Author Archives: Charles Bjork

UK Supreme Court Confirms Parliament Must Trigger Brexit

Following the referendum on the UK’s membership in the EU held on June 23, 2016, Prime Minister Theresa May confirmed that her government would initiate the process of withdrawing from the EU by the end of March, 2017, without holding a vote in Parliament.  This decision prompted a legal challenge.

On November 3, 2016, a three-judge panel of the High Court of Justice unanimously ruled that the government must obtain Parliament’s consent before it can trigger the formal process of withdrawing from the EU, pursuant to Article 50 of the Treaty on the European Union.

The government argued that it had the authority to withdraw from treaties without seeking parliamentary approval under the “royal prerogative,” the executive powers derived from the monarch under the UK’s unwritten constitution. The High Court rejected this argument on the grounds that the European Communities Act, the statute through which Parliament enabled EU law to have direct effect in the UK, had created enforceable rights for individuals under UK domestic law.  The High Court concluded that only Parliament, not the government, has the authority to enact changes in the law that would alter rights established under duly enacted domestic legislation.

UK Supreme Court in the former Middlesex County Guildhall. Photo by David Iliff via Wikimedia Commons. CC-By-SA 3.0 Unported License

UK Supreme Court in the former Middlesex County Guildhall. Photo by David Iliff via Wikimedia Commons. CC-BY-SA 3.0 License.

The government appealed the High Court’s ruling to the UK’s Supreme Court.  A panel comprised of all 11 Supreme Court justices heard oral arguments in early December on an expedited basis.  On January 24, 2017, the Supreme Court handed down its eagerly anticipated judgment.

By an 8-3 majority, the Supreme Court dismissed the government’s appeal and upheld the ruling of the High Court on the question of parliamentary sovereignty, stating that “the government cannot trigger Article 50 without an act of Parliament authorizing that course.”  The Court’s holding will become a landmark precedent in the field of British constitutional law.

David Davis, the Secretary of State for Exiting the EU, announced that the government will abide by the Supreme Court’s decision and introduce a bill “within days” authorizing the government to notify the European Commission of the UK’s intention to withdraw.  Even though the government’s majority is small, it is extremely unlikely that Parliament will refuse to pass the bill.

Nevertheless, members of opposition parties and even some members of the governing Conservative Party, are likely to offer amendments to the bill that will place constraints on the government’s negotiating position, potentially requiring it to maintain the UK’s participation in the EU’s single market and customs union.  Other amendments could require Parliament to approve the withdrawal agreement before it can take effect or force the government to reopen negotiations with the EU if Parliament rejects the terms of the deal.

The government did prevail in a parallel challenge to Brexit brought under the Northern Ireland Act, which asserted that the Northern Ireland Assembly, or the people of Northern Ireland, must consent to any change in the UK’s relationship with the EU.  This challenge was supported by the Scottish government.  Scotland and Northern Ireland, two of the UK’s four constituent nations, each have devolved legislatures that are responsible for education, health, and other matters within their respective jurisdictions.  Both Scotland and Northern Ireland voted in favor of remaining in the EU.

The 11 Supreme Court justices unanimously rejected the devolution argument, holding that the devolved legislatures in Northern Ireland, Scotland, and Wales cannot exercise a veto over the decision to withdraw from the EU because authority over the UK’s foreign relations is a reserved power that may be exercised only by the UK government and the national Parliament in London.

For more information about Brexit and its implications for the UK, consult the Brexit and Constitutional Law pages of the Georgetown Law Library’s UK Legal Research Guide.

Full Text of the TPP Now Available

One month after concluding more than seven years of negotiations on the most significant trade agreement in a quarter century, the United States and the 11 other nations that comprise the proposed Trans-Pacific Partnership (TPP) have released the full text of the agreement to the public.  The TPP, whose members account for approximately 40 percent of world economic output, will lower barriers to trade on a wide array products ranging from to textiles to automobiles to financial services.  Under the “fast-track” trade promotion authority legislation enacted last summer, the release of the full text triggers a 90-day review period that must be completed before President Obama can sign the agreement.  Once he does so, both houses of Congress will have an opportunity to hold an up or down vote on the deal without offering any amendments or subjecting it to a filibuster.

Kerry at TTP Meeting in Bali

TPP negotiators in Bali, Indonesia.  State Dept. photo by William Ng via Wikimedia Commons

The Obama administration insists that the TPP is the most progressive trade deal ever negotiated by the United States, with unprecedented mechanisms to enforce labor standards and environmental regulations.  Critics, including the AFL-CIO and the Sierra Club, contend that these protections do not go far enough.  Others have raised concerns about the TPP’s intellectual property provisions, especially its highly restrictive approach to copyright law, as well as its potential impact on the cost of prescription medications in developing nations.  Still others have questioned the constitutionality of the investor-state dispute settlement provision that would allow foreign investors to bypass the U.S. court system and have claims against the U.S. government resolved through arbitration.

Due to the closed-door nature of the negotiations, these widely aired criticisms are based largely on informed speculation stemming from leaked drafts of the agreement.  Now that the final text has been made public, both supporters and critics of the TPP will spend the next few months scrutinizing its more than 6,000 pages to determine whether the agreement meets or falls short of their expectations.

To keep the GULC community abreast of the latest news and developments concerning the TPP and other trade-related topics, the Law Library subscribes to several specialized databases, including BNA’s International Trade Reporter and International Trade Daily, as well as World Trade Online.  For more information about trade agreements and foreign trade regulation, consult the library’s online Research Guide to International Trade Law.

Summer Research Assistance

Working off-campus this summer?  Not sure where to turn for help with a challenging legal research assignment?  No matter what your location, you can access research assistance remotely by using the Law Library’s chat reference service.  To begin chatting, click here or look for the green chat button in the upper right-hand corner of the library homepage.  During the summer, chat is available on weekdays from 9:00 a.m. to 5:00 p.m. Eastern Time.


Remote research assistance also is available by phone and email.  For help with U.S. legal research, email the Williams Library Reference Desk ( or call 202-662-9140. For help with foreign and international research, email the Wolff Library Reference Desk ( or call 202-662-4195.

In addition, the Law Library’s website provides 24/7 access to dozens of subject-specific research guides, as well as video tutorials.

(Public domain image via Wikimedia Commons.)

Senate Intelligence Committee Releases Summary of Report on CIA Torture

On December 9, the Senate Select Committee on Intelligence finally released the executive summary of its report on the CIA’s detention and interrogation program. The 525-page, partially redacted summary revealed that the abusive interrogation methods utilized by the CIA were far more brutal and more frequently employed than initially reported, that the agency repeatedly misled the White House, the Justice Department, and its own Inspector General about the effectiveness of the program, and that it actively impeded congressional oversight. The committee’s full 6,700-page report, based on an examination of more than 6 million internal CIA documents, remains classified. Senator Mark Udall, a member of the committee, has called for the resignation of CIA Director John Brennan and urged President Obama to purge the agency of the personnel who implemented and facilitated the torture program.

CIA_Secret_Prisons Larger Image

The long-delayed release of the executive summary prompted civil liberties and human rights advocates to renew their calls for the prosecution of individuals who authorized or participated in the torture of detainees, a remedy that Attorney General Eric Holder has declined to pursue. Georgetown law professor David Luban cautions that it would be almost impossible for federal prosecutors to obtain convictions under the statutory prohibition against torture because the defendants would argue that they relied in good faith on the now discredited torture memos issued by the Justice Department’s Office of Legal Counsel. Instead, Professor Luban urges President Obama to honor the CIA operatives, military officers, and members of the Bush administration who resisted and exposed the torture program, often at significant cost to their careers.

Another alternative to prosecutions would be for President Obama to grant pardons to the members of the Bush administration who authorized the torture of detainees held by the CIA. Though less than ideal, this approach would at least constitute an official acknowledgment that crimes were committed at the very highest levels of government. In addition, it would avoid the inevitable partisan backlash that would accompany criminal prosecutions and perhaps help to restore the bipartisan consensus against torture that existed prior to the war on terror.

Presidential pardons would not preclude prosecutions by international tribunals. Shortly before the Senate Intelligence Committee released the executive summary of its report, the Office of the Chief Prosecutor of the International Criminal Court (ICC) announced that it has opened a preliminary investigation of the treatment of detainees captured by the United States in Afghanistan. However, as Northwestern law professor Eugene Kontorovich has noted, significant jurisdictional hurdles would have to be overcome before the ICC could pursue a full-fledged investigation, let alone prosecutions.

If you are interested in learning more about the ICC, the Geneva Conventions, and the U.N. Convention Against Torture, consult the Georgetown Law Library’s Research Guide to War Crimes. The Law Library’s collection includes many resources that address the subject of torture, such as Professor Luban’s new book, Torture, Power, and Law. To locate additional resources, search the library catalog using one or more of the following subject headings: torture (international law), torture – moral and ethical aspects, and torture – government policy – United States.

Supreme Court of India Recognizes Third Gender

Last week, in a landmark ruling, the Supreme Court of India recognized the legal status of transgender individuals, allowing them to identify themselves as members of a third category, neither male nor female.  As a result of this ruling, India’s national and state governments are prohibited from discriminating against members of the transgender community, who will henceforth be entitled to the same educational and hiring preferences as members of the lower castes and other minority groups.

As some observers have noted, it is difficult to reconcile the Supreme Court’s decision to afford legal protections to individuals who identify as transgender with the judgment it entered in December of 2013 reinstating a colonial-era statute that criminalizes homosexual acts.  In the latter case, the Court held that it was up to Parliament, not the judiciary, to repeal the statute.

India is now the third country in Southwest Asia to extend legal recognition to transgender individuals.  In 2007 the Supreme Court of Nepal established a third gender category as part of a wider ruling that invalidated laws that discriminate on the basis of sexual orientation or gender identity.  Last year Bangladesh began issuing government forms with a third gender category for individuals who do not identify as male or female.

The Supreme Court of India (photo by Legaleagle86 via Wikimedia Commons)

The Georgetown Law Library provides access to the law of India via SCC Online.  This subscription database includes judgments from the Supreme Court of India from 1969 onward, High Court decisions from Indian states and territories, federal statutes and regulations, as well as treatises and other secondary sources.  Users of SCC Online must log in with their Georgetown Law email address.  For optimal search functionality, follow the link to the 2014 (beta) version of SCC Online after logging in.

JUDIS is a free government Web portal for India’s judicial system.  It provides online access to all reported judgments of the Supreme Court of India from its inception in 1950, as well as a selection of High Court opinions from major jurisdictions, including Bombay and Delhi.  Supreme Court judgments published prior to 1994 include headnotes.  JUDIS also enables users to check the status of cases pending in some High Court jurisdictions and provides links to select district court websites.

If you have any questions about using these and other foreign law resources, the reference librarians at the Wolff International and Comparative Law Library would be happy to assist you.

Researching the Legal Aspects of the Crimean Crisis

Did Crimea have the right to secede from Ukraine?  Was there a legal basis for the referendum held on March 16?  Can the Russian Federation lawfully absorb Crimea without Ukraine’s consent?

These are some of the legal issues addressed in an informative blog post by Peter Roudik, the Director of the Global Legal Research Center at the Law Library of Congress.  As Roudik notes, the answers to these questions often involve constitutional and/or statutory interpretation.

Attribution-NonCommercial-ShareAlike License Map by Maximillian Dörrbecker on Wikimedia Commons. 

Georgetown students can access primary law from Ukraine and Russia via The Foreign Law Guide and Hein’s World Constitutions Illustrated.  In addition to providing foreign law materials in their original languages, these resources also provide English-language translations, when available.

As events in Crimea continue to unfold, take advantage of these additional library resources to  help you understand the legal aspects of crisis.  For background information on relevant international law concepts (such as secession, self-determination, and sovereignty), consult the Max Planck Encyclopedia of Public International Law.  To keep abreast of recent scholarly commentary on the dispute between Ukraine and Russia over Crimea, visit the debate map compiled by Oxford Public International Law.

For timely insights into the Russian perspective on the crisis, it can be helpful to review the English-language publications of the Russian media, such as this article from English edition of Pravda and this article from The Voice of Russia, as re-posted on the website of the Canadian Centre for Research on Globalization.

If you have any questions about using these and other foreign and international law resources, please contact a reference librarian.