Civil-military 'legal' relations: where to from here?

Collins, Pauline (2012) Civil-military 'legal' relations: where to from here? In: 20th Annual Australian and New Zealand Society of International Law Conference: Postgraduate Workshop: International Law in the Next Two Decades: Form or Substance?( ANZSIL 2012) , 4 July 2012, Wellington, New Zealand.

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Abstract

In recent years the nature of the military in western countries has been transforming. Legislation governing military discipline has gone through considerable review in countries such as Australia and the U.K. This process is largely in response to rights-based concerns of fairness and legitimacy in the treatment of service persons, to some extent led by human rights instruments such as the European Convention on Human Rights. The literature on civil-military relations concerns itself with the civil-military dynamic of control by the civil arm of the military arm. There is a constraining assumption that the 'civil' in the phrase civil-military means the executive and possibly legislative arms of government, but rarely the judicial arm of government. In the past courts appear to have voluntarily limited their oversight of military institutions, in a manner that has become known as the doctrine of deference. This deference by the courts towards the military reduces the effectiveness of the court's role within the constitutional framework of the state allowing considerable invasion of the civil domain by the military. The jurisprudence of the civilian courts in the U.K., Australia and the U.S. has been investigated in regard to the doctrine of deference. This paper will report the approach of the courts towards the military in the three chosen jurisdictions: what are the differences, if any; the reasons for these; and is there an indication that the courts' position as regards deference is evolving?


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Item Type: Conference or Workshop Item (Commonwealth Reporting Category E) (Poster)
Refereed: Yes
Item Status: Live Archive
Additional Information: Poster Presentation. Not published.
Faculty / Department / School: Historic - Faculty of Business and Law - School of Law
Date Deposited: 28 Jan 2013 07:21
Last Modified: 31 Jan 2017 05:15
Uncontrolled Keywords: civil-military; jurisprudence; comparative
Fields of Research : 18 Law and Legal Studies > 1801 Law > 180114 Human Rights Law
16 Studies in Human Society > 1606 Political Science > 160607 International Relations
16 Studies in Human Society > 1606 Political Science > 160604 Defence Studies
Socio-Economic Objective: A Defence > 81 Defence > 8101 Defence > 810199 Defence not elsewhere classified
URI: http://eprints.usq.edu.au/id/eprint/21855

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