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

Poster


Collins, Pauline. 2012. "Civil-military 'legal' relations: where to from here?" 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). Wellington, New Zealand 04 Jul 2012 Canberra, Australia.
Paper/Presentation Title

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

Presentation TypePoster
Authors
AuthorCollins, Pauline
Journal or Proceedings TitleProceedings of the 20th Annual Australian and New Zealand Society of International Law Conference (ANZSIL 2012)
Number of Pages1
Year2012
Place of PublicationCanberra, Australia
Conference/Event20th Annual Australian and New Zealand Society of International Law Conference: Postgraduate Workshop: International Law in the Next Two Decades: Form or Substance?( ANZSIL 2012)
Event Details
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)
Event Date
04 Jul 2012
Event Location
Wellington, New Zealand
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?

Keywordscivil-military; jurisprudence; comparative
ANZSRC Field of Research 2020489999. Other law and legal studies not elsewhere classified
440808. International relations
440804. Defence studies
Public Notes

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Byline AffiliationsDepartment of Law
Institution of OriginUniversity of Southern Queensland
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