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1. Are schools teaching British values?

By Stephanie Olsen


In June, (now former) Education Secretary Michael Gove announced that all primary and secondary schools should promote “British values”. David Cameron said that the plans for values education are likely to have the “overwhelming support” of citizens throughout the UK. Cameron defined these values as “freedom, tolerance, respect for the rule of law, belief in personal and social responsibility and respect for British institutions”. ‪At root, such a policy gets at the emotional conditioning of children. To adhere to a certain ideological conceptualization of “freedom,” to feel “tolerant,” or to be “respectful” (whether of parents, teachers, authorities or institutions), is to act according to implicit feelings of rightness.

Values are never just abstract ideas, but are expressed and experienced through emotions. And they are not ideologically neutral. To stress the education of British values is to put a form of emotional education on the agenda. Though many commentators have pointed out that the broad outlines of such an education already exist in schools, the fear of “extremism”, of the promotion of the “wrong” sort of values, has triggered a vigorous debate. What has largely gone unrecognized in this debate, however, is that it is emphatically not new.

In the nineteenth and early twentieth centuries, politicians and educationalists promoted a new education based on character training and the emotions, precisely to build British citizens who would respect and uphold British institutions. This brand of education was to be accomplished at school, but also at home, and in religious and youth organizations.

Herbert Fisher, the President of the Board of Education who spearheaded the Education Act of 1918, argued that the masses should be educated “to stimulate civic spirit, to promote general culture … and to diffuse a steadier judgement and a better informed opinion through the whole body of the community.” Other educational commentators broadly agreed with this mission. Frederick Gould, a former Board School teacher and author of many books on education argued that “The community cannot afford to let the young people pass out with a merely vague notion that they ought to be good; it must frame its teaching with a decisive and clear vision for family responsibilities, civic and political duties”.

Michael Gove, by Paul Clarke, CC-BY-3.0 via Wikimedia Commons.

Michael Gove, by Paul Clarke, CC-BY-3.0 via Wikimedia Commons.

Civic duties – the civic spirit – were to be taught to the extent that they would become ingrained, implicit, felt. This was to be primarily a moral education. Educators stressed character training, linking moral education to British imperialism or nationalism in an unashamedly patriotic spirit. Education reform was to improve future citizens’ productivity and develop national character traits.

Like Gould, educator John Haden Badley stressed the need to teach active citizenship and service. Education on these lines would provide “a deeper understanding of the human values that give to life its real worth”, cultivating and maximizing the potential of a “superior” Britishness. Meanwhile, in a speech in Manchester in 1917, Fisher argued that “the whole future of our race and of our position in the world depends upon the wisdom of the arrangements which we make for education.” He observed, in language strikingly familiar to contemporary political rhetoric, that “we are apt to find that the wrong things are being taught by the wrong people in the wrong way.”

But even in 1917 the rhetoric was clichéd. A generation of commentators before Fisher argued that the civic shortfalls in mass formal education could be fixed by informal education in youth groups and religious organizations and through improved reading matter. Much juvenile and family literature, whether motivated politically or religiously, stressed emotional socialization, especially in the building of morality and character, as critical for national cohesion.

The trouble with visions of national cohesion, as the last century and a half of educational debate bears out, is the difficulty in getting any two parties to agree what that vision looks like. At the turn of the twentieth century all agreed that children mattered. How they were to be educated was important not just to individual children and their families, but equally importantly, to the community and the nation.

Yet some reformers had patriotic aims, others religious; some civic, some imperial; some conservative, others socialist. Many combined some or all of these aims. All, whether explicitly stated or not, wanted to train, instrumentalize and harness children’s emotions. Children’s reading matter, the stories they were told, and the lessons they heard were known to be powerful forces in cultivating the emotions. Hence the high stakes, then and now, on the narratives supplied to children.

Michael Gove, in common with his Victorian forebears, turns to the “great heroes of history” to serve as models of emulation. Back in the early 1900s, Gould thought history “the most vital of all studies for inspiration to conduct.” The study of history is certainly no stranger to being manipulated for didactic ends in order to impart “British values.”

While Gove is only the latest in a long line to link British history, British values and education, there are surely lessons to be learnt from past attempts and past failures to implement this strategy. A generation of boys and young men at the turn of the twentieth century had grown up learning the positive value of patriotic service. In this memorial year, marking a century since the outbreak of the First World War, it seems appropriate to reflect on what values we might want to instil in the young. What feelings do we want them to learn?

Stephanie Olsen is based at the history department, McGill University (Montreal) and the Max Planck Institute for Human Development, Center for the History of Emotions (Berlin). She was previously postdoctoral fellow at the Minda de Gunzburg Center for European Studies at Harvard University. The co-author of Learning How to Feel: Children’s Literature and the History of Emotional Socialization, c. 1870-1970 she is currently working on children’s education and the cultivation of hope in the First World War.

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2. The vote for women bishops

vsi bannerBy Linda Woodhead


There are two kinds of churches.  The ‘church type’, as the great sociologist Ernst Troeltsch called it, has fuzzy boundaries and embraces the whole of society. The ‘sect type’ has hard boundaries and tries to keep its distance. Until recently, the Church of England has been the former – a church ‘by law established’ for the whole nation. Since the 1980s, however, the Church has veered towards sectarianism. It’s within this context that we have to understand the significance of the recent vote for women bishops.

Robert Runcie (Archbishop of Canterbury 1980 to 1991) was the last leader to have no doubts about the Church’s role as a pillar of society. That didn’t mean he was a flunky of the social establishment. When he prayed for the dead on both sides of the Falklands War, or commissioned the Faith in the City report which criticised the Thatcher government, he did so from a confident position at the centre of things rather than as critic standing on the margins.

A shift away from this stance began under Runcie’s successor, George Carey (Archbishop from 1991-2002). Carey was part of the modern evangelical wing of the Church, some of whose members were already pushing for the Church to keep its distance from ‘secular’ society, but it was under Archbishop Rowan Williams (2002-2012) that the really decisive shift took place.

The background was a British society whose values were changing rapidly. My recent surveys of British beliefs and values reveal a remarkably swift liberalisation of attitudes. In this context, liberalism is the conviction that all adults should be equally free to make up their minds about choices which affect them directly. Its opposite is not conservatism but paternalism – the view that one should defer to higher authorities.

In the 1960s and ‘70s the Church of England was travelling with society in a broadly liberal direction, with prominent Anglicans supporting the liberalisation of laws relating to abortion, homosexuality, and divorce. But after Runcie, Anglican leaders made a U-turn. The extension of equal rights to women and gay people proved hardest for them to swallow. At stake for evangelicals was God-ordained male headship, and for Anglo-Catholics, an exclusively male priesthood extending back to Christ himself, and good relations with Rome.

Under the leadership of Rowan Williams and John Sentamu, the Church of England campaigned successfully to be exempted from provisions of the new equality legislation, took a hard line against homosexual practice and gay marriage, and made continuing concessions to the opponents of women’s progress in the Church (women had first been ordained priests in 1994, expecting that the office of bishop would be opened to them soon after).

Williams often behaved like an outsider to mainstream English society. He was a fierce critic of liberal ‘individualism’, and thought that religious people should huddle together against the chilly winds of secularism (hence his support for sharia law). He favoured the moral conservatism of African church leaders over the liberalism of American ones, and made disastrous compromises with illiberal factions in the Church. It was the latter which led to the failure of the last vote for women bishops in 2012 – shortly before Williams stepped down.

Williams’ supporters can say that he maintained Anglican unity, both at home and abroad. But the cost has been enormous. Church of England numbers have collapsed,  and it has become more marginal to society and most people’s lives than ever before.

So the vote to allow women bishops is a turning-point which may see the Church re-engage the moral sentiments of the majority of its members and the country as a whole. But the sectarian tendency remains strong. Although Archbishop Welby supports women bishops, he remains opposed to same-sex marriage and assisted dying, and takes very seriously the relationship with African churches and their leaders. The sectarian fringes of the Church remain influential, and the bishops remain isolated from the views of ordinary Anglicans. The Church as a whole creaks under the weight of historic buildings, unimaginative mangerialism, and sub-democratic structures.

Over the last few decades the Church of England has missed a great opportunity to reinvent itself as a genuinely liberal form of religion in a world suffering from an excess of sectarian religion of illiberal and paternalistic kinds. It lost its nerve at the crucial moment, forgetting that liberalism has Christian as well as secular roots, and reading Britain’s drive towards greater freedom and toleration as permissive rather than moral.

To task Anglican clergywomen with putting all this right is to ask too much. But the vote for women bishops strikes a blow against sectarian ‘male’ Christianity. And if the Church is serious about drawing closer to the people it is meant to serve, then becoming representative of half the population and an even bigger proportion of Anglicans has to count as a significant step in the right direction.

Linda Woodhead is Professor of Sociology of Religion at Lancaster University, UK. Her research interests lie in the entanglements of religion, politics, and economy, both historically and in the contemporary world. Between 2007 and 2013 she directed the Religion and Society Programme http://www.religionandsociety.org.uk, the UK’s largest ever research investment on religion. She is the author of Christianity: A Very Short Introduction, which comes out in its second edition in August. She tweets from @LindaWoodhead.

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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Image credit: Common Worship Books, by Gareth Hughes (Own work). CC-BY-SA-3.0 via Wikimedia Commons

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3. What is the role of governments in climate change adaptation?

By Kai A. Konrad and Marcel Thum


Adaptation to climate change is currently high on the agenda of EU bureaucrats exploring the regulatory scope of the topic. Climate change may potentially bring about changes in the frequency of extreme weather events such as heat waves, flooding or thunder storms, which in turn may require adaptation to changes in our living conditions. Adaptation to these conditions cannot stop climate change, but it can reduce the cost of climate change. Building dikes protects the landscape from an increase in sea level. New vaccines protect the population from diseases that may spread due to the change in the climate. Leading politicians, the media and prominent interest groups call for more efforts in adaptation.

But who should be in charge? Do governments have to play a leading role in adaptation? Will firms and households make the right choices? Or do governments have to intervene to correct insufficient or false adaptation choices? If intervention is necessary, will the policy have to be decided on a local level or on a national or even supranational (EU) level? In a recent article we review the main arguments for government intervention in climate change adaptation. Overall, we find that the role of the state in adaptation policy is limited.

In many cases, adaptation decisions can be left to private individuals or firms. This is true if private sector decision-makers both bear the cost and enjoy the benefits of their own decisions. Superior insulation of buildings is a good example. It shields the occupants of a building from extreme temperatures during cold winters and hot summers. The occupants – and only the occupants – benefit from the improved insulation. They also bear the costs of the new insulation. If the benefit exceeds the cost, they will invest in the superior insulation. If it does not pay off, they will refrain from the adaptation measure (and they should do so from an efficiency point of view). There is no need for government intervention in the form of building regulation or rehabilitation programmes.

In some other cases, adaptation affects an entire community as in the case of dikes. A single household will hardly be able – nor have the incentive – to build a dike of the appropriate size. But the local municipality can and should be able to so. All inhabitants of the municipality can share the costs and appropriate the benefit from flood protection. The decision on the dike could be made on the state level if not at the municipal level. The local population will probably have a long-standing experience and superior knowledge about the flood events and its potential damages. The subsidiarity principle, which is a major principle of policy task assignment in the European Union, suggests that the decisions should be made on the most decentralized level for which there are no major externalities between the decision-makers. In the case of the dike, the appropriate level for the adaptation measure would be the municipality. Again there is no need for intervention from upper-level governments.

floods

So what role is left for the upper echelons of government in climate change adaptation? Firstly, the government has to help in improving our knowledge. Information about climate change and information about technical adaptation measures are typical public goods: the cost of generating the information has to be incurred once, whereas the information can be used at no additional cost. Without government intervention, too little information would be generated. Therefore, financing basic research in this area is one of the fundamental tasks for a central government.

Secondly, the government has to provide the regulatory framework for insurance markets. The economic consequences of natural disasters can be cushioned through insurance markets. However, the incentives to buy insurance are insufficient for several reasons. For instance, whenever a major disaster threatens the economic existence of a larger group of citizens, the government is under social pressure and will typically provide help to all those in need. By anticipating government support in case of a disaster, there is little or no incentive to buy insurance in the market. Why should they pay the premium for private insurance, or invest in self-insurance or self-protection measures if they enjoy a similar amount of free protection from the government? If the government wants to avoid being pressured for disaster relief, it has to make disaster insurance mandatory. And to induce citizens to the appropriate amount of self-protection, insurance premiums have to be differentiated according to local disaster risks.

Thirdly, fostering growth helps coping with the consequences of climate change and facilitates adaptation. Poor societies and population groups with low levels of education have the highest exposure to climate change, whereas richer societies have the means to cope with the implications of climate change. Hence, economic growth – properly measured – and education should not be dismissed easily as they act as powerful self-insurance devices against the uncertain future challenges of climate change.

Kai A. Konrad is Director at the Max Planck Institute for Tax Law and Public Finance. Marcel Thum is Professor of Economics at TU Dresden and Director of ifo Dresden. They are the authors of the paper ‘The Role of Economic Policy in Climate Change Adaptation’ published in CESifo Economic Studies.

CESifo Economic Studies publishes provocative, high-quality papers in economics, with a particular focus on policy issues. Papers by leading academics are written for a wide and global audience, including those in government, business, and academia. The journal combines theory and empirical research in a style accessible to economists across all specialisations.

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Image credit: Flooding, July 2007, by Mat Fascoine. CC-BY-SA-2.0 via Wikimedia Commons.

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4. Why are women still paid less than men?

By Forrest Briscoe and Andrew von Nordenflycht


The recent firing of Jill Abramson, the first female executive editor of the New York Times, after less than three years on the job focused the news cycle on gender inequity, with discussions of glass cliffs (women get shorter leashes even when they get the top jobs) and reports showing the persistence of glass ceilings and pay disparities (e.g. Abramson was paid less than her male predecessor). In the United States, women now represent a substantial majority of those earning advanced degrees. Yet as we look higher and higher up the ladders of career attainment, we see smaller and smaller percentages of women – as well as the persistence of pay gaps for women, even in senior positions. In other words, even as women break through one glass ceiling, they encounter another on the next rung.

Take law firms. Women make up almost half of US law school graduates (up from 5% in 1950). But they represent only 20% of US law firm partners and an even smaller share (16%) of the more elite class of equity partners. And the higher one looks within the partnership stratosphere, the less diverse it gets. Furthermore, the leaders of the profession, as well as clients of law firms, express frustration with the slow pace of progress in generating more gender and ethnic equality at the top of the profession. These efforts can be aided by improving our understanding of the work and career processes within law firms and, by extension, partnerships in other professional fields, such as accounting, consulting, and investment banking.

So how exactly do partners rise to different levels within the partnership hierarchy, and how do those processes challenge female partners? To date, researchers have analyzed the challenge of becoming a partner, but we know curiously little about how professional careers unfold after that. Although partners at large law firms may all be one-percenters, they are certainly not equal, with distinctions made between equity and non-equity partners, and recent surveys showing some “super-partners” earn up to 25 times more than their peers.

To get at these questions, we studied how partners gain power within a partnership, as measured by their “book of business” – the fees paid to the firm by clients with whom the partner holds the primary relationship. The more client revenue that a partner is responsible for, the more that partner will hold influence in their firm, command respect, and generate career mobility options in the wider profession. To understand power in a partnership, then, is to understand how partners come to obtain books of business.

What we found was intriguing. In short, although women may be disadvantaged in a primary “path to power” in the partnership, they may have opportunities along a second pathway of growing importance.

The primary pathway involves “inheriting” clients from an established power partner. To build a book of business, one needs to either pursue that strategy, or the alternative of “making rain” by bringing new clients to the firm. A newly minted partner thus needs to decide which path to invest in—or how much to invest in each path. Do you spend time working for clients of power partners nearing retirement—or pounding the pavement (or the cocktail circuit) seeking new clients of your own? Of course, each path has its risks. Investing in the inheritance path can backfire, for example, if a retiring benefactor bequeaths a client to a rival partner. And the rainmaking strategy can backfire if nibbles of new-client business don’t eventually turn into a large revenue stream for the firm. Since both investments require time and energy, what’s the optimal career strategy?

iStock_000020274536Small

Deepening the puzzle, both paths are also likely to pose particular challenges to female attorneys, as they depend on forming social relationships with either the senior power partners or with decision makers at potential new client firms. Much research shows the existence of “homophily” in interpersonal relationships, or the tendency for people to be drawn to and feel greater affinity for people who are like themselves in terms of race and gender. So where senior partners and/or client decision makers are largely male, female junior partners may be at a disadvantage in forming the bonds of affinity or trust that help win the client business.

Analysis of the internal records of law firms shows, unsurprisingly, that female partners have smaller books of business than their male peers. More interestingly, though, we are finding that the rate of return on investments in the two paths to power differs between men and women. In fact, the inheritance strategy appears to be a particularly poor investment for women. For women, larger investments in the inheritance path are associated with lower future books of business. Why? We speculate this could be because of “selective affinity.” That is, when it comes time for the power partners to pass on their clients, they may unconsciously favor partners who are more demographically similar to them.

Yet, when it comes to the rainmaking strategy, the opposite may be true. For female partners, investments in the rainmaking path appear to pay handsomely. In fact even better than for male partners. Why could that be? Perhaps female partners recruit new clients in different ways than male partners, or perhaps “selective affinity” can actually favor female partners in the open marketplace (rather than the closed ecosystem of the firm’s internal networks).

What does it all mean? First off, for partnerships, there may be considerable value in studying the inheritance and rainmaking processes going on in their own organizations. Virtually all firms now have the relevant internal data waiting to be analyzed. Second, our findings are important for managing diversity in partnerships. For example, the results suggest there could be a “double payoff” to supporting rainmaking efforts for newly-made female partners – double in the sense of the firm’s overall revenue generation as well as diversity goals.

Forrest Briscoe is an Associate Professor of Management in the Smeal College of Business, Pennsylvania State University. His research focuses on careers, networks, and management processes in professional organizations, as well as on the factors that promote and inhibit changes within organizational fields. Andrew von Nordenflycht is an Associate Professor at Simon Fraser University’s Beedie School of Business. His research focuses on the challenges of managing professional services firms, the patterns of professional careers, and the impact of different organizational forms on the performance, creativity, and ethics of professionals. Andrew is the author of the paper ‘Does the emergence of publicly traded professional service firms undermine the theory of the professional partnership? A cross-industry historical analysis’ published in the Journal of Professions and Organization.

The Journal of Professions and Organization (JPO) aims to be the premier outlet for research on organizational issues concerning professionals, including their work, management and their broader social and economic role.
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5. The downing of Malaysian Airlines Flight MH17

By Sascha-Dominik Bachmann


The downing of the Malaysian Airlines Flight MH17 on 17 July 2014 sent shockwaves around the world. The airliner was on its way from Amsterdam to Kuala Lumpur when it was shot down over Eastern Ukraine by an surface to air missile, killing all people on board, 283 passengers including 80 children, and 15 crew members. The victims were nationals of at least 10 different states, with the Netherlands losing 192 of its citizens.

With new information being released hourly strong evidence seems to indicate that the airliner was downed by a sophisticated military surface to air missile system, the SA-17 BUK missile system. This self-propelled air defence system was introduced in 1980 to the Armed Forces of the then Soviet Union and which is still in service with the Armed forces of both Russia and Ukraine. There is growing suspicion that the airliner was shot down by pro-Russian separatist forces operating in the area, with one report by AP having identified the presence of a rebel BUK unit in close proximity of the crash site. The United States and its intelligence services were quick in identifying the pro-Russian separatists as having been responsible for launching the missile. This view is supported further by the existence of incriminating communications between the rebels and their Russian handlers immediately after the aircraft hit the ground and also a now deleted announcement on social media by the self declared Rebel Commander, Igor Strelkov. This evidence points to the possibility that MH17 was mistaken for an Ukrainian military plane and therefore targeted. Given that two Ukrainian military aircraft were shot down over Eastern Ukraine in only two days preceding 17 July 2014 a not unlikely possibility.

It will be crucial to establish the extent of Russia’s involvement in the atrocity. While there seems to be evidence that the rebels may have taken possession of BUK units of the Ukrainian, it seems unlikely that they would have been able to operate these systems without assistance from Russian military experts and even radar assets.

Makeshift memorial at Amsterdam Schiphol Airport for the victims of the Malaysian Airlines flight MH17 which crashed in the Ukraine on 18 July 2014 killing all 298 people on board. Photo by Roman Boed. CC BY 2.0 via romanboed Flickr.

Makeshift memorial at Amsterdam Schiphol Airport for the victims of the Malaysian Airlines flight MH17 which crashed in the Ukraine on 18 July 2014 killing all 298 people on board. Photo by Roman Boed. CC BY 2.0 via romanboed Flickr.

Russia was quick to shift the blame on Ukraine itself, asking why civil aircraft hadn’t been barred completely from overflying the region, directly blaming Ukraine’s aviation authorities during the emergency meeting on the UN Security Council (UNSC) on 18 July 2014. Russia even went so far to blame Ukraine indirectly of shooting down MH17 by comparing the incident with the accidental shooting down of a Russian civilian airliner en route from Tel Aviv to Novosibirsk in 2001. Despite Russia’s call for an independent investigation of the incident, Moscow’s rebels reportedly blocked actively international observers from OSCE to access the site.

While any civilian airliner crash is a catastrophe, and in cases of terrorist involvement an international crime, the shooting down of passenger jets by a state are particularly shocking as they always affect non combatants and resemble acts which are always outside the parameters of the legality of any military action (such as distinction, necessity, and proportionality). Any such act would lead to global condemnation and would hurt the perpetrator state’s international reputation. Consequently, there have only been few such incidents over the last 60 years.

What could be the possible consequences? The rebels are still formally Ukrainian citizens and as such subject to Ukraine’s criminal judicial system, according to the active personality principle. Such a prosecution could extent to the Russian co-rebels as Ukraine could exercise its jurisdiction as the state where the crime was committed, under the territoriality principle. In addition prosecutions could be initiated by the states whose citizens were murdered, under the passive personality principle of international criminal law. With Netherlands as the nation with the highest numbers of victims having a particularly strong interest in swift criminal justice, memories of the Pan Am 103 bombing come to mind, where Libyan terrorists murdered 270 humans when an airliner exploded over Lockerbie in Scotland. Following international pressure, Libya agreed to surrender key suspects to a Scottish Court sitting in the Netherlands.

The establishment of an international(-ised) criminal forum for the prosecution of the perpetrators would require Russia’s cooperation, something which seems to be unlikely given Putin’s increasing defiance of the international community’s call for justice. A prosecution by the International Criminal Court (ICC) in The Hague under its Statute, the Rome Statute, is unlikely to happen as neither Russian nor Ukraine have ratified the Statute. An UNSC referral to the ICC — if one accepts that the murder of 298 civilians would amount to a crime which qualifies as a crime against humanity or even a war crime under Article 5 of the ICC Statute — would fail given that Russia and its new strategic partner China are Veto powers on the Council and would veto any resolution for a referral.

Other responses could be the imposing of unilateral and international sanctions and embargos against Moscow and high profile individuals. Related to such economic countermeasures is the possibility to hold Russia as a state responsible for its complicity in the shooting down of MH17; the International Court of Justice (ICJ) would be the forum where such a case against Russia could be brought by a state affected by the tragedy. An example for such an interstate case arising from a breach of international law can be found in the ICJ case Aerial Incident of 3 July 1988 (Islamic Republic of Iran v. United States of America), arising from the unlawful shooting down of Iran Air Flight 655 by the United States in 1988. The case ended with an out of Court settlement by the US in 1996. Again, it seems quite unlikely that Russia will accept any ruling by the ICJ on the matter and even less likely would be any compliance with an damages order by the court.

One alternative could be a true US solution for the accountability gap of Russia’s complicity in the disaster. If the US Congress was to qualify the rebel groups as terrorist organizations then this would make Russia a state sponsor of terrorism, and as such subject to US federal jurisdiction in a terrorism civil litigation case brought under the Anti-Terrorism Act (ATA-18 USC Sections 2331-2338) as an amendment to the Alien Torts Statute (ATS/ATCA – 28 USC Section 1350). The so-called “State Sponsors of Terrorism” exception to the Foreign Sovereign Immunities Act (FSIA Exception-28 USC Section 1605(a)(7)), which allows lawsuit against so-called state sponsors of terrorism. The Foreign Sovereign Immunities Act (FSIA) Exception of 1996 limits the defense of state immunity in cases of state sponsored terrorism and can be seen as a direct judicial response to the growing threat of acts of international state sponsored terrorism directed against the United States and her citizens abroad, as exemplified in the case of Flatow v. Islamic Republic of Iran (76 F. Supp. 2d 28 (D.D.C. 1999)). Utilising US law to bring a civil litigation case against Russia as a designated state sponsor of international terrorism would certainly set a strong signal and message to Putin; it remains to be seen whether the US call for stronger unified sanctions against Russia will translate into such unilateral action.

Time will tell if the downing of MH17 will turn out to be a Lusitania moment (the sinking of the British passenger ship Lusitania with significant loss of US lives by a German U-boat led to the entry of the US in World War I) for Russia’s relations with the West, which might pave the way to a new ‘Cold War’ along new conflict lines with different allies and alliances. What has become clear already today is Russia’s potential new role as state sponsor of terrorism.

Sascha-Dominik Bachmann is an Associate Professor in International Law (Bournemouth University); State Exam in Law (Ludwig-Maximilians Universität, Munich), Assessor Jur, LL.M (Stellenbosch), LL.D (Johannesburg); Sascha-Dominik is a Lieutenant Colonel in the German Army Reserves and had multiple deployments in peacekeeping missions in operational and advisory roles as part of NATO/KFOR from 2002 to 2006. During that time he was also an exchange officer to the 23rd US Marine Regiment. He wants to thank Noach Bachmann for his input. This blog post draws from Sascha’s article “Targeted Killings: Contemporary Challenges, Risks and Opportunities” in the Journal of Conflict Security Law and available to read for free for a limited time. Read his previous blog posts.

The Journal of Conflict & Security Law is a refereed journal aimed at academics, government officials, military lawyers and lawyers working in the area, as well as individuals interested in the areas of arms control law, the law of armed conflict and collective security law. The journal aims to further understanding of each of the specific areas covered, but also aims to promote the study of the interfaces and relations between them.

Oxford University Press is a leading publisher in Public 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.

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6. How much do you know about investment arbitration?

Int Court Justice law robesInvestment arbitration is a growing and important area of law, in which states and companies often find themselves involved in. In recognition of the one year anniversary of Investment Claims moving to a new platform, we have created a quiz we hope will test your knowledge of arbitration law and multilateral treaties. Good luck!

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7. The #BringBackOurGirls rallying point

By Isaac Terwase Sampson


The Boko Haram (BH) terrorist group, responsible for the abduction of over 200 school girls in north-eastern Nigeria, has been Nigeria’s prime security threat since 2009. Although the group has carried out innumerable acts of terror in Nigeria since 2009, its abduction of more than 200 girls at Government Girls Secondary School Chibok, on 14 April 2014, outraged the world and gave it reinforced international currency. The global and Nigerian Muslim community has since distanced itself from Boko Haram’s violent ideology. In the face of current cosmopolitan campaign to rescue the Chibok girls, which is christened #BringBackOurGirls (#BBOG, #BBG), the question that dominates public discourse in the aftermath of Chibok abduction is whether #BringBackOurGirls as an isolated phenomenon, or the increasing de-legitimisation of Boko Haram’s extremism by Muslims generally, would serve as a rallying point against violent extremism in Nigeria, or rather reinforce the historic sharia question that has threatened peaceful co-existence in the country since independence in 1960. For those unfamiliar with Nigeria’s religious politics and relations, the following cursory background would suffice as clarification.

Hudreds of people gathered at Union Square in New York City on May 3 to demand the release of some 230 schoolgirls abducted by Boko Haram insurgents in Nigeria. Photo by Michael Fleshman. CC BY-NC 2.0 via fleshmanpix Flickr.

Hudreds of people gathered at Union Square in New York City on May 3 to demand the release of some 230 schoolgirls abducted by Boko Haram insurgents in Nigeria. Photo by Michael Fleshman. CC BY-NC 2.0 via fleshmanpix Flickr.

Boko Haram in the Context of Nigeria’s Religious Politics


In most parts of northern Nigeria, Islam and sharia predated the post-independence Western-secular system that was bequeathed to a unified Nigerian state at independence. Uthman dan Fodio’s jihad of 1810, which captured the Hausa states of northern Nigeria, brought about the establishment of an Islamic central authority under the Sokoto caliphate. Since dan Fodio’s jihad was aimed at establishing a theocratic state, Islam inevitably became a state religion in these captured Hausa states. Although the British colonial authorities protected the theocratic political order they met in these emirates for reasons of imperial convenience, they nonetheless introduced a legal system that modulated the sharia order. Notwithstanding this interference, Islam and sharia survived colonial invasion in these states. Although the sharia legal order was relatively modulated to protect the British and other European merchants, its application on the natives remained significantly strong. This arrangement remained so until it became obvious to the British that an Islamic political/legal order would not serve the commercial interest of Western merchants, particularly after independence. With this concern in mind, the British orchestrated a reversal of the sharia order, and cajoled the Muslim north into accepting a relatively secular system at independence, an arrangement that was christened “the Settlement of 1960”.

The settlement of 1960 was a pact between the British colonialists, as arbiter, the northern and Southern Animist-Christians on the one hand, and the Muslim north on the other. It was aimed at establishing a secular legal order side by side a modulated Islamic legal regime. It is intriguing to note that whereas the Christian community initially opposed this settlement for the fear of a covert Islamization agenda, the northern Muslim community was at first supportive of it. But the respective positions of the Christian and Muslim communities were to be reversed shortly after independence. The Christian community turned around to favour the settlement of 1960 while the northern Muslim community became avidly antagonistic to this arrangement.

Although many factors account for northern Muslims’ opposition to the settlement, the most significant factor is the sharia debate that ensued during the constitution-making process of 1976-78. At the constitutional conferences, there was considerable mobilisation by northern political and religious leaders for the entrenchment of sharia in Nigeria’s legal system. Unfortunately, the Muslim north suffered a humiliating defeat at the hands of Christians in their quest for the establishment of sharia. This bitter defeat meant that northern Muslims had lost most of the incentives that made the Settlement of 1960 attractive to them in the first place. Among other consequences, the sharia debate marked the beginning of vigorous and sustained activism by northern Muslims for an Islamic state, or much less, an Islamic legal, economic, and social order within the Nigerian state. This activism has taken both liberal and radical approaches. Whereas the intellectual and political classes continue to pressure the state for Islamic determinism, the Islamists and rustic northern Muslim folk often express this quest in violent ways.

The Islamic revivalism that followed the sharia debate of 1976-8, inspired the emergence and proliferation of radical Islamic sects and spurred the influx of radical Islamic clerics from neighbouring states and Senegal, into northern Nigeria. Within this period, acts of religious violence were often encouraged or ignored by state authorities in northern Nigeria. Consequently, religious violence became a common feature in this part of the country, as Christians became objects of religiously-motivated attacks at the least provocation, either directly or vicariously. For instance, the US invasion of Iraq in the 1990s led to pervasive attacks on Christians and their worship centres in northern Nigeria. In 2003, a Danish newspaper cartoon, which allegedly disparaged Prophet Mohammed, led to mass killing of northern Christians and destruction of their Churches and property. In the aftermath of 9/11 bombing in 2001, Muslims celebrated in Northern Nigeria and vandalized Churches in the process. More recently, Christians in northern Nigeria were subject of attack from Muslims, when US planes attacked Libya during the Arab Spring. The Boko Haram sect emerged in the context of this continuum of Islamic activism, which endorsed violence as one of its operational tools. Its ideology was therefore weaved around the establishment of an imaginary puritanical state governed by sharia. Fortunately or unfortunately, Boko Haram’s interpretation of kafir (heathen) transcends the simplistic description of “non-Muslims” and encompasses those Muslims who don’t subscribe to its fundamentalists brand of Islam.

Would #BringBackOurGirls Reverse this Tendency?


Paradoxically, Boko Haram which emerged as an ‘Islamic sect’ has taken its defence of Islam overboard, killing in the process moderate Islamic teachers, preachers, and other Muslims who deprecate its fanatical brand of Islam. Its indiscriminate attacks over the civilian population also do not distinguish Christians from Muslims. Specifically, Boko Haram’s policy of targeting moderate Muslims has become a significant paradox of sorts, given that it is a product of the overarching sharia struggle in northern Nigeria. With the unfolding of its extreme and caustic brand of Islam, the group has not only denounced the legitimacy of the Islamic leadership in Nigeria, it has declared them and other moderate Muslims as kafir and enemies of Allah. As #BringBackOurGirls draws global attention to Boko Haram specifically, and violent extremism in Nigeria generally, the global and Nigerian Islamic community have continued to condemn their activities, describing their activities as criminal un-Islamic. Both the Secretary General of the Organisation of Islamic Conference (OIC) and the President of Nigeria’s Supreme Council for Islamic Affairs have said so. However, many questions have been asked of the recent de-legitimisation of Boko Haram by the Muslim community: Is the condemnation of Boko Haram by Muslims inspired by a genuine concern over violent extremism or borne out of its indiscriminate attacks against Muslims? Would Muslims in northern Nigeria, continue to condemn the activities of individuals or groups who express extreme and violent tendencies in the name of Islam? Would any attack on Christians and their property be condoned or ignored in the future?

In the aftermath of the #BringBackOurGirls, two schools of thought have emerged.

There are those who opine that Boko Haram insurgency is a prelude to greater religious upheavals in northern Nigeria, if northern Muslims are neither allowed the liberty of having an Islamic state nor practicing sharia in its orthodox fashion. Those who hold this viewpoint argue that the Muslim community would not have genuinely distanced itself from Boko Haram, if its targets were solely Christians. They also contend that the general discord between liberal and fundamentalist Islam in the Middle East has not deterred the support for an age-long global Islamization agenda that is funded from this region. Relating this to the Nigeria situation, the logic is that Islamism or violent extremism would not deter the historic sharia activism in northern Nigeria hence the need to revisit the sharia debate.

Persuasive as these arguments may sound, I hold a contrary view. In my estimation, the Boko Haram and Maitatsine Islamic sects have clearly demonstrated that Islamism (rigid and extreme adherence to Islamic tradition and its violent expression) is totalitarian and provides no room for liberal adherence to Islam. Secondly, due to its anti-modernisation character, no state desirous of progress tolerates violent extremism. Saudi Arabia, which is the cradle of Islam, has zero tolerance for it. Moreover, the northern elite, who supported Islamic activism in the past, has become its biggest victim. As the northern economy crumbles under Boko Haram’s campaign of violence, the elite who hold the highest stakes in the economy are equally the biggest losers. They have also realized that there is no ideological discipline for men in arms, as they are bound to resort to violent crime for economic reasons. It is in realisation of these facts that the northern Governors admitted in their meeting in February 2014, that Boko Haram has destroyed the north economically, socially, and politically.

For these and many other reasons, I hold an optimistic view that #BringBackOurGirls would not only lead to the rescue of the abducted girls, it marks the beginning of the end of Boko Haram insurgency — but most importantly, the end of religious intolerance and violent extremism in northern Nigeria. #BringBackOurGirls presents an opportunity to Christians and Muslims in northern Nigeria to rally against violent extremism by treating the indiscriminate killing and destruction of property as criminal acts and not acts of religious deference. I believe these two religious communities would embrace this opportunity as was recently demonstrated in the city of Kaduna, where they united to wade off Boko Haram attackers.

Isaac Terwase Sampson is the author of “Religion and the Nigerian State: Situating the de facto and de jure Frontiers of State–Religion Relations and its Implications for National Security” (available to read for free for a limited time) in the Oxford Journal of Law and Religion. He is a Senior Researcher at the Centre for Strategic Research and Studies, National Defence College, Nigeria. He joined the Centre in 2006 from the Ministry of Justice, Kogi State, where he served as a Senior State Counsel.

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.

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8. Preparing for BSC 2014

By Caitie-Jane Cook


Thursday sees the start of the British Society of Criminology annual conference, this year held at the University of Liverpool. The three-day conference (10-12 July 2014, preceded by a postgraduate conference on the 9th) will see academics from across the globe come together to discuss an expansive range of topics, from prisons and policing to hate crime and community justice, and I, for one, cannot wait to attend.

The theme for this year’s conference is Crime, Justice, Welfare: Can the Metropole Listen?, with participants aiming to “examine the counter-hegemonic potential of criminology, […] explore how it might give ‘voice’ to those that stand outside the dominant narratives of the metropole, [and challenge the] practices that serve to marginalise different ways of thinking about, and engaging with, an alternative criminological enterprise.”

With an expansive programme of sessions to be staged in the award-winning and Grade II listed Foresight Centre, the conference is sure to be a highlight in the 2014 criminology calendar. Here are some of the key sessions we’re looking forward to and we think you should be too:

  • Keynote speeches from Professors Raewyn Connell (University of Sydney), Chris Cunneen (James Cook University), and Didier Fassin (Princeton University)
  • Border Criminologies – Mary Bosworth chairs a session addressing links between immigration, trafficking, and cross-border detention
  • Police Culture and Diversity – A roundtable discussion on contemporary developments in diversity, 15 years on from the MacPherson Report.
  • Launch of the BSC Victims Network – an event to mark the formation of the BSC’s sixth specialist network in March 2014, which sets out to bring together those who have interests around victims of crime and social harm, survivors, and resilience.


The British Society of Criminology conference isn’t the only thing in Liverpool that has a lot to offer. For those with some time to spare outside the conference, make sure that you make the best of the city named European Capital of Culture in 2008.

800px-Liverpool_Museum_And_Library

If a conference session has piqued your interest, or you’d like to fit in some last minute research, scour the shelves of the Liverpool Central Library, home of the famous Picton Reading Room and fully renovated in 2013. Of course, you can’t mention Liverpool without The Beatles – take a trip to the Casbah Coffee Club, where it all began, or learn all about the Fab Four at The Beatles Story dockside museum. Or, you could find out more about the city itself at the Museum of Liverpool, winner of the Council of Europe Museum Prize for 2013.

Find out more about the conference by visiting the official website or visiting the British Society of Criminology’s official website. Those on Twitter can keep up-to-date with the conference by following the official account @livuni_bsc2014 and hashtag #bsc2014. Conference attendees can visit the OUP stand for the duration of the conference to pick up copies of the British Journal of Criminology and to claim an exclusive delegate discount on a range of titles.

We look forward to seeing you there!

Caitie-Jane Cook, otherwise known as ‘CJ’, is Marketing Executive for Law titles at OUP.

Oxford University Press is committed to developing outstanding resources to support students, scholars and practitioners in all areas of the law. OUP publishes a wide range of law journals and online products. Follow our law teams on Twitter at @OUPIntLaw, @BStonesPolice, and @blackstonescrim @OUPCommLaw, to find out more.

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9. Capitalism doesn’t fall apart

By Adam D. Dixon


In early April 2014 Greece returned to the sovereign bond market raising 3 billion Euros, following a four-year hiatus. This marked a turning point in the global financial and economic crisis that began in 2008 with the collapse of the subprime mortgage market in the United States and the advanced-economy recessions that ensued. The Greek economy is certainly not healed, with unemployment still exceeding 25%, and a government debt burden still unnervingly high — it is expected to reach 175% of GDP this year. That the Greek government was able to issue bonds to international investors, likely didn’t provide any degree or sense of solace for the many Greeks still struggling to get by.

This story has been repeated across much of the advanced industrialized economies, from the United States to the United Kingdom, from Spain to Italy. We are told that most economies have turned the corner, even if there is some way to go before life feels normal again — hopefully before some other crisis takes hold. Now we can get back to focusing on crises of the longue durée. Will anything be done to reduce wage and wealth inequality? Will labor markets adjust to increasing automation and artificial intelligence? How will we adapt to climate change? Are we prepared for the peak of the baby boom retirement?

Some countries and some regions within countries will certainly fair better than others. There will be winners and losers. This is largely a reflection of the core-periphery model that characterizes the geography of capitalism and its developmental logic. The drivers of economic growth and development are not nation-states, but large regional agglomerations, which often span different countries, and the global production networks and global financial markets that connect them. But what does it mean to be a resilient country or region in an increasingly integrated and interdependent global economy?

money-209722_640

The global financial crisis struck a blow to globalization, leading to some speculation that we could see the reemergence of a more fragmented world economy comparable to periods following other major crises (e.g. the Great Depression). For those critical of global capitalism, it was a chance for alternatives to emerge. Yet, if one looks at life in the major world cities or the boardrooms of multinational firms, the powerhouses of global capitalist integration, the remnants of crisis are hardly visible. Capitalism marches onward.

In the last few decades the barriers to cross-border capital flows and trade have been progressively removed, leading to growing opportunities for firms to outsource and offshore production. Moreover, the integration of capital markets has opened up financing possibilities that are global in scope. For multinational firms, and those in the service of multinational firms, history and geography are no longer constraints. Is the core anymore resilient than the peripheries, if they can’t ultimately claim and contain the drivers of growth? Are the winners this time around going to be the winners next time around?

At the height of the Eurozone crisis it was not uncommon to hear suggestions (and even outright demands) that periphery countries (e.g. Greece and Spain) leave the euro. Exit would facilitate recovery, resetting prices to competitive levels with trading partners. And it wouldn’t mean the end of the European project. But Greece nor any other periphery country has left the Eurozone. Even if they wanted to, would they have been allowed? Market expansion and integration is at the heart of capitalism. To be sure, a currency union is not a prerequisite to market expansion and integration.

The countries on the periphery didn’t leave, because they’ve become too integrated with the core. Economies do not start and stop at the political borders of the nation-state, even if the nation-state is still a crucial site of governance and regulation. There is certainly diversity among capitalist economies, reflecting history and geography. But increasing interdependence and integration mutes diversity. Yet, what increasing interdependence and integration means for capitalist diversity is less important than what it means for the losers of capitalist crises. As market expansion and integration is at the heart of capitalism, losers aren’t left to some alternative. They are re-integrated in the fold, even though they may be left on the periphery.

Adam D. Dixon is a senior lecturer in economic geography at the University of Bristol. His research focuses on comparative economic geography, the geography of finance, and the political economy of institutional investors. He is author of The New Geography of Capitalism: Firms, Finance, and Society, co-author with Gordon L. Clark and Ashby H.B. Monk of Sovereign Wealth Funds: Legitimacy, Governance and Global Power (2013, PUP), and co-editor with the same of Managing Financial Risks: From Global to Local (2009, OUP).

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10. World Cup puts spotlight on rights of migrant workers in Qatar

By Susan Kneebone


As recent demonstrations in Brazil around the staging of the FIFA 2014 World Soccer Cup show, major sporting events put the spotlight on human rights issues in host countries. In the case of Qatar the preparations to host the FIFA 2022 World Cup are focussing worldwide attention on the plight of migrant workers. It estimated that the country needs an extra 500,000 migrant workers to build stadiums and other infrastructure such as a metro system in the lead up to the World Cup. But a report by the International Trade Union Commission (ITUC) predicts that 4,000 migrant construction workers will die in Qatar before the start of the game.

As for much of the Gulf States region, Qatar is heavily dependent on migrant workers. It has the highest ratio of migrants to citizens in the world, with migrant workers making up approximately 88 per cent of the whole population. The majority of migrant workers come from South and South-East Asian countries: Bangladesh, India, Indonesia, Nepal, Pakistan, Sri Lanka, and the Philippines. A series of reports has revealed poor working conditions for migrant workers in Qatar particularly in the construction industry and in domestic workplaces and a lack of enforcement of existing protective legal mechanisms.

This situation highlights the global issue of exploitation of low and unskilled temporary migrant workers, also labelled as “foreign workers”. Currently, there are about 232 million migrants globally, of whom it is estimated that 105 million are migrant workers who are displaced by necessity in a labour market which reflects the increasing disparity between rich and poor countries. Unskilled temporary migrant workers are vulnerable because they have no choice but to migrate to work. Such workers are constructed in laws and policies as lacking connection to the host state but rather the responsibility of their home state. They are discriminated in the host state on the basis of their culture and identity, and often regarded as ‘export’ labour at home.

Builders at Work: There are close to one million migrant workers in Qatar, mainly from South Asia. The majority work in construction. Photo by WBUR Boston's NPR News Station. CC BY-NC-ND 2.0 via wbur Flickr.

Builders at Work: There are close to one million migrant workers in Qatar, mainly from South Asia. The majority work in construction. Photo by WBUR Boston’s NPR News Station. CC BY-NC-ND 2.0 via WBUR Flickr.

The Kafala sponsorship system which operates in Qatar is a symptom of such vulnerability. The Kafala system reduces migrant workers to the status of slaves or indentured property in host country. This system is used to regulate the relationship between employers and migrants, with a work permit linked to a single person, who is often the sponsor. The law provides power and authority to sponsors to prevent migrant workers from changing employers and from the leaving Qatar.

As the Special Rapporteur on the human rights of migrants, François Crépeau summaries:

The kafala system enables unscrupulous employers to exploit employees. Frequent cases of abuse against migrants include the confiscation of passports, refusal to give “no objection” certificates (allowing migrants to change employer) or exit permits and refusal to pay migrants’ plane tickets to return home. Some employers do not extend residence permits for their employees, often because of the fees incurred. This leads to migrants ending up in an irregular situation, with no valid identity card, despite the fact that they are regularly employed. [7]

The recruitment process and charging of excessive fees are other critical issues. Recruitment fees are forbidden by Qatari law, but the reports found that many migrant workers had taken out substantial loans to pay the fees in their home countries and were in long-term debt. Contract substitution is also a huge problem, as the terms of contracts signed in the home countries are often different upon arrival in Qatar, usually with a lower salary and different job description. As migrant workers cannot easily change jobs without the sponsor’s approval and often have recruitment loans to repay, they become highly vulnerable to abuse and less likely to report such violations. In many cases, such practices will amount to human trafficking for labour exploitation or forced labour as the Amnesty International Report, “My Sleep is My Break” explains (pp54-60).

The exploitation of “foreign” migrant workers suggests that we have created a new global form of ‘indentured servitude’ or slavery in which others exercise property-like powers or control over individuals. The irony is that the development of individual rights to free and decent working conditions in the nineteenth century ran parallel to the anti-slavery movement. Qatar 2022 offers an opportunity to Qatar to show the global community the need to recognise collective responsibility for migrant workers in a globalised economy, and to put pressure on states and non-state actors to respect the rights of migrant workers.

Dr Susan Kneebone (PhD, MA (Asian Studies), Dip Ed, LLB), is a Professor in the Faculty of Law, Monash University, Australia. She is the author of many articles and book chapters, including author \ editor of the following: Transnational Crime and Human Rights: Responses to Human Trafficking in the Greater Mekong Subregion (Routledge 2012) (co-authored with Julie Debeljak) ; Migrant Workers Between States: In Search of Exit and Integration Strategies in South East Asia 40 (4) Asian Journal of Social Sciences (2012) ; “Transnational Labour Migrants: Whose Responsibility?” in Fiona Jenkins, Mark Nolan and Kim Rubenstein eds, Allegiance and Identity in a Globalised World (Cambridge University Press, 2014 – in press) Chapter 18. Recent publications include: “ASEAN and the Conceptualisation of Refugee protection” in Abass A. and Ippolito, F., et al eds., Regional Approaches to the Protection of Asylum Seekers: An International Legal Perspective (Ashgate 2014) Chapter 13, pp295-324 ; “The Bali Process and Global Refugee Policy in the Asia-Pacific Region” Special Edition of the Journal of Refugee Studies on Global Refugee Policy, 2014.

Interested in learning more about the issues facing migrant workers? Oxford Journals has created a special World Refugee Day virtual issue with a selection of free articles.

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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11. Free speech, reputation, and the Defamation Act 2013

Freedom of expression is a central tenet of almost every modern society. This freedom however often comes into conflict with other rights, and can be misused and exploited. New media – especially on the internet – and new forms of media intrusion bring added complexity to old tensions between the individual’s rights to reputation and privacy on the one hand, and freedom of expression and the freedom of the press on the other.

How should free speech be balanced with the right to reputation? This question lies at the heart of defamation law. In the following videos, Lord Neuberger and Dr Matthew Collins QC discuss current challenges in defamation law, and the implications of recent changes to legislation enacted in the Defamation Act 2013. Lord Neuberger highlights urgent issues including privacy, confidentiality, data protection, freedom of information, and the Internet.

In this video, he draws attention to recent high-profile events such as the Leveson Inquiry and the phone-hacking trials, and points up key features of the new legislation.

Click here to view the embedded video.

Dr Matthew Collins QC outlines his perspective on the likely long-term impact of the 2013 Act.

Click here to view the embedded video.

The Rt Hon the Lord Neuberger of Abbotsbury Kt PC is President of the Supreme Court of the United Court of the United Kingdom. Dr Matthew Collins QC is a barrister based in Melbourne, Australia. He is also 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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12. Veils and the choice of society

By Can Yeginsu and Jessica Elliott


On 1 July 2014, the Grand Chamber of the European Court of Human Rights held that France’s ban on wearing full-face veils in public pursued a legitimate aim because it reflected a “choice of society”. Although the Court found that the blanket prohibition amounted to an interference with the religious rights of the minority in France that wore the full-face veil, it was justified because it protected the rights of others to have the option of facial interaction with that minority. The Court accepted that this right of potential facial interaction forms part of the minimum standards of “living together” in French society and outweighs the right of the minority to express their religious beliefs through wearing a full-face veil.

The result of the decision is that ‘SAS’, the applicant Muslim woman in the case, was held not to have suffered a violation of her religious rights under the European Convention on Human Rights. S.A.S. v France is another recent example of the controversies which can arise in the field of law and religion but its significance goes beyond that: the case has given rise to a full and carefully-reasoned judgment from the Strasbourg Court which revisits and, in places, develops its jurisprudence in this difficult area of the law.

The Decision

Article 9 is the principal protection available for religious freedom under the Convention. When examining a potential Article 9 violation, the Strasbourg Court must establish whether the act complained of – in this case, the ban on the veil – interferes with the applicant’s religious rights. If so, the Court will then consider whether or not that interference is: (1) prescribed by law; (2) pursuant to a legitimate aim; and (3) necessary and proportionate in a democratic society.

In S.A.S, the Court found that the ban was prescribed by French law (the Law No. 2010-1192) and constituted an interference with the applicant’s religious beliefs. The critical issues for the Court were whether or not the blanket prohibition was: (i) in pursuit of a legitimate aim; and, if so, (ii) necessary in a democratic society, that is to say, proportionate.

The second paragraph of Article 9 sets out the only legitimate grounds on which religious rights can be interfered with: public safety, public order, health or morals, or for the protection of the rights and freedoms of others. The Court dismissed the French Government’s arguments based on public safety, and considered the other three arguments put forward – that the veil fell short of the minimum requirements of life in society; that it harmed equality between men and women; and that it was a manifestation of disrespect for human dignity – under the heading of the ‘rights and freedoms of others’. The Court rejected the dignity and gender equality arguments, and focused on whether the requirements of “living together” could be a legitimate aim. The Court found that they could. The core of its reasoning is at §122 of the judgment:

“[The Court] can understand the view that individuals who are present in places open to all may not wish to see practices or attitudes developing in those places which would call into question the possibility of open interpersonal relationships, which, by virtue of an established consensus, forms an indispensable element of community life within the society in question. The Court is therefore able to accept that the barrier raised against others by a veil concealing the face is perceived by the respondent State as breaching the right of others to live in a space of socialisation which makes living together easier.”

The Court’s assessment of proportionality ultimately came down to the fact that the sanctions were, in the Court’s view, light (albeit criminal) and reflected a choice of society. France’s margin of appreciation in this area was such that it could, and should, make this choice without interference from an international court.

The Dissent

The joint partly dissenting opinion of Judges Nussberger and Jäderblom voiced a number of criticisms of the majority approach, of which the following are an important few:

  • The concept of ‘living together’ as a right is ‘far-fetched and vague’.
  • It seems unlikely that the veil itself is at the root of the French ban, rather than the philosophy linked to it. French parliamentary reports revealed that the true concerns are linked to the meaning of the veil: as ‘a form of subservience’, because of its ‘dehumanising violence’, and because of the fact that it represents ‘the self-confinement of any individual who cuts himself off from others whilst living among them’.
  • The opinion of the majority is wrong to ignore an individual’s right to express herself, or her beliefs, in a way that shocks others. The Court’s mandate is to protect expressions of rights which ‘offend, shock and disturb’, as well as those that are favourably received.
A Group of Women Wearing Burkas. Afghanistan women wait outside a USAID-supported health care clinic. Photo by Nitin Madhav (USAID). Public domain via Wikimedia Commons.

A Group of Women Wearing Burkas. Afghanistan women wait outside a USAID-supported health care clinic. Photo by Nitin Madhav (USAID). Public domain via Wikimedia Commons.

The Discussion

Some actions, whether religiously motivated or otherwise, could be so objectively offensive to the operation of society that they require limitation in the name of ‘living together’. However, where the action in question is non-violent and generally without external impact, extreme care must be exercised in establishing why society’s right not to be exposed to an act outweighs the individual’s right to perform it. This is all the more so the case where the action in question is an expression of a religion which, as the judgment acknowledges, can too often be subject to social prejudice.

One of the key difficulties with the opinion of the majority in S.A.S is the extent to which the Strasbourg Court allows ‘society’s choice’ to govern state action where distinctly unpopular rights are threatened. The Convention seeks to establish and to enforce European standards of protection for the rights of every individual. The Convention is an instrument which supports ‘democratic societies’.  This is not in the political sense of allowing the dominant collective voice to decide the fate of all; societies are capable of achieving that without assistance. The Convention should ensure that the voices of all groups and individuals in the society – popular or otherwise – are heard, and afforded proportionate weight where state aims threaten individual rights.

As the partly dissenting opinion points out, Western societies are fearful of what the veil connotes. The grounds of argument rejected by the Court were in all likelihood the more honest ones: there was clear social discomfort about a practice which ran counter to ideas of gender equality and human dignity. The Court rightly discounted such arguments where the applicant could show that wearing the veil was a matter of choice. Absent the issue of force, it is simply a question of whether covering the face is so offensive to others that it outweighs the religious importance of the action. Some may well ask whether or not the S.A.S judgment has explained why the alleged social offence caused is more important than the interference with a right which is at the core of international protection.

The majority judgment is significant also for the arguments that the Court rejected. Gender equality was not accepted as a legitimate aim by the Court. This is a shift. In its previous case law on the Islamic headscarf, the Court had stated that “it appears difficult to reconcile the wearing of an Islamic headscarf with the message of tolerance, respect for others and, above all, equality and non-discrimination”: Dahlab v Switzerland; Leyla Sahin v Turkey. The position has changed:

“a State Party cannot invoke gender equality in order to ban a practice that is defended by women […] in the context of the exercise of rights enshrined in those provisions, unless it were to be understood that individuals could be protected on that basis from the exercise of their own fundamental rights and freedoms” (S.A.S., §119).

Similarly, the Court rejected the State’s public safety argument, finding that in the absence of a general threat to public safety, a blanket ban was a disproportionate interference with the applicant’s Article 9 right. That finding is in contrast to the Court’s earlier decision in Mann Singh v France, when the Court accepted France’s restrictions of religious rights on the grounds of public safety without requiring evidence of the necessity of the restriction.

Although this decision accords with the Court’s general approach to the protection of religious dress under Article 9, it significantly shifts the focus onto the choices of individual societies as legitimate restrictions on religious rights. Much attention was given by the Court to the particular consensus of French society as a counterbalance to the identified right of a religious minority; this could represent a considerable enhancement of the scope of the ‘rights and freedoms of others’ limitation under Article 9(2). It remains to be seen how the Strasbourg Court will define the limits of the democratic choice of Member States in future decisions: this is, and will remain, a difficult and developing area of the law.

Can Yeginsu is a barrister at 4 New Square Chambers in London. He is the co-author (with Sir James Dingemans, Tom Cross and Hafsah Masood) of The Protections for Religious Rights: Law and Practice. Jessica Elliott is a barrister at One Crown Office Row Chambers in London.

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13. Donor behaviour and the future of humanitarian action

By Anne Hammerstad


After a short lull in the late 2000s, global refugee numbers have risen dramatically. In 2013, a daily average of 32,200 people (up from 14,200 in 2011) fled conflict and persecution to seek protection elsewhere, within or outside the borders of their own country. On the current trajectory, 2014 will be even worse. In Syria, targeting of civilians and large-scale destruction have led to 2.5 million (and counting) refugees fleeing the country since 2011. The vast majority shelter in neighbouring Lebanon (856,500), Jordan (641,900), and Turkey (609,300). As I write, hundreds of thousands are fleeing the advancing forces of the Islamic State in Iraq and al-Sham (ISIS) in neighbouring Iraq. And civil wars and ethnic violence have resurged in many parts of Central Africa and the African Horn.

What future for humanitarian action in this dire scenario? This question was raised on the fifth of May by the UN Secretary-General, Ban-Ki Moon, when he launched a programme of global consultations, which will culminate in the first ever World Humanitarian Summit in Istanbul in 2016, poised to “set a new agenda for global humanitarian action”. The UN has raised four sets of challenges, to deliver humanitarian aid more efficiently, effectively, innovatively, and robustly.

The launch of these consultations is timely, but it avoids an important challenge to the future of humanitarian action: the policies of donor governments.

United Nations Geneva

At first glance, this may seem like a strange assertion. After all, although needs continue to surpass the ability to provide, donor funding for humanitarian operations has skyrocketed. From less than US$1 billion in 1989, the global humanitarian budget stood at US$22 billion in 2013. Most of these funds come from a small number of Western donor states. But coupled with this rise in funds comes a donor agenda that risks, even if unintentionally, undermining the humanitarian ideal. This challenge is far from the only one posed to humanitarian action — much worse for the security of humanitarian workers are the terrorist groups that target them, leading to the killing of an estimated 152 aid workers in 2013. But because humanitarian action depends on a moral consensus over its meaning and worth, the current trajectory of donor policies is worrisome.

The humanitarian ideal is based on international solidarity: that outsiders can and should provide aid and protection in a principled, non-partisan, needs-based manner to civilian casualties of war and political violence. This ideal of politically disinterested solidarity with fellow human beings caught up in war and violence, regardless of who or where they are, has always been at some remove from the reality of humanitarian operations, but a consensus has nevertheless existed that it is an ideal worth aspiring to. Recently, though, donor governments have been increasingly open and unapologetic about using humanitarian aid to further their own political or security objectives.

One such objective is to keep immigration down. Since most man-made humanitarian crises have displacement as a core component, one objective of Western donor support of humanitarian aid to refugees is to contain population movement. The vast majority of refugees — people who have fled for their lives across international borders — remain within their near region, in camps or regional cities. Only a small proportion attempt the long journey to Europe, Australia, or North America in hope of jobs and a better future. Western humanitarian donors would prefer that even fewer asylum seekers make it to their own shores, while refugee host states in the Global South would like burden-sharing and solidarity to mean more than monetary charity from the well-off to the poorer.

Containment strategies seem to be working. While refugee numbers are increasing overall, including in industrialized states, the proportion of refugees hosted by developing states has grown over the past ten years from 70 percent to 86 percent. In Lebanon, there are 178 Syrian refugees for every thousand Lebanese inhabitants (in Jordan, the number is 88 per thousand). But efforts by the UN High Commissioner for Refugees (UNHCR) to resettle particularly vulnerable Syrian refugees have had lukewarm responses. This donor attitude of charity from afar coupled with hostility to asylum seekers and unwanted migrants in general, undermines the moral underpinnings of humanitarianism. After all, the Good Samaritan, often put forward as the embodiment of the humanitarian spirit, did not leave a few coins with the battered traveller he found by the wayside. He took him home and nursed him.

Another trend undermining the humanitarian ideal is the increased, and increasingly unapologetic, strategic use of aid to further donors’ own foreign and security policy objectives. There is a clear increase in the past couple of decades in the earmarking of funds and channelling of resources, not necessarily to the neediest of humanitarian victims, but to those deemed more relevant to donor interests. The ‘hearts and minds’ campaigns in Afghanistan and Iraq in the 2000s are the starkest representatives of this trend. As US-led intervention forces aimed to win over local populations by disbursing aid, the overall share of US overseas aid channelled through the US Department of Defense rose from 5.6 percent in 2002 to 21.7 percent in 2005.

These donor trends of openly pursuing domestic, foreign, and security policy goals through humanitarian aid are detrimental to the long-term future of humanitarian action, since they undermine the consensus and the ethical values underpinning the humanitarian ideal. While other challenges also loom, the strategies (and strategizing) of donors should have been included as a core topic of the Global Consultations.

Dr Anne Hammerstad, University of Kent, is author of The Rise and Decline of a Global Security Actor: UNHCR, Refugee Protection and Security. She writes and tweets on refugees, humanitarianism, conflict, and security. You can follow her on Twitter at @annehammerstad.

To learn more about refugees, conflict, and how countries are responding, read the Introduction to The Rise and Decline of a Global Security Actor: UNHCR, Refugee Protection and Security, available via Oxford Scholarship Online. Oxford Scholarship Online (OSO) is a vast and rapidly-expanding research library. Launched in 2003 with four subject modules, Oxford Scholarship Online is now available in 20 subject areas and has grown to be one of the leading academic research resources in the world. Oxford Scholarship Online offers full-text access to academic monographs from key disciplines in the humanities, social sciences, science, medicine, and law, providing quick and easy access to award-winning Oxford University Press scholarship.

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14. Ralph Zacklin: a personal perspective on international law

What does international law truly mean in the world today? For the publication of Malcom Evans’s International Law, Fourth edition, we asked several leading figures that question. Ralph Zacklin, the former UN Assistant Secretary General for Legal Affairs, provides his personal perspective on international in the edited essay below. A full version of his essay can be found on the textbook’s Online Resource Centre, along with five other personal perspectives.

By Ralph Zacklin

I have been privileged to work for almost thirty years as an international lawyer in the United Nations and from this vantage point international law is neither the omnipotent solution to the world’s problems nor is it an illusion that only die-hard pacifists cling to. It is, in fact, for the practitioner a very real and pragmatic discipline. That it may be uncertain, incomplete, and difficult to enforce does not lessen the need for the rule of law on the international plane nor does it mean that the efforts to codify the law and develop its institutions should cease or be diminished.

At the core of contemporary international law is the Charter of the United Nations. It is a tribute to its drafters in the San Francisco Conference that this instrument has retained its essential validity as a set of fundamental principles which have guided the community of States for more than fifty years. It is the basis for the development of much of international law as we know it today in such key areas as human rights, the environment, and the law of the sea and outer space, not to mention the vast array of multilateral treaties in numerous technical, economic, and scientific areas.

International law provides a common legal vocabulary within which States and other actors operate. It provides a framework for conceptions of what is ‘legal’ or ‘right’. For the author personally, the most striking lesson of the last thirty years is not the quantitative qualitative development of international law which has been substantial but the degree to which States have come to accept the existence of international law as a standard that must be observed or by which their actions must be justified.

There is another dimension to international law which is sometimes overlooked in an era of globalization. International law, however inchoate it may be, represents the expectations and claims of substantial segments of humanity. It cannot be dismissed merely because of its perceived weakness. This dimension is of particular relevance to the member States of the United Nations, the overwhelming majority of whom rely on international law-making processes in international forums to weave together the fabric of the rule of law.

This accounts for the persistence of the United Nations in the holding of major conferences or summits––much derided in some quarters––which have produced soft law Declarations on the environment, human rights, advancement of women and a panoply of economic and social rights. These fora move from agenda-setting gradually towards normative outcomes and have undeniably altered the international legal landscape over the past twenty-five years.

Law, whether domestic or international, is by nature a conservative discipline. Its evolution is slow, even laborious. International law is not, nor should it be, viewed as an ideal state in which harmony prevails. Like any other system of law, its rules and institutions mature over time. When one compares the international law of today with that of a mere three decades ago, one cannot but marvel at the advances that have been made both normatively and institutionally. The path of advancement is by no means uneventful but it continues.

I have been fortunate in my own career to have had the opportunity to contribute to significant developments in international law, such as the establishment of ad hoc criminal tribunals for Yugoslavia and Rwanda as well as, more recently, the Special Court in Sierra Leone. Over the years I have provided legal advice which has helped to shape much of the contemporary law of UN peace-keeping and, like many of my colleagues, have rejoiced in the completion of UN mandates which have resulted in the independence of countries such as Namibia and Timor-Leste. There have also been tragic failures in Rwanda, Bosnia, and Somalia.

At the outset of my career I was motivated like many young people of the time by an idealistic determination to make the world a safer and a better place. Over the years my idealism has certainly been tested, but I believe that the role and impact of international law has grown, and it continues to grow.

Ralph Zacklin is the former UN Assistant Secretary General for Legal Affairs. Malcolm Evans is a Professor of Public International Law at the University of Bristol. Malcolm Evans is the editor of International Law, which provides wide-ranging analysis of all the key issues and themes in public international law and brings together an outstanding collection of interesting and diverse writings from the leading scholars in the field.

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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15. Why measurement matters

By Morten Jerven


In most studies of economic growth the downloaded data from international databases is treated as primary evidence, although in fact it is not. The data available from the international series has been obtained from governments and statistical bureaus, and has then been modified to fit the purpose of the data retailer and its customers. These alterations create some problems, and the conclusions of any study that compares economic performance across several countries depend on which source of growth evidence is used.

The international databases provide no proper sources for their data and no data that would enable analysts to understand why the different sources disagree about growth. See, for example, the disagreement in economic growth series reported by the national statistical office, from Penn World Tables, The World Bank, and the Maddison dataset for Tanzania, 1961-2001.

The average annual disagreement between 1961 and 2001 is 6%. It is not evenly distributed; there is serious dissonance regarding growth in Tanzania in the 1980s and 1990s, and how the effects of economic crisis and structural adjustment affected theeconomy depends on which source you consult.

The problem is that growth evidence in the databases covers years for which no official data was available and the series are compiled from national data that use different base years. The only way to deal satisfactorily with inconsistencies in the data and the effects of revisions is to consult the primary source. The official national accounts are the primary sources.

Tanzanian_farmers

The advantage of using the national accounts as published by the statistical offices is that they come with guidelines and commentaries. When the underlying methods or basic data used to assemble the accounts are changed, these changes are reported. The downside of the national accounts evidence is that the data is not readily downloadable. The publications may have to be manually collected, and then the process of data entry and interpretation follows. When such studies of growth are done carefully, it offers reconsiderations of what used to be accepted wisdom of economic growth narratives.

I propose a reconsideration of economic growth in Africa in three respects. First, that the focus has been on average economic growth and that there has been no failure of economic growth. In particular the gains made in the 1960s and 1970s have been neglected.

Secondly, for many countries the decline in economic growth in the 1980s was overstated, as was the improvement in economic growth in the 1990s. The coverage of economic activities in GDP measures is incomplete. In the 1980s many economic activities were increasingly missed in the official records thus the decline in the 1980s was overestimated (resulting from declining coverage) and the increase in the 1990s was overestimated (resulting from increasing coverage).

The third important reconsideration is that there is no clear association between economic growth and orthodox economic policies. This is counter to the mainstream interpretation, and suggests that the importance of sound economic policies has been overstated, and that the importance of the external economic conditions have been understated in the prevailing explanation of African economic performance.

We know less than we would like to think about growth and development in Africa based on the official numbers, and the problem starts with the basic input: information. The fact of the matter is that the great majority of economic transactions whether in the rural agricultural sector and in the medium and small scale urban businesses goes by unrecorded.

This is just not a matter of technical accuracy; the arbitrariness of the quantification process produces observations with very large errors and levels of uncertainty. This ‘numbers game’ has taken on a dangerously misleading air of accuracy, and international development actors use the resulting figures to make critical decisions that allocate scarce resources. Governments are not able to make informed decisions because existing data is too weak or the data they need does not exist; scholars are making judgments based on erroneous statistics.

Since the 1990s, in the study of economics, the distance between the observed and the observer is increasing. When international datasets on macroeconomic variables became available, such as the Penn World Tables, and the workhorse of study of economic growth became the cross-country growth regressions the trend turned away from carefully considered country case studies and then rather towards large country studies interested in average effects.

However, the danger of such studies is that it does not ask the right kind of questions of the evidence. As an economic historian, I approach the GDP evidence with the normal questions in source criticism: How good is this observation? Who made this observation? And under what circumstance was this observation made?

Morten Jerven is an economic historian and holds a PhD from the London School of Economics. Since 2009, he has been Assistant Professor at the School for International Studies at Simon Fraser University. He is author of Economic Growth and Measurement Reconsidered in Botswana, Kenya, Tanzania, and Zambia, 1965-1995 and has published widely on African economic development, and particularly on patterns of economic growth and economic development statistics.

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Image credit: Tanzanian farmers, by Fanny Schertzer. CC-BY-2.5 S.A via Wikimedia Commons.

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16. What are the most important issues in international criminal justice today?

While human history is not without crime and slaughter, it is only in the twentieth century, especially following the Nuremberg and Tokyo trials, that people sought justice in the name of all humanity. To mark the World Day for International Justice we invited our authors and editors to answer the question: What do you consider to be the most important issue in international criminal justice today?

“The impression that international justice is a tool of powerful States directed against smaller, weaker, poorer, and more isolated countries and peoples is the greatest challenge to international criminal justice today. Some of these large, powerful nations are themselves guilty of terrible abuses that go unpunished. For example, the United States enthusiastically joins in efforts to prosecute Hissène Habré in Senegal under the Torture Convention, yet its administration has promised impunity to American leaders and military officials responsible for torture at Abu Ghraib, Guantanamo, and elsewhere. Until international justice satisfactorily addresses this double standard, there will be little satisfaction in more trials of the likes of Taylor, Lubanga, and Mladić. For this reason, the most inspiring development of the past year was the decision of the Prosecutor of the International Criminal Court to undertake a preliminary examination of the conduct of British forces in Iraq.”
William Schabas, Professor of International Law, University of Middlesex, and author of Unimaginable Atrocities: Justice, Politics, and Rights at the War Crimes Tribunals (2014)

“In my view, it is time to begin to question whether the International Criminal Court will ever play a major role in the fight against impunity. This is not an issue of bad management, poor decision-making, or anything else epiphenomenal and potentially fixable. Instead, it’s a question of institutional design: it is simply unclear whether the Court, by aiming to keep watch over both the victors and the vanquished, will ever be able to muster the kind of international support – from states, and most importantly from the Security Council – that it needs to conduct credible investigations and prosecutions. There is reason for scepticism, given the Court’s inability to prosecute both rebels and government officials in even one conflict. Indeed, it’s difficult to avoid wondering: for all its flaws, is victor’s justice the only international criminal justice possible? Is selectivity an inherent part of an international criminal tribunal that works?”
Kevin Jon Heller, Professor of Criminal Law, SOAS, University of London, and author of The Hidden Histories of War Crimes Trials (2013)

International Criminal Court (ICC) Haagse Arc. Photo by ekenitr. CC BY-NC 2.0 via 46774986@N02 Flickr.

International Criminal Court (ICC) Haagse Arc. Photo by ekenitr. CC BY-NC 2.0 via 46774986@N02 Flickr.

“States need to overcome their alienation from international criminal justice. After the euphoria that allowed for the ‘Pinochet Saga’ to happen and led to the establishment of the International Criminal Court, states’ priorities, unfortunately, seem to have shifted – hardly surprising in times of financial crisis or mass surveillance. However, states still are and will ever be the backbone of the international criminal justice system – and this explicitly includes the so-called ‘third’ or ‘bystander’ states acting on the basis of universal jurisdiction. It’s in particular their role within the international criminal justice system that needs to be redefined by determining the parameters for complementarity and subsidiarity.”
Julia Geneuss, Dr. iur., LL.M. (NYU), Senior Research Fellow and Lecturer at the University of Hamburg, and member of the Editorial Committee of the Journal of International Criminal Justice

“International criminal law has long chased the dream of permanence. Its foundations at Versailles and Nuremberg and its revival in the 1990s were acts of ad hockery, and in those contingent acts the failings of justice ad et post hoc were apparent; a permanent court, we though, might fix them. We have now had a decade and more of permanence, and with it a severe testing of that hope. Courts for Sierra Leone and Lebanon, and calls for more (like David Scheffer’s recent proposal for a third-party court for Syria), show that ad hoc, hybrid incentives did not disappear with the Rome Statute. The challenges to ICC jurisdiction in Kenya and Libya – and the increasingly assertive objections of African leaders – have exposed the illusion that we have devised a unitary, homogenous justice system suited to the varied needs of a notional international community. Global justice is ad hoc – permanently so.”
Timothy William Waters, Professor of Law at Indiana University Maurer School of Law, and editor and co-author of The Milosevic Trial: An Autopsy (2014)

“Over past decades, international criminal justice has produced diverse political and social effects in the countries and communities where it intervened, either directly through investigations and trials or indirectly through the threat of investigations. But the international system is still at the beginning of a new era of interaction between domestic and international justice. International interventions remain contested because they are removed from broader socio-political concerns that are at the heart of societal priorities in conflict and post-conflict settings. Fundamental dimensions, such as the process of internalizing international concepts in the domestic realm, and most fundamentally, the ‘translation’ of justice into local concepts, language, or culture remain underdeveloped. There is need for a better nexus between three core dimensions in justice strategies: ‘institutional response’, ‘translation’, and domestic ‘reception’. Criticisms relating to selectivity, Western agendas or implicit biases of international justice are too easily discarded by quantitative justifications (e.g., gravity calculations), resource problems or formal notions of consent. This has created a push for new initiatives and responses at the domestic and regional level (e.g., criminal jurisdiction of the African Court on Human and Peoples’ Rights). International justice remains vital but needs to be re-thought. Core challenges include: (i) the need to devise accountability goals and models more carefully in light of their impact on local interests and realities of conflict, (ii) greater care in assessing the practicability and possibility of burden-sharing with domestic institutions, (iii) greater sensitivity to the empowering and disempowering effects of ICC intervention in situation countries, and (iv) the need for a better nexus between justice intervention and development strategies.”
Carsten Stahn, Professor of International Criminal Law and Global Justice, Leiden University, and Editor of The Law and Practice of the International Criminal Court (2015), and Jus Post Bellum: Mapping the Normative Foundations (2014)

“The central issue confronting international criminal justice today is: at what level of governance should issues of global justice be decided? This question is confronted by the International Criminal Court but also more broadly as a global matter where there are evolving norms of universality which mean that serious crimes can be prosecuted in a number of jurisdictions, domestic, i.e. where the crime may have occurred but also in other countries where there are other ties, such as the nationality of victims, etc., or another nexus.

“The principle of ‘complementarity’ is appealing because it offers guidance in the general rule of the priority of the local, where the international plays a gap-filling role; namely in the language of the Rome treaty, contemplating international intervention only where the relevant state ‘is unwilling and unable’, i.e. where capacity to apply justice is unavailable and/or no will exists. In the words of the Rome Treaty Preamble, its aegis ‘shall be complementary to national criminal jurisdictions’, which is defined later on to mean that cases would be inadmissible internationally ‘unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.’

“But the simplicity of the rule as stated belies the complexity of the normative question. Hence, recent illustrations raised by, for example, the referral of the Libya situation and case of Saif Quaddafi shows us that willingness without capacity for a fair trial can result in risking an international imprimatur on sham or show trials; and by contrast in the case of ICC prosecutions relating to Kenya’s post election violence, where capacity exists, without related willingness, in light of regime change, may well require dynamic evaluation of the timing of international judicial intervention. So long as there are no ongoing human rights violations.

“When it comes to global justice, what makes for institutional legitimacy may well be a relative matter, requiring a nuanced analysis in both law and politics.”
Ruti G. Teitel, Ernst C. Stiefel Professor of Comparative Law, New York Law School, Visiting Fellow, London School of Economics, and author of Globalizing Transitional Justice: Contemporary Essays (2014), Humanity’s Law (Hardback 2011; Paperback 2013), and Transitional Justice (Hardback 2000; Paperback 2002)

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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17. Hobby Lobby and the First Amendment

By Richard H. Weisberg


The recent Hobby Lobby decision, which ruled that corporations with certain religious beliefs were no longer required to provide insurance that covers contraception for their female employees — as mandated by Obamacare — hinged on a curious piece of legislation from 1993. In a law that was unanimously passed by Congress and signed by President Clinton, the Religious Freedom Restoration Act (RFRA) stated that “Government shall not substantially burden a person’s exercise of religion.” The intention of RFRA was to offer an opportunity for religious people to challenge ordinary laws, state or federal, that had some adverse impact on their faith. The RFRA was a direct response to a case three years earlier, when the Supreme Court decided that laws that applied to everybody were acceptable even if they burdened a religious community. RFRA was Congress’ scream of protest to the Supreme Court’s jurisprudence.

By passing the RFRA in 1993, Congress was trying to steal the Supreme Court’s thunder. It was not fixing physical infrastructures; it was fixing a fellow branch of government. It was not over-ruling what it considered to be a faulty judicial reading of its own statutes; it was changing an interpretation of the Constitution itself. But isn’t the Court, for better or worse, the ultimate authority on the First Amendment? Didn’t the principle of separation of powers prevent the legislative branch from amending, by mere majority vote within its own chambers, the Constitution as understood by the justices at any given time?

Ruth Bader Ginsburg, US Supreme Court Justice. Collection of the Supreme Court of the United States. Photographer: Steve Petteway. Public Domain via Wikimedia Commons.

Indeed, the Supreme Court went on to strike down RFRA in 1997, but only in part. It ruled that the states were not covered by RFRA’s change, but that the federal government was. This provided the opening for the Hobby Lobby decision, where several for-profit closely held corporations sought to defeat a federal regulation about contraception that applied generally to businesses, but offended their own belief systems.

Most discussion of Hobby Lobby, including even Justice Ginsburg’s dissent, has flexibly adapted to the idea that RFRA is constitutional, despite its extraordinary usurpation of judicial power. Her dissent correctly points out that her colleagues in the majority go even further than Congress in permitting religious belief to trump democratically passed legislation. Yes: the majority went much too far in holding that a corporation can “believe” anything or that free exercise rights are violated even when the central beliefs or practices of the religious are not directly implicated; but far worse was its acceptance, without discussion, of Congress’s power grab under RFRA. And the dissents doubled down on that departure from firm and fine traditions we call separation of powers.

Two examples of flexibility, however otherwise opposed, do not add up to the uncompromising defense of our Constitution needed at all times and perhaps especially now. The Supreme Court needed intransigently to re-assert its own power as a separate branch of government. Hobby Lobby’s attempt to veto part of Obamacare that offended its “corporate faith” would and should have been shut down immediately. Our Constitutional system of checks and balances required a clear statement. The Court, on both sides of Hobby Lobby, gave us the ambiguities that muddy the waters when compromise replaces principle.

Richard H. Weisberg, professor of Constitutional Law at Cardozo Law School, is the author of In Praise of Intransigence: The Perils of Flexibility.

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18. What is the Islamic state and its prospects?

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The What Everyone Needs to Know (WENTK) series offers a balanced and authoritative primer on complex current event issues and countries. Written by leading authorities in their given fields, in a concise question-and-answer format, inquiring minds soon learn essential knowledge to engage with the issues that matter today. Starting this July, OUPblog will publish a WENTK blog post monthly.

By James Gelvin


ISIS—now just the “Islamic State” (IS)–is the latest incarnation of the jihadi movement in Iraq. The first incarnation of that movement, Tawhid wal-Jihad, was founded in 2003-4 by Abu Musab al-Zarqawi. Al-Zarqawi was not an Iraqi: as his name denotes, he came from Zarqa in Jordan. He was responsible for establishing a group affiliated with al-Qaeda in response to the American invasion of Iraq. Over time, this particular group began to evolve as it took on alliances with other jihadi groups, with non-jihadi groups, and as it separated from groups with which it had been aligned. Tawhid wal-Jihad thus evolved into al-Qaeda in Iraq, which had strained relations with “al-Qaeda central.” These strains were caused by the same factors that have created strains between IS and al-Qaeda central. Zarqawi had adopted the tactic of sparking a sectarian war in Iraq by blowing up the Golden Mosque in Samarra, thus instigating Shi’i retaliations against Iraq’s Sunni community, which, in turn, would get mobilized, radicalized, and strike back, joining al-Qaeda’s jihad

What this demonstrates is a long term problem al-Qaeda central has had with its affiliates. Al-Qaeda has always been extraordinarily weak on organization and extraordinarily strong on ideology, which is the glue that holds the organization together.

The ideology of al-Qaeda can be broken down into two parts: First, the Islamic world is at war with a transnational Crusader-Zionist alliance and it is that alliance–the “far enemy”–and not the individual despots who rule the Muslim world–the “near enemy”–which is Islam’s true enemy and which should be the target of al-Qaeda’s jihad. Second, al-Qaeda believes that the state system that has been imposed on the Muslim world was part of a conspiracy hatched by the Crusader-Zionist alliance to keep the Muslim world weak and divided. Therefore, state boundaries are to be ignored.

These two points, then, are the foundation for the al-Qaeda philosophy. It is the philosophy in which Zarqawi believed and it is also the philosophy in which the current head of IS, Abu Bakr al-Baghdadi, believes as well.

Islamic states (dark green), states where Islam is the official religion (light green), secular states (blue) and other (orange), among countries with Muslim majority. CC BY-SA 3.0 via Wikimedia Commons.

Islamic states (dark green), states where Islam is the official religion (light green), secular states (blue) and other (orange), among countries with Muslim majority. CC BY-SA 3.0 via Wikimedia Commons.

We don’t know much about al-Baghdadi. We know his name is a lie–he was not born in Baghdad, as his name denotes, but rather in Samarra. We know he was born in 1971 and has some sort of degree from Baghdad University. We also know he was imprisoned by the Americans in Camp Bucca in Iraq. It may have been there that he was radicalized, or perhaps upon making the acquaintance of al-Zarqawi.

Over time, al-Qaeda in Iraq evolved into the Islamic State of Iraq which, in turn, evolved into the Islamic State of Iraq and Syria. This took place in 2012 when Baghdadi claimed that an already existing al-Qaeda affiliate in Syria, Jabhat al-Nusra, was, in fact, part of his organization. This was unacceptable to the head of Jabhat al-Nusra, Abu Muhammad al-Jawlani. Al-Jawlani took the dispute to Ayman al-Zawahiri who ruled in his favor. Zawahiri declared Jabhat al-Nusra to be the true al-Qaeda affiliate in Syria, ordered al-Baghdadi to return to Iraq, and when al-Baghdadi refused al-Zawahiri severed ties with him and his organization.

There is a certain irony in this, inasmuch as Jabhat al-Nusra does not adhere to the al-Qaeda ideology, which is the only thing that holds the organization together. On the other hand, IS, for the most part does, although al-Qaeda purists believe al-Baghdadi jumped the gun when he declared a caliphate in Syria and Iraq with himself as caliph—a move that is as likely to split the al-Qaeda/jihadi movement as it is to unify it under a single leader. Whereas al-Baghdadi believes there should be no national boundaries dividing Syria and Iraq, al-Jawlani restricts his group’s activities to Syria. Whereas the goals of al-Baghdadi (and al-Qaeda) are much broader than bringing down an individual despot, Jabhat al-Nusra’s goal is the removal of Bashar al-Assad. And whereas al-Baghdadi (and al-Qaeda) believe in a strict, salafist interpretation of Islamic law, Jabhat al-Nusra has taken a much more temperate position in the territories it controls. The enforcement of a strict interpretation of Islamic law–from the veiling of women to the prohibition of alcohol and cigarettes to the use of hudud punishments and even crucifixions—has made IS extremely unpopular wherever it has established itself in Syria.

The recent strategy of IS has been to reestablish a caliphate, starting with the (oil-rich) territory stretching from Raqqa to as far south in Iraq as they can go. This is a strategy evolved out of al-Qaeda first articulated by Abu Musab al-Suri. For al-Suri (who believed 9/11 was a mistake), al-Qaeda’s next step was to create “emirates” in un-policed frontier areas of the Muslim world from which an al-Qaeda affiliate might “vex and exhaust” the enemy. For al-Qaeda, this would be the intermediate step that will eventually lead to a unification of the entire Muslim world. What would happen next was never made clear—Al-Qaeda has always been more definitive about what it is against rather than what it is for.

IS has demonstrated in the recent period that it is capable of dramatic military moves, particularly when it is assisted by professional military officers, such as the former Baathist officers who planned the attack on Mosul. This represents a potential problem for IS: After all, the jailors are unlikely to remain in a coalition with those they jailed after they accomplish an immediate goal. But this is not the limit of IS’s problems. Mao Zedong once wrote that in order to have an effective guerrilla organization you have to “swim like the fish in the sea”–in other words, you have to make yourself popular with the local inhabitants of an area who you wish to control and who are necessary to feed and protect you. Wherever it has taken over, IS has proved itself to be extraordinarily unpopular. The only reason IS was able to move as rapidly as it did was because the Iraqi army simply melted away rather than risking their lives for the immensely unpopular government of Nouri al-Maliki.

However it scored its victory, it should be remembered that taking territory is very different from holding territory. It should also be remembered that by taking and attempting to hold territory in Iraq, ISIS has concentrated itself and set itself up as a target.

IS has other problems as well. It is fighting on multiple fronts. In Syria, it is battling most of the rest of the opposition movement. It is also a surprisingly small organization–8,000-10,000 fighters (although recent victories might enable it to attract new recruits). The Americans used 80,000 troops in its initial invasion of Iraq in 2003 and was still unable to control the country. In addition, we should not forget the ease with which the French ousted similar groups from Timbuktu and other areas in northern Mali last year. As battle-hardened as the press claims them to be, groups like IS are no match for a professional army.

Portions of this article ran in a translated interview on Tasnim News.

James L. Gelvin is a Professor of History at the University of California, Los Angeles. He is the author of The Arab Uprisings: What Everyone Needs to Know, The Modern Middle East: A History and The Israel-Palestine Conflict: One Hundred Years of War.

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19. For social good, for political interest: the case of Edward Snowden

By M. Cherif Bassiouni


When Edward Snowden obtained documents as an employee of Booz Allen Hamilton and made them public, the information disclosed was covered by secrecy under US law. That obligation was part of his employment contract, and such disclosure constituted a crime.

Edward SnowdenHe first disclosed this material to Glenn Greenwald of The Guardian in early June of 2013. On 14 June, the Department of Justice filed a complaint against Snowden, charging him with unauthorized disclosure of national defense information under the 1917 Espionage Act, unauthorized disclosure of classified communication intelligence, and theft of government property.

Snowden made these disclosures while in Hong Kong, and it is reported that the United States sought his extradition pursuant to the treaty it has with Hong Kong, which contains a provision for the exclusion of political offenses. This brings into question the nature of Snowden’s offence.

The Snowden case is inherently simple, and comes down to whether Snowden’s actions were politically motivated or based on social interest. There was no harm to human life, and there was no general social harm. On the contrary, it revealed abuses of secret practices that violate the constitutional right of privacy. Harm to the “national security” is not only subjective but it is also dependent upon who decides what is and what is not part of “national security.”

When it comes to extradition, both the nature of the crime and the motive of the requesting state are taken into account. If the crime for which the person is requested is of a political nature and there is no human or social harm, extradition may be denied on the grounds that it is a purely political offense. This theory is extended to what is called the “relative political offense exception,” when, as incidental to a “purely political offense exception” an unintended social harm results. For example, if someone exercises freedom of speech by speaking loudly in the middle of a square and is charged with disturbing the peace, flees the country, and is sought for extradition, that is a purely political offense exception. If, in the course of fleeing the park they accidentally knock over an aged person who is injured and the state charges him with assault and battery, which would be a relative political offense exception. But the fact that Snowden himself maintains that he did not make public any information that could put intelligence officers in harm’s way, or reveal sources to foreign rivals of the United States means that under extradition law, his case is purely political.

Almost all states allow for the purely political offense exception to apply. Those that do not, bypass the exception for political reasons. This explains why Snowden went to Russia, though the UK would have found it difficult to extradite him too. It helps to look back to the case of Julian Assange, who was sought by the United States when in the UK. When the UK could not extradite Assange because of the purely political offense exception doctrine, the United States had Sweden seek his extradition from the UK for what was a criminal investigation into a common crime (sexual assault). This is what led Assange to seek refuge in the Ecuadorian embassy.

The fact that the purely political offence exception doctrine arose with respect to the Snowden case, assuming it would be the subject of extradition proceedings, is curious to say the least. Would a government official of, say, the Comoros Islands be the subject of similar international attention for the disclosure of some secret skullduggery that the government had classified as top secret? The answer is of course no. What makes this case a cause célèbre is that it has to do with the United States, because it embarrasses the United States, and because it reveals that the government of the United States and at least one of its most important agencies (the NSA) has engaged in violations of the Constitution and laws on the protection of individual privacy. It has shown abuses of the powers by the executive branch to obtain information from private sector companies, which would not be otherwise obtainable without a proper court order. This of course is what makes the Snowden case so extraordinary since it is about a US citizen doing what he believed was right to better serve his country and whose very government was violating its constitution and laws.

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: Screenshot of Edward Snowden by Laura Poitras/Praxis Films. CC-BY-3.0 via Wikimedia Commons.

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20. The danger of ideology

economic policy with richard grossman

By Richard S. Grossman


What do the Irish famine and the euro crisis have in common?

The famine, which afflicted Ireland during 1845-1852, was a humanitarian tragedy of massive proportions. It left roughly one million people—or about 12 percent of Ireland’s population—dead and led an even larger number to emigrate.

The euro crisis, which erupted during the autumn of 2009, has resulted in a virtual standstill in economic growth throughout the Eurozone in the years since then. The crisis has resulted in widespread discontent in countries undergoing severe austerity and in those where taxpayers feel burdened by the fiscal irresponsibility of their Eurozone partners.

413px-Irish_potato_famine_Bridget_O'Donnel

Despite these widely differing circumstances, these crises have an important element in common: both were caused by economic policies that were motivated by ideology rather than cold hard economic analysis.

The Irish famine came about when the infestation of a fungus, Phythophthora infestans, led to the decimation of the potato crop. Because the Irish relied so heavily on potatoes for food, this had a devastating effect on the population.

At the time of the famine, Ireland was part of the United Kingdom. Britain’s Conservative government of the time, led by Prime Minister Sir Robert Peel, swiftly undertook several measures aimed at alleviating the crisis, including arranging a large shipment of grain from the United States in order to offer temporary relief to those starving in Ireland.

More importantly, Peel engineered a repeal of the Corn Laws, a set of tariffs that kept grain prices high. Because the Corn Laws benefitted Britain’s landed aristocracy—an important constituency of the Conservative Party, Peel soon lost his job and was replaced as prime minister by the Liberal Party’s Lord John Russell.

Russell and his Liberal Party colleagues were committed to an ideology that opposed any and all government intervention in markets. Although the Liberals had supported the repeal of the Corn Laws, they opposed any other measures that might have alleviated the crisis. Writing of Peel’s decision to import grain, Russell wrote: “It must be thoroughly understood that we cannot feed the people. It was a cruel delusion to pretend to do so.”

495px-Sir_robert_peel

Contemporaries and historians have judged Russell’s blind adherence to economic orthodoxy harshly. One of the many coroner’s inquests that followed a famine death recommended that a charge of willful murder be brought against Russell for his refusal to intervene in the famine.

The euro was similarly the result of an ideologically based policy that was not supported by economic analysis.

In the aftermath of two world wars, many statesmen called for closer political and economic ties within Europe, including Winston Churchill, French premiers Edouard Herriot and Aristide Briand, and German statesmen Gustav Stresemann and Konrad Adenauer.

The post-World War II response to this desire for greater European unity was the European Coal and Steel Community, the European Economic Community, and eventually, the European Union each of which brought increasingly closer economic ties between member countries.

By the 1990s, European leaders had decided that the time was right for a monetary union and, with the Treaty of Maastricht (1993), committed themselves to the establishment of the euro by the end of the decade.

The leap from greater trade and commercial integration to a monetary union was based on ideological, rather than economic reasoning. Economists warned that Europe did not constitute an “optimal currency area,” suggesting that such a currency union would not be successful. The late German-American economist Rüdiger Dornbusch classified American economists as falling into one of three camps when it came to the euro: “It can’t happen. It’s a bad idea. It won’t last.”

The historical experience also suggested that monetary unions that precede political unions, such as the Latin Monetary Union (1865-1927) and the Scandinavian Monetary Union (1873-1914), were bound to fail, while those that came after political union, such as those in the United States in 18th century, Germany and Italy in the 19th century, and Germany in the 20th century were more likely to succeed. The various European Monetary System arrangements in the 1970s, none of which lasted very long, also provided evidence that European monetary unification was not likely to be smooth.

Concluding that it was a mistake to adopt the euro in the 1990s is, of course, not the same thing as recommending that the euro should be abandoned in 2014. German taxpayers have every reason to resent the cost of supporting their economically weaker—and frequently financially irresponsible—neighbors. However, Germany’s prosperity rests in large measure on its position as Europe’s most prolific exporter. Should Germany find itself outside the euro-zone, using a new, more expensive German mark, German prosperity would be endangered.

What we can say about the response to the Irish Famine and the decision to adopt the euro is that they were made for ideological, rather than economic reasons. These—and other episodes during the last 200 years—show that economic policy should never be made on the basis of economic ideology, but only on the basis of cold, hard economic analysis.

Richard S. Grossman is a Professor of economics at Wesleyan University in Connecticut, USA and a visiting scholar at Harvard University’s Institute for Quantitative Social Science. His most recent book is WRONG: Nine Economic Policy Disasters and What We Can Learn from Them. 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) Irish potato famine, Bridget O’Donnel. Public domain via Wikimedia Commons. (2) Sir Robert Peel, portrait. Public domain via Wikimedia Commons.

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21. What test should the family courts use to resolve pet custody disputes?

By Deborah Rook


This is my dog Charlie. Like many pet owners in England and Wales I see my dog as a member of my family. He shares the ups and downs of my family life and is always there for me. But what many people don’t realise is that Charlie, like all pets, is a legal ‘thing’. He falls into the same category as my sofa. The law distinguishes between legal persons and legal things and Charlie is a legal thing and is therefore owned as personal property. If my husband and I divorce and both want to keep Charlie, our dispute over where Charlie will live would come within the financial provision proceedings in the family courts. What approach will the family courts take to resolve this dispute? It is likely that the courts will adopt a property law test and give Charlie to the person who has a better claim to the property title. This can be evidenced by whose name appears on the adoption certificate from the local dogs home or who pays the food and veterinary bills. Applying a property test could mean that if my husband had a better property claim, Charlie would live with him even if Charlie is at risk of being mistreated or neglected.

Charlie the dog. Photo courtesy of Deborah Rook

Charlie the dog. Photo courtesy of Deborah Rook

Property versus welfare

Case law from the United States shows that two distinct tests have emerged to resolving pet custody disputes: firstly, the application of pure property law principles as discussed above; and secondly, the application of a ‘best interests of the animal’ test which has similarities to the ‘best interests of the child’ test used in many countries to determine the residency of children in disputes between parents. On the whole, the courts in the United States have used the property law test and rejected the ‘best interest of the animal’ test. However, in a growing number of cases the courts have been reluctant to rely solely on property law principles. For example, there are cases where one party is given ownership of the dog, having a better claim to title, but the other is awarded visitation rights to allow them to visit. There is no other type of property for which an award of visitation rights has been given. In another case the dog was given to the husband even though the wife had a better claim to title on the basis that the dog was at risk of severe injury from other dogs living at the wife’s new home.

Pets as sentient and living property

What the US cases show is that there is a willingness on the part of the courts to recognise the unique nature of this property as living and sentient. A sentient being has the ability to experience pleasure and pain. I use the terminology ‘pet custody disputes’ as opposed to ‘pet ownership disputes’ because it better acknowledges the nature of pets as living and sentient property. There are important consequences that flow from this recognition. Firstly, as a sentient being this type of property has ‘interests’, for example, the interest in not being treated cruelly. In child law, the interest in avoiding physical injury is so fundamental that in any question concerning the residency of a child this interest will prevail and a child will never be knowingly placed with a parent that poses a danger to the child. A pet is capable of suffering pain and has a similar relationship of dependence and vulnerability with its owners to that which a child has with its parents. Society has deemed the interest a pet has in avoiding unnecessary suffering as so important as to be worthy of legislation to criminalise the act of cruelty. There is a strong case for arguing that this interest in avoiding physical harm should be taken into account when deciding the residency of a family pet and should take precedence, where appropriate, over the right of an owner to possession of their property. This would be a small, but significant, step to recognising the status of pets at law: property but a unique type of property that requires special treatment. Secondly, strong emotional bonds can develop between the property and its owner. It is the irreplaceability of this special relationship that means that the dispute can’t be resolved by simply buying another pet of the same breed and type. This special relationship should be a relevant consideration in resolving the future residency of the pet and in some cases may prevail over pure property law considerations.

I argue that the unique nature of this property — the fact that it has an interest in not suffering pain and the fact that it has an ability to form special relationships — requires the adoption of a test unique to pet custody disputes: one that fits within the existing property category but nevertheless recognises the special nature of this living and sentient property and consequently permits consideration of factors that do not normally apply to other types of property in family law disputes.

Deborah Rook is a Principal lecturer in Law at the School of Law, Northumbria University and specialises in animal law. She is the author of ‘Who Gets Charlie? The Emergence of Pet Custody Disputes in Family Law: Adapting Theoretical Tools from Child Law’ (available to read for free for a limited time) in the International Journal of Law, Policy and the Family.

The subject matter of the International Journal of Law, Policy and the Family comprises the following: analyses of the law relating to the family which carry an interest beyond the jurisdiction dealt with, or which are of a comparative nature; theoretical analyses of family law; sociological literature concerning the family and legal policy; social policy literature of special interest to law and the family; and literature in related disciplines (medicine, psychology, demography) of special relevance to family law and research findings in the above areas.

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22. The unseen cost of policing in austerity

By Megan O’Neill


It will not come as news to say that the public police are working under challenging conditions. Since the coalition government came to power in 2010, there have been wide-ranging and deep cuts to the funding of public services, the police included. This was the institution which once enjoyed a privileged position as the “go-to” service for political parties to improve themselves in the eyes of the electorate by being “tough on crime” through ever increasing police numbers. Numbers of police officers and staff rose year on year from 2000 to 2010, an increase of 13.7%. All that has now changed, and the most recent statistics show that the police service has now reduced in size by 11%, and is roughly equivalent to where it was in 2001. While police officers themselves cannot be made redundant, vacant positions are not being filled when officers leave or retire. Police and Community Support Officers (PCSOs) can be made redundant, and this has happened in a few areas, as well as vacancies not being filled. What does this mean for being “tough on crime”?

Well, to be honest, not much on face value. As any good first year Criminology student should be able to tell you, the overall crime rate has been falling more or less steadily since 1995. This drop in crime started before police numbers rose, and occurred in other countries as well where police numbers may not have changed to the degree they did in England and Wales. The cause for the drop in crime is the subject of much debate, and will not be pursued in depth here. However, what is clear is that the sheer number of police officers in a police force does not have a direct link with the amount of crime that area experiences. What is more important is what is done with those officers, and this is where my concern with the current state of policing lies.

UK police vehicles

While the last Labour government regularly pumped up the number of officers to redress their image of being soft on crime, they also made two significant changes to policing practice. One was the introduction of PCSOs in 2002 and the other was the national roll-out of Neighbourhood Policing in 2008. While both may have been derided in the beginning as being more for show than of any real substance, I feel both have made significant changes in the relationship of the police to many local areas and with this has come a reorientation to the police occupational culture itself. Research I have conducted on partnership work and PCSOs suggests that these changes have made some sections of the police more open to working with those outside of their organisation, has enhanced the commitment the police have to crime prevention and long-term problem solving, and has led to better information sharing and relationships between the police and local residents.

To be clear – I am not arguing that all is fine and well in policing. However, the situation we have now is far better than what was the case in the 1980s and 1990s. Rather than “community policing” referring to police officers in panda cars whizzing through residential areas, going from job to job, we now have officers and staff who walk their beats, get to know many of the people and places within it and have the time to attend to the “small stuff”. By this I mean the anti-social, low-level crimes and incivilities which may not set performance targets on fire, but which mean a great deal to the daily lives of thousands of people. Officers, usually PCSOs, can take the time to find out about these concerns and either address the matter themselves or find the most appropriate partner agency to do so (the staff of which they know by name and often have their numbers programmed into their mobile phones). In return, residents start to build trust in their local neighbourhood team, which may develop over time into information sharing of interest to constables and detectives.

However, all this is now in danger of being eroded. The budget cuts mean that the officers and staff who remain in neighbourhood teams have much heavier workloads, including the PCSOs. It is far more difficult now to attend to the “small stuff” and to conduct visible patrols. Partner agencies are also facing severe budget cuts and this will impact on their ability to work collaboratively with the police as they have fewer resources to share. This means that the police lose opportunities to make connections in their local communities and build valuable social capital. Residents are not getting the attention they desire from their local police and so will have fewer reasons to trust them. In addition to these losses to police practice and community relationships is a much less visible but no less significant loss – the reorientation of the police occupational culture. Police officers became more open to working with partners, PCSOs, residents and to consider long-term problem solving once they had experienced the benefits of doing so. Many of the traditional hostilities towards the “other” were reducing noticeably among the neighbourhood officers with whom I have conducted research. This widening of the police world view will, I fear, also be lost in the current budget structures. This is not a savings for policing – it is a very high cost indeed.

Dr Megan O’Neill is the Chair of the British Society of Criminology Policing Network, and a lecturer at the Scottish Institute of Policing Research, University of Dundee. She is the author of “Ripe for the Chop or the Public Face of Policing? PCSOs and Neighbourhood Policing in Austerity” (available to read for free for a limited time) in Policing.

The full article will be available this June in Policing, A Journal of Policy and Practice, volume 8.3. This peer-reviewed journal contains critical analysis and commentary on a wide range of topics including current law enforcement policies, police reform, political and legal developments, training and education, patrol and investigative operations, accountability, comparative police practices, and human and civil rights

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Image credit: UK police vehicles at the scene of a public disturbance. © jeffdalt via iStockphoto.

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23. Five important facts about honor killings

‘Honor killings’ consistently make the headlines, from a Brooklyn cab driver convicted of conspiracy to a recent decapitation in Pakistan. However, it’s become increasingly difficult to sort fact from fiction in these cases. We asked Rosemary Gartner and Bill McCarthy, editors of The Oxford Handbook on Gender, Sex, and Crime, to pull together an essential grounding for this muddled subject matter. Here they’ve adapted some information from “Honor Killings” by Dietrich Oberwittler and Julia Kasselt (Chapter 33).

(1)   Honor killings are an extreme form of gendered domestic violence. Most involve young, single female victims and an assailant who is a male relative; however, they also include some types of intimate-partner homicides, as well as cases with male victims, victims outside the family, and female assailants. An honor killing is motivated by the desire to restore a social reputation that—in the killer’s perception—has been damaged by rumors about or the victim’s actual breach of conduct norms regulating female sexuality in the widest sense; the decision to use lethal violence is a collective family affair, rather than the action of an individual perpetrator. The underlying motive in all cases—irrespective of the victims’ gender—is the punishment or coercion of women.

Abandoned child's shoe(2)   The absence of reliable country-level data makes it impossible to ascertain the exact frequency of honor killings; recent estimates suggest that there may be as many as 5000 per year. Countries with reported high rates of honor killings score poorly in the international Human Development Index and the Gender Inequality Index and rank highly in the Failed State Index.

(3)   It is likely that the majority of perceived transgressions of honor do not provoke a murder. Research in a number of countries with people who differ in their religious affiliations finds that premarital sexual relationships and out-of-wedlock pregnancies often are dealt with nonviolently, mostly by negotiating compensation or marriage, despite strict honor codes.

(4)   Islam plays a prominent role in public debates on honor killings, yet honor killings are a pre-Islamic tribal tradition and an extra-judicial punishment that is not part of Sharia law. Honor killings occur among Christian minorities in Arab countries, as well as among the Sikh community in India (and among their respective immigrant communities in the West). They appear to be non-existent in some Muslim-dominate countries, such as Oman, and less frequent in others, such as Algeria and Tunisia. Nonetheless, some interpretations of Islamic law, such as those that promote the lawfulness of husbands’ physical violence against wives, the criminalization of pre- and extramarital sexual relationships, and the use of flogging or stoning if prosecuted as hadd (religious) crimes (which does not happen in most Muslim countries), may contribute indirectly to honor killings.

(5)   Findings from the World Values Survey highlight a notable split of orientations in many countries with high levels of honor killings: Democratic political values are commonly endorsed, but public opinion remains much more conservative when it comes to gender equality and sexual liberalization, with almost no trend toward more liberal views among younger age groups.

Dietrich Oberwittler and Julia Kasselt are the authors of “Honor Killings” in Chapter 33 of The Oxford Handbook of Gender, Sex, and Crime. Dietrich Oberwittler is a senior researcher in sociology at the University of Freiburg and Max Planck Institute for Foreign and International Criminal Law. Julia Kasselt is a Ph.D. candidate at the Max Planck Institute for Foreign and International Criminal Law. Rosemary Gartner and Bill McCarthy are the editors of The Oxford Handbook of Gender, Sex, and Crime. Rosemary Gartner is Professor of Criminology and Sociology at the Centre for Criminology and Sociolegal Studies at the University of Toronto. She is the co-author of three books: Violence and Crime in Cross-National Perspective (Yale, 1984), Murdering Holiness: The Trials of Edmund Creffield and George Mitchell (University of British Columbia Press, 2003) and Marking Time in the Golden State: Women’s Imprisonment in California (Cambridge, 2005). Bill McCarthy is Professor of Sociology at the University of California Davis. He is the co-author (with John Hagan) of Mean Streets: Youth Crime and Homelessness (Cambridge, 1997).

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24. The significance of gender representation in domestic violence units

By Norma M. Riccucci and Gregg G. Van Ryzin


Does increased representation of women in government agencies result in policy outcomes that are beneficial to women? Does it increase women’s confidence in those government agencies? These questions are at the core of democratic accountability: the ability of government to represent and serve all members of its citizenry.

Domestic violence The prevailing research demonstrates a number of important outcomes of gender diversity in public organizations. But does gender diversity also influence how the general citizenry judges the organization’s performance, trustworthiness and fairness? To get at this question, we designed a survey experiment in which we varied the gender representation and performance of hypothetical police domestic violence units (DVUs). Domestic violence is a problem that persists globally, and gender diversity in the units responsible for its eradication is imperative. In the United States alone, the Bureau of Justice Statistics reports that 85 percent of domestic violence victims are women, and women between the ages of 18 to 34 generally experience the highest rates of domestic violence; 75 percent of the perpetrators are male. On average, more than three women are murdered a day by their husbands or boyfriends.

Our experiment showed that increased representation of women positively influenced people’s trust in the agency and views of its performance, independent of whether the agency’s performance was high or low. This finding is important because the more citizens view the police as legitimate and trustworthy, the more willing they may be to report domestic violence and other crimes to the police. They may also be more likely to cooperate in follow-up investigations, which can lead to improved law enforcement outcomes.

While the US Congress renewed the federal Violence Against Women Act in February of 2013 — expanding coverage to offer protections to lesbians, gays, bisexuals, and transgender victims of domestic abuse, as well as to immigrants and American Indian women assaulted on reservations by non-Indians — if the crimes go unreported, the laws and policies will be ineffectual.

The research thus far shows that the policy domain within which bureaucrats work must be linked to the interests of those being served (for example, women seeking child support or veterans seeking benefits). Even police departments that are racially diverse are seen as more legitimate than those that are not, regardless of police practices. But, would diversity or representativeness matter if the mission or outcomes of agencies were not tied in any way to gender, race, ethnicity, or shared identities (e.g., veterans)? For example, would increasing the representation of women officials in local governments’ recycling programs encourage women to increase their recycling behaviors? This issue is yet to be explored, and would contributed greatly to research on the benefits of representativeness or diversity in government.

Norma M. Riccucci and Gregg G. Van Ryzin are the authors of “Representative Bureaucracy in Policing: Does It Increase Perceived Legitimacy?” (available to read for free for a limited time) in the latest issue of the Journal of Public Administration Research and Theory. Norma M. Riccucci is Distinguished Professor of Public Administration at the School of Public Affairs and Administration, Rutgers University, Campus at Newark. Professor Riccucci has published extensively in the areas of public management, affirmative action, human resources and public sector labor relations. Gregg G. Van Ryzin is associate professor in the School of Public Affairs and Administration, Rutgers University, Newark, New Jersey. He is an expert on surveys and methodology, and conducts empirical research on a range of topics, including housing and community development, citizen satisfaction with urban services, nonprofit organizations, performance measurement and evaluation, and comparative public opinion about government policy and institutions. Prof. Van Ryzin is widely published in scholarly journals in public administration, policy analysis, and urban affairs.

The Journal of Public Administration Research and Theory serves as a bridge between public administration and public management scholarship on the one hand and public policy studies on the other. Its multidisciplinary aim is to advance the organizational, administrative, and policy sciences as they apply to government and governance. The journal is committed to diverse and rigorous scholarship and serves as an outlet for the best conceptual and theory-based empirical work in the field.

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25. Casey Kasem and end-of-life planning

EZ Thoughts

By Edward Zelinsky


The sad story of Casey Kasem’s last illness is now over. Casey Kasem was an American pop culture icon. Among his other roles, Mr. Kasen was the disc jockey host on the legendary radio program, American Top 40. He was also the voice of Shaggy Rogers of Scooby-Doo.

Unfortunately, for many Americans Casey Kasem is now known as the subject of a bitter dispute between his widow Jean and his children from his first marriage. In the face of Mr. Kasem’s debilitating dementia, Mrs. Kasem wanted to continue medical care while his three children from his prior marriage had concluded that care was pointless and should be discontinued. Mr. Kasem’s children prevailed in the California courts based on a document Mr. Kasen had signed in 2007. Life support was accordingly withdrawn and Casey Kasem died shortly thereafter.

At one level, it is surprising is how rarely we hear today of such stories of conflict over end-of-life care. Cases involving Nancy Cruzan, Karen Ann Quinlan, and Terri Schiavo were once prominent in our public discourse.

An unheralded accomplishment of the American political and legal systems is the largely successful privatization of end-of-life health care decisions. Through documents variously denoted as living wills, health care proxies, medical powers of attorney, and health care instructions, an individual while mentally competent can plan for the end of his life. Central to such planning is the designation a medical decisionmaker and the specification of the criteria to be applied by such decisionmaker if an individual becomes incapable of making medical decisions for him- or herself.

Macro of a living will document. © zimmytws via iStockphoto.

Macro of a living will document. © zimmytws via iStockphoto.

These planning procedures, while not panaceas, have largely ensured that end-of-life decisionmaking will be made, not in courtrooms, but where such decisions belong: by the dying individual’s designated loved ones.

Two important lessons emerge from the Kasem family’s unfortunate experience. First, spouses are not automatically medical decisionmakers for each other. Spouses should formally designate each other as medical decisionmakers, if that is what they want.

Unfortunately, debate over same-sex marriage has confused matters, leading many individuals to erroneously believe that, simply by virtue of marriage, spouses are automatically each other’s medical decisionmakers. They are not. For example, Michael Schiavo’s status as husband did not guarantee him the right to make medical decisions for his wife Terri.

It is sensible to require that spouses must formally designate each other as their end-of-life medical decisionmakers. To take the most obvious case, suppose that spouses are estranged and that a healthy spouse will gain financially through an inheritance on the death of a wealthy, ill spouse. We would not want the healthy spouse in this setting to terminate medical care unless the ill spouse had signaled that that was what he wants. Or, to take a more benign situation, spouses may love each other but still think that other persons, e.g., the children from prior marriages, will be better decisionmakers under the stress of an end-of-life situation.

The bottom line is that spouses should execute the formal instrument of their respective state, however that instrument is designated, if they want each other to be health care decisionmakers. Marriage, by itself, is not legally sufficient to make spouses medical decisionmakers for each other.

The second lesson of the Kasem story is that, even if all of the proper documents have been signed, terminating medical treatment at the end of life is a difficult and painful decision. For example, one commonly used formula specifies that medical treatment should be withdrawn when an individual’s condition is “terminal.” Unfortunately, the physicians advising in end-of-life settings do not always agree when a conditional is “terminal.” If consensus exists, it is still painful to withhold medical care even if an ill individual previously authorized such withholding while he was healthy and competent to decide.

Casey Kasem left Americans with wonderful memories. His parting contribution to the American people was to remind us of the need for proper end-of-life planning and to demonstrate that, even with such planning in place, medical decisions at the end-of-life can be painful and difficult.

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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