial law. His books are  Copyright and Creativity: The Making of Property Rights in Creative Works (2011),  Lord Kames: Legal and Social Theorist (2015), and Credit and Creed: A Critical Legal Theory of Money (2019).    CJLPA:  Do you think all forms of creativity should be protected by the law? Professor Andreas Rahmatian : It’s a difficult question, of course, because it depends what you mean by creativity. Here we probably talk about creativity in relation to copyright in particular, because creativity can otherwise be in relation to all sorts of things. Now the problem with copyright creativity is that it’s not necessarily dealing with artistic creativity. Obviously, artistic creativity is also part of copyright creativity, but the understanding of creativity in copyright is based on a normative definition, if not a completely clear one. Whether that is artistic creativity as an artist understands it is actually immaterial. So the question is, when you ask, ‘Should all forms of creativity should be protected by the law?’, it is already the case that non-artistic creativity is protected by the law. Whenever you have got a kind of selection or arrangement which somehow points back to some individual, then you have got, as it were, creativity in the sense of copyright as ‘originality’.   The judgment of Infopaq [1] and the following cases of the CJEU in the EU didn’t change very much the originality ideas in the UK, in my opinion. In the United States the understanding of originality is pretty much the same, but whether that original work is also artistic in any way is rather irrelevant. It [the work] can be rather trivial. That is actually immaterial for the protection. And this is how copyright laws envisage creativity—even on the Continent, where they operate with all sorts of devices to water down the (theoretically) more personal requirement of the author’s input. In theory there is an approach more geared towards creativity in the sense of artistic creativity, but in reality this is much less so. There is, for example, this nice legal concept of ‘small change’, or kleine Mü̈nze —it is really called like that in Germany—where you have works of everyday use, really ordinary works which can have some notional modicum of creativity put in, and you still get protection. Then below that level you quite often have neighbouring rights, for works which do not fulfil the required creativity level or originality level, but the neighbouring rights still protect them. Then below these, you have under certain circumstances protection against parasitical competition in the sense that you actually have a prohibition to copy someone else’s work. So you have got all sorts of protection levels, both on the Continent and in the UK (or in the common law countries), and they achieve protection in different conceptual ways.   Now some people will say ‘creativity’ also means creative investments, or even ‘creative’ accounting, which is usually illegal but perhaps also creative. So it’s very hard to pin down ‘creativity’. A typical problem is restoration work in the arts, by a picture restorer, or a restorer of musical pieces. The classical case in that area in the UK was the Sawkins v Hyperion  case, 2005,[2] which shows that for copyright protection you need not be creative in the sense that you are actually creating anything new. Artistic creativity, if you go to an art school or to a conservatoire as a composer, has a tinge of novelty, but we are not interested in novelty in copyright law. So the restorer, who actually writes his counterpoint in the style of the music of the late seventeenth century, as Sawkins did, in order to restore the missing parts to produce a performing edition, did exactly not [sic] mean to be creative but faithful to the work to be restored. It’s meant to be in the style of the Baroque composer. And yet it is protected as original for copyright purposes, and there’s no doubt that this also applies on the Continent: the result in such a case would have been, and in fact was, the same, because in France, in a parallel case, Sawkins’ work was viewed as being original. That was decided under French copyright law, although the French authors’ rights system is supposed to be totally different. It’s a very nice case where we have two different legal systems with essentially the same facts, the same claim in both cases, and the same result, based on a different conceptual system. Although it may be quite difficult to appreciate this from an ‘artistic’ viewpoint, the creativity or the skill of a restorer should get protected. In fact, in France and in Italy there are quite a few cases in relation to restoration, especially in the visual arts, and there is no doubt that they get protection.

Can you draw out Leviathan with a fishhook, or press down its tongue with a cord? Can you put a rope in its nose, or pierce its jaw with a hook? Will it make many supplications to you? Will it speak soft words to you? Will it make a covenant with you to be taken as your servant forever?[1]   *   The rich symbolic inner workings of Hobbes’ Leviathan  have been much commented on in the centuries since its publication, with most attention being given to its incomparable frontispiece. But fewer interpreters (especially today) comment in detail on the reference to the Book of Job in Hobbes’ title, a reference that Hobbes mentions explicitly in the text.[2] I want to offer an interpretation of the image of Leviathan that connects it directly with some of Hobbes’ central concerns (his ideas about human nature, sovereignty, and covenant), and that helps us understand the place of symbolism, metaphor, and literature in Hobbes’ famously mechanistic politics.   A brief synopsis of the book of Job. Job, a ‘blameless and upright’ man who ‘feared God and turned away from evil’,[3] has been tested by the Lord. Everything he owned has been taken from him, his family have been killed, and his body is covered in painful sores, to the point that he curses the day of his birth: ‘Let those curse it who curse the Sea, / those who are skilled to rouse up Leviathan’.[4] The bulk of the text consists of verse dialogue between Job and three of his friends about the problem of theodicy: how can Job, a blameless man, be made to suffer by God? His friends argue that he cannot have been truly blameless, that he must have acted so as to justify his punishment. Job continues to insist on his innocence.   Hobbes’ reference is to the climax of the text, where the Lord answers Job ‘out of the whirlwind’: ‘Who is this that darkens counsel by words without knowledge?’[5] The Lord’s (somewhat ironic) response is not to prove that Job was deserving of suffering, but merely to humble  him, rhetorically—even sarcastically—asking:   Where were you when I laid the foundation of the earth?

A witness walking to these shores in our time would not spy a single war-worn and sea-tossed Ithacan sailor returning to his homeland but rather thousands of woeful, current- day avatars of Odysseus, refugees who in the words of Homer find themselves ‘τῆλε φίλων καὶ πατρίδος αἴης’, ‘far from friends and home’.   The linkage of space, politics, and the humanities in the theme of this conference is something more than a matter of mere historical timeliness—and certainly not opportunism—but instead an expression of the deepest roots shared by Greek and American notions of language, literature, history, philosophy, and the arts, that for better or worse we have come to call by the increasingly awkward term ‘the humanities’.   ‘The humanities’ has become an awkward term not only because of a broadening definition of human beings’ reciprocal relationship with both the animal world and the inorganic quantum universe, but also on account of the convergence of techne and episteme in the networked world, factors that increasingly challenge the centrality of the human. But our humanity is also challenged on its face as the internal politics of nation upon nation across the globe turn misanthropic and the immigrant experience of an increasingly exiled global population of refugees becomes brutalized, hopeless, and dehumanized. We are all of us ‘estranged from that which is most familiar’, as the twentieth-century American poet Charles Olson frequently paraphrased and evoked Heraclitus.   If we gathered here have been both careful and caring during these days, perhaps we can leave here having renewed our familiarity in the root sense of not just our shared humanity but also what we mean by both politics and space. I hope by these remarks to make some suggestions toward that renewal.   ‘Politics’, of course, is a fine and ancient Greek word, at first meaning the affairs of the city, the polis, but where the meaning of polis in time came to be understood not just as the concentrated and fortified high place—the citadel—but the surround which the city state encompassed and whose extent the polis gave a view to. ‘Polis is eyes’, Olson—himself a one-time politician—declared in his four-volume epic The Maximus Poems , whose prototypic hero is modeled upon not Odysseus but the second-century Greek rhetorician and philosopher, Maximus of Tyre (M I 26).[1]   By ‘Polis is eyes’ Olson meant a quality of attention—a caring attention to the what, the whom, and the when of the world—possessed by those women and men who had eyes to see their relation to both others and otherness. For Olson politics was a poetics, what he called ‘the attention, and the care’ with which ‘each of us/chooses our own/ kin and/ concentration’. He attributed this quality of attention not just to poets—but perhaps unsurprisingly to a Greek audience—to fishermen, those whose eyes we might say could discern the kinship between the ship of the returning hero on the horizon and a raft teeming with Eritrean refugees nearing Kos.

Conventional wisdom tells us that the first civilisation to be governed in a manner comparable to our own was Ancient Greece—the world’s first democracy.[1] Such discourse has contributed to popular belief that earlier civilisations, of which Egypt is probably the best-known example, might be interesting in myriad ways but surely have little to offer scholars of modern government. Egypt, according to established narrative, was an absolute monarchy, where Pharaoh did as he pleased and all else fell into place around this.[2] Yet was this really so? In this article, it will be demonstrated that the reality was not so simple, with the Ancient Egyptian framework for government and justice being based on far more than the will of one man. This argument for Ancient Egypt having what may be termed an early constitution—however embryonic it may have been—rests on four key premises: evidence for the distinction between the notion of ‘State’ and ‘Government’; the rule of law; the right of appeal; and the separation of executive and judicial power. Each of these shall now be briefly discussed in turn, with the article then concluding with a discussion of the implications of such observations for studies in constitutional history going forward.   The distinction between state (Pharaoh) and government (Vizier)   Almost everybody knows that Ancient Egypt was reigned over by Pharaohs, but to what extent was it actually governed by them? In theological terms, the monarchy was indeed absolute—Pharaoh was a living incarnation of the god of kingship, Horus, seen by his subjects as the ‘good god’ ( ntr nfr ) occupying the middle ground between this world and the next and  ex officio  serving as the high priest of every cult in the land.[3] He was the supreme guarantor of right order ( M3c.t ), tasked with defending Egypt from all enemies foreign and domestic. And yet, the practical task of overseeing the daily running of the country in fact fell to a different individual: the Vizier.[4] This high official was appointed by Pharaoh as a de facto head of government, not unlike the appointment of a Prime Minister by a modern-day head of state. According to the Installation of the Vizier , a text of the fifteenth century BCE setting out royal expectations at the time of a new vizieral appointment, a Vizier could expect to be told the following by his sovereign:   Look to the office of the Vizier, be vigilant concerning all that is done in it, for it is the mainstay of the entire land. Now as for the Vizierate, it certainly is not pleasant; indeed it is as bitter as gall. See, he is copper enclosing the gold of his master’s house.[5]   Thus, this text paints a picture where Pharaoh appreciates the unpleasantness of the job of governing the country, and offloads it onto his Vizier—the metaphorical ‘copper’ which serves to protect the ‘gold’ which is Pharaoh himself. In so doing, Pharaoh presumably freed up time which could be spent on his other prerogatives, such as foreign conquest, building work, and religious observances. However, this did not mean that the work of Pharaoh and Vizier became disjointed, with the latter being duty-bound to regularly report to the former. Clear evidence for this can be found in another text of the same period, the Duties of the Vizier , which states that a Vizier was obliged to act as follows:

1. The fish are alright   Historically and presently, the United Kingdom has identified and presented itself as a maritime nation.[1] Fisheries, historically a significant source of employment, cultural identity, and economic output, are a vital component of the UK’s seafaring character. Amidst the decline of other British coastal industries, fishing, also in a state of ‘managed decline’,[2] is perhaps the UK’s final remaining material link to this maritime heritage.   Our article posits that the interplay of fishing, national politics, and British international affairs over several centuries engendered a fishing iconography rooted in place, power, and identity. Fishers, fishing communities, and the political class gained differing utilities from this iconography. Even as the industry’s size and productivity has declined (to 0.02% of the economy)[3] and knowledge of fishing’s adverse environmental impacts has become widespread, fishing iconography remains germane to major events in contemporary British politics.[4] We use EU membership generally, and Brexit specifically, to highlight how conceptions of national identity influenced by the fisheries-politics-law nexus can ‘bite back’ to shape the activities of a political class instrumental in affording fisheries this power in the first place.[5]   Brexit is an example and an outcome of these interlocking forces. Since the UK joined the European Union in 1973, fishing policy challenged key British constitutional principles, and precipitated UK-European conflicts. This fomented pro-Leave rhetoric and ultimately directed the course of Brexit (2016-20) and the Transition Period (January-December 2020). Yet Brexit may also prove to be a critical juncture in fisheries policy, as it offers the UK an opportunity to break from perversely subsidised and unsustainable path dependencies that defined EU-era UK fishing policies.[6]   We proceed as follows. §2 articulates a historical and material foundation for British fishing iconography, arguing that it arose from the fishing communities’ socio-economic and political activities to become part of British national identity writ large. We characterise this as a romanticised national iconography of fishing as a noble, distinctively British profession. In §3, we consider the implications of this by examining how fishing iconography was effectively deployed by sections of the British political elite to capture national attention during the referendum campaign, before assessing how fishing directed political events during Brexit. Having evaluated the past and present of British fishing, §4 turns to the future. Building on previous work by marine scientists, we highlight pathways to recast extractivist fishing iconography as an iconography of flourishing marine ecosystems conserved in service of public welfare interests.[7]

Introduction   This article sets out the case for taking future generations seriously through our political institutions. We make three central claims. First, future people matter, and political institutions ought to reflect this. We make this case by appealing to the importance of broad political enfranchisement, and then to the more general moral significance of future people. Second, our political institutions do not yet take the interests of future generations sufficiently seriously across a range of issues, especially relating to managing risks—and considerations from economics and psychology explain why she should expect this to be the case. Third, institutional reform toward representing future people is both promising and feasible. To this end, we describe four kinds of reform which we hope will broaden the discussion. Throughout, we draw on work by Tyler John.[1]   Future generations matter for politics   Representation matters for politics   A core part of today’s Western understanding of democracy is that governments derive their legitimacy from adequately including the people they affect in their decision-making processes.[2] The American Revolution led with the slogan ‘no taxation without representation’,[3] and the subsequent Declaration of Independence affirmed that ‘governments are instituted among men, deriving their just powers from the consent of the governed’.[4]   Yet, a government being democratic in name does not imply it represents everyone it ought to represent. Indeed, the history of Western democracy is a history of subjugated groups struggling for political enfranchisement.[5] Women were not granted the vote until well into the twentieth century; US Congress only passed the Civil Rights Act in 1967; and today fierce discussion continues on how constitutional issues like gerrymandering discriminate in practice against certain groups.[6]   We may care about representation because we value equality, diversity, or fairness, and believe broader representation is necessary for these abstract ideals. But we should also care about representation because of its practical effects—because it shapes laws and policies. When groups are underrepresented in democratic systems, politicians have weaker incentives to consider their interests in constructing policy, and are exposed to a narrower range of perspectives. When groups are not represented at all, governments do not have to internalise the externalities imposed by this policy.   Consider the ‘median voter theorem’.[7] Given some basic assumptions,[8] the optimal strategy for a political party seeking to win power in a two-party system is to always cater to the median voter. Extending suffrage will shift the median voter, and by extension the voters politicians will cater to. There is large empirical literature documenting this phenomenon. For example, John R Lott and Lawrence W Kenny showed that US states that gave women the right to vote before the Nineteenth Amendment saw immediate increases in government expenditures and progressive divorce laws.[9] Likewise, Toke S Aidt, Jayasri Dutta, and Elena Loukoianova showed that the gradual lifting of class restrictions on the voting franchise in Europe between 1830 and 1938 caused more spending on infrastructure and internal security.[10]

Since 15 August 2021, the Taliban Government continues to suppress the progression of women’s basic human rights in Afghanistan, resulting in their systematic oppression as a result of state sponsored crimes against humanity which has also encompassed gender apartheid. Gender apartheid has been defined as the economic and social sexual discrimination against individuals because of their gender or sex. This manifests itself as a system enforced by using either physical or legal practices to relegate individuals based on their gender to subordinate positions. [1] While I certainly believe that the de facto government is engaged in gender apartheid on a daily basis against all women and girls in Afghanistan, the focus of this paper shall be on arguing the legal case that can specifically be brought against the Minister of Justice and the Minister of Interior of their committing crimes against humanity to the over two hundred and seventy women and girls detained in Pul-e-Charkhi prison. These women and girls are victims of gender apartheid, torture, imprisonment, sexual slavery, and other inhumane acts, intentionally causing great suffering as well as serious injury to their bodily and mental health, all in violation of the Rome Statute Article 7.   In October 2023, I visited Pul-e-Charkhi prison in Afghanistan and talked with numerous guards, administrators, detainees, and children. I have worked as the only foreign attorney litigating cases in Afghanistan since 2008. As part of this work, for over 15 years I would routinely visit the prisons and have litigated numerous cases in both criminal and civil courts, particularly for women and girls. Certainly, before the Taliban takeover of Afghanistan’s government on 15 August 2021, the legal system was far from perfect in meeting conventional rule of law standards. However, there was at least some attempt in following a system where women were treated more humanely, and certain basic standards of human rights were adhered to. Between 2022 and 2023, however, Afghanistan was deemed one of the countries with the largest decline in human rights.[2]   Since the 2021 takeover of the government, the legal system and the landscape of Afghanistan has dramatically changed, and things have gotten dangerously worse for women and girls—especially those in prison. Due in large part to the conservative cultural political ideologies and the uniquely conservative and inflexible doctrines imparted by the zealots of the de facto government, who have deprived women of their basic human rights, the country is one of the worst for women.[3] Since 2021, through over sixty-five decrees the Taliban has cemented and normalized its gender-apartheid practices, by denying females the right to secondary education, forbidding them to work in offices, denying them the right to travel alone without a ‘suitable’ mahram, banning them from working for international NGOs, and invalidating thousands of legally validated divorces, often due to abuse by their husbands.[4] According to the Islamic Republic of Afghanistan’s Constitution, Article 22 notes that:   any kind of discrimination and distinction between citizens of Afghanistan shall be forbidden. The citizens of Afghanistan, man and woman, have equal rights and duties before the law.[5]     Furthermore, the Convention on the Elimination of All Forms of Discrimination Against Women, which Afghanistan remains a state party to, obliges:   State parties to respect, protect, and fulfill women’s rights to non-discrimination and the  enjoyment of de jure and de facto equality.[6]

Introduction   On 30 June 2020, the National People’s Congress Standing Committee (NPCSC) in Beijing imposed its ‘National Security Law’ (NSL) on the Hong Kong Special Administrative Region.[1] Its provisions—drawn up in complete secrecy—criminalise conduct (including conduct outside Hong Kong) that would elsewhere be recognised as ordinary civic and political participation. Under the NSL, the territory is subject to two distinct state security apparatuses—one made up of Hong Kong police, prosecutors, and judges; the other of Mainland Chinese state security agents—neither of which are subject to meaningful legal or democratic accountability. Despite the lip service paid to fundamental rights in Article 4, the content of the NSL[2]—and the way in which it was imposed—conveyed one clear message: any such rights could be abrogated at will.[3] More than three years after the imposition of the NSL, Hong Kong’s political and legal orders have been transformed beyond recognition. Opposition parties, civil society groups, and independent media have been shut down by a combination of police raids and intimidation; authorities increasingly inveigh against mere expressions of dissent as acts of ‘soft resistance’ threatening ‘national security’.[4] Pro-democracy politicians and activists have been incarcerated, exiled, or otherwise forced out of the public arena. As of 1 July 2023, a total of 264 people have been arrested, and 148 charged, with NSL-related offences or colonial-era sedition offences; of the latter, 70% have been denied bail.[5] Even exiles are not immune from the reach of the NSL: on 3 July 2023, the Hong Kong government announced HK$1M (approximately GBP 104,800) bounties on eight politicians and activists in exile, including barrister and former legislator Dennis Kwok and solicitor Kevin Yam.[6] As I have argued elsewhere,[7] Hong Kong’s post-NSL legal order is now a dual state[8]—one in which the security apparatus is not subject to any legal restraints, and in which the ordinary, ‘normative state’ can be displaced merely by invoking the deliberately nebulous concept of ‘national security’.[9]   All of these developments[10] are a matter of public record. Yet the Hong Kong Court of Final Appeal (‘HKCFA’) continues to boast ten Overseas Non-Permanent Judges (‘overseas judges’), all of whom have held high judicial office in the UK, or in other Commonwealth jurisdictions. More than three years after the NSL was imposed, only three overseas judges have resigned from the HKCFA.[11]   Some of the overseas judges who have chosen to remain[12] have sought to rationalise their continued presence on the HKCFA. Speaking to the Canadian Broadcasting Corporation in 2022, former Canadian Chief Justice Beverley McLachlin asserted that the HKCFA remained ‘completely independent of the regime in Hong Kong’ and that she was not ‘doing anything negative to prop up that regime’.[13] Similarly, Robert French, former Chief Justice of the High Court of Australia, publicly defended the continued presence of Australian judges on the HKCFA, claiming that he supported ‘their commitment to maintaining judicial independence’.[14]   These defences portray Hong Kong’s legal system as the Rechtsstaat (of sorts) they still imagine it to be, rather than the dual state it has become. In particular, they suffer from two inter-related misunderstandings. First, they do not take into account the HKCFA’s decreasing ability—and willingness—to exercise a moderating influence on the post-NSL judiciary. Second, they misapprehend the role and significance of overseas judges on the HKCFA. I consider each in turn below.

Vladimir Osechkin is a Russian-born human rights activist and founder of Gulagu.net, an NGO that documents and exposes crimes committed by Russian officials and the FSB. In November 2021, Osechkin was placed on a wanted list by the Russian state after leaking a large archive of documents, photos, and videos with hundreds of cases of rape and torture of inmates in Russian prisons directed by prison officials. Since August 2022, Osechkin has urged former Russian soldiers and dissidents to flee the country with the help of Gulagu.net, in exchange for exposing information about the war crimes committed in Ukraine. Osechkin continues to risk his life every day to gather evidence that will one day hold Russian officials accountable for their crimes. CJLPA : I would like to begin by reflecting on your background. What inspired you to become a human rights activist who was willing to risk everything in order to expose the cases of torture and rape committed by Russian officials?   VO : I grew up in a household where we struggled with money. It was a difficult time in our country. I wanted to go to university and get a job in order to give my family a better life. I thought I would be a lawyer or perhaps an officer in the prosecutor office. Then on one day at university, a crime had occurred nearby where someone was killed. The police came to our campus and when they saw me, they invited me to the police station. I did not think anything of it and thought they simply wanted to ask questions and see if I had witnessed anything. I had trust in the police. I soon began to realise it was an interrogation and after about 30 minutes of dissatisfaction with my answers, the police beat me for six hours because they wanted me to give a false confession and sign paperwork stating that I killed the man. They then arrested my close friend at university and tortured him until he signed the testimony against me claiming that I was responsible.   This was my first-hand experience of torture and made me understand the corruption in the force. I was soon after arrested and put in prison. My father was a journalist and worked with a lawyer to gather all the evidence to demonstrate it was impossible for me to be related in any manner to the murder. After presenting the case the prosecution, the prosecutor realised their mistake and released me from prison. I then returned to university, realising that actually my peers did not understand what really occurs in the system under the Russian Federation. After university, I worked very hard and created a big car business in Moscow that I would run for the next seven years. The business model was to work with other regions outside of Russia, including Europe, the US, and Japan.