Lecturer in Public International Law

JD, LLM, PhD
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Biography

Dr McCall-Smith is a lecturer in Public International Law and programme director for the LLM in Human Rights. She is a US qualified lawyer and holds a BA in Architectural Studies (1998) and Juris Doctor (2001) from the University of Arkansas. Dr McCall-Smith was awarded an LLM (2002) and a PhD (2012) for her thesis on 'Reservations to Human Rights Treaties' by the University of Edinburgh. 

Ph.D. supervision interests
International Law, International Human Rights, Comparative Human Rights, International Governance

My research in a nutshell

Dr McCall-Smith's research focuses primarily on treaty law and how treaties are interpreted and implemented at the domestic and supranational levels. Ensuring clarity in the law of treaties, specifically in reference to reservations to human rights treaties, is a major theme that she has pursued. She interested in the role of the UN human rights treaty bodies as generators of law. The increasingly blurred distinction between public and private international law in terms of human rights protection is another of her research interests.

Current Research Interests

Getting to Grips with Guantanamo

The real human rights situation at Guantanamo Bay Naval Base (GTMO) as assessed by individual observations at 'Camp Justice' is the focus of this project. Providing a ‘boots on the ground’ perspective coupled with an evaluation of existing international legal obligations of the US and the UK, the project will deliver a thorough legal analysis of GTMO and the current legal proceedings staged there and explain why the collective breaches of international law by the US, the UK and other states in the campaign against terrorists should matter to all individuals. A primary focus is the military commission proceedings against defendants charged with the planning of the 9/11 attacks on the US and the way in which the issue of torture is influencing every aspect of the trial. It will ultimately bring together UK and US government representatives, academics and civil society to discuss the international legal ramifications of the US operation of GTMO. Parts of this project have been funded by the ESRC through and Impact Grant. Preliminary observations can be read here.

Private and Public International Law - Strengthening Connections
Developing coherent and consistent discourses whilst avoiding fragmentation in public and private international law is amongst the challenges of these disciplines in present times. This multi-year project highlights the convergence that exists between private and public international law. It focuses on engagement and ‘translation’ between the two sub-disciplines of international law and maps existing connections while exploring further linkages between these disciplines across a range of interdisciplinary topics. Specifically for this project, Dr McCall-Smith is looking at various dimensions of corporate social responsibility in terms of supply chain management with Dr Andreas Ruhmkorf (University of Sheffield) as well as the role of that treaty law plays across both fields. Along with Professor Duncan French (Lincoln University) and Dr Veronica Ruiz Abou-Nigm, she is working with a range of scholars to produce an edited collection of essays exploring how the two fields can strengthen connections. 

Feminist International Judgments Project 

Feminists are increasingly at the forefront of critical international legal scholarship. In practice, however, feminists’ work has arguably failed to make an impact on mainstream international law and in judicial thinking. International Law is an area notoriously dominated by male perspectives, and an increasing number of feminist scholars are expressing concern about the silencing of women’s voices in international law.  This project rises to the challenge of adopting innovative methodological approaches in order to address this omission. The (re)writing of judgments will demonstrate in accessible and meaningful ways possible alternatives to the structural inequalities of traditional International Law.

 

Administrative Roles

Dr McCall-Smith is the programme director for the LLM in Human Rights. She serves on the Senior Management Group of the Law School on behalf of her colleagues, is a member of the Global Justice Academy management committee and is its representative to the Association of Human Rights Institutes (AHRI). She is a member of the Senatus Academicus and coordinates the international law moot court team.

Courses Taught

Corporate Social Responsibility and the Law (LLM)

Fundamental Issues in International Law (LLM)

International Human Rights Law (LLM)

Human Rights (Honours)

International Law 1 (Ordinary) (Course Organiser)

International Law 2 (Ordinary) (Course Organiser)

International Law and Global Affairs (Honours) (Course Organiser)

PhD Supervisees

Snjólaug Árnadóttir  'The Effect of Changing Circumstances on Maritime Limits and Maritime Boundaries'

Vivek Bhatt  '? Edit How has the war on terrorism impacted upon individuals¿ position within the international legal order?'

Dagmar Topf Aguiar De Medeiros  'Constitutionalisation of international law in order to achieve effective and legitimate global governance of the environment'

Articles

Kasey McCall-Smith, 'Introductory note: United Nations revised rules on treatment of prisoners', (2016), International Legal Materials, Vol 55

Kasey McCall-Smith, 'Severing Reservations ', (2014), International and Comparative Law Quarterly, Vol 63, pp 599-634
Abstract: How to address invalid reservations has been an on-going struggle for States, legal practitioners and academics. This article considers the evolution of severability and whether States intend the language of severance to serve as a signal of their view on legality to reserving States or simply use severability to bolster their own public reputation. Over the past decade, State practice toward invalid reservations to norm-creating treaties has shifted and this shift and its impact on treaty law must be acknowledged. The arguments and assertions that follow rely heavily on the contemporary practice relating to reservations made to the core UN human rights treaties which, admittedly, limits the application of the doctrine in many ways. Review of State practice, especially to human rights treaties, demonstrates that a broader number of States are slowly opting for severability when defining their treaty relations with States authoring invalid reservations. The doctrine of severability is gaining a slow but steady following by a growing number of States though there is tension about whether severing reservations is lex specialis, pertaining only to human rights treaties, or lex ferenda. This article examines the evolving practice and forecasts the role it will play in the future of treaty law.

Kasey McCall-Smith, 'Mind the Gaps: The ILC Guide to Practice and Reservations to Human Rights Treaties', (2014), International Community Law Review, Vol 16, pp 263-305
Abstract: At the best of times the rules on reservations to treaties baffle many international law practitioners and the states that must navigate them. The persisting confusion from the application of the default reservations regime codified by the 1969 Vienna Convention is exacerbated when these rules are used to interpret reservations to human rights treaties. Great hope for clarity in the reservations rules was focused on the outcome of the ILC's Guide to Practice on Reservations. However, following the 2011 publication of the Guide it is apparent that despite several progressive guidelines, little has changed in the context of reservations to human rights treaties. This article examines the practice of making reservations to human rights treaties. Specifically it will address the problems perpetuated by the object and purpose test, the lack of clarity of the legal effect and consequence of invalid reservations as well as the question of who decides invalidity.

Kasey McCall-Smith, 'Roger Masterman and Ian Leigh (eds), The United Kingdom’s Statutory Bill of Rights: Constitutional and Comparative Perspectives ', (2014), Human Rights Law Review, Vol 14, pp 394-99

Kasey McCall-Smith, 'Ryan Goodman and Thomas Pegram (eds), Human Rights, State Compliance, and Social Change: Assessing National Human Rights Institutions ', (2013), Human Rights Law Review, Vol 13, pp 615-19

Kasey McCall-Smith, 'Reservations and the Determinative Function of the Human Rights Treaty Bodies ', (2011), German Yearbook of International Law, Vol 54, pp 521-64
Abstract: A treaty body's competence to determine the permissibility of a reservation elicits a wide spectrum of opinion. For years many States and observers opposed any suggestion that a treaty body might be competent to adjudge a reservation impermissible. At the same time, States have engaged in ongoing dialogues with treaty bodies over the nature of their reservations signifying some recognition that the topic in the treaty body forum is fair game. The necessity for recognising this competence stems from the passive approach historically taken by States on the issue of reservations to human rights treaties. This passivity has contributed to the general incoherence of the human rights treaty system as evidenced by the large number of seemingly invalid reservations which remain attached to the core human rights treaties. The recent endorsement of this competence by the ILC is clearly a boon to human rights yet it yields only cautious optimism in light of the non-binding nature of treaty body jurisprudence. This article outlines the increasingly dynamic role of human rights treaty bodies and argues that recognising the determinative function of these organs increases coherence in the international human rights system by providing definitive views on the permissibility of reservations.

Kasey McCall-Smith, 'Pedro Pitarch, Shannon Speed, and Xochitl Leyva Solano (eds), Human Rights in the Maya Region. Global politics, Cultural Contentions, and Moral Engagements ', (2011), Social and Legal Studies, Vol 20, pp 129-33

Chapters

Kasey McCall-Smith, 'Interpreting international human rights standards Treaty body general comments as a chisel or hammer?' in Stephanie Lagoutte, Thomas Gammeltoft Hansen, John Cerone (ed.) Tracing the Role of Soft Law in Human Rights (Oxford University Press 2016)
Abstract: Human rights treaties are standard-setting yet these standards are open-textured and evolutionary; therefore interpretative tools must be engaged in order to flesh out the true extent of states’ obligations, particularly as these obligations evolve to reflect rights in the modern world. The human rights treaty bodies embedded in each of the UN human rights treaties are comprised of experts in the field specific to each treaty and represent a unique feature of the core treaties in that they are the primary interpreters of the treaties at the international level. Human rights treaty bodies have contributed a great deal to the development of measurable international human rights obligations. Through the functions confirmed by their respective treaties, treaty bodies have a range of options by way of which they can inform States Parties about the evolving nature of human rights protection. From issuing general comments, to appraising states’ periodic reports or reaching final views on individual communications – what will be referred to collectively throughout this chapter as ‘jurisprudence’ – there is no lack of soft law to be found. Though many states often ignore treaty body jurisprudence, there is unmistakeable evidence that it is creeping into the domestic realm by virtue of increasing reference to this jurisprudence in domestic court opinions and policy debates. The persisting question is whether the use of treaty body jurisprudence at the domestic level refines or distorts the development of universal human rights standards.

Kasey McCall-Smith, 'British influence on the Law of Treaties ' in Robert McCorquodale, Jean-Pierre Gauci (ed.) British Influences on International Law, 1915-2015 (Brill 2016) 91-109
Abstract: The law of treaties is a cornerstone of international law. No matter which field of international law is being examined, the creation, interpretation, application, and dissolution of international agreements are governed by the law of treaties. The rules governing treaty law are laid out in the 1969 Vienna Convention on the Law of Treaties (Vienna Convention). The Vienna Convention is widely regarded as the consolidation of the customary international rules on the law of treaties. This contribution considers the path leading to the creation of the rules that are now broadly accepted as constituting the corpus of the Law of Treaties and examines the British influence on their development. From the initial surveys and efforts by the successive British Special Rapporteurs on the Law of Treaties to codify the rules governing treaties to the creation of a modern ‘field guide’ to treaties by Anthony Aust, no other nation of jurists has consistently shaped the development and understanding of this indispensable field of international law.

Kasey McCall-Smith, 'Tides of change The state, business and the human' in Richard Barnes, Vasslilis Tzevelekos (ed.) Beyond Responsibility to Protect (Intersentia 2016)
Abstract: In recent decades international law has witnessed an undeniable shift away from the traditional Westphalian structure that has long kept sovereign states masters of their own domains. Globalisation, advancing technologies and increased interconnectedness among people has ushered in a greater awareness of ‘foreign’ places, people and politics. The past decade in particular has seen remarkable evolution in the field of international law in relation to the protection of human rights, though much of the law reflecting this evolution is either soft law or only binding at the domestic level. Businesses formerly insulated by the cover of private law, are receiving greater attention for their role in human rights abuses, a field generally defined and defended by public law. Almost in parallel, the role of states in protecting human rights outwith their borders has also shifted. Gone are the days when states simply looked the other way as the populations of another state suffered due to the neglect or offenses of their government. A collective conscience has evolved – a conscience that no longer tolerates human deprivation and suffering at the hands of actors that were formerly ‘off-limits’ for the purposes of global human rights scrutiny. This chapter examines the expanding recognition of business as a human rights duty-bearer and how this expansion reflects the transitioning role of states through the responsibility to protect concept.

Alan Boyle, Kasey McCall-Smith, 'Transparency in International Law-Making ' in Andrea Bianchi, Anne Peters (ed.) Transparency in International Law (Cambridge University Press 2013) 419-35

Kasey McCall-Smith, 'Keeping Promises? Obama on Human Rights' in Giles Scott-Smith (ed.) Obama, US Politics, and Transatlantic Relations (European Interuniversity Press 2012) 257-72
Abstract: This chapter examines Obama's record on the promotion and protection of human rights in response to the rights most aggravated by the previous administration. It will begin with Obama's promises during his campaign, as president-elect and at the beginning of his presidency in 2009 to both the American public and the global community. These promises will be evaluated in light of the historical and contemporary human rights commitments of the US. The current state of human rights with respect to specific problematic issues carried over from the Bush years will then be considered, including the role that the EU has played in relation to Obama's pledges to recommit the US to human rights. Finally, the common human rights goals of the EU and US will be introduced. As noted by James Bratt early in 2010, with the election of Obama there was a positive feeling that the US would "return to being its old, familiar self-a country that played by the rules and acted friendly toward its neighbors, consulting them about mutual interests rather than rampaging around like a rogue elephant." Two years into Obama's presidency some question whether much progress has been made in the way of tangible policy changes on human rights.

Kasey McCall-Smith, 'Global Business Practices and Human Rights New Directions' in Ville Pönkä, Daria Kozlowska-Rautiainen (ed.) Business Law Forum (Lakimiesliiton Kustannus 2012) 313-51
Abstract: Across the world global business practice is developing at a frenetic pace. Transnational corporations functioning across multiple states face increasingly complex layers of law and regulation, including human rights. Businesses can no longer afford to ignore human rights and the recent UN ‘Protect, Respect and Remedy’ framework for Transnational Businesses has catapulted the corporate connection to human rights violations into the limelight. This article seeks to flesh out the connection between business and human rights. Specifically it will consider in what ways transnational corporations have been either complicit or complacent in human rights violations and what forward-thinking efforts can prevent future acts of the same.While it is still uncommon for companies to find themselves direct defendants in human rights cases, an increasing number of cases have been filed in the US utilising the Alien Tort Statute (ATS). While ATS claims for human rights violations are still under scrutiny, early in 2012 the US Supreme Court heard Kiobel v Royal Dutch Petroleum and in October will hear a second round of arguments on the issue of whether victims of human rights violations in any state may sue the alleged perpetrators in US federal court. The potential effects of this case on international business activity are far-reaching. In addition to examining businesses as direct defendants, this article will explore the backlash resulting from successful human rights violation claims against states based on industrial activity. The repercussions for ill-conceived business activities have included exclusion from states and loss of investor confidence but these may represent only the tip of the iceberg. Finally it will consider the ‘Protect, Respect and Remedy’ Framework and the Guiding Principles that seek to embed the framework into global business practice, including the need for human rights due diligence.Global business activity and practice is multi-faceted and far from homogenous. The one consideration that is common and can no longer be ignored is the responsibility of transnational corporations to respect human rights. While a challenge, there are simple business practices that can ensure companies stay on the right side of human rights.

Working Papers

Kasey McCall-Smith, 'Human Rights Treaty Bodies, Proceduralization and the Development of Human Rights Jus Commune ' 2015
Abstract: The obligations set out in UN human rights treaties are open-textured and evolutionary, therefore they present a particular challenge in articulating the basis of a substantive breach that is universally applicable. Universal applicability, however, is a primary goal of international human rights and fundamental to the recognition of a jus commune of human rights. As the specialist supervisory mechanisms of the core UN human rights treaties, the human rights treaty bodies must balance the progressive realisation of rights against the historic state sensitivity to interference in domestic affairs, an exercise that has often put the treaty bodies at odds with states. Review of treaty body jurisprudence suggests that migration toward a procedural approach to human rights violations may resonate more naturally with states due to the simplicity of establishing procedural infractions. This observation stems from examining how treaty body jurisprudence is utilised in national judicial decisions. It is argued that proceduralized decisions aid in the establishment of human rights jus commune by slowly moving away from value-based determinations, a practice that sits more easily with States. This migration is reflected in two identifiable practices. The first sees states in breach of obligations based on the failure to adhere to rules of procedure or procedural obligations under a treaty. The second bases a breach determination on the procedural dimension of a substantive right. The lingering question is whether this is a positive development in the overall protection of human rights and how this impacts the growing common law of human rights. An examination of treaty body jurisprudence across the UN treaty bodies will allow the proceduralization of human rights at the international level to be evaluated in terms of individual human rights protection. The tedious balance that must be maintained in order to advance the human rights jus commune should be evaluated from a universal perspective to assess whether proceduralization of rights adds to or detracts from the overall human rights project.

Kasey McCall-Smith, 'Tides of Change – Expanding the Term "Duty-Bearer" in International Human Rights ' 2015
Abstract: The past decade has seen remarkable evolution in the field of international law in relation to the protection of human rights, though much of the law reflecting this evolution is either soft law or only binding at the domestic level. Businesses formerly insulated by the cover of private law, are receiving greater attention for their role in human rights abuses, a field generally defined and defended by public law. Almost in parallel, the role of states in protecting human rights outwith their borders has also shifted. Gone are the days when states simply looked the other way as the populations of another state suffered due to the neglect or offenses of their government. A collective conscience has evolved – a conscience that no longer tolerates human deprivation and suffering at the hands of actors that were formerly ‘off-limits’ for the purposes of global human rights scrutiny. This paper examines the expanding recognition of business as a human rights duty-bearer and how this expansion reflects the transitioning role of states through the responsibility to protect concept. The key to both developments lies in the need for states to focus on prevention by carrying out effective due diligence.

Kasey McCall-Smith, 'Interpreting International Human Rights Standards: Treaty Body General Comments in Domestic Courts' 2015
Abstract: This paper explores the introduction of treaty body jurisprudence into domestic legal systems. Specifically it will consider the use of general comments by human rights treaty bodies. The contribution will begin with a brief introduction of the treaty bodies, as it is the nature of these bodies that warrants consideration of their jurisprudence as a legitimate interpretive tool. It will then present an overview of references to treaty body general comments in the case law across a selection of jurisdictions, including the UK and South Africa, as well as the EU as a supranational jurisdiction. Finally, it will analyse the impact that these domestic engagements with treaty body jurisprudence has on the interpretation of international human rights standards. It will consider whether the outcome of a court case that has relied upon general comments contributes to or detracts from the strength of the treaty body outputs. It is posited that in instances where rights are progressively recognised for protection, general comments serve as a chisel to aid in refining rights. In instances where the judiciary disregards or distorts treaty body guidance, it is suggested that the general comments act more as a hammer that weakens a particular right. Thus it is extremely important that treaty bodies take special care when drafting their opinions, comments and reports therefore some attention will be given to the issue of treaty body drafting.