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1. Very short talks

vsi banner

By Chloe Foster


We have seen an abundance of Very Short Introductions (VSI) authors appearing at UK festivals this year. Appearances so far have included at Words by the Water festival in Keswick, Oxford Literary Festival, and Edinburgh Science festival. The versitility of the series and its subjects means our author talks are popular at a variety of different types of festivals. First up, Words by the Water:



Later this month, we’ll have talks from VSI authors at Chipping Norton Literary Festival on the 26th and 27th April. This is followed by a series of talks at Ways with Words festival in Devon on the 12th July, Kings Place festival in London on the 14th September, and Cheltenham Literature festival from 3rd -12th October.

The Very Short Introductions (VSI) series combines a small format with authoritative analysis and big ideas for hundreds of topic areas. Written by our expert authors, these books can change the way you think about the things that interest you and are the perfect introduction to subjects you previously knew nothing about. Grow your knowledge with OUPblog and the VSI series every Friday, subscribe to Very Short Introductions articles on the OUPblog via email or RSS., and like Very Short Introductions on Facebook.

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2. Prime Minister’s Questions

By Andrew Dobson


“Noisy and aggressive,” “childish,” “over the top,” “pointless.” These are just a few recent descriptions of Prime Minister’s Questions – the most watched event in the Parliamentary week.

Public dismay at PMQs has led the Speaker, John Bercow, to consult with party leaders over reform.  The Hansard Society asked focus groups what they thought of PMQs as part of its annual look at public engagement. Nearly half said the event is “too noisy and aggressive”, the same proportion as those who felt that MPs behave unprofessionally. Meanwhile, a majority of 33% to 27% reported that it put them off politics. Only 12% said it made them “proud of our Parliament”.

John Bercow. By Office of John Bercow CC-BY-SA-3.0

Both the Deputy Prime Minister Clegg and Labour leader Ed Miliband agreed that the baying and screeching gave politics and politicians a bad name, and while Prime Minister David Cameron was a little more guarded, he too thought that Mr Bercow’s ideas were interesting and worth looking at.

So would it help if politicians listened to each other little bit more and shouted at each other a little bit less? The fact that PMQs is simultaneously the most watched and the least respected Parliamentary event is significant. No doubt we watch it precisely because we enjoy the barracking and the bawling, and there is always the possibility of grudging admiration for a smart bit of wordplay by one or other of the combatants. Parliamentary sketch writers nearly always judge the winner of PMQs on the basis of which of the party leaders has bested the other in terms of quips and ripostes – and very rarely on the basis of political substance.

So it’s hardly an informative occasion. Indeed the Hansard’s respondents’ main gripes are that questions are scripted, and that there are too many planted questions and too few honest answers.

Once again, though, maybe this misses the point. Some will say that the civilised and serious political work is done behind the scenes in committee rooms, where party loyalty is less obviously on display, and where considered debate often takes place. On this account, PMQs occupy a very small amount of parliamentary time, and anyway, the sometimes angry jousting that takes place between party leaders on Wednesdays is as much a part of politics as the polite exchange of views we find in Parliamentary committees. Where would politics be without disagreement? Would it be politics at all?

But then there are different ways of disagreeing – and some ways could turn out to be exclusionary. One of the ideas floated by John Bercow was that the flight of women from the House of Commons was in part a result of the way in which debate is conducted there.

David Cameron

David Cameron. By World Economic Forum/Moritz Hager (Flickr) CC-BY-SA-2.0

And it’s a fact that although good listening is much prized in daily conversation, it’s been almost completely ignored in the form of political conversation we know as democracy. While PMQs show that politicians aren’t always very good at listening to each other, they’re not much better at listening to the public either. Politicians instinctively know that listening in a democracy is vital to legitimacy. That’s why when they’re in trouble they reach for the listening card and initiate a “Big Conversation,” like the one Tony Blair started in late 2003, not so many months after the million people march against the Iraq war.

But won’t a government that listens hard and changes its mind just be accused of that ultimate political crime, the U-turn? In 2012, the Secretary of State for Education, Michael Gove, announced some radical changes in UK secondary school education, including a return to an older style assessment regime. Then in February 2013 he suddenly announced that the changes wouldn’t take place after all. Predictably, the Opposition spokesman called this a ‘humiliating climbdown’. Equally predictably, Gove’s supporters played the listening card for it was worth, with Nick Clegg saying effusively that, “There is no point having a consultation if you’ve already made up your mind what you’re going to do at the end of it.”

So it looks as though, as far as listening goes, governments are damned if they do and damned if they don’t: accused of weakness if they change their mind and of pig-headedness and a failure to listen if they don’t. On balance, I’d rather have them listening more – both to each other and to us. John Dryzek is surely right to say that, “the most effective and insidious way to silence others in politics is a refusal to listen.”

As the ancient Greek philosopher Epictetus says: “Nature hath given men and one tongue but two ears, that we may hear from others twice as much as we speak.”

Andrew Dobson is Professor of Politics at Keele University, UK. His most recent book is Listening for Democracy: recognition, representation, reconciliation (OUP, 2014). He is a member of the England and Wales Green Party and he co-wrote the Green Party General Election Manifesto in 2010. He is a founder member of the thinktank Green House.

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Image credit: John Bercow, by Office John Bercow, CC-BY-SA-3.0 via Wikimedia Commons. (2) David Cameron, by World Economic Forum/Mortiz Hager (Flickr), CC-BY-SA-2.0 via Wikimedia Commons

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3. Are you a tax expert?

Tax calculator and penToday is 15 April or Tax Day in the United States. In recognition of this day we compiled a free virtual issue on taxation bringing together content from books, online products, and journals. The material covers a wide range of specific tax-related topics including income tax, austerity, tax structure, tax reform, and more. The collection is not US-centered, but includes information on economies across the globe. Be sure to take a moment to view this useful online resource today.

Your Score:  

Your Ranking:  

Oxford University Press has compiled a new virtual issue on taxation that brings together content from books, online products, and journals. Start browsing this timely and useful resource today!

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Image credit: Tax calculator and pen. © Elenathewise via iStockphoto.

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4. Jus post bellum and the ethics of peace

By Carsten Stahn, Jennifer S. Easterday, and Jens Iverson


Whenever there is armed conflict, international lawyers inevitably discuss the legality of the use of armed force and the conduct of the warring parties. Less common is a comprehensive legal analysis, informed by ethics and policy concerns, of the transition from armed conflict to peace. The restoration of peace after conflict is often sidelined in post-conflict legal analysis. Interventions and peace operations seeking to build a just and sustainable peace frequently suffer from a misalignment between ‘means’ and ‘ends.’ There can be stark discrepancies between the immediate reaction to conflict and post-conflict engagement. It is true that concepts such as ‘humanitarian intervention,’ the ‘Responsibility to Protect,’ (R2P) or the ‘protection of civilians’ (POC) have been used to establish capacity and political will to respond to atrocity situations. But attention shifts quickly to other situations of crisis once a cease-fire or peace agreement has been reached. Some of the underlying premises of engagement, such as ideas of responsibility or the ethics of care, receive limited attention in the aftermath of crisis and during the lengthy process of peacebuilding.

An old idea that seeks to mitigate these dilemmas is the concept of jus post bellum. The basic idea emerged in classical writings (e.g., Alberico Gentili, Francisco Suarez, Immanuel Kant) and has its most traditional and systemic rooting in just war theory. In this context, it is part of a structural ‘framework’ to evaluate the morality of warfare, and in particular the ‘right way to end a war’, including ’post-war-justice’ (Michael Walzer, Brian Orend). Outside just war theory, jus post bellum is largely unexplored. The notion was used sporadically in different contexts over the past decade: peacebuilding and post-conflict reconstruction, transformative occupation, transitional justice, and the law of peace (lex pacificatoria) more generally. But the concept has lacked consistency; there are almost as many conceptions of jus post bellum as scholars, within and across disciplines.

A modern understanding of jus post bellum requires a fresh look at each of the core components of the classical concept, namely the meanings of ‘jus,’ ‘post,’ and ‘bellum.’ In traditional scholarship, jus post bellum has mostly been understood as ‘justice after war’. However, in modern scholarship, the concept of ‘jus’ is debated. Does it mean ‘law,’ ‘justice,’ or a complicated mix of the two? The concept of time and what it means to be ‘post’ conflict, and even that of ‘war’ itself, with blurred distinctions between modern armed conflicts, are now more and more contested.

Functions of jus post bellum

Classical scholarship tied jus post bellum to the vindication of ‘rights’ and ‘duties,’ military victory, and the distinction between ‘victors’ and ‘vanquished’. Today, such conceptions require re-consideration. The experience of the two World Wars has confirmed the Kantian postulate that peace remains fragile if it contains tacitly reserved matter for a future war’ (Perpetual Peace). But in modern conflicts (e.g. Afghanistan, Iraq), the entire concept of ‘victory’ has become open to challenge.

Insights from contemporary conflict research indicate that it is not enough to deal with the formal ending of conflict or the ‘pacification’ of violence. Distinctions between ‘winners’ and ‘losers’ become muddied, making it more difficult to mitigate the risk of a return to violence. Structural approaches to peacebuilding require engagement with social injustices, the ‘violence of peace,’ the establishment of ‘trust’ in norms and institutions and other factors that make a society more  ‘resilient’ against conflict.

This makes it necessary to re-think the concept of ‘jus’ beyond its traditional focus on rights and post-war justice (i.e. punishment, responsibility). Past decades have witnessed a rapid rise of the ‘liberal justice model’ and norms and instruments of criminal justice. Core challenges of modern transitions lie therefore not so much in the definition of proper accountability mechanisms, but rather in their coordination with other rationales and priorities (i.e. protection of socio-economic rights) and their perception as elements of ‘just peace.’ This creates space for a modern function of jus post bellum. A modern jus post bellum may pursue different rationales beyond rights vindication or punishment:

(i) it may have a certain preventive function, by requiring actors to look into the consequences of action before, rather than ‘in’ and ‘after’ intervention.
(ii) it may serve as a constraint on violence in armed conflict; and
(iii) it may facilitate a succession to peace, rather than a mere ‘exit’ from conflict.

System, framework, or interpretative device?

The branding of jus post bellum as a modern concept comes with its own problems and politics. The very use of the label creates some risks (e.g. fears of abuse and instrumentalization) and concerns relating to the function and reach of law. But there is some space to ‘think outside the box.’ A modern jus post bellum does not necessarily have to be framed in the structure and form of established concepts, such as jus ad bellum or jus in bello. There is virtue in diversifying the foundations of jus post bellum.

First, Jus post bellum may be said to form a system of norms and principles applicable to transitions from conflict to peace. It provides, in particular, substantive norms and guidance for the organization of post-conflict peace. Some voices have even called for new codification, i.e. a fifth Geneva Convention. But more law and abstract regulation do not necessarily suffice to address tensions arising in the aftermath of conflict. There may a greater need for a better application of the existing law, and its adjustment to context, rather than the articulation of new norms and standards. Some promise may lie in the strengthening of informal mechanisms and flexible principles.

A second and more ‘modest’ conception of jus post bellum is its qualification as a ‘framework.’ This conception emphasizes the functionality of jus post bellum, such as its capacity to serve an instrument to evaluate action (e.g., legitimate ending of conflict) and to establish a public context for debate. Jus post bellum might be construed as an ‘ordering framework,’ or as a tool to coordinate the application of laws, solve conflicts of norms, and balance conflicting interests.

Thirdly, jus post bellum may constitute an interpretative device. The concept might inform a context-specific interpretation of certain normative concepts, such as ‘military necessity’ or the principle of proportionality. It might, for instance introduce a novel end in relation to the conduct of hostilities, namely the objective not to defeat the goal of sustainable peace through the conduct of warfare.

In moral philosophy, the idea of jus post bellum has been associated with the struggle for ‘justice’ and ‘just peace’ for centuries. It has been driven by ambitions to reconcile ideas of justice and punishment with moderation towards the vanquished. These dilemmas continue today. But underlying tensions have received increased attention in the legal arena since the 1990s. Many of the unexplored strengths and new opportunities lie in the broader role of the concept in relation to peacebuilding. It is here where the concept provides new prospects to rethink some of the fundamental elements of the table of contents and institutions of international law, not necessarily in the form of the ‘liberal’ peace idea, but in a novel, pluralistic way.

Carsten Stahn, Jennifer S. Easterday, and Jens Iverson are the editors of Jus Post Bellum: Mapping the Normative Foundations. Carsten Stahn is Professor of International Criminal Law and Global Justice and Programme Director of the Grotius Centre for International Studies, Universiteit Leiden. Jennifer S. Easterday is a Ph.D Researcher, Faculteit Rechtsgeleerdheid, Instituut voor Publiekrecht, Internationaal Publiekrecht, Universiteit Leiden. Jens Iverson is a Researcher for the ‘Jus Post Bellum’ project and an attorney specializing in public international law, Universiteit Leiden.

Oxford University Press is a leading publisher in international law, including the Max Planck Encyclopedia of Public International Law, latest titles from thought leaders in the field, and a wide range of law journals and online products. We publish original works across key areas of study, from humanitarian to international economic to environmental law, developing outstanding resources to support students, scholars, and practitioners worldwide. For the latest news, commentary, and insights follow the International Law team on Twitter @OUPIntLaw.

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5. The Defamation Act 2013: reflections and reforms

How can a society balance both the freedom of expression, including the freedom of the press, with the individual’s right to reputation? Defamation law seeks to address precisely this delicate equation. Especially in the age of the internet, where it is possible to publish immediately and anonymously, these concerns have become even more pressing and complex. The Defamation Act 2013 has introduced some of the most important changes to this area in recent times, including the defence for honest opinion, new internet-specific reforms protecting internet publishers, and attempts to curb an industry of “libel tourism” in the U.K.

Dr Matthew Collins SC introduces the Defamation Act 2013, and discusses the most important reforms and their subsequent implications.

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Dr Matthew Collins SC is a barrister based in Melbourne, Australia. He is a Senior Fellow at the University of Melbourne, a door tenant at One Brick Court chambers in London, and the author of Collins On Defamation.

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6. Is Amanda Knox extraditable from the United States to Italy?

By M. Cherif Bassiouni


The Amanda Knox case is complex in view of Italy’s complicated procedure in matters involving serious crimes. These crimes are tried before a special court called the Court of Assizes. These courts have two professional judges and six lay judges, much like a jury in Anglo-American cases. But, in Italy, the lay judges sit alongside the ordinary judges and decide on questions of law and fact. In the Italian system, a conviction or an acquittal can be appealed to the Court of Appeals, which can either examine the merits of the case and hold a new hearing on the facts or decide on the proper application of law, or both. It can also remand a case to the trial court for a new trial. Such appeals are trials de novo, but the Appeals Court of Assizes seldom hears witnesses again, though it can. Usually, it decides on the record both questions of facts and law. Any case can be appealed to the Court of Cassation. If any court certifies there is a constitutional question at issue, that court can refer the case to the Constitutional Court. This complex procedure is designed to benefit the rights of the accused.

The Facts and the Procedural History of the Case


Amanda Knox, a US citizen, was a student at the University of Perugia in November 2007 when she was arrested for the murder of her British roommate, Meredith Kercher. The two women were studying in Perugia, Italy. Meredith Kercher was found dead in the apartment she shared with Knox with her throat slit and with evidence of a sexual assault. Knox, her Italian boyfriend Raffaele Sollecito, and Rudy Guede from the Ivory Coast, an acquaintance of the couple, were all charged with murder and sexual violence.

2009 – The Perugia Trial Court of Assizes convicted Amanda Knox for murder and slander.

All three pled innocent but were convicted by the Assizes Trial Court in December of 2009 for murder and sexual violence. Amanda Knox was also convicted for slander, having accused Mr. Patrick Lumumba (the owner of the bar in which she occasionally worked) as the murderer. Amanda Knox was sentenced to 26 years in jail, Raffaele Sollecito to 25 years, and Rudy Guede (who had opted for the accelerate procedure) to 30 years (a conviction now affirmed by the Italian Court of Cassation, but with a reduction of the sentence to 16 years).

The convictions of Knox and Sollecito were due to the court not being convinced of Knox’s story that she and Sollecito were not in the apartment the night of the murder but were instead at Sollecito’s apartment. Witnesses testified that they had seen Knox and Sollecito near the apartment where Meredith Kercher’s body was found at around 23.00 hours; and the main scientific exhibits—specifically, Exhibit 36, a 6.5 inch knife found in Sollecito’s apartment with Knox’s DNA on the handle and Meredith Kercher’s DNA on the blade (low quantity of DNA)—were compatible with the wounds according to court experts, and Exhibit 165, a clasp, was found on the murder scene with Meredith Kercher’s DNA and Sollecito’s DNA.

The Appeal Is Held Of Amanda Knox Over The Guilty Verdict In The Murder Of Meredith Kercher

2011 – Amanda Knox appealed to the Appeals Court of Assizes of Perugia, which acquitted her of murder and affirmed her conviction for slander.

In October 2011, the Appeals Court of Assizes of Perugia acquitted both Knox and Sollecito after questions were raised by the defense regarding the protocol followed by the Italian police while gathering the forensic evidence that was used to convict them in 2009. The court’s judgment was also based on new scientific examinations that were previously requested by the defense during the first trial but were not authorized by the trial court. This evidence, according to the defense, would have disproved the presence of Knox and Sollecito at the crime scene. The appeals court concluded that the evidence that proved persuasive to the Perugia Trial Court of Assizes was obtained in a contaminated environment. More specifically, the appeals court concluded that (1) certain footprints initially attributed to Sollecito were also compatible with the size of Rudy Guede’s feet and (2) subsequent analysis on the 6.5 inch kitchen knife supposedly used to slit Meredith Kercher’s throat showed that the kitchen knife did not contain Knox’s DNA and that the kitchen knife could not have been the murder weapon.

2013 – The Prosecution appealed that decision to the Court of Cassation (Supreme Court), which remanded the case to the Appeals Court of Assizes of Florence.

Following the acquittal by the first appeals court in 2011, Knox left Italy and returned to the United States. In March 2013, the Prosecution in the Knox and Sollecito cases appealed to the Court of Cassation, Italy’s Supreme Court, which remanded the case to the Appeals Court of Assizes in Florence for reconsideration on the basis that there were discrepancies in testimony, inconsistencies, omissions, and contradictions in the ruling of the Appeals Court of Assizes of Perugia in 2011. The Court of Cassation upheld each of the grounds raised by the Perugia Chief Prosecutor. The Court of Cassation concluded that the Assizes Court of Appeals of Perugia, which reversed the murder conviction for Amanda Knox in 2011, had weighed the evidence in an inconsistent and piecemeal fashion.

2014 – The Appeals Court of Assizes of Florence overturned the acquittal by the Court of Appeals of Perugia for murder and affirmed the previous conviction of the trial court for murder and slander.

The case was then assigned to the Appeals Court of Assizes of Florence, which, on 30 January 2014, overturned the acquittals of the Perugia Assizes Court of Appeal based on the Court of Cassation’s previous judgment. This appeals court convicted Knox in absentia and sentenced her to 28 years and six months of imprisonment and sentenced Sollecito to 25 years of imprisonment. The Presiding Judge of the Florence Court has 90 days as of January 30, 2014 to write his judgment (with reasons) on the ruling. Lawyers for Knox and Sollecito have stated that as soon as the judgment is filed, they will appeal it to the Court of Cassation. The judgment is not final until the Court of Cassation rules on the eventual appeal of Knox and Sollecito.

Extradition from the United States to Italy


Italy is one of the few countries with this complex procedure, which it does not consider to be in violation of the constitutional prohibition of ne bis in idem (double jeopardy) reflected in article 649 of the Italian Code of Criminal procedure. The prohibition of ne bis in idem is included in the European Convention for the Protection of Human Rights and Fundamental Freedoms, but, so far, the European Court for Human Rights (ECHR) has not interpreted Italian law as violating the European Convention. Thus, the procedure described above has not been found to be in violation of ne bis in idem under the ECHR.

The 1983 U.S.–Italy Extradition Treaty states in article VI that extradition is not available in cases where the requested person has been acquitted or convicted of the “same acts” (in the English text) and the “same facts” (in the Italian text). Treaty interpretation needs to ascertain the intentions of the parties by relying on the plain language and meaning of the words. Italy’s law prohibiting ne bis in idem specifically uses the words stessi fatti, which are the same words used in the Italian version of article VI, meaning “same facts.” Because fatti, or “facts,” may include multiple acts, the Second Circuit Court of Appeals applied the test of “same conduct” in Sindona v. Grant, citing international extradition in US law and practice, based on this writer’s analysis.

Whatever the interpretation of article VI may be—“same act,” “same facts,” or the broader “same conduct”—Amanda Knox would not be extraditable to Italy should Italy seek her extradition because she was retried for the same acts, the same facts, and the same conduct. Her case was reviewed three times with different outcomes even though she was not actually tried three times. In light of the jurisprudence of the various circuits on this issue, it is unlikely that extradition would be granted.

The US Supreme Court can also make a constitutional determination under the Fifth Amendment of the applicability of double jeopardy to extradition cases, particularly with respect to a requesting state’s right to keep on reviewing its request for the same acts or facts in the hope of obtaining a conviction. But, no such interpretation was given to the Fifth Amendment in any extradition case to date. Surprising as it may be, neither the Supreme Court nor any Circuit Court has yet held that the Fifth Amendment’s “double jeopardy” provision applies to extradition. So far, double jeopardy defenses have been dealt with as they arise under the applicable treaty.

Conclusion: Amanda Knox’s extradition from the United States to Italy under existing jurisprudence is not likely.

M. Cherif Bassiouni is Emeritus Professor of Law at DePaul University where he taught from 1964-2012, where he was a founding member of the International Human Rights Law Institute (established in 1990), and served as President from 1990-2007, and then President Emeritus. He is also President, International Institute of Higher Studies in Criminal Sciences, Siracusa, Italy since 1989. He is the author of International Extradition: United States Law and Practice, Sixth Edition.

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Image credit: PERUGIA, ITALY – NOVEMBER 24: Amanda Knox is led away from Perugia’s Court of Appeal by police officers after the first session of her appeal against her murder conviction on November 24, 2010 in Perugia, Italy. © EdStock via iStockphoto.

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7. A doctrine of ‘market sovereignty’ to solve international law issues on the Internet?

By Dan Jerker B. Svantesson


One of the most prominent features of jurisdictional rules is a focus on the location of actions. For example, the extraterritorial reach of data privacy law may be decided by reference to whether there was the offering of goods or services to EU residents, in the EU.

Already in the earliest discussions of international law and the Internet it was recognised that this type of focus on the location of actions clashes with the nature of the Internet – in many cases, locating an action online is a clumsy legal fiction burdened by a great degree of subjectivity.

I propose an alternative: a doctrine of ‘market sovereignty’ determined by reference to the effective reach of ‘market destroying measures’. Such a doctrine can both delineate, and justify, jurisdictional claims in relation to the Internet.
It is commonly noted that the real impacts of jurisdictional claims in relation to the Internet is severally limited by the intrinsic difficulty of enforcing such claim. For example, Goldsmith and Wu note that:

“[w]ith few exceptions governments can use their coercive powers only within their borders and control offshore Internet communications only by controlling local intermediaries, local assets, and local persons” (emphasis added)

However, I would advocate the removal of the word ‘only’. From what unflatteringly can be called a cliché, there is now a highly useful description of a principle well-established at least 400 years ago.

ethernet padlock

The word ‘only’ gives the impression that such powers are of limited significance for the overall question, which is misleading. The power governments have within their territorial borders can be put to great effect against offshore Internet communications. A government determined to have an impact on foreign Internet actors that are beyond its directly effective jurisdictional reach may introduce what we can call ‘market destroying measures’ to penalise the foreign party. For example, it may introduce substantive law allowing its courts to, due to the foreign party’s actions and subsequent refusal to appear before the court, make a finding that:

  • that party is not allowed to trade within the jurisdiction in question;
  • debts owed to that party are unenforceable within the jurisdiction in question; and/or
  • parties within the control of that government (e.g. residents or citizens) are not allowed to trade with the foreign party.

In light of this type of market destroying measures, the enforceability of jurisdictional claims in relation to the Internet may not be as limited as it may seem at a first glance.

In this context, it is also interesting to connect to the thinking of 17th century legal scholars, exemplified by Hugo de Groot (better known as Hugo Grotius). Grotius stated that:

“It seems clear, moreover, that sovereignty over a part of the sea is acquired in the same way as sovereignty elsewhere, that is, [...] through the instrumentality of persons and territory. It is gained through the instrumentality of persons if, for example, a fleet, which is an army afloat, is stationed at some point of the sea; by means of territory, in so far as those who sail over the part of the sea along the coast may be constrained from the land no less than if they should be upon the land itself.”

A similar reasoning can usefully be applied in relation to sovereignty in the context of the Internet. Instead of focusing on the location of persons, acts or physical things – as is traditionally done for jurisdictional purposes – we ought to focus on marketplace control – on what we can call ‘market sovereignty’. A state has market sovereignty, and therefore justifiable jurisdiction, over Internet conduct where it can effectively exercise ‘market destroying measures’ over the market that the conduct relates to. Importantly, in this sense, market sovereignty both delineates, and justifies, jurisdictional claims in relation to the Internet.

The advantage market destroying measures have over traditional enforcement attempts could escape no one. Rather than interfering with the business operations worldwide in case of a dispute, market destroying measures only affect the offender’s business on the market in question. It is thus a much more sophisticated and targeted approach. Where a foreign business finds compliance with a court order untenable, it will simply have to be prepared to abandon the market in question, but is free to pursue business elsewhere. Thus, an international agreement under which states undertake to only apply market destroying measures and not seek further enforcement would address the often excessive threat of arrests of key figures, such as CEOs, of offending globally active Internet businesses.

Professor Dan Jerker B. Svantesson is Managing Editor of the journal International Data Privacy Law. He is author of Internet and E-Commerce Law, Private International Law and the Internet, and Extraterritoriality in Data Privacy Law. Professor Svantesson is a Co-Director of the Centre for Commercial Law at the Faculty of Law (Bond University) and a Researcher at the Swedish Law & Informatics Research Institute, Stockholm University.

Combining thoughtful, high level analysis with a practical approach, International Data Privacy Law has a global focus on all aspects of privacy and data protection, including data processing at a company level, international data transfers, civil liberties issues (e.g., government surveillance), technology issues relating to privacy, international security breaches, and conflicts between US privacy rules and European data protection law.

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Image credit: Ethernet cable with a padlock symbolising internet security. © SKapl via iStockphoto.

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8. Challenges to the effectiveness of international law

For the first time in its history, the American Society of International Law (ASIL) is partnering with the American Branch of the International Law Association (ILA) to combine each organization’s major conference into an extraordinary joint event. Oxford University Press is looking forward to exhibiting at the conference taking place in Washington on 7-12 April 2014. The conference theme is “The Effectiveness of International Law,” and no doubt there will be much to debate and discuss during the week. Organizers released a set of questions they hope will be addressed during the course of the conference. To kick off the debate we posed two of them to Ademola Abass, author of Complete International Law.

Are there greater challenges to effectiveness in some areas of international law practice than in others? If so, what are they, and how can they be addressed?

Keen followers of international affairs often wonder why, despite the prohibition on the use of force by the UN Charter, States still resort to this means of addressing international disputes. Explanations vary. Legal experts offer various technical explanations for this development. This includes that the rules governing the use of force are outdated and do not offer enough protection for States. Non-lawyers blame the ‘double-standard’ of international law which allows rich and powerful States to act with impunity while weak and poor States are held accountable for their conducts. Others blame the special status accorded to the five permanent members of the Security Council by the veto vote. Regardless of divergent viewpoints, all agree the prohibition of the use of force is less effective than other areas of international law. This is due principally to lack of compliance by some States, and lack of enforcement against rich and powerful States. It is also difficult for States not to defend themselves against threatening States until those have attacked them. The presence of nuclear weapons makes it difficult for most States to sit and wait for an attack before they respond. Overcoming these challenges requires making the Security Council work more evenly and responsibly; ensuring greater transparency and consistency in the administration of collective security by the United Nations. More importantly, it requires the interpretation of the law prohibiting the use of force in accordance with the reality of the twenty first century.

The United Nations Security Council Chamber in New York. Photo by Patrick Gruban, 2006. Creative Commons License via Wikimedia Commons.

Do the challenges facing international law vary in different parts of the world, and, if so, how might those challenges be met?

It is often argued that international law began in the West. While one can contest whether it is possible (or purposeful) to seek locating the birthplace of international law, in contradistinction from its development, not many will argue that international law faces severe challenges in the developing world in contrast to the developed world. In the developing world, the first problem of international law is lack of its popularity. This arises through a combination of lack of awareness, of most law students, about the utility and relevance of international law to their societies. Secondly, the marketing of international institution and materials, has almost a Western bias: international institutions such as the United Nations, the International Court of Justice, the International Criminal Court (ICC), World Bank, are all located in the West. Most international law books report cases and jurisdictions that are preponderant Western as if cases and courts in developing countries make no contribution to international law development.

Addressing these challenges calls for a greater balancing acts in the citing and administration of international institutions; it requires a more even coverage of international law; it necessitates making international law more visible to developing countries, and making their contributions to international law more visible to the world. On their own, developing countries must do more to popularize international law in their academic curricula, expose their judges more greatly to international law, and afford international lawyers from the developing countries more opportunity in the dissemination and practice of international law.

Professor Ademola Abass joined the UNU Institute on Comparative Regional Integration Studies (UNU-CRIS) as a Research Fellow in Peace and Security in 2010. He is also the Head of Peace and Security Programme. He is a former Professor of International Law and Organisation at Brunel University, West London and was educated at the Universities of Lagos, Cambridge, and Nottingham. He holds a Ph.D. in International Law and has previously taught in several British universities. He is the author of Complete International Law.

Oxford University Press is a leading publisher in international law, including the Max Planck Encyclopedia of Public International Law, latest titles from thought leaders in the field, and a wide range of law journals and online products. We publish original works across key areas of study, from humanitarian to international economic to environmental law, developing outstanding resources to support students, scholars, and practitioners worldwide. For the latest news, commentary, and insights follow the International Law team on Twitter @OUPIntLaw.

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Image credit: The United Nations Security Council Chamber in New York. Photo by Patrick Gruban, 2006. CC-BY-SA-2.0 via Wikimedia Commons.

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9. Make the tax system safe for interstate telecommuting: pass H.R. 4085

EZ Thoughts

By Edward Zelinsky


Telecommuting benefits employers, employees, and society at large. Telecommuting expands work opportunities for the disabled, for those who live far from major metropolitan areas, and for the parents of young children who value the ability to work at home. Telecommuting also removes cars from our crowded highways and enables employers to hire from a wider and more diverse pool of potential employees.

It is thus anomalous that New York State’s personal income tax discourages interstate telecommuting by taxing the compensation non-resident telecommuters earn on the days such telecommuters work at their out-of-state homes. Under the misleading label “convenience of the employer,” New York subjects telecommuters to double income taxation by their state of residence as well as by New York – even though New York provides non-resident telecommuters with no public services on the days such interstate telecommuters work at their out-of-state homes outside of New York’s borders.

Some of New York’s elected officials profess interest in making New York tax policy more rational and family-friendly. These officials, however, have shown no willingness to repeal the “convenience of the employer” rule to stop New York’s double state income taxation. Taxing non-resident, non-voters for public services they do not use is just too politically tempting for Albany to resist.

Fortunately, federal officials have begun to recognize the unfairness and irrationality of the double state income taxation inflicted on non-residents by New York’s “convenience of the employer” rule. Most recently, US Representative Jim Himes, joined by his House colleagues Elizabeth Esty and Rosa DeLauro, introduced H.R. 4085, The Multi-State Worker Tax Fairness Act of 2014.

Representative Himes, and his colleagues, are to be commended for introducing this much needed legislation. If enacted into law, H.R. 4085 would make the tax system safe for interstate telecommuting.

Metro-North EMD FL9 leaving Stamford, CT. Public domain via Wikimedia Commons.

In previous incarnations, legislation along these lines was denominated as The Telecommuter Tax Fairness Act. The legislation’s goal remains the same. For Congress, using its authority under the commerce clause of the US Constitution, to forbid New York and other states from double taxing no-nresidents’ incomes on the days such non-residents work at their out-of-state homes.

Consider in this context the spate of service stoppages experienced by MetroNorth railroad commuters this winter. During these stoppages, public officials quite sensibly urged MetroNorth commuters to work from home rather than clog the already crowded highways to reach Manhattan. However, no public official spoke candidly about the tax penalty such commuters triggered by working at their Connecticut homes.

New York’s double taxation of non-resident telecommuters is not limited to those who live and work at home in the northeast. Under the banner of employer convenience, New York projects its taxing authority throughout the nation. In widely reported cases, New York imposed its personal income tax on Thomas L. Huckaby for days he worked at his home in Tennessee, on Manohar Kakar for days he worked at his home in Arizona, and on R. Michael Holt for days he worked at his home in Florida.

Nor is the threat of double taxation limited to New York’s personal income taxes imposed on non-resident telecommuters. Fortunately, many states recognize that double taxing non-resident telecommuters is ultimately self-destructive, driving telecommuters and the firms which employ them to states with more welcoming tax policies. However, other states emulate the Empire State’s tax hostility to interstate telecommuting. For example, Delaware taxed Dorothy A. Flynn’s income for the days she worked at her Pennsylvania home, even though Ms. Flynn did not set foot in Delaware on these work-at-home days.

The unfairness and inefficiency of the double state income taxation of interstate telecommuters has led a broad national coalition to favor federal legislation like H.R. 4085. Among those supporting such legislation are the American Legion, the Christopher and Dana Reeve Foundation, the National Taxpayers Union, The Small Business & Entrepreneurship Council, the Association for Commuter Transportation, The Military Spouse JD Network, and the Telework Coalition.

Representative Himes, along with Representatives Esty and DeLauro, are to be commended for introducing H.R. 4085. If enacted into law, this much needed legislation would make the tax system safe for interstate telecommuting by forbidding double state income taxation of non-resident telecommuters.

ZelinskiEdward A. Zelinsky is the Morris and Annie Trachman Professor of Law at the Benjamin N. Cardozo School of Law of Yeshiva University. He is the author of The Origins of the Ownership Society: How The Defined Contribution Paradigm Changed America. His monthly column appears on the OUPblog.

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Image credit: Metro-North EMD FL9 leaving Stamford, CT. Public domain via Wikimedia Commons.

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10. Twenty years after the Rwandan Genocide

By Scott Straus


We are now entering the month of April 2014—a time for reflection, empathy, and understanding for anyone in or involved with Rwanda. Twenty years ago, Rwandan political and military leaders initiated a series of actions that quickly turned into one of the 20th century’s greatest mass violations of human rights.

As we commemorate the genocide, our empathy needs to extend first to survivors and victims. Many families were destroyed in the genocide. Many survivors suffered enormous hardships to survive. Whatever our stand on the current state of affairs in Rwanda, we have to be enormously recognizant of the pain many endured.

In this brief post, I address three issues that speak to Rwanda today. I do so with trepidation, as discussions about contemporary Rwanda are often polarized and emotionally charged. Even though I am critical, I shall try to raise concerns with respect and recognition that there are few easy solutions.

My overall message is one of concern. At one level, Rwanda is doing remarkably and surprisingly well—in terms of security, the economy, and non-political aspects of governance. However, deep resentments and ethnic attachments persist, hardships and significant inequality remain. While it is difficult to know what people really feel, my general conclusion is that the social fabric remains tense beneath a veneer of good will. A crucial issue is that the political system is authoritarian and designed for control rather than dialogue. It is also a political system that many Rwandans believe is structured to favor particular groups over others. Fostering trust in such a political context is highly unlikely.

I also conclude that a “genocide lens” has limits for the objective of social repair. The genocide lens has been invaluable for achieving international recognition of what happened in 1994. But that lens leads to certain biases about Rwanda’s history and society that limit long-term social repair in Rwanda.

Rwandan Genocide Memorial. 7 April 2011. El Fasher: The Rwandan community in UNAMID organized the 17th Commemoration of the 1994 Genocide against Tutsi hold in Super Camp - RWANBATT 25 Military Camp (El Fasher). Photo by Albert Gonzalez Farran / UNAMID.

Rwandan Genocide Memorial. 7 April 2011. El Fasher: The Rwandan community in UNAMID organized the 17th Commemoration of the 1994 Genocide against Tutsi hold in Super Camp – RWANBATT 25 Military Camp (El Fasher). Photo by Albert Gonzalez Farran / UNAMID. CC-BY-NC-ND-2.0 via UNAMID Flickr.

During the past 20 years, a sea change in international recognition has occurred. Fifteen years ago, very few people knew globally that genocide took place in Rwanda. Today, the “Rwandan Genocide” is widely recognized as a world historical event. That global recognition is an achievement. We also know a great deal more about the causes and dynamics of the genocide itself.

However, several important controversies and unanswered questions remain. One is who killed President Habyarimana on 6 April 1994. Another is how to conceptualize when the plan for genocide began. Some date the plan for genocide to the late 1950s; others to the 1990s; still others to April 1994. A third question is how one should conceptualize RPF responsibility. Some depic the former rebels as saviors who stopped the genocide. Others argue that their actions were integral to the dynamics that led to genocide. And there are other issues as well, including how many were killed. Each of these issues remains intensely debated and hopefully will be the subject of open-minded inquiry in the years to come.

Contemporary Rwanda is at one level inspiring. The government is visionary, ambitious, and accomplished. The plan is to transform the society, economy, and culture—and to wean the state from foreign aid. The government has successfully introduced major reforms. The tax system is much improved. Public corruption is virtually absent. Remarkable results in public health and the economy have been achieved. Public security is also dramatically improved.

But there is a dark side. Most importantly, the government is repressive. The government seeks to exercise control over public space, especially around sensitive topics—in politics, in the media, in the NGO sector, among ordinary citizens, and even among donors. The net impact is the experience of intimidation and, as a friend aptly put it, many silences.

That brings me to the delicate question of reconciliation. Reconciliation is an imprecise concept for what I mean. What matters is the quality of the social fabric in Rwanda—the trust between people—and the quality of state-society relations.

Jean Baptiste and Freda reconciliation. Photo by Trocaire. CC BY 2.0 via Trocaire Flickr.

Jean Baptiste and Freda reconciliation. Photo by Trocaire. CC BY 2.0 via Trocaire Flickr.

A central pillar in Rwanda’s social reconstruction process has been justice. Much is written on gacaca, the government’s extraordinary program to transform a traditional dispute settlement process into a country-wide, decade-long process to account for genocide crimes. Gacaca brought some survivors satisfaction at finally seeing the guilty punished. Gacaca spawned some important conversations, led to important revelations, and prompted some sincere apologies.

But there were also a lot of problems. There were lies on all sides. There were manipulations of the system. Some apologies were pro-forma. And there were weak protections for witnesses and defendants alike. In many cases, justice was not done. But to my mind many the bigger issue is gacaca reinforced the idea that post-genocide Rwanda is an environment of winners and losers.

The entire justice process excluded non-genocide crimes, in particular atrocities that the RPF committed as it took power, in the northwest the late 1990s, and in Congo, where a lot of violence occurred. This meant that whole categories of suffering in the long arc of the 1990s and 2000s were neither recognized nor accounted for. Justice was one-sided. Many Rwandans experience it therefore as political justice that serve the RPF goal of retaining power.

The second issue is the scale. A million citizens, primarily Hutu, were accused. The net effect is that the legal process served to politically demobilize many Hutus, as Anu Chakravarty has written. Having watched the process of rebuilding social cohesion and state-society relations after atrocity in several places, I come to the conclusion that inclusion is vitally important.

If states privilege justice as a mechanism for social healing, judicial processes should recognize the multi-sided nature of atrocity. All groups that suffered from atrocity should be able to give voice to their experiences and, if punitive measures are on the table, seek accountability. Otherwise, in the long run, justice looks like a charade, one that ultimately may undermine the memories it is designed to preserve.

Here is where the “genocide lens” did not serve Rwanda well. A genocide lens narrates history as a story between perpetrators and victims. Yet the Rwandan reality is much more complicated.

Scott Straus is Professor of Political Science and International Studies at UW-Madison. Scott specializes in the study of genocide, political violence, human rights, and African politics. His published work includes several books on Rwanda and articles in African Affairs. A longer version of this article was presented at the “Rwanda Today: Twenty Years after the Genocide” event at Humanity House in The Hague on 3 April 2014. The author wishes to thank the organizers of that event.

To mark the 20th anniversary of the genocide, African Affairs is making some of their best articles on Rwanda freely available. Don’t miss this opportunity to read about the legacy of genocide and Rwandan politics under the RPF.

African Affairs is published on behalf of the Royal African Society and is the top ranked journal in African Studies. It is an inter-disciplinary journal, with a focus on the politics and international relations of sub-Saharan Africa. It also includes sociology, anthropology, economics, and to the extent that articles inform debates on contemporary Africa, history, literature, art, music and more.

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11. The political economy of skills and inequality

By Marius R. Busemeyer and Torben Iversen


Inequality has been on the rise in all the advanced democracies in the past three or four decades; in some cases dramatically. Economists already know a great deal about the proximate causes. In the influential work by Goldin and Katz on “The Race between Education and Technology”, for example, the authors demonstrate that the rate of “skill-biased technological change” — which is economist speak for changes that disproportionately increase the demand for skilled labor — has far outpaced the supply of skilled workers in the US since the 1980s. This rising gap, however, is not due to an acceleration of technological change, but rather to a slowdown in the supply of skilled workers. Most importantly, a cross-national comparison reveals that other countries have continued to expand the supply of skills, i.e. the trend towards rising inequality is less pronounced in these cases.

The narrow focus of economists on the proximate causes is not sufficient, however, to fully understand the dynamic of rising inequality and its political and institutional foundations. In particular, skill formation regimes and cross-country differences in collective wage bargaining influence the quantity and quality of skills and hence also differences in inequality. Generally speaking, countries with coordinated wage-setting and highly developed vocational education and training (VET) systems respond more effectively to technology-induced changes in demand than systems without such training systems.

Yet, there is a great deal of variance in the extent to which this is true, and one needs to be attentive to the broader organization of political institutions and social relations to explain this variance. One of the recurrent themes is the growing socioeconomic differentiation of educational opportunity. Countries with a significant private financing of education, for example, induce high-income groups to opt out of the public system and into high-quality but exclusive private education. As they do, some public institutions try to compete by raising tuition and fees, and with middle- and upper-middle classes footing more of the bill for their own children’s education, support for tax-financed public education declines.

Laptop in classic library

This does not happen everywhere. In countries that inherited an overwhelmingly publicly-financed system only the very rich can opt out, and the return on private education is lower because of a flatter wage structure. In this setting the middle and upper-middle classes, deeply concerned with the quality of education, tend to throw their support behind improving the public system. Yet, they will do so in ways that may reproduce class-based differentiation within the public system. Based on an analysis of the British system, one striking finding is that a great deal of differentiation happens because high-educated, high-income parents, who are most concerned with the quality of the education of their children, move into good school districts and bid up housing prices in the process. As property prices increase, those from lower socio-economic strata are increasingly shut out from the best schools.

Even in countries with less spatial inequality, in part because of a more centralized provision of public goods, socioeconomic inequality may be reproduced through early tracking of students into vocational and academic lines. This is because the choice of track is known to be heavily dependent on the social class of parents. This is reinforced by the decisions of firms to offer additional training to their best workers, which disadvantages those who start at the bottom. There is also evidence that such training decisions discriminate against women because firm-based training require long tenures and women are less likely to have uninterrupted careers. So strong VET systems, although they tend to produce less wage inequality, can undermine intergenerational class mobility and gender equality.

The rise of economic inequality also has consequence for politics. While democratic politics is usually seen as compensating for market inequality, economic and political inequality in fact tend to reinforce each other.  Economic and educational inequality destroy social networks and undermines political participation in the lower half of the distribution of incomes and skills, and this undercuts the incentives of politicians to be attentive to their needs. Highly segmented labor markets with low mobility also undermine support for redistribution because pivotal “insiders” are not at risk. Labor market “dualism” therefore delimits welfare state responsiveness to unemployment and rising inequality. In a related finding, the winners of globalization often oppose redistribution, in part because they are more concerned with competitiveness and how bloated welfare states may undermine it.

Economic, educational, and political inequalities thus also tend to reinforce each other. But the extent and form of such inequality vary a great deal across countries. This special issue helps explain why and suggests the need for an interdisciplinary approach that is attentive to national institutional and political context oppose redistribution.

Marius R. Busemeyer is Professor of Political Science at the University of Konstanz, Germany. Torben Iversen is Harold Hitchings Burbank Professor of Political Economy at Harvard University. They are Guest Editors of the Socio-Economic Review April 2014 special issue on The Political Economy of Skills and Inequality which is freely available online until the end of May 2014.

Socio-Economic Review aims to encourage work on the relationship between society, economy, institutions and markets, moral commitments and the rational pursuit of self-interest. The journal seeks articles that focus on economic action in its social and historical context. In broad disciplinary terms, papers are drawn from sociology, political science, economics and management, and policy sciences.

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12. A Chat with Asperkids™ Author Jennifer Cook O’Toole

Jennifer Cook O’Toole is founder of Asperkids™, a multimedia social education company focused on making life for children and families with Asperger’s profoundly positive and purposeful.

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13. Overcoming everyday violence [infographic]

The struggle for food, water, and shelter are problems commonly associated with the poor. Not as widely addressed is the violence that surrounds poor communities. Corrupt law enforcement, rape, and slavery (to name a few), separate families, destroys homes, ruins lives, and imprisons the poor in their current situations. Gary A. Haugen and Victor Boutros, authors of The Locust Effect: Why the End of Poverty Requires the End of Violence, have experience in the slums, back alleys, and streets where violence is a living, breathing being — and the work to turn those situations around. Delve into the infographic below and learn how solutions like media coverage and business intervention have begun to positively change countries like the Congo, Cambodia, Peru, and Brazil.

Infographic Locust Effect

Download a copy of the infographic.

Gary A. Haugen and Victor Boutros are co-authors of The Locust Effect: Why the End of Poverty Requires the End of Violence. Gary Haugen is the founder and president of International Justice Mission, a global human rights agency that protects the poor from violence. The largest organization of its kind, IJM has partnered with law enforcement to rescue thousands of victims of violence. Victor Boutros is a federal prosecutor who investigates and tries nationally significant cases of police misconduct, hate crimes, and international human trafficking around the country on behalf of the U.S. Department of Justice.

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14. Does torture really (still) matter?

By Rebecca Gordon


The US military involvement in Iraq has more or less ended, and the war in Afghanistan is limping to a conclusion. Don’t the problems of torture really belong to the bad old days of an earlier administration? Why bring it up again? Why keep harping on something that is over and done with? Because it’s not over, and it’s not done with.

Torture is still happening. Shortly after his first inauguration in 2009, President Obama issued an executive order forbidding the CIA’s “enhanced interrogation techniques” and closing the CIA’s so-called “black sites.” But the order didn’t end “extraordinary rendition”—the practice of sending prisoners to other countries to be tortured. (This is actually forbidden under the UN Convention against Torture, which the United States signed in 1994.) The president’s order didn’t close the prison at Guantánamo, where to this day, prisoners are held in solitary confinement. Periodic hunger strikes are met with brutal force feeding. Samir Naji al Hasan Moqbel described the experience in a New York Times op-ed in April 2013:

I will never forget the first time they passed the feeding tube up my nose. I can’t describe how painful it is to be force-fed this way. As it was thrust in, it made me feel like throwing up. I wanted to vomit, but I couldn’t. There was agony in my chest, throat and stomach. I had never experienced such pain before.

Nor did Obama’s order address the abusive interrogation practices of the Joint Special Operations Command (JSOC) which operates with considerably less oversight than the CIA. Jeremy Scahill has ably documented JSOC’s reign of terror in Iraq in Dirty Wars: The World Is a Battlefield. At JSOC’s Battlefield Interrogation Facility at Camp NAMA (which reportedly stood for “Nasty-Ass Military Area”) the motto—prominently displayed on posters around the camp—was “No blood, no foul.”

Torture also continues daily, hidden in plain sight, in US prisons. It is no accident that the Army reservists responsible for the outrages at Abu Ghraib worked as prison guards in civilian life. As Spec. Charles A. Graner wrote in an email about his work at Abu Ghraib, “The Christian in me says it’s wrong, but the corrections officer in me says, ‘I love to make a grown man piss himself.’” Solitary confinement and the ever-present threat of rape are just two forms of institutionalized torture suffered by the people who make up the world’s largest prison population. In fact, the latter is so common that on TV police procedurals like Law & Order, it is the staple threat interrogators use to prevent a “perp” from “lawyering up.”

We still don’t have a full, official accounting. As yet we have no official government accounting of how the United States has used torture in the “war on terror.” This is partly because so many different agencies, clandestine and otherwise, have been involved in one way or another. The Senate Intelligence Committee has written a 6,000-page report just on the CIA’s involvement, which has never been made public, although recent days have seen moves in this direction. Nor has the Committee been able to shake loose the CIA’s own report on its interrogation program. Most of what we do know is the result of leaks, and the dogged work of dedicated journalists and human rights lawyers. But we have nothing official, on the level, say, of the 1975 Church Committee report on the CIA’s activities in the Vietnam War.

Frustrated because both Congress and the Obama administration seemed unwilling to demand a full accounting, the Constitution Project convened a blue-ribbon bipartisan committee, which produced its own damning report. Members included former DEA head Asa Hutchinson, former FBI chief William Sessions, and former US Ambassador to the United Nations Thomas Pickering. The report reached two important conclusions: (1) “[I]t is indisputable that the United States engaged in the practice of torture,” and (2) “[T]he nation’s highest officials bear some responsibility for allowing and contributing to the spread of torture.”

No high-level officials have been held accountable for US torture. Only enlisted soldiers like Charles Graner and Lynndie England have done jail time for prisoner abuse in the “war on terror.” None of the “highest officials” mentioned in the Detainee Task Force report (people like Donald Rumsfeld, Dick Cheney, and George W. Bush) have faced any consequences for their part in a program of institutionalized state torture. Early in his first administration, President Obama argued that “nothing will be gained by spending our time and energy laying blame for the past,” but this is not true. Laying blame for the past (and the present) is a precondition for preventing torture in the future, because it would represent a public repudiation of the practice. What “will be gained” is the possibility of developing a public consensus that the United States should not practice torture any longer. Such a consensus about torture does not exist today.

Tolerating torture corrupts the moral character of the nation. We tend to think of torture as a set of isolated actions—things desperate people do under desperate circumstances. But institutionalized state torture is not an action. It is an ongoing, socially-embedded practice. It requires an infrastructure and training. It has its own history, traditions, and rituals of initiation. And—importantly—it creates particular ethical habits in those who practice it, and in any democratic nation that allows it.

Since the brutal attacks of 9/11/2001, people in this country have been encouraged to be afraid. Knowing that our government has been forced to torture people in order to keep us safe confirms the belief that each of us must be in terrible danger—a danger from which only that same government can protect us. We have been encouraged to accept any cruelty done to others as the price of our personal survival. There is a word for the moral attitude that sets personal safety as its highest value: cowardice. If as a nation we do not act to end torture, if we do not demand a full accounting from and full accountability for those responsible, we ourselves are responsible. And we risk becoming a nation of cowards.

Rebecca Gordon received her B.A. from Reed College and her M.Div. and Ph.D. in Ethics and Social Theory from Graduate Theological Union. She teaches in the Department of Philosophy and for the Leo T. McCarthy Center for Public Service and the Common Good at the University of San Francisco. She is the author of Letters From NicaraguaCruel and Usual: How Welfare “Reform” Punishes Poor People, and Mainstreaming Torture: Ethical Approaches in the Post-9/11 United States.

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15. The quest for ‘real’ protection for indigenous intangible property rights

By Keri Johnston and Marion Heathcote


Intellectual property rights (IPRs) and the regimes of protection and enforcement surrounding them have often been the subject of debate, a debate fuelled in the past year by the increased emphasis on free-trade negotiations and multi-lateral treaties including the now-rejected Anti-Counterfeiting Trade Agreement (ACTA) and its Goliath cousin, the Trans-Pacific Partnership Agreement (TPPA). The significant media coverage afforded to these treaties, however, risks thrusting certain perspectives of IPR protection and enforcement into the spotlight, while eclipsing alternative, but equally crucial voices that are perhaps in greater need of legitimate dialogue to safeguard their own collection of intangible rights. Caught in the vortex of inadequate recognition and ineffective protection, are the communal intellectual property rights of indigenous communities, centred on traditional knowledge (TK), traditional cultural expressions (TCE), expressions of folklore (EoF), and genetic resources (GR).

The fundamental incompatibility between current intellectual property rights regimes and the rights of indigenous peoples stems largely from the lack of understanding of the driving forces that have led to the development of traditional knowledge, traditional cultural expressions, expressions of folklore, and genetic resources – that of the protection of whole indigenous cultures through the preservation of the traditional knowledge acquired by these communities as a whole.

The issues are complex. Professor James Anaya’s 2014 keynote speech at the 26th Session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore at WIPO highlighted the differences governing the intangible rights of indigenous peoples generally, and why these world views have so often been left out of the current mainframe of intellectual property rights. Whereas, the majority view of IPRs tends to focus on the rights of the individual and their protection as such, indigenous cultures are inherently built over centuries and across generations on communal understandings and organic exchanges of knowledge, making it practically impossible to ascribe the ownership of a certain set of IPRs to one or a few individuals.

Apache Dancers at the Exhibit 'Dignity - Tribes in Transition'. United States Mission Geneva Photo: Eric Bridiers. CC-BY-ND-2.0 via US Mission Geneva Flickr.

Apache Dancers at the exhibit ‘Dignity – Tribes in Transition’. United States Mission Geneva Photo: Eric Bridiers. CC-BY-ND-2.0 via US Mission Geneva Flickr.

As Professor Anaya articulates and the other contemplate, the similarities between the inadequacies of the protection of tangible rights of indigenous peoples (e.g. indigenous land rights) and that of their intangible rights protection (including intellectual property rights) tend to stem from a common source – the failure to acknowledge the “inherent logic of indigenous peoples’ world views”.

Perhaps the solutions lie not just in finding ways to include indigenous intellectual property rights in current IPR regimes, but through the facilitation of an entire paradigm shift to capture the nuances of these issues both effectively and precisely. How, for instance, can indigenous IPRs be valued commercially, and how may adequate compensation models be developed in exchange for the commercial use of these rights? A key to increasing the recognition of the inherent value of indigenous IPRs within their traditional cultural settings may lie in developing methods to properly value this worth in tangible terms. What seems necessary is a model to adequately measure the significance of indigenous IPRs, starting at the source (the indigenous community), and finding ways of translating this value into benefit systems that can be returned to the communities from which the IPRs were sourced. Hence recognition is attributed to the crucial part these IPRs play within the cultures from which they are derived.

The strength of intellectual property law lies in its ability to meet the demands of a frenetically changing world, thus affording it vast amounts of power in shaping the law of the future; but this brings with it the challenge – can that power be harnessed to adequately protect rights of the past? Even if the answer is in the affirmative, it does not necessarily follow that the purpose of intellectual property rights protection should be to reduce IPRs to protectable commodities solely for the purpose of commercial exploitation. Protection of IPRs might be secured for any number of reasons, including the recognition of the right for ownership of those rights to be retained within the community. IPRs thus have the capacity to function both as shields and swords. Such weaponry however brings with it obligations: “With great power, comes great responsibility.”

Keri Johnston and Marion Heathcote are the guest editors of the Journal of Intellectual Property Law & Practice special issue on “The Quest for ‘Real’ Protection for Indigenous Intangible Property Rights”. The authors would like to thank Mekhala Chaubal, student-at-law, for her assistance. It is reassuring to know that a new generation of lawyers is willing and able. Keri AF Johnston is managing partner of Johnston Law in Toronto and Marion Heathcote is a partner with Davies Collison Cave in Sydney.

The Journal of Intellectual Property Law & Practice (JIPLP) is a peer-reviewed journal dedicated to intellectual property law and practice. Published monthly, coverage includes the full range of substantive IP topics, practice-related matters such as litigation, enforcement, drafting and transactions, plus relevant aspects of related subjects such as competition and world trade law.

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16. Victims of slavery, past and present

By Jenny S. Martinez


Today, 25 March, is International Day of Remembrance of the Victims of Slavery and the Transatlantic Slave Trade. But unfortunately, the victims of slavery were not all in the distant past. Contemporary forms of slavery and forced labor remain serious problems and some reputable human rights organizations estimate that there are some 21-30 million people living in slavery today. The issue is not limited to just a few countries, but involves complex transnational networks that facilitate human trafficking. Just as in the past, international cooperation is necessary to end this international problem.

International law played a key role in ending the transatlantic slave trade in the 19th century. In the year 1800, slavery and the slave trade were cornerstones of the Atlantic world and had been for centuries. Tens of thousands of people from Africa were carried across the Atlantic each year, and millions lived in slavery in the new world. In 1807, legislatures in both the United States and Britain — two countries whose ships had been key participants in the trade — banned slave trading by their citizens. But two countries alone could not stop what was a truly international traffic, which quickly shifted to the ships of other nations. International cooperation was required.

Beginning in 1817, Britain negotiated a series of bilateral treaties banning the slave trade and creating international courts to enforce that ban. These were, I suggest, the first permanent international courts and the first international courts created with the aim of enforcing a legal rule designed to protect individual human rights. The courts had jurisdiction to condemn and auction off ships involved in the slave trade, while freeing their passengers. The crews of navy ships that captured the illegal slave vessels were entitled to a share of the proceeds of the sale of the vessels, creating an incentive for vigorous policing. By 1840, more than twenty nations — including all the major maritime powers involved in the transatlantic trade — had signed treaties of various sorts (not all involving the international courts) committing to the abolition of slave trading. By the mid-1860s, the slave trade from Africa to the Americas had basically ceased, and by 1900, slavery itself had been outlawed in every country in the Western Hemisphere.

“East African enslaved people rescued by the British naval ship, HMS Daphne (1869)” via The National Archives UK on Flickr.

While treaties today prohibit slavery and the slave trade, international efforts at eradicating modern forms of slavery and forced labor trafficking are inadequate. Looking to the lessons of the past, international policy makers should consider implementing a more robust system for dismantling modern day slavery. A system of property condemnation with economic incentives for whistleblowers could again be used to leverage enforcement power; someone who turns in a human trafficker could be entitled to a share of the proceeds of a sale of the trafficker’s assets. Similarly, international courts could be used in especially severe cases. Enslavement is a crime against humanity under the statute of International Criminal Court, and severe cases involving transnational trafficking networks with large numbers of victims might meet the criteria for ICC jurisdiction. Violent acts in wartime are more visible international crimes, but the human impact of enslavement is no less severe or deserving of international justice.

It is not enough to remember past victims of enslavement; to truly honor their memory, we must do something to help those who are enslaved today.

Jenny S. Martinez is Professor of Law and Justin M. Roach, Jr., Faculty Scholar at Stanford Law School. A leading expert on international courts and tribunals, international human rights, and the laws of war, she is also an experienced litigator who argued the 2004 case Rumsfeld v. Padilla before the U.S. Supreme Court. Martinez was named to the National Law Journal’s list of “Top 40 Lawyers Under 40.” She is the author of The Slave Trade and The Origins of International Human Rights Law (OUP 2012), now available in paperback.

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17. What does the economic future hold for Spain?

By William Chislett


The good news is that Spain has finally come out of a five-year recession that was triggered by the bursting of its property bubble. The bad news is that the unemployment rate remains stubbornly high at a whopping 26%, double the European Union average.

The scale of the property madness was such that in 2006 the number of housing starts (762,214) was more than that of Germany, France, and Italy combined. This sector, to borrow the title of a novel by Gabriel García Márquez, was a Chronicle of a Death Foretold. There are still an estimated more than one million new and second hand unsold homes.

The excessive concentration on the property sector, as the motor of an economy that boomed for a decade, created a lopsided economic model and fertile ground for corruption. When the sector crashed as of 2008 and house prices plummeted, 1.7 million people lost their jobs in construction out of a total of 3.7 million job losses in the last six years, households were left with mortgages they could not pay and property development companies unable to service their bank loans. This, in turn, severely weakened parts of the banking system which had to be rescued by the European Stability Mechanism with a €42 billion bailout programme. Spain exited the bail-out in January, but bad loans still account for more than 13% of total credit, up from a mere 0.7% in 2006.

Spain has emerged from recession thanks largely to an impressive export performance, achieved through an “internal devaluation” (lower unit labour costs stemming from wage cuts or a wage freeze and higher productivity). As a euro country, Spain cannot devalue. Merchandise exports rose from €160 billion in 2009 to €234 billion in 2013, an increase equivalent to more than 7% of GDP. This growth has been faster than the pace of powerhouse Germany, albeit from a smaller base. Exports of goods and services rose from 27% of GDP in 2007 to around 35% last year. The surge in exports combined with the drop in imports and a record year for tourism, with 60 million visitors, turned around the current account, which was in surplus for the first time in 27 years. In 2007, the current account recorded a deficit of 10%, the highest in relative terms among developed countries.

Unemployment is the most pressing problem. The depth of the jobs’ crisis is such that Spain, which represents 11% of the euro zone’s economy and has a population of 47 million, has almost 6 million unemployed (around one-third of the zone’s total jobless), whereas Germany (population 82 million and 30% of the GDP) has only 2.8 million jobless (15% of the zone’s total). Germany’s jobless rate is at its lowest since the country’s reunification, while Spain’s is at its highest level ever.

Mariano Rajoy

Young Spanish adults, particularly the better qualified, are increasingly moving abroad in search of a job, though not in the scale suggested by the Spanish media which gives the impression there is a massive exodus and brain drain. One thing is the large flow of those who go abroad, especially to Germany, and return after a couple of months; another the permanent stock of Spaniards abroad (those who stay beyond a certain amount of time), which is surprisingly small. According to research conducted by the Elcano Royal Institute, Spain’s main think tank, between January 2009 and January 2013, the worst years of Spain’s recession, the stock of Spaniards who resided abroad increased in net terms by a mere 40,000, which is less than 0.1% of Spain’s population, to 1.9 million. These figures are based on official Spanish statistics cross-checked with data in the countries where Spaniards reside. The number of Spaniards living abroad is less than one-third the size of Spain’s foreign-born population of 6.4 million (13.2% of the total population). Immigrants in Spain are returning to their country of origin, particularly Latin Americans.

Spain’s crisis has also resulted in a long overdue crackdown on corruption. There are around 800 cases under investigation, most of them involving politicians and their business associates. Spain was ranked 40th out of 177 countries in the 2013 corruption perceptions ranking by the Berlin-based Transparency International, down from 30th place in 2012. Its score of 59 was six points lower. The nearer to 100, the cleaner the country. Spain was the second-biggest loser of points, and only topped by war-torn Syria. The country is in for a long haul.

William Chislett, the author of Spain: What Everyone Needs to Know, is a journalist who has lived in Madrid since 1986. He will be talking on his book at the Oxford Literary Festival on 29 March. He covered Spain’s transition to democracy (1975-78) for The Times of London and was later the Mexico correspondent for the Financial Times (1978-84). He writes about Spain for the Elcano Royal Institute, which has published three books of his on the country, and he has a weekly column in the online newspaper El Imparcial. He has previously written on Spanish unemployment and Gibraltar for the OUPblog.

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Image credits: (1) Spanish Falg By Iker Parriza. CC-BY-SA-3.0 via Wikimedia Commons (2) Mariano Rajoy By Gilad Rom. CC-BY-SA-3.0 via Wikimedia Commons

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18. ‘You can’t wear that here’

By Andrew Hambler and Ian Leigh


When a religious believer wears a religious symbol to work can their employer object? The question brings corporate dress codes and expressions of religious belief into sharp conflict. The employee can marshal discrimination and human rights law on the one side, whereas the employer may argue that conspicuous religion makes for bad business.

The issue reached the European Court of Human Rights in 2013 in a group of cases (Eweida and Others v. United Kingdom), following a lengthy and unsuccessful domestic legal campaign, brought by a group of employees who argued their right of freedom of religion and belief (under Article 9 of the Convention) had not been protected when the UK courts favoured their employers’ interests.

Christian woman with cross necklaceNadia Eweida, an airline check-in clerk, and Shirley Chaplin, a nurse, had been refused permission by their respective employers, British Airways and an NHS trust, to wear a small cross on a necklace so that it was visible to other people. The employer’s rationale in each case was rather different. British Airways wanted to maintain a consistent corporate image so that no ‘customer-facing staff’ should be permitted to wear jewellery for any reason. The NHS trust argued that there was a potential health and safety risk if jewellery were worn by nursing staff – in Ms Chaplin’s case a disturbed patient might ‘seize the cross’ and harm either themselves or indeed Ms Chaplin.

Both applicants argued that their sense of religious obligation to wear a cross outweighed the employer’s normal discretion in setting a uniform policy. They also argued that their respective employers had also been inconsistent because their uniform policies made a number of specific accommodations for members of minority faiths, such as Muslims and Sikhs.

A major difficulty for both Eweida and Chaplin was the risk that their cross-wearing could be dismissed as a personal preference rather than a protected manifestation of their beliefs. After all many – probably most – Christians do not choose to wear the cross. The UK domestic courts found that the practice was not regarded as a mandatory religious practice (applying a so-called ‘necessity’ test) but rather one merely ‘motivated’ by religion and not therefore eligible for protection. This did not help either Eweida or Chaplin as both believed passionately that they had an obligation to wear the cross to attest to their faith (in Chaplin’s case this was in response to a personal vow to God). The other major difficulty for both applicants was that the Court had also historically accepted a rather strange argument that people voluntarily surrender their right to freedom of religion and belief in the workplace when they enter into an employment contract, and so the employer has discretion to set its policies without regard to interfering with its employees religious practices. If an employee found this too burdensome, then he or she could protect their rights by resigning and finding another job. This argument, ignoring the realities of the labour market and imposing a very heavy burden on religious employees, has been a key reason why so few ‘workplace’ claims have been successful before the European Court.

Arguably the most significant aspect of the judgment was that the religious liberty questions were in fact considered by the Court rather than being dismissed as being inapplicable in the workplace (as the government and the National Secular Society had both argued). The Court specifically repudiated both the necessity test and the doctrine of ‘voluntary surrender’ of Article 9 rights at work. As a result, it has opened the door both to applications for protection for a much wider group of religious practices in the future and for claims relating to employment. From a religious liberty perspective this is surely something to welcome.

Nadia Eweida’s application was successful on its merits. It is now clear therefore that an employer cannot over-ride the religious conscience of its staff due to the mere desire for uniformity. However, Chaplin was unsuccessful, the Court essentially finding that ‘health and safety’ concerns provided a legitimate interest allowing the employer to over-ride religious manifestation. This is disappointing, particularly since evidence was presented that the health and safety risks of a nurse wearing a cross were minimal and that, in this case, Chaplin was prepared to compromise to reduce them still further. Hopefully this aspect of the judgment (unnecessary deference to national authorities in the realm of health and safety) will be revisited in future.

Whether that happens or not it is clear that religious expressions in the workplace now need to be approached differently after the European Court’s ruling. The idea that employees must leave their religion at the door has been dealt a decisive blow From now on, if corporate policy over-rides employees’ religious beliefs, then employers will be under a much greater obligation to demonstrate why, if at all, this is necessary.

Andrew Hambler and Ian Leigh are the authors of “Religious Symbols, Conscience, and the Rights of Others” (available to read for free for a limited time) in the Oxford Journal of Law and Religion. Dr Andrew Hambler is senior lecturer in human resources and employment law at the University of Wolverhampton. His research focusses on how the manifestation of religion in the workplace is regulated both at an organisational and at a legal level. Andrew is the author of Religious Expression in the Workplace and the Contested Role of Law, a monograph due for publication in November 2014. Ian Leigh is a Professor of Law at Durham University. He has written extensively on legal and human rights questions concerning religious liberty. He is co-author of Rex Ahdar and Ian Leigh, Religious Freedom in the Liberal State (2nd edition, OUP, 2013).

The Oxford Journal of Law and Religion is hosting its second annual Summer Academy in Law and Religion this coming June. The title of this year’s academy is “Versions of Secularism – Comparative and International Legal and Foreign Policy Perspectives on International Religious Freedom.” The meeting will take place June 23 – 27 at St. Hugh’s College, Oxford. Click for more details about the conference, confirmed speakers, and registration.

The Oxford Journal of Law and Religion publishes a range of articles drawn from various sectors of the law and religion field, including: social, legal and political issues involving the relationship between law and religion in society; comparative law perspectives on the relationship between religion and state institutions; developments regarding human and constitutional rights to freedom of religion or belief; considerations of the relationship between religious and secular legal systems; empirical work on the place of religion in society; and other salient areas where law and religion interact (e.g., theology, legal and political theory, legal history, philosophy, etc.).

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Image credit: Fresh photo of girl’s neck with cross necklace. © tomasmikulas via iStockphoto.

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19. Unlearned lessons from the McMartin Preschool case

By Ross E. Cheit


It was the longest criminal trial in American history and it ended without a single conviction. Five people were charged with child sexual abuse based on extremely flimsy evidence. Some parents came to believe outlandish stories about ritual abuse and tunnels underneath the preschool. It is no wonder that the McMartin Preschool case, once labeled the largest “mass molestation” case in history, has come to be called a witch-hunt. In a commentary to a Retro Report in the New York Times earlier this month, Clyde Haberman, former Times reporter, repeated the view that the McMartin case was a witch-hunt that spawned a wave of other cases of “dubious provenance.” But does that description do justice to the facts?

A careful examination of court records reveals that the witch-hunt narrative about the McMartin case is a powerful but not entirely accurate story. For starters, critics have obscured the facts surrounding the origins of the case. Richard Beck, quoted as an expert in the Retro Report story, recently asserted that the McMartin case began when Judy Johnson “went to the police” to allege that her child had been molested. Debbie Nathan, the other writer quoted by Retro Report, went even further, asserting that “everyone overlooked the fact that Judy Johnson was psychotic.”

Both of these claims are false.

Judy Johnson did not bring her suspicions to the police; she brought them to her family doctor who, after examining the boy, referred him to an Emergency Room. That doctor recommended that the boy be examined by a child-abuse specialist. The pediatric specialist is the one who reported to the Manhattan Beach Police Department that “the victim’s anus was forcibly entered several days ago.”

Although Judy Johnson died of alcohol poisoning in 1986, making her an easy target for those promoting the witch-hunt narrative, there is no evidence that she was “psychotic” three years earlier. A profile in the now-defunct Los Angeles Herald-Examiner, published after Johnson died, made it clear that she was “strong and healthy” in 1983 and that she “jogged constantly and ate health food.” The case did not begin with a mythical crazy woman.

face-72194_640

Retro Report also disposed of the extensive medical evidence in the McMartin case with a single claim that there was no “definitive” evidence. But defense lawyer Danny Davis allowed that the genital injuries on one girl were “serious and convincing.” (His primary argument to the jury was that much of the time that this girl attended McMartin was outside the statute of limitations.) The vaginal injuries on another girl, one of the three involved in both McMartin trials, were described by a pediatrician as proving sexual abuse “to a medical certainty.” Were the reporter and fact-checkers for Retro Report aware of this evidence?

None of this is to defend the charges against five (possibly six) teachers in the case. Nor is it an endorsement of claims, made by some parents, that scores of children had been ritually abused. Rather, it is a plea to treat the case as something that unfolded over time and the children as individuals, not as an undifferentiated mass. As it turns out, there are credible reasons that jurors in both trials voted in favor of a guilty verdict on some counts. Those facts do not fit the witch-hunt narrative. Instead, they portray the reality of a complicated case.

When the story of prosecutorial excess overshadows all of the evidence in a child sexual abuse case, children are the ones sold short by the media. That is precisely what Retro Report did earlier this month. The injustices in the McMartin case were significant, most of them were to defendants, and the story has been told many times. But there was also an array of credible evidence of abuse that should not be ignored or written out of history just because it gets in the way of a good story.

The witch-hunt narrative has replaced any complicated truths about the McMartin case, and Retro Report, whose mission is to bust media myths, just came down solidly on the side of the myth. It wasn’t all a witch-hunt.

Ross E. Cheit is professor of political science and public policy at Brown University. He is an inactive member of the California bar and chair of the Rhode Island Ethics Commission. His forthcoming book, The Witch-Hunt Narrative: Politics, Psychology, and the Sexual Abuse of Children (OUP 2014), includes a 70-page chapter on the McMartin case.

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Image credit: “Face In The Shadow” by George Hodan c/o PublicDomainPictures. Public domain via pixabay.

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20. The political economy of policy transitions

By Michael Trebilcock


The long fight to end slavery, led by William Wilberforce, among many others, culminated in Britain with the enactment of the Slavery Abolition Act in 1833. This Act made provision for a payment of £20 million (almost 40% of the British budget at the time) in compensation to plantation owners in many British colonies — about US$21 billion in present day value. Moreover, only slaves below the age of six were initially freed while others were re-designated as “apprentices”, who were to be freed in two stages in 1838 and 1840. Wilberforce and many other abolitionists accepted that compensation and phased implementation was required to ensure enactment of the legislation, particularly by the House of Lords where plantation owners were strongly represented among the aristocracy.

Whenever governments change policies — whether tax, expenditure, or regulatory policies — even when the changes are on net socially beneficial, there will typically be losers. There will be people who have made investments predicated on or even deliberately induced by the pre-reform set of policies. Very few policy changes make somebody better off and nobody worse off according to their own subjective valuations (the economist’s concept of Pareto efficiency). The issue of whether and when to mitigate the costs associated with policy changes — whether through explicit government compensation, grandfathering, or phased or postponed implementation — is ubiquitous across the policy landscape.

Changes in land use regulations often exempt existing non-conforming structures. Environmental regulations, such as energy efficiency requirements for motor vehicles, are often phased in over time. More stringent requirements for qualification for entry into various professions often grandfather existing members of these professions. Stricter gun control laws often grandfather existing gun owners. In post-conflict nation building exercises, a qualified line in the sand is often drawn under past atrocities committed by antagonists.

Unfinished portrait of the MP and abolitionist William Wilberforce by the English artist Thomas Lawrence, dated 1828. National Portrait Gallery, London.

Unfinished portrait of the MP and abolitionist William Wilberforce by the English artist Thomas Lawrence, dated 1828. National Portrait Gallery, London.

The need to take transition cost mitigation strategies seriously, as a matter of political economy, stands in relatively sharp contrast to two long-standing traditions in economics which tend to marginalize this issue. Economists, from a normative welfare economics perspective, often publish academic studies that document the gross inefficiencies associated with various existing public policies. However, it is unrealistic to assume that once these inefficiencies are revealed, well-intentioned but unenlightened political representatives will immediately espouse the proposed reforms, or that alternatively an aroused citizenry will appropriately discipline venal political leaders that have been captured by rent-seeking interest groups.

An alternative positive tradition in economics — public choice theory — does take politics seriously but tends to view the existing policy outcomes of the political process as the best we can achieve in a world not populated by angels. An austere version of this theory offers few prospects that existing political equilibria can be disrupted; the iron triangle of incestuous relationships between politicians, regulators/bureaucrats, and rent-seeking interest groups is largely impermeable to change. This view is hard to square with the privatization of many state-owned enterprises and the deregulation of many industries in many countries from the 1980s onwards, and the dramatic growth in environmental, health and safety, and other forms of social regulation over this period, often over the opposition of concentrated interests.

I view the political process as much more fluid and malleable. Significant policy reforms are politically feasible with political leadership committed to judicious combinations of transition cost mitigation policies and astute framing of issues so as to engage not only the interests but also the values of a broad cross-section of a country’s citizens.

Michael J. Trebilcock is Professor of Law and Economics at the University of Toronto School of Law and the author of Dealing with Losers: The Political Economy of Policy Transitions. He specializes in law and economics, international trade law, competition law, economic and social regulation, and contract law and theory. He has won awards for his work, including the 1989 Owen Prize by the Foundation for Legal Research for his book, The Common Law of Restraint of Trade, which was chosen as the best law book in English published in Canada in the past two years.

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21. Is there a “cyber war” between Ukraine and Russia?

By Marco Roscini


Alarming headlines have recently started to appear in the media (see, for example, the CNN’s “Cyberwar hits Ukraine”). This, however, is sensationalism. What has actually happened so far is limited disruption of mobile communications through Distributed Denial of Service (DDoS) attacks. In addition, certain state-run news websites and social media have been defaced and their content replaced with pro-Russian propaganda. In the months that preceded the current crisis, Ukrainian computer systems were also allegedly targeted by “cyberspies”.

If the above scenario sounds familiar it is because it isn’t the first time that cyber operations have occurred during a military crisis involving the Russian Federation. In 2008, immediately before and after the Russian troops entered the secessionist Georgian province of South Ossetia, several Georgian governmental websites were defaced and their content replaced with anti-Georgian propaganda, while DDoS attacks crippled the Caucasian nation’s ability to disseminate information. Estonia was also the target of severe DDoS attacks in 2007, although in the context of a political, and not military, confrontation with Russia. In neither case has it been convincingly demonstrated that Russia (or any other state) was responsible for the cyber operations. The same can be said of the cyber operations against Ukrainian computer systems and websites, which have also been, at least until now, far less severe than those on Georgia and on Estonia, leading some to suggest that Russia is exercising restraint in the use of its cyber capabilities.

Does international law apply in this scenario?

Fingers on the keyboard

While the DDoS attacks and the defacement of websites obviously don’t establish on their own an armed conflict between Russia and Ukraine, the fact that they have been conducted in the context of kinetic exchanges of fire and a situation of occupation may potentially lead to the application of the law of armed conflict (jus in bello). Two points are important from this perspective. First, although there have been no extensive armed hostilities between Ukraine and Russia yet, it has been reported that at least one Ukrainian soldier has been killed and another wounded, allegedly by Russian military forces or pro-Russian militias. Unlike in non-international armed conflicts, the jus in bello applies to any shot fired between states, regardless of intensity thresholds. The Commentary to Article 2 common to the 1949 Geneva Conventions on the Protection of the Victims of War clearly states that “[i]t makes no difference how long the conflict lasts, or how much slaughter takes place, or how numerous are the participating forces” (p. 23). Secondly, the fact that Crimea is now under the control of the Russian forces determines a situation of occupation that also falls under the scope of the law of armed conflict (Article 2(2) of the Geneva Conventions).

However, the law of armed conflict would extend to the DDoS attacks and other cyber operations against Ukraine only if these have a “belligerent nexus” with the hostilities and the occupation. Otherwise, they would be mere cyber crimes and would fall under the scope of domestic criminal laws. To have a belligerent nexus, the cyber operations must have been designed to cause a certain threshold of harm to a belligerent (Ukraine) in support of another (Russia) (see Recommendation V(3) of the International Committee of the Red Cross (ICRC)’s Interpretive Guidance on the Notion of Direct Participation in Hostilities). Harm must be either death, injury, or destruction on civilian persons or objects, or military harm, whether physical or not (Recommendation V(1)). Even though they didn’t result in material damage on protected persons and property, then, the threshold of harm would have been crossed if the DDoS attacks and other cyber operations had at least aimed at affecting the Ukrainian government’s ability to communicate with and the operability of its armed forces, so to disrupt Ukraine’s military operations or military capacity. From the information available, we don’t know whether this is the case.

Do the DDoS operations against Ukraine amount to “attacks” under the law of armed conflict? The question is important because the rules on targeting and protecting civilians, including the principles of distinction and proportionality and the duty to take precautions, only apply to “attacks”, defined in Article 49(1) of Protocol I Additional to the Geneva Conventions as “acts of violence against the adversary, whether in offence or in defence”. I have argued elsewhere that a cyber operation is an “attack” in this sense whenever it employs cyber capabilities that produce or are reasonably likely to produce “violent” consequences in the form of loss of life or injury of persons, more than minimal material damage to property, or loss of functionality of infrastructures. From the available information, this doesn’t seem to be the case of the DDoS attacks against the Ukrainian communication systems and, even less, of the defacement operations. Cyber “espionage” also doesn’t normally affect the functionality of the accessed system or amend/delete the data resident therein. It doesn’t have “violent” consequences and is therefore not an “attack”, although it may be an act of hostilities.

To conclude, we can’t establish for sure whether the international law of armed conflict applies to the cyber operations conducted so far against Ukraine because we don’t know whether they were designed to militarily support Russia to the detriment of Ukraine. What we do know is that the operations in questions are not “attacks”, and therefore the rules on targeting don’t apply to them, whether or not they have a belligerent nexus.

Dr. Marco Roscini is Reader in International Law at the University of Westminster. He has written extensively in international security law, including cyber warfare and nuclear non-proliferation law. His most recent book, Cyber Operations and the Use of Force in International Law, has just been published by OUP. He is also the author of ‘Cyber Operations as Nuclear Counterproliferation Measures’, published in the Journal of Conflict and Security Law (2014). Dr. Roscini regularly blogs at Arms Control Law and can be followed on Twitter at @marcoroscini.

Oxford University Press is a leading publisher in international law, including the Max Planck Encyclopedia of Public International Law, latest titles from thought leaders in the field, and a wide range of law journals and online products. We publish original works across key areas of study, from humanitarian to international economic to environmental law, developing outstanding resources to support students, scholars, and practitioners worldwide. For the latest news, commentary, and insights follow the International Law team on Twitter @OUPIntLaw.

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22. Elinor and Vincent Ostrom: federalists for all seasons

By John Kincaid


When Elinor Ostrom visited Lafayette College in 2010, the number of my non-political science colleagues who announced familiarity with her work astonished me. Anthropologists, biologists, economists, engineers, environmentalists, historians, philosophers, sociologists, and others flocked to see her.

Elinor’s work cut across disciplines and fields of governance because she deftly employed and developed interrelated concepts having applications in multiple settings. A key foundation of these concepts is federalism—an idea central also to the work of her mentor and husband, Vincent Ostrom.

Vincent understood federalism to be a covenantal relationship that establishes unity for collective action while preserving diversity for local self-governance by constitutionally uniting separate political communities into a limited but encompassing political community. Power is divided and shared between concurrent jurisdictions—a general government having certain nationwide duties and multiple constituent governments having broad local responsibilities. These jurisdictions both cooperate and compete. The arrangement is non-hierarchical and animated by multiple centers of power, which, often competing, exhibit flexibility and responsiveness.

From this foundation, one can understand why the Ostroms embraced the concept of polycentricity advanced in Michael Polanyi’s The Logic of Liberty (1951), namely, a political or social system consisting of many decision-making centers possessing autonomous, but limited, powers that operate within an encompassing framework of constitutional rules.

This general principle can be applied to the global arena where, like true federalists, the Ostroms rejected the need for a single global institution to solve collective action problems such as environmental protection and common-pool resource management. They advocated polycentric arrangements that enable local actors to make important decisions as close to the affected situation as possible. Hence, the Ostroms also anticipated the revival of the notion of subsidiarity in European federal theory.

connecting the dots

But polycentricity also applies to small arenas, such as irrigation districts and metropolitan areas. Elinor and Vincent worked on water governance early in their careers, and both argued that metropolitan areas are best organized polycentrically because urban services have different economies of scale, large bureaucracies have inherent pathologies, and citizens are often crucial in co-producing public services, especially policing (the subject of empirical studies by Elinor and colleagues).

The Ostroms valued largely self-organizing social systems that border on but do not topple into sheer anarchy. Anarchy is a great bugaboo of centralists, who de-value the capacity of citizens to organize for self-governance. Without expert instructions from above, citizens are headless chickens. But this centralist notion exposes citizens to the depredations of vanguard parties and budget-maximizing bureaucrats.

This is why Vincent placed Hamilton’s famous statement in Federalist No. 1 at the heart of his work, namely, “whether societies of men are really capable or not, of establishing good government from reflection and choice” rather than “accident and force.” The Ostroms expressed abiding confidence in the ability of citizens to organize for self-governance in multi-sized arenas if given opportunities to reflect on their common dilemmas, make reasoned constitutional choices, and acquire resources to follow through with joint action.

Making such arrangements work also requires what Vincent especially emphasized as covenantal values, such as open communication, mutual trust, and reciprocity among the covenanted partners. Thus, polycentric governance, like federal governance, requires both good institutions and healthy processes.

As such, the Ostroms also placed great value on Alexis de Tocqueville’s notion of self-interest rightly understood. Indeed, it is the process of self-organizing and engaging one’s fellow citizens that helps participants to understand their self-interest rightly so as to act in collectively beneficial ways without central dictates.

Consequently, another major contribution of the Ostroms was to point out that governance choices are not limited to potentially gargantuan government regulation or potentially selfish privatization. There is a third way grounded in federalism.

John Kincaid is the Robert B. and Helen S. Meyner Professor of Government and Public Service at Lafayette College and Director of the Meyner Center for the Study of State and Local Government. He served as Associate Editor and Editor of Publius: The Journal of Federalism, and has written and lectured extensively on federalism and state and local government.

More on the applications and reflections on the work of Elinor and Vincent Ostrom can be found in this recently released special issue from Publius: The Journal of Federalism. An addition to this, Publius has also just released a free virtual collection of the most influential articles written by the Ostroms and published in Publiues over the past 23 years.

Publius: The Journal of Federalism is the world’s leading journal devoted to federalism. It is required reading for scholars of many disciplines who want the latest developments, trends, and empirical and theoretical work on federalism and intergovernmental relations.

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23. The economics of sanctions

economic policy with richard grossman

By Richard S. Grossman


Russia’s seizure of Crimea from Ukraine has left its neighbors—particularly those with sizable Russian-speaking populations such as Kazakhstan, Latvia, Estonia, and what is left of Ukraine—looking over their shoulder wondering if they are next on Vladimir Putin’s list of territorial acquisitions. The seizure has also left Europe and United States looking for a coherent response.

334px-Vladimir_Putin_12015Neither the Americans nor the Europeans will go to war over Crimea. Military intervention would be costly, unpopular at home, and not necessarily successful. Unless a fellow member of the North Atlantic Treaty Organization (which includes Latvia and Estonia) were attacked by Russia, thereby requiring a military response under the terms of the NATO treaty, the West will not go to war to check Putin’s land grabs.

So far, the West’s response—aside from harsh rhetoric—has been economic, not military. Both the United States and Europe have imposed travel and financial sanctions on a handful of close associates of Putin (which have had limited effect), with promises of escalation should Russia continue on its expansionist path.

What is the historical record on sanctions? And what are the chances for success if the West does escalate?

The earliest known use of economic sanctions was Pericles’s Megarian decree, enacted in 432 BCE, in which the Athenian leader “…banished [the Megarians] both from our land and from our markets and from the sea and from the continent” (Aristophanes, The Acharnians). The results of these sanctions, according to Aristophanes, was starvation among the Megarians.

Hufbauer, Schott, Elliot, and Oegg (2008) catalogue more than 170 instances of economic sanctions between 1910 and 2000. They find that only about one third of all sanctions efforts were even partially successful, although the success depends critically on the sanction’s goal. Limited goals (e.g. the release of a political prisoner) have been successful about half of the time; more ambitious goals (e.g. disruption of a military adventure, military impairment, regime change, or democratization) are successful between a fifth and a third of the time. Of course, these figures depend crucially on a whole host of additional factors, including the cost borne by the country imposing sanctions, the resilience of the country being sanctioned, and the necessity of international cooperation for the sanctions to be fully implemented.

Despite these cautionary statistics, sanctions can sometimes be effective. According to the US Congressional Research Service, recent US sanctions reduced Iranian oil exports by 60% and led to a decline in the value of the Iranian currency by 50%, forcing Iranian leaders to accept an interim agreement with the United States and its allies in November 2013. On the other hand, US sanctions against Cuba have been in place for more than 50 years and, although having helped to impoverish the island, they have not brought about the hoped for regime change.

Current thinking on sanctions favors what are known as “targeted” or “smart” sanctions. That is, rather than embargoing an entire economy (e.g. the US embargo of Cuba), targeted sanctions aim to hit particular individuals or sectors of the economy via travel bans, asset freezes, arms embargo, etc. Russian human rights campaigner and former World Chess Champion Gary Kasparov suggested in a Wall Street Journal opinion piece that the way to get to Putin through such smart sanctions, writing:

“If the West punishes Russia with sanctions and a trade war, that might be effective eventually, but it would also be cruel to the 140 million Russians who live under Mr. Putin’s rule. And it would be unnecessary. Instead, sanction the 140 oligarchs who would dump Mr. Putin in the trash tomorrow if he cannot protect their assets abroad. Target their visas, their mansions and IPOs in London, their yachts and Swiss bank accounts. Use banks, not tanks.”

If such sanctions were technically and legally possible—and that the expansionist urge comes from Putin himself and would not be echoed by his successor—this could be the quickest and most effective way to solve the problem.

360px-Abrakupchinskaya_oil_exploration_drilling_rig_in_Evenkiysky_DistrictA slower, but nonetheless sensible course is to squeeze Russia’s most important economic sector—energy. Russian energy exports in 2012 accounted for half of all government revenues. Sanctions that restrict Russia’s ability to export oil and gas would deal a devastating blow to the economy, which has already suffered from the uncertainty surrounding Russian intervention in Ukraine. By mid-March the Russian stock market was down over 10% for the year; the ruble was close to its record low against the dollar; and 10-year Russian borrowing costs were nearly 10%–more than 3% higher than those of the still crippled Greek economy—indicating that international lenders are already wary of the Russian economy.

A difficulty in targeting the Russian energy sector—aside from the widespread pain imposed on ordinary Russians–is that the Europeans are heavily dependent on it, importing nearly one third of their energy from Russia. Given the precarious position of its economy at the moment, an energy crisis is the last thing Europe needs. Although alternative energy sources not will appear overnight, old and new sources could eventually fill the gap, including greater domestic production and rethinking Germany’s plans to close its nuclear plants. Loosening export restrictions on the now-booming US natural gas industry would provide yet another alternative energy source to Europe and increase the effectiveness of sanctions. Freeing the industrialized world from dependence on dictators to fulfill their energy needs can only help the West’s long-term growth prospects and make it less susceptible to threats from rogue states.

If we are patient, squeezing Russia’s energy sector might work. In the short run, however, sanctioning the oligarchs may be the West’s best shot.

Richard S. Grossman is Professor of Economics at Wesleyan University and a Visiting Scholar at the Institute for Quantitative Social Science at Harvard University. He is the author of WRONG: Nine Economic Policy Disasters and What We Can Learn from Them and Unsettled Account: The Evolution of Banking in the Industrialized World since 1800. His homepage is RichardSGrossman.com, he blogs at UnsettledAccount.com, and you can follow him on Twitter at @RSGrossman. You can also read his previous OUPblog posts.

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Image credits: (1) Vladimir Putin. Russian Presidential Press and Information Office. CC BY 3.0 by kremlin.ru. (2) Abrakupchinskaya oil exploration drilling rig in Evenkiysky District. Photo by ShavPS. CC-BY-SA-3.0 via Wikimedia.

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24. China’s exchange rate conundrum

By Ronald McKinnon


In late February, the slow appreciation of China’s currency was interrupted by a discrete depreciation from 6.06 to 6.12 yuan per dollar. Despite making front page headlines in the Western financial press, this 1% depreciation was too small to significantly affect trade in goods and services—and hardly anything compared to how floating exchange rates change among other currencies. Why then the great furor? And what should China’s foreign exchange policy be?

Foreign governments and influential pundits continually pressure China to appreciate the yuan in the mistaken belief that China’s large trade—read: saving—surplus would decline. This pressure is often called China bashing. And since July 2008 when the exchange rate was 8.28 yuan/dollar (and had been held constant for 10 years), the People’s Bank of China has more or less complied. So even the small depreciation was upsetting to foreign China bashers.

But an unintended consequence of sporadically appreciating the yuan, even by very small amounts, is (was) to increase the flow of “hot” money into China. With US short-term interest rates near zero, and the “natural” rate of interbank interest rate in the more robustly growing Chinese economy closer to 4%, an expected rate of yuan appreciation of just 3% leads to an “effective” interest rate differential of 7%. This profit margin is more than enough to excite the interest of carry traders: speculators who borrow in dollars, and try to circumvent the China’s exchange controls on financial inflows, to buy yuan assets. True, the 4% interest differential alone is enough to bring hot money into China (and into other emerging markets). But the monetary control problem is more acute when foreign economists and politicians complain that the Chinese currency is undervalued and the source of China’s current account surplus.

However, China’s current account surplus with the United States does not indicate that the yuan is undervalued. Rather the trade imbalance reflects a big surplus of saving over investment in China, and a bigger saving deficiency—as manifest in the ongoing fiscal deficit—in the United States. Indeed, the best index for tradable goods prices in China, the WPI, has been falling at about 1.5% per year—as if the yuan were slightly overvalued.

Although movements in exchange rates are not helpful in correcting net trade (saving) imbalances between highly open economies, they can worsen hot money flows. Thus, to minimize hot money flows, the People’s Bank of China (PBC) should simply stabilize the central rate at whatever it is today, say 6.1 yuan per dollar, to dampen the expectation of future appreciation. Upsetting the speculators by introducing more uncertainty into the exchange system, as with the temporary mini devaluation of the yuan in late February, is a distant second-best strategy for China to minimize inflows of hot money.

Beijing skyline and traffic jamIn addition, there is a second, less well recognized argument for keeping the yuan-dollar rate stable. In a rapidly growing economy like China’s with large gains in labor productivity, wage levels become quite flexible because wage growth is so high. That is, if wages grow at 15% instead of 10% per year (roughly the range of wage growth in China in recent years), the wage level moves up much faster. But wage growth better reflects productivity gains if the yuan/dollar rate is kept stable. If an employer (particularly in an export industry) fears future yuan appreciation, he will hesitate to increase workers’ pay by the full increase in their productivity. Otherwise, the firm could go bankrupt if the yuan did appreciate.

Thus, to better balance international competitiveness by having Chinese unit labor costs approach those in the mature industrial economies, China should encourage higher wage growth by keeping the yuan-dollar rate stable and so take away the threat of future appreciation. Notice that in the mature, not to say stagnant, industrial economies, macroeconomists typically assume that wages are inflexible or “sticky”. They then advocate flexible exchange rates to overcome wage stickiness. But for high-growth China, flexible wages become the appropriate adjusting variable if the exchange rate is stable. Unlike exchange appreciation, wages can grow quickly without attracting unwanted hot money inflows.

China’s State Administration of Foreign Exchange (SAFE) has now accumulated over $4 trillion in exchange reserves because of continual intervention to buy dollars by the PBC. This stock of “reserves” is far in excess of any possible Chinese emergency need for international money, i.e., dollars. In addition, the act of intervention itself often threatens to undermine the PBC’s monetary control. When it buys dollars with yuan, the supply of base money in China’s domestic banking system expands and threatens price inflation or bubbles in asset prices such as real property.

Thus to sterilize the domestic excess monetary liquidity from foreign exchange interventions, the PBC frequently sells central bank bonds to the commercial banks—or raises the required reserves that the commercial banks must hold with the central bank—in order to dampen domestic credit expansion. Both sterilization techniques undermine the efficiency of the commercial banks’ important role as financial intermediaries between domestic savers and investors. Currently in China, this sterilization also magnifies the explosion in shadow banking by informal institutions not subject to reserve or capital requirements, or interest rate ceilings.

To better secure domestic monetary control, why doesn’t the PBC just give up intervening to set the yuan/dollar rate and let it float, i.e., be determined by the market? If the PBC withdrew from the foreign exchange market, the yuan would begin to appreciate without any well-defined limit. The upward pressure on the yuan has two principal sources:

  1. Extremely low, near-zero, short interest rates in the United States, United Kingdom, the European Union, and Japan. With the more robust Chinese economy having naturally higher interest rates, unrestricted hot money would flow into China. Once the yuan began to appreciate, carry traders would see even greater short-term profits from investing in yuan assets.
  2. China is an immature international creditor with underdeveloped domestic financial markets. Although China has a chronic saving (current account) surplus, it cannot lend abroad in its own currency to finance it.


Why not just lend abroad in dollars? Private (nonstate) banks, insurance companies, pension funds and so on, have a limited appetite for building up liquid dollar claims on foreigners when their own liabilities—deposits, insurance claims, and pension obligations— are in yuan. Because of this potential currency mismatch in private financial institutions, the PBC (which does not care about exchange rate risk) must step in as the international financial intermediary and buy liquid dollar assets on a vast scale as the counterpart of China’s saving surplus.

Even if there was no hot money inflow into China, the yuan would still be under continual upward pressure in the foreign exchanges because of China’s immature credit status (under the absence of a natural outflow of financial capital to finance the trade surplus). That is, foreigners remain reluctant to borrow from Chinese banks in yuan or issue yuan denominated bonds in Shanghai. This reluctance is worsened because of the threat from China bashing that the yuan might appreciate in the future. Thus the PBC has no choice but to keep intervening in the foreign exchanges to set and (hopefully) stabilize the yuan/dollar rate.

Superficially, the answer to China’s currency conundrum would seem be to fully liberalize its domestic financial markets by eliminating interest rate restrictions and foreign exchange controls. Then China could become a mature international creditor with natural outflows of financial capital to finance its trade surplus. Then the PBC need not continually intervene in the foreign exchanges.

This “internationalization” of the yuan may well resolve China’s currency conundrum in the long run. However, it is completely impractical—and somewhat dangerous—to try it in the short run. With near-zero short term interest rates in the mature industrial world, China would be completely flooded out by inflows of hot money, which would undermine the PBC’s monetary control and drive China’s domestic interest rates down much too far. China is in a currency trap. But within this dollar trap, China has shown that its GDP can grow briskly with even more rapid growth in wages—as long as the yuan-dollar rate remains reasonably stable. And China’s government must recognize that there is no easy way to spring the trap.

Ronald McKinnon is the William D. Eberle Professor Emeritus of International Economics at Stanford University, where he has taught since 1961. For a more comprehensive analysis of how the world dollar standard works, and China’s ambivalent role in supporting it, see Ronald McKinnon’s The Unloved Dollar Standard from Bretton Woods to the Rise of China, Oxford University Press (2013), and the Chinese translation from China Financial Publishing House (2013).

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25. Western (and other) perspectives on Ukraine

By Robert Pyrah


Untangling recent and still-unfolding events in Ukraine is not a simple task. The western news media has been reasonably successful in acquainting its consumers with events, from the fall of Yanukovich on the back of intensive protests in Kiev, by those angry at his venality and signing a pact with Russia over one with the EU, to the very recent moves by Russia to annex Crimea.

However, as is perhaps inevitable where space is compressed, messages brief and time short, a habit of talking about Ukraine in binaries seems to be prevalent. Superficially helpful, it actually hinders a deeper understanding of the issues at hand – and any potential resolution. Those binaries, encouraged to some extent by the nature of the protests themselves (‘pro-Russian’ or ‘pro-EU/Western’), belie complex and important heterogeneities.

Ironically, the country’s name, taken by many to mean ‘borderland’, is one such index of underlying complexity. Commentators outside the mainstream news, including specialists like Andrew Wilson, have long been vocal in pointing out that the East-West divide is by no means a straightforward geographic or linguistic diglossia, drawn with a compass or ruler down the map somewhere east of Kiev, with pro-Western versus pro-Russian sentiment ‘mapped’ accordingly. Being a Russian-speaker is not automatically coterminous with following a pro-Russian course for Ukraine; and the reverse is also sometimes true. In a country with complex legacies of ethnic composition and ruling regime (western regions, before incorporation into the USSR, were ruled at different times in the modern period by Poland, Romania and Austria-Hungary), local vectors of identity also matter, beyond (or indeed, within) the binary ethnolinguistic definition of nationality.

The Bridge to the European Union from Ukraine to Romania. Photo by Madellina Bird. CC BY-NC-SA 2.0 via madellinabird Flickr

The Bridge to the European Union from Ukraine to Romania. Photo by Madellina Bird. CC BY-NC-SA 2.0 via madellinabird Flickr.

Just as slippery is the binary used in Russian media, which portrays the old regime as legitimately elected and the new one as basically fascist, owing to its incorporation of Ukrainian nationalists of different stripes. First, this narrative supposes that being legitimately elected negates Yanukovich’s anti-democratic behaviours since that election, including the imprisonment of his main political opponent, Yulia Tymoshenko (whatever the ambivalence of her own standing in the politics of Ukraine). Second, the warnings about Ukrainian fascism call to mind George Bernard Shaw’s comment about half-truths as being especially dangerous. As well-informed Ukraine watchers like Andreas Umland and others have noted, overstating the presence of more extreme elements sets up another false binary as a way of deligitimising the new regime in toto. This is certainly not to say that Ukraine’s nationalist elements should escape scrutiny, and here we have yet another warning against false binaries: EU countries themselves may be manifestly less immune to voting in the far right at the fringes, but they still may want to keep eyes and ears open as to exactly what some of Ukraine’s coalition partners think and say about its history and heroes, the Jews, and much more.

So much for seeing the bigger picture, but events may well still take turns that few historians could predict with detailed accuracy. What we can see, at least, from the perspective of a maturing historiographic canon in the west, is that Ukraine is a country that demands a more sophisticated take on identity politics than the standard nationalist discourse allows – a discourse that has been in existence since at least the late nineteenth Century, and yet one which the now precarious-seeming European idea itself was set up to moderate.

Robert Pyrah is author of the recent review article, “From ‘Borderland’ via ‘Bloodlands’ to Heartland? Recent Western Historiography of Ukraine” (available to read for free for a limited time) in the English Historical Review. Robert Pyrah is a Member of the History Faculty and a Research Associate at the Faculty of Medieval and Modern Languages at the University of Oxford

First published in January 1886, The English Historical Review (EHR) is the oldest journal of historical scholarship in the English-speaking world. It deals not only with British history, but also with almost all aspects of European and world history since the classical era.

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