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1. 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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2. 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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Investment Claims (IC) is an acclaimed service for both practitioners and academic users. Regular updates mean that subscribers have access to a fully integrated suite of current and high quality content. This content comes with the guarantee of preparation and validation by experts.

Oxford University Press is a leading publisher in arbitration law, including Investment Claims, latest books from thought leaders in the field, and a range of other journals and online products. We publish original works across key areas, from international commercial arbitration to investment arbitration, dispute resolution and energy law, developing outstanding resources to support practitioners, scholars, and students worldwide. For the latest news, commentary, and insights follow the Commercial Law team @OUPCommLaw, and the International Law team @OUPIntLaw on Twitter.

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Image credit: ICJ Robes, by International Organisation. Public domain via Wikimedia Commons.

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3. 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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4. 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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5. 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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6. 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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7. 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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8. 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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9. 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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10. Winnifred Fallers Sullivan on the impossibility of religious freedom

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The impossibility of religious freedom

by Winnifred Fallers Sullivan

In the last week the US Supreme Court has decided two religious freedom cases (Burwell v. Hobby Lobby and Wheaton College v. Burwell) in favor of conservative Christian plaintiffs seeking exemptions from the contraceptive coverage mandate of the Affordable Care Act. Liberals have gone nuts, wildly predicting the end of the world as we know it. While I share their distress about the effects of these decisions on women, I want to talk about religion. I believe that it is time for some serious self-reflection on the part of liberals. To the extent that these decisions are about religion (and there are certainly other reasons to criticize the reasoning in these opinions), they reveal the rotten core at the heart of all religious freedom laws. The positions of both liberals and conservatives are affected by this rottenness but I speak here to liberals.

You cannot both celebrate religious freedom and deny it to those whose religion you don’t like. Human history supports the idea that religion, small “r” religion, is a nearly ubiquitous and perhaps necessary part of human culture. Big “R” Religion, on the other hand, the Religion that is protected in constitutions and human rights law under liberal political theory, is not. Big “R” Religion is a modern invention, an invention designed to separate good religion from bad religion, orthodoxy from heresy—an invention whose legal and political use has arguably reached the end of its useful life.

The challenge, then, for American liberals is to explain how they can both be in favor of religious freedom for all and at the same time deny that freedom to Hobby Lobby and Wheaton College. Among other stratagems meant to solve this contradiction, the Court’s dissenters and their supporters have made various arguments to show that what Hobby Lobby and Wheaton College are doing is not, in fact, religion—that they don’t really understand how to be Christians. Real Christians, the dissenters and their supporters say, do not mix religion with business. Nor do real Christians seek to disadvantage others in the exercise of their religious freedom. Those arguments are embarrassing; more than anything else, they reveal the ramshackle structure of current religious freedom jurisprudence in the US. They expose the multiple legal fictions at the heart of any legal protection for religious freedom—legal fictions whose value is exhausted.

The need to delimit what counts as protected religion is a need that is, of course, inherent in any legal regime that purports to protect all sincere religious persons, while insisting on the legal system’s right to deny that protection to those it deems uncivilized, or insufficiently liberal, whether they be polygamist Mormons, Native American peyote users, or conservative Christians with a gendered theology and politics. Such distinctions cannot be made on any principled basis.

In his concurrence in Hobby Lobby, Justice Kennedy writes:

In our constitutional tradition, freedom means that all persons have the right to believe or strive to believe in a divine creator and a divine law. For those who choose this course, free exercise is essential in preserving their own dignity and in striving for a self-definition shaped by their religious precepts. Free exercise in this sense implicates more than just freedom of belief . . . It means, too, the right to express those beliefs and to establish one’s religious (or nonreligious) self-definition in the political, civic, and economic life of our larger community.

High-minded words—words to make Americans proud on this patriotic weekend—but words that, in our constitutional tradition, have usually resulted in religious discrimination at the hands of the majority, not in the acknowledgment of religious freedom for those outside the mainstream. Both the majority and dissenting Justices in these two cases affirm—over and over again—a commitment to religious liberty and to the accommodation of sincere religious objections. Where they disagree is on what counts as an exercise of religion. Their common refusal, together with that of their predecessors, to acknowledge the impossibility of fairly delimiting what counts as religion has produced a thicket of circumlocutions and fictions that cannot, when all is said and done, obscure the absence of any compelling logic to support the laws that purport to protect religious freedom today.

The claims in Hobby Lobby and Wheaton College were brought under the Religious Freedom Restoration Act (RFRA). RFRA, passed overwhelmingly by Congress and signed into law by President Clinton in 1993, states that government may not “substantially burden a person’s exercise of religion” without meeting certain conditions. Justice Alito, writing for the majority in Hobby Lobby, describes RFRA as providing “very broad protection for religious liberty.”

As the majority notes in Hobby Lobby, and as many commentators have rehearsed, RFRA was enacted in response to the Court’s notorious 1990 decision in Employment Division v. Smith, a decision that severely limited the reach of the free exercise clause of the First Amendment. TheSmith decision sparked a political movement to reverse that limitation, first with the passage of RFRA; then with a flurry of other federal, state, and local legislation; and finally with the emergence of public interest groups and a specialized bar to advocate for religious freedom at home and abroad. Smith mobilized a large public across the political and religious spectrum to focus on a perceived threat to religion in general. It was, importantly, not just a movement of the right, but one that encompassed groups representing many political and theological persuasions. Religion was given new life by this politics.

A great deal of ink has already been spilled in response to the decisions in Hobby Lobby and Wheaton College. It is important, in my view—particularly for those of us who study religion—to move beyond the culture-wars framing of most commentaries and examine why it seems obvious, even natural, to the justices in the majority and to many others outside the Court that Hobby Lobby is engaged in a protected exercise of religion and that for Hobby Lobby and many others, opposition to the use of contraception is the quintessential sign of the religious. What is the religious phenomenology at work in these cases and how does that religious phenomenology reflect changes to religion in the US? It is the business of religious studies scholars to explain these phenomena, not to decry them.

The exercise of religion, as Justice Ginsburg suggested in her dissent in Hobby Lobby, might more usually be understood to be centered on activities such as “prayer, worship, and the taking of sacraments” by individuals. The government took a similar tack, imagining religion in such conventional terms, when it sought to deal with objections to contraceptive coverage by providing automatic exemptions to “religious employers,” which it defined in the regulations as “churches, their integrated auxiliaries, and conventions or associations of churches,” as well as “the exclusively religious activities of any religious order.” (Hobby Lobby Majority Opinion, slip opinion p.9)

To anyone who studies American religion, these churchy references seem astonishingly outdated: much—perhaps most—American religion today does not happen in churches. Many American Christians have, for a long time, engaged in a kind of DIY religion free from the regulations of church authorities. Their religion is radically disestablished free religion, defined not by bishops and church councils, but by themselves—ordinary Americans reading their Bibles, picking and choosing from among a wide array of religious practices. Indeed, Americans have always been incredibly varied, creative, and entrepreneurial in living out what they take to be their religious obligations—religious obligations that range far beyond the prescriptions of the mainline churches, which seem staid, contained, and tamed to the many who consider their own religious practices, unapproved by traditional religious authorities, to be alive with the spirit. They find their religious community and their religious fields of action in places other than churches—including the marketplace.

Justice Sotomayor claims in her dissent in Wheaton College to have “deep respect for religious faith, for the important and selfless work performed by religious organizations.” Why is the exercise of religion by Hobby Lobby any less deserving of Justice Sotomayor’s, or of the US government’s, respect than the work of the Catholic Hospital Association or the Little Sisters of the Poor? Why should churches and religious orders be obviously and unproblematically exempt, particularly in the aftermath of a series of sexual and financial scandals, while Hobby Lobby is not? Why disdain the representations of the Greens and the Hahns that they consider their businesses to be a religious ministry? Where is it written in the Constitution that only the religious practices of churches or church-related non-profits are entitled to accommodation?

Liberals seem offended by the mixing of religion and profit-making as well as by the obvious misogyny displayed here and elsewhere by a Court that sees the test cases of religious freedom in the protection of a male-only priesthood and the control of women’s reproductive lives.

How did a store become an expression of religion and how did being religious become equated with being conservative on social issues? The politics of religion in the US is a complex story. Religion and business in the US have always been entwined. In the first decades of the country’s existence, as both churches and business worked to institutionalize themselves, they grew up together, many of the same people involved in making the corporate form work for each. Their way of being Christians in the world infused their work as businesses with their Christian piety. By the last third of the nineteenth century, merchants like John Wanamaker saw the department store as a place for Christian action, but the growth of Christian business in the last several decades reveals the ways in which economic activity is increasingly viewed as a field of religious activity. Bethany Moreton’s To Serve God and Walmart: The Making of Christian Free Enterprise, Lake Lambert’s Spirituality, Inc., and Kathryn Lofton’s Oprah: The Gospel of an Icon, all describe this world. This is an old story, of course, as Max Weber explained in The Protestant Ethic and the Spirit of CapitalismAs for gender, Janet Jakobsen and Ann Pellegrini have shown in Love the Sin: Sexual Regulation and the Limits of Religious Tolerance how deeply intertwined are Christian ideas about proper sexual mores and government regulation of the family and of sexuality in the US.

That American religion is involved in business and obsessed with sex is not news. What is surprising is that those who object to this kind of religion continue to hold on to a faith in the idea that religious freedom means protection only for the kind of religion they like, the private, individualized, progressive kind.

The radical nature of RFRA and other post-Smith legislation—including the International Religious Freedom Act (IRFA), the Religious Land Use and Institutionalized Persons Act (RLUIPA), and a host of legislative exemptions from otherwise broadly based legislation—was evident from the beginning. These laws promised a broad deference to religious reasons that had never, in fact, been available under the Supreme Court’s religion clause jurisprudence and that was impossible to implement. They invited a regime under which courts would necessarily have to do the impossible, that is distinguish an exercise of religion, necessarily dividing good religion from bad religion, all the while denying that that was what they were doing, a regime the SmithCourt recognized as unworkable and refused to endorse.

All of this activity, legislative and judicial, has placed a heavy burden on the words religion and religious, words that are constantly repeated in both the majority and dissenting opinions inHobby Lobby and Wheaton College. The adjective “religious” appears on virtually every page of the more than 100 pages of opinions, modifying a wide range of words. Likewise, the word “religion” seems to be both everywhere and nowhere. Is it really possible to distinguish the religious from the non-religious in these cases? Do we have a shared theory of religion that permits such distinctions to be made? Isn’t the religious always mixed with the political and the cultural and the economic? The constant repetition of the adjective seems necessary only in order to reify a notion about which everyone is, in fact, very uncertain.

As one example, Justice Ginsburg announces that, “Religious organizations exist to foster the interests of persons subscribing to the same religious faith.” It is not clear to whom she refers here. As with the other justices in this case and others, her Delphic pronouncements about religion seem to come from the ether. How does she know this? Few who study religion would agree with this statement. Religious organizations, if indeed such a set can be rationally collected, exist for a wide range of purposes and consist of and cater to a diverse group of people. Justice Sotomayor is sputtering mad about the Wheaton College injunction. She says that, while she does not deny the sincerity of its religious belief, the College failed to make a showing that filing a form requesting an exemption is a substantial enough burden to trigger a RFRA claim. Shifting to an argument about substantiality is an effort to avoid challenging the rationality of their religious belief, but that is exactly what she is doing. They say that filing the form is enough to make them complicit with evil. Who is she to say nay without getting into exactly the theological battle she is trying to avoid when she claims to respect them?

The notion that religion exists and can be regulated without being defined is a fiction at the heart of religious freedom protection. Legal fictions—such as the idea that corporations are persons—are, of course, necessary to law. For legal scholars as diverse as Henry Maine and Lon Fuller, the capacity of legal language to finesse the facts could be understood as making legal flexibility and progress possible. The startling unbelievability of legal fictions can also focus our attention on the limits of legal language in a salutary way. Yet legal fictions can be stretched too far. They can become nothing more than lies.

Religion also specializes in fiction. It is not just the corporation that has fictional legal personality. So does the church. Justice Ginsburg objects to free exercise protection being extended to “artificial entities,” referring to corporations, but religious freedom is all about protecting artificial identities. The church is an imagined artificial entity; so are gods and demons. The church is the body of Christ in orthodox Christian theology; like the sovereign, it is the quintessential legal fiction, as we learn from Ernst H. Kantorowicz in The King’s Two Bodies.

We need fictions to live. But when the church and the state went their separate ways—when the church was disestablished—the intimate articulation of political, legal, and religious fictions lost their logic on a national scale. They no longer recognize one another. The legal and religious fictions of religious freedom have become lies designed to extend the life of the impossible idea that church and state can still work together after disestablishment. There is no neutral place from which to distinguish the religious from the non-religious. There is no shared understanding of what religion, big “R” religion, is. Let’s stop talking about big “R” religion.

What remains, as Clifford Geertz reminds us, is for us to work on creating new fictions together, political, legal, and religious:

The primary question . . . now that nobody is leaving anybody else alone and isn’t ever going to, is not whether everything is going to come seamlessly together or whether, contrariwise, we are all going to persist sequestered in our separate prejudices. It is whether human beings are going to be able . . . to imagine principled lives they can practicably lead. (Local Knowledge p. 234)

Judges cannot do this work.

Thank you to Dianne Avery, Constance Furey, Elizabeth Shakman Hurd, Fred Konefsky, and Barry Sullivan for comments on earlier drafts of this essay.

***

Winnifred Fallers Sullivan is professor and chair of the Department of Religious Studies and affiliate professor of law at Indiana University Bloomington. She is one of the co-organizers of a Luce Foundation funded project on politics of religious freedom, and guest editor (with Elizabeth Shakman Hurd) of an extensive TIF discussion series on the same topic. Sullivan is the author of The Impossibility of Religious Freedom (Princeton, 2005), and A Ministry of Presence: Chaplaincy, Spiritual Care and the Law (Chicago, 2014); and coeditor, with Robert A. Yelle and Mateo Taussig-Rubbo, of After Secular Law (Stanford, 2011); with Lori Beaman, of Varieties of Religious Establishment; and, with Elizabeth Shakman Hurd, Saba Mahmood, and Peter Danchin, of Politics of Religious Freedom (forthcoming from Chicago, 2015).

To read more about A Ministry of Presence, click here.

This essay has been republished in its entirety from The Immanent Frame, in conjunction with the Social Science Research Council’s program on Religion and the Public Sphere. The original post can be viewed here.

 

 

 

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11. 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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Image credit: Liverpool Museum and Library, by Chowells. CC-BY-SA 3.0 via Wikimedia Commons.

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12. 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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13. 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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14. Poetic justice in The German Doctor

Film is a powerful tool for teaching international criminal law and increasing public awareness and sensitivity about the underlying crimes. Roberta Seret, President and Founder of the NGO at the United Nations, International Cinema Education, has identified four films relevant to the broader purposes and values of international criminal justice and over the coming weeks she will write a short piece explaining the connections as part of a mini-series. This is the final one, following The Act of Killing, Hannah Arendt, and The Lady.

the german doctor

By Roberta Seret


One can say that Dr. Josef Mengele was the first survivor of Auschwitz, for he slipped away undetected in the middle of the night on 17 January 1945, several days before the concentration camp was liberated. Weeks later, he continued his escape despite being detained in two different Prisoner of War detention camps.

He made his way to Rome, a sanctuary for Nazi war criminals, where he obtained a new passport from Vatican officials. Continuing to Genoa with the help of the International Red Cross and a Fascist network, he embarked on the North King ship in 1949 to Buenos Aires under the alias of Helmut Gregor.

President Juan Peron had 10,000 blank Argentine passports for the highest Nazi bidders. Buenos Aires became their home; there Mengele lived, respected and comfortable, until 1960 when Eichmann was kidnapped by the Mossad just streets away. Afraid he’d be next, Mengele decided it would be safer for him in Paraguay with the support of the pro-Nazi dictator, Alfredo Stroessner. He stayed in Asunción for one year.

The Argentine film, The German Doctor (2014), takes us in media res to 1960 Patagonia and Bariloche, a beautiful mountain oasis in the Andes that reminds Mengele of “home.” This fictional addition to his biography, serves as a six-month stopover before he escapes to Paraguay.

Lucia Puenzo, Argentine filmmaker, has adapted her own novel, Wakolda, for the screen. She adroitly mixes fiction with history and truth with imagination in a tight, tense-filled interpretation that keeps us mesmerized. Yet, as we watch the scenes unfold, we wonder which ones are based on fact and how far should poetic justice substitute for historical accuracy.

The director takes advantage of our “collective conscience” of morality and memory regarding the identity of Dr. Mengele. Despite not once hearing his name, we know who he is, although the characters do not. The director uses our associating him with evil to enhance tension and catapult plot – a clever device that works well.

What is biographically accurate in the film is that Mengele continues his experiments on human beings in order to create the perfect race. The director uses this premise, then extrapolates to fiction and sets the stage with a family that Mengele befriends. The doctor sees an opportunity to experiment with charming Lilith, the under-developed twelve-year-old and injects into her stomach growth hormones that work for cattle. He also gives “vitamins” to the girl’s pregnant mother, Eva, once he realizes she is carrying twins. When the babies are born, he continues his experiments by putting sugar in the formula for the weaker of the two. As the infant cries dying and Mengele studies the reaction, we shudder that the Angel of Death has once again achieved Evil.

The experiments on people that Mengele is obsessed with in the film, is a continuation of his sadistic work at Auschwitz with pregnant women, twins, and genetics. His lab experiment on a mother who had just given birth was notorious. He taped her lactating breasts while taking notes on how long the infant would cry without receiving her milk. When he left for dinner, the distraught mother desperately found morphine for her dying baby.

Mengele was also known to inject dye into the iris of prisoners’ eyes (without anesthesia) to see if he could change the brown to an Aryan blue. He documented his results by pinning each eyeball to a wooden board.

And there were more experiments on thousands of human beings.

Josef Mengele, from 1943-45, appeared each day at Auschwitz’s train station for Selektion. Wearing white gloves, polished high black boots, and carrying a stick, his evil hand pointed Left and Right to order more than 400,000 souls to leave this world through chimneys as ashes. His crimes against humanity can never be forgotten.

After living more than 30 years undetected in South America, Mengele died in 1979 of a heart attack while swimming in the warm waters near São Paulo. This peaceful death for such a monster reinforces his ultimate crime. Film director, Lucia Puenzo, would have been well-inspired to have finished The German Doctor with this horrific and true scene.

Roberta Seret is the President and Founder of International Cinema Education, an NGO based at the United Nations. Roberta is the Director of Professional English at the United Nations with the United Nations Hospitality Committee where she teaches English language, literature and business to diplomats. In the Journal of International Criminal Justice, Roberta has written a longer ‘roadmap’ to Margarethe von Trotta’s film on Hannah Arendt. To learn more about this new subsection for reviewers or literature, film, art projects or installations, read her extension at the end of this editorial.

The Journal of International Criminal Justice aims to promote a profound collective reflection on the new problems facing international law. Established by a group of distinguished criminal lawyers and international lawyers, the journal addresses the major problems of justice from the angle of law, jurisprudence, criminology, penal philosophy, and the history of international judicial institutions.

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. 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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16. 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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17. 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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18. Sovereign debt in the light of eternity

From Greece to the United States, across Europe and in South America – sovereign debt and the shadow of sovereign debt crisis have loomed over states across the world in recent decades. Why is sovereign debt such a pressing problem for modern democracies? And what are the alternatives? In this video Lee Buchheit discusses the emergence of sovereign debt as a global economic reality. He critiques the relatively recent reliance of governments on sovereign debt as a way to manage budget deficits. Buchheit highlights in particular the problems inherent in expecting judges to solve sovereign debt issues through restructuring. As he explores the legal, financial and political dimensions of sovereign debt management, Buchheit draws a provocative conclusion about the long-term implications of sovereign debt, arguing that “what we have done is to effectively preclude the succeeding generations from their own capacity to borrow”.

Click here to view the embedded video.

Buchheit speaks at the launch of Sovereign Debt Management, edited by Rosa M. Lastra and Lee C. Buchheit.

Lee C. Buchheit is a partner based in the New York office of Cleary Gottlieb Steen & Hamilton LLP. Dr Rosa María Lastra, who introduces Buchheit’s lecture, is Professor in International Financial and Monetary Law at the Centre for Commercial Law Studies (CCLS), Queen Mary, University of London.

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19. Definitions and dividing lines in the Employment Tribunals Rules of Procedure

By John Macmillan


The current series of Judicial Pension Scheme claims have raised two interesting points under the most recent Employment Tribunals Rules, introduced in July 2013. Although ultimately neither required determination, the issues highlighted are worth exploring.

The first issue is where the dividing line between preliminary and final hearings should fall. Rule 57 defines a final hearing as one “at which the Tribunal determines the claim or such parts as remain outstanding following the initial consideration (under rule 26) or any preliminary hearing.” The problem is the seemingly very broad definition of “preliminary issue” being one of the things which a tribunal may determine at a preliminary hearing.

A preliminary issue in the context of a complaint means “any substantive issue which may determine liability…” (r. 53(2)). Again, the definition of “substantive” is not entirely clear. It is a word much misused by the drafters of previous iterations of the Rules but is likely to mean something which exists independently of the main issue in the proceedings. So (as per one of the examples in r. 53(2)), in a complaint of unfair dismissal, whether there has been a dismissal or not would be a substantive issue. But then, so it would appear, is a dispute over the reason for the dismissal, an issue historically always dealt with as part of the final hearing. In this context the problem is largely academic except in those very rare cases where a full tribunal will sit for the final hearing. It remains potentially an area of practical difficulty in discrimination claims.

gavel

In the current Judicial Pension Scheme cases, three principal issues have fallen for determination at a series of hearings that all parties have agreed to define as preliminary hearings. The first is whether a claimant holding a particular fee-paid judicial office is engaged in the same or broadly similar work as a named comparator who is salaried holder of another, sometimes quite different, judicial office. That looks like a perfectly bona fide preliminary issue as the comparator hurdle must be cleared in order to demonstrate entitlement to bring the proceedings.

The next logical question would then be whether there has been less favourable treatment, e.g. in the payment of fees for attending training. This too seems to have a life independent of the main question, namely whether there has been a breach of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000.

The third question, whether any less favourable treatment has been objectively justified, seems – instinctively – much less ripe for preliminary determination, although in these cases it has been treated as a preliminary issue without objection. Based on these decisions, my understanding is that the drafting of the definition of “preliminary issue” is deliberately wide.

A second point raised by the recent JPS claims is how the costs rules should be applied to lead cases (r. 36). Rule 74(1) defines costs in terms of those incurred by or on behalf of the receiving party who – in a case to which r. 36 applies – appears to be the lead claimant. But in some cases, many people may have contributed to a fighting fund, while the lead claimant’s contribution to that fund may have been negligible. This difficulty is starkly demonstrated by the question of fees where a multiple has come together as the result of many claimants presenting their own claims without reference to each other over a period of time. In this case, each would incurr a separate issue fee. While the problem over legal costs might be resolved by an agreement between all the claimants – in which the lead claimant agrees to take primary responsibility for the costs subject to an indemnity from the related case claimants – such situations are likely to rare and would not seem to be applicable to the fees incurred by individuals in any event. There is a similar problem where the respondent seeks costs against a lead claimant.

However, r. 36(2) may provide a solution. It seems likely that the costs could and probably should be treated as one of the common or related issues in the case. If so, then the decision made is binding on all the parties in the related cases. Careful wording of the judgement would be required, but there seems little doubt that an order that the respondent pays the lead claimant’s tribunal fees would apply to the fees of all other claimants. Similarly, a judgement that the lead claimant pays the respondent’s costs would be enforceable against all claimants. Whether the judgement should be for a full or proportionate amount should then be a matter for determination on the facts of each case. The obvious problem then becomes one of enforcement.

John Macmillan was formerly a Regional Employment Judge, East Midlands Region, and is now a fee-paid Employment Judge. He is the author of Blackstone’s Guide to the Employment Tribunals Rules 2013 and the Fees Order.

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Image credit: Gavel. By Kuzma, via iStockphoto.

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20. Political apparatus of rape in India

Last week the Guardian reported, “A state minister from Indian prime minister Narendra Modi’s ruling party has described rape as a ‘social crime’, saying ‘sometimes it’s right, sometimes it’s wrong’, in the latest controversial remarks by an Indian politician about rape.”  While horrified by these comments, I remembered that a book from OUP India’s office had recently landed on my desk and the author, Pratiksha Baxi, might be able to shed some light on the issue of rape in India for Westerners.  Below is a post Baxi sent in response to my query following the story mentioned above. –Christian Purdy, Director of Publicity

By Pratiksha Baxi


In the wake of the Delhi gang rape protests in 2013-2014, a section of the western media was critiqued for representing sexual violence as a form of cultural violence. For instance, a white woman reporter said to a friend, ‘we are filming Indian women of all kinds. You look modern. Please, can you say—I am India’s daughter’. Not fazed by the angry refusal, the reporter found some other ‘modern’ looking woman to mime this script for the camera. The Delhi protests became a resource for a certain kind of racialized sexual politics, which looped back to a nationalist rhetoric decrying the tarnishing of the image of the country abroad. Indian politicians responded by blaming the media, feminists, and the protests for sensationalising rape, and producing the crisis now posed to the image of a globalising economy.

The national and international political debates ignore Indian feminists and law academics—who innovated new juridical categories such as custodial rape and power rape—leading the path to conceptualise rape as a specific technique of state and social dominance.  They do not cite the learning of subaltern or Black feminists of the Global South. Nor are different jurisdictions compared to raise more serious questions about the cunning nature of law reform in neo-liberal contexts. Although there has been feminist research on rape, feminist interventions in international law and several global collaborations to combat violence against women, there seems to be an inability to carry the complexities of these debates in the national and international mainstream media.

Protests at Safdarjung Hospital. Photo by Ramesh Lalwani. CC BY-NC 2.0 via ramesh_lalwani Flickr.

Protests at Safdarjung Hospital. Photo by Ramesh Lalwani. CC BY-NC 2.0 via ramesh_lalwani Flickr.

In India, the political rhetoric on rape continues to deploy conventional scripts: boys will be boys; sometimes it’s right, sometimes it’s wrong; alcohol causes men to rape. There is a political refusal to recognise that rape is central to dominance, a routinized expression of sexualised power. Nor is it in political interest to displace the use of rape as a form of social control. Rather rape becomes a means of doing competitive party politics or as a technique of consolidating power.

Sexual assault is used as a means to control dissenting bodies. Rape is a technique of terror that is used with impunity to control social mobility, stifle dissent, reassert social control, gain political control, and target ‘hated’ communities. There is no serious attempt to challenge this kind of rape culture, which inhabits the cultures of policing. It is a political apparatus of sexual terror, not to be confused with theories of male sexuality or as evidence of cultural predispositions. Rather this rape culture rests on a political apparatus, which has several organised features.

First, it rests on a system of policing and law enforcement, which makes rape look like consensual sex, and consensual sex look like rape. For example, the use of the rape, kidnapping and abduction laws to criminalize love across caste or community is rampant, whilst rape as a form of caste dominance is scarcely taken seriously.

Second, the political apparatus of rape deploys violence to produce the public secrecy of rape: while everyone knows that women are raped, we are told no one must talk about it.

Third, this political apparatus rests on a scripted representational regime that attributes the blames of rape to women, alcohol, literacy, poverty, public access and so on—everything but the structures of dominance in a globalising economy. It institutionalises a politics of forgetting—from the traumatic histories of mass sexual violence to caste atrocities—we are told that there is no connection between everyday and mass scale sexual violence.

Fourth, it denies the link between the dispossession of the marginalised from property or land, and the growing rate of sexual violence. In the Baduan rape and lynching case, the children went out to the fields of the dominant caste to relieve themselves. The subsequent demand for bathrooms for dalit women is an expression of this dispossession, which makes them vulnerable to brutal sexual violence, murder and lynching.

Fifth, such a political apparatus acts as a thought police. It denies the right to sexual autonomy and choice. And it rewards those politicians who rape, riot, murder, censor or humiliate.

All this means that there is complicity between state and society in privileging rape as the expression of male power. The state conserves and even stokes the desire to rape as the foundational tool of male power. This is a political trait, not a cultural trait. There is an ever-expanding indifference to sexual violence survivors, which seems to be in inverse proportion to the anti-rape protests. For instance, even today a spare pair of clothes is not provided to rape survivors when their clothes are confiscated as evidence in police stations or hospitals.

Sexual violence can be prevented and redressed if this political apparatus is disbanded. To destroy this political apparatus, the doing of politics—local, national and international must change. Rather than engaging in an aggressive and masculine competition over crime statistics, politicians must engage seriously with the nature of institutional reform and response to sexual violence.

In the context of the international laws and policies on violence against women, the new government must allocate generous gender budgets to provide essential facilities to rape survivors and institute measures to prevent sexual violence. This must accompany zero tolerance for rape of women, men, sexual minorities and children. The recommendations to criminalise marital rape; repeal the Armed Forces (Special Powers) Act and legislate against rape as a mass crime must be implemented. Section 377 IPC, a colonial law criminalizing homosexuality must be repealed. In other words, sexual autonomy and sexual dignity must be respected. This means that the conventional notions of sexual morality, which regulate women’s sexuality, pathologize queer sexuality and celebrate violent masculinity, must no longer lay the foundations of the Indian polity. National and international politics must recognise rape as political violence rather than cultural violence; substitute the language of ‘rescue’ with repatriation and learn from languages of social suffering rather than vocabularies of power.

Pratiksha Baxi is Associate Professor, Centre for the Study of Law and Governance, Jawaharlal Nehru University, New Delhi and author of Public Secrets of Law: Rape Trials in India (OUP India, 2014)

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21. World Refugee Day Reading List

World Refugee Day is held every year on 20 June to recognise the resilience of forcibly displaced people across the world. For more than six decades, the Office of the United Nations High Commissioner for Refugees (UNHCR) has been tracking and assisting refugees worldwide. At the beginning of 2013, there numbered over 10.4 million refugees considered “of concern” to the UNHCR. A further 4.8 million refugees across the Middle East are registered with the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA).

To mark World Refugee Day 2014, we’ve compiled a short reading list about issues in international law arising from the forced displacement of persons, including definitions of refugees, asylum, and standards of protection, international refugee legislation, international human rights legislation, the roles of international organisations, and challenges arising from protracted refugee situations and climate change. Additionally, Oxford University Press has made select articles from refugee journals freely available for a limited time, including ten articles from the International Journal of Refugee Law.

Definitions


Refugees” in The Human Rights of Non-Citizens by David Weissbrodt

Explore the legal definition of refugees and their rights under the 1951 Geneva Convention Relating to the Status of Refugees.

Dieter Kugelmann on “Refugees” from The Max Planck Encyclopedia of Public International Law

Survey several legal definitions of refugees, refugee status, and refugee rights.

The Refugee in International Law by Guy S. Goodwin-Gill and Jane McAdam

Explore three central issues of international refugee law: the definition of refugees, the concept of asylum, and the principles of protection.

The Oxford Handbook of Refugee and Forced Migration Studies, edited by Elena Fiddian-Qasmiyeh, Gil Loescher, Katy Long, and Nando Sigona

How did Refugee and Forced Migration Studies emerge as a global field of interest? What are the most important current and future challenges faced by practitioners working with and for forcibly displaced people?

Population fleeing their villages due to fighting between FARDC and rebel groups, Sake North Kivu, 30 April 2012. Photo by MONUSCO/Sylvain Liechti CC BY-SA 2.0 via Wikimedia Commons

Population fleeing their villages due to fighting between FARDC and rebel groups, Sake North Kivu, 30 April 2012. Photo by MONUSCO/Sylvain Liechti CC BY-SA 2.0 via Wikimedia Commons

Refugee Legislation


The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary, edited by Andreas Zimmermann, Assistant editor Jonas Dörschner, and Assistant editor Felix Machts, including Part One Background: Historical Development of International Refugee Law by Claudena M. Skran

Analyze the Convention and Protocol that function as the indispensable legal basis of international refugee law. What provisions do they make for refugees?

Chapter 5 “Refugees” in International Migration Law by Vincent Chetail

Legislation relating to the movement of persons is scattered across numerous branches of international law. How does current law govern the movement of refugees, and how might legislation develop in the future?

Textbook on Immigration and Asylum Law, Sixth edition by Gina Clayton

How has the law relating to immigration and asylum evolved? And how does the asylum process operate for refugees and trafficking victims? Gina Clayton’s newly-revised volume provides clear analysis and commentary on the political, social, and historical dimensions of immigration and asylum law.

Climate Change, Forced Migration, and International Law by Jane McAdam

Climate change is forcing the migration of thousands of people. Should this kind of displacement be viewed as another facet of traditional international protection? Or is flight from habitat destruction a new challenge that requires more creative legal and policy responses?

Refugees and international human rights


“International refugee law” by Alice Edwards in D. Moeckli et al’s International Human Rights Law, Second Edition

Alice Edwards, Senior Legal Coordinator at the United Nations High Commissioner for Refugees, examines international human rights laws relating to refugees.

Textbook on International Human Rights, Sixth Edition by Rhona Smith

Check chapter 22 “Group rights”, which focuses on four specific groups which are currently beneficiaries of dedicated human rights’ regimes: indigenous peoples, women, children, and refugees.

“Are Refugee Rights Human Rights? An Unorthodox Questioning of the Relations between Refugee Law and Human Rights Law” by Vincent Chetail in Human Rights and Immigration, edited by Ruth Rubio-Marín

While originally envisioned as two separate branches of law, refugee law and human rights law increasingly intersect as refugees are highly vulnerable and often victims of abuse. What framework can we use to ensure the best outcome for refugees?

The obligations of States and organizations


The Collective Responsibility of States to Protect Refugees by Agnès Hurwitz

What legal freedom of choice do refugees possess? Can they choose the countries that will decide their asylum claims? States have devised several arrangements to tackle the secondary movement of refugees between their countries of origin and their final destination. See the chapter ‘States’ Obligations Towards Refugees’, which assesses the limitations of current safe third country mechanisms.

Complementary Protection in International Refugee Law by Jane McAdam

What obligations do – and should – States have to forcibly displaced persons who do not meet the legal definition of ‘refugees’?

The European Union Qualification Directive: The Creation of a Subsidiary Protection Regime’ by Jane McAdam in Complementary Protection in International Refugee Law

How does the European Union address the rights of persons who are not legally refugees, but who still have need of some other form of international protection?

Göran Melander on ‘International Refugee Organization (IRO)’ from The Max Planck Encyclopedia of Public International Law

What can the history of the IRO tell us about the development of international agencies working for refugees, and about its successor, the United Nations High Commissioner for Refugees (UNHCR)?

Refugees in Africa


African Institute for Human Rights and Development (on behalf of Sierra Leonean refugees in Guinea) v Guinea, Merits, Comm no 249/2002, 36th ordinary session (23 November-7 December 2004), 20th Activity Report (January-June 2006), (2004) AHRLR 57 (ACHPR 2004), (2007) 14 IHRR 880, IHRL 2803 (ACHPR 2004), African Commission on Human and Peoples’ Rights [ACHPR] from ORIL

Case-study by the African Commission: was the treatment of Sierra Leonean refugees in Guinea in 2000 in violation of the African Charter on Human and People’s Rights?

Human Security and the Protection of Refugees in Africa’ by Maria O’Sullivan in Protecting Human Security in Africa, edited by Ademola Abass

What is distinctive about refugee flows in Africa, what are the challenges arising from mass influx and ‘protracted’ refugee situations? What are the implications of new UNHCR initiatives to protect refugees?

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

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22. Hannah Arendt and crimes against humanity

Film is a powerful tool for teaching international criminal law and increasing public awareness and sensitivity about the underlying crimes. Roberta Seret, President and Founder of the NGO at the United Nations, International Cinema Education, has identified four films relevant to the broader purposes and values of international criminal justice and over the coming weeks she will write a short piece explaining the connections as part of a mini-series. This is the second one, , following The Act of Killing.

hannah arendt film

By Roberta Seret


The powerful biographical film, Hannah Arendt, focuses on Arendt’s historical coverage of Adolf Eichmann’s trial in 1961 and the genocide of six million Jews. But sharing center stage is Arendt’s philosophical concept: what is thinking?

German director, Margarethe von Trotta, begins her riveting film with a short silent scene — Mossad’s abduction of Adolf Eichmann in Buenos Aires, the ex-Nazi chief of the Gestapo section for Jewish Affairs. Eichmann was in charge of deportation of Jews from all European countries to concentration camps.

Margarethe von Trotta’s and Pam Katz’s brilliant screen script is written in a literary style that covers a four-year “slice of life” in Hannah Arendt’s world. The director invites us into this stage by introducing us to Arendt (played by award-winning actress Barbara Sukova), her friends, her husband, colleagues, and students.

As we listen to their conversations, we realize that we will bear witness not only to Eichmann’s trial, but to Hannah Arendt’s controversial words and thoughts. We get multiple points of view about the international polemic she has caused in her coverage of Eichmann. And we are asked to judge as she formulates her political and philosophical theories.

Director von Trotta continues her literary approach to cinema by using flashbacks that take us to the beginning of Arendt’s university days in Marburg, Germany. She is a Philosophy major, studying with Professor Martin Heidegger. He is the famous Father of Existentialism. Hannah Arendt becomes his ardent student and lover. In the first flashback, we see a young Arendt, at first shy and then assertive, as she approaches the famous philosopher. “Please, teach me to think.” He answers, “Thinking is a lonely business.” His smile asks her if she is strong enough for such a journey.

“Learn not what to think, but how to think,” wrote Plato, and Arendt learns quickly. “Thinking is a conversation between me and myself,” she espouses.

Arendt learned to be an Existentialist. She proposed herself to become Heidegger’s private student just as she solicited herself to cover the Eichmann trial for The New Yorker. Every flashback in the film is weaved into a precise place, as if the director is Ariadne and at the center of the web is Heidegger and Arendt. From flashback to flashback, we witness the exertion Heidegger has on his student. As a father figure, Heidegger forms her; he teaches her the passion of thinking, a journey that lasts her entire life.

Throughout the film, in the trial room, in the pressroom, in Arendt’s Riverside Drive apartment, we see her thinking and smoking. The director has taken the intangible process of thinking and made it tangible. The cigarette becomes the reed for Arendt’s thoughts. After several scenes, we the spectator, begin to think with the protagonist and we want to follow her thought process despite the smoke screen.

When Arendt studies Eichmann in his glass cell in the courtroom, she studies him obsessively as if she were a scientist staring through a microscope at a lethal cancer cell on a glass slide. She is struck by what she sees in front of her – an ordinary man who is not intelligent, who cannot think for himself. He is merely the instrument of a horrific society. She must have been thinking of what Heidegger taught her – we create ourselves. We define ourselves by our actions. Eichmann’s actions as Nazi chief created him; his actions created crimes against humanity.

The director shows us many sides of Arendt’s character: curious, courageous, brilliant, seductive, and wary, but above all, she is a Philosopher. Eichmann’s trial became inspiration for her philosophical legacy, the Banality of Evil: All men have within them the power to be evil. Man’s absence of common sense, his absence of thinking, can result in barbarous acts. She concludes at the end of the film in a form of summation speech, “This inability to think created the possibility for many ordinary men to commit evil deeds on a gigantic scale, the like of which had never been seen before.”

And Eichmann, his summation defense? It is presented to us by Willem Sassen, Dutch Fascist and former member of the SS, who had a second career in Argentina as a journalist. In 1956 he asked Eichmann if he was sorry for what he had done as part of the Nazis’ Final Solution.

Eichmann responded, “Yes, I am sorry for one thing, and that is I was not hard enough, that I did not fight those damned interventionists enough, and now you see the result: the creation of the state of Israel and the re-emergence of the Jewish people there.”

The horrific acts of the Nazis speak for themselves. Director von Trotta in this masterpiece film has stimulated us to think again about genocide and crimes against humanity, their place in history as well as in today’s world.

Roberta Seret is the President and Founder of International Cinema Education, an NGO based at the United Nations. Roberta is the Director of Professional English at the United Nations with the United Nations Hospitality Committee where she teaches English language, literature and business to diplomats. In the Journal of International Criminal Justice

, Roberta has written a longer ‘roadmap’ to Margarethe von Trotta’s film on Hannah Arendt. To learn more about this new subsection for reviewers or literature, film, art projects or installations, read her extension at the end of this editorial.

The Journal of International Criminal Justice aims to promote a profound collective reflection on the new problems facing international law. Established by a group of distinguished criminal lawyers and international lawyers, the journal addresses the major problems of justice from the angle of law, jurisprudence, criminology, penal philosophy, and the history of international judicial institutions.

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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23. Class arbitration at home and abroad

By Stacie Strong


To paraphrase the Bard, the course of class arbitration never did run smooth. Ever since its inception in the early 1980s and 1990s, the development of class arbitration has been both complicated and controversial. For example, in 2003, the US Supreme Court decision in Green Tree Financial Corp. v. Bazzle, was read as providing implicit approval of class arbitration and resulted in the massive expansion of the procedure across the country. Seven years later, the Court took the opposite tack and decided to curtail the procedure with its opinion in Stolt-Nielsen S.A. v. Animal Feeds International Corp., which was followed by equally problematic decisions in AT&T Mobility LLC v. Concepcion, Oxford Health Plans LLC v. Sutter, and American Express Co. v. Italian Colors Restaurant.

One result of the Supreme Court’s recent activity has been the diminution in the number of class arbitrations that are being filed with arbitral institutions. However, the Court’s decisions have done little to silence either the policy debates or the litigation surrounding class arbitration. Indeed, approximately 80 federal court opinions and 40 state court opinions have been rendered on this subject in the last 12 months alone, which suggests that the United States’s struggle with large-scale arbitration is far from over.

Most observers recognize that the debate about class arbitration in the United States is closely tied to concerns about judicial class actions. However, other countries are beginning to expand the number and type of mechanisms used to provide relief for large-scale legal injuries at precisely the same time that the United States is pulling back from class actions and arbitrations. These other legal systems have created a variety of means of addressing mass injuries, including several types of large-scale arbitration. Furthermore, efforts to adopt large-scale arbitration in other jurisdictions typically do not generate the same type of animosity and opposition that is seen in the United States. This phenomenon suggests that there is much that the United States can learn by studying the mechanisms used in these other legal systems.

One jurisdiction that has come out strongly in favor of large-scale arbitration is Brazil, which has created a constitutional right to large-scale arbitration in labor disputes. The Brazilian legislature is also currently contemplating a bill (No. 5139/2009) that would extend the right to large-scale arbitration to other types of mass legal disputes. In many ways, Brazilian acceptance of class and collective arbitration is unsurprising, since Brazil also embraces various types of large-scale litigation. However, US courts and policymakers could find it useful to consider the way in which Brazil differentiates between matters that are appropriate for court and matters that are appropriate for arbitration, since some of these analyses may also be relevant in the United States.

Austria_-_Göttweig_Abbey_-_2015

Spain also provides for large-scale arbitration, although the Spanish procedure is statutory rather than constitutional in nature. The Spanish approach involves a non-representative collective procedure that addresses many of the concerns commonly enunciated by respondents, particularly with respect to the issue of consent. Because the Spanish statute on collective arbitration is limited to consumer disputes, the legislature was able to tailor the mechanism narrowly to suit the needs of the participants. This type of subject-specific approach could prove instructive to those in the United States who are concerned about the problems associated with a trans-substantive procedure or with questions of consent.

Some commentators have suggested that class arbitration in the United States has experienced difficulties because the procedure was created through non-democratic (i.e. judicial) means rather than through legislative measures. This theory would discount the usefulness of the Brazilian and Spanish procedures because they were implemented through democratic processes. However, other countries have adopted large-scale arbitration through judicial action and have nevertheless avoided the kinds of ongoing difficulties seen in the United States.

The Republic of Colombia was the first jurisdiction outside the United States to adopt large-scale arbitration through judicial means. Both the Supreme Court of Justice and the Constitutional Court have suggested that class claims are arbitrable, and at least one arbitral tribunal is known to have rendered an award in a group action. Although other jurisdictions, most notably Canada, have declined to adopt class arbitration through judicial means, Colombia’s acceptance of class arbitration suggests that the United States is not an outlier in terms of the way in which class arbitration has developed.

This conclusion is borne out by the fact that several other legal systems have authorized large-scale arbitration through judicial measures. For example, the German Federal Court of Justice authorized arbitration of shareholder disputes in 2009, after having decided against doing so in 1996. The earlier decision was based on the belief that the legislature should be the one to determine whether these types of issues were arbitrable. However, when the democratically elected officials failed to take action one way or another, the judicial branch decided to step in. As a result of the 2009 decision, the German Institution of Arbitration (DIS) created its Supplementary Rules for Corporate Law Disputes (DIS-SRCoLD), which allow for a unique type of non-representative collective arbitration. Although the rules are aimed primarily at so-called “traditional” multiparty disputes (i.e., those that involve only a handful of participants), some of the procedural elements could be usefully adopted in matters involving larger numbers of parties.

Large-scale proceedings have also been adopted by arbitral tribunals acting without the guidance of a court. The most well-known example of this phenomenon was seen in the context of investment arbitration. In 2011, the arbitral tribunal in Abaclat v. Argentine Republic allowed 60,000 Italian bondholders to join together and bring their claims in a single proceeding. The resulting procedure has been characterized as “mass” arbitration rather than class arbitration, since it contains both representative and aggregative features. Although no other mass arbitration has yet been seen in the investment realm, the award in Abaclat was cited with approval by the tribunal in Ambiente Ufficio v. Argentine Republic, which involved ninety claimants.

As the preceding suggests, large-scale arbitration takes many forms and arises in many different ways. Although the US Supreme Court has attempted to curtail one particular mechanism (class arbitration), there are a multitude of other means of allowing large numbers of similarly-situated parties to join together to assert their claims. Indeed, parties in the United States have already begun to experiment with various types of non-class arbitration. For example, some parties have successfully brought large-scale, non-representative (collective) arbitrations, while other parties have resorted to filing large numbers of bilateral arbitrations simultaneously so as to drive respondents to the settlement table. These techniques underscore the need for scholars, policy-makers and practitioners to continue to debate and discuss the various issues relating to large-scale arbitration in the United States. In so doing, a comparative analysis would be beneficial, since the best solution to these problems may be found in procedures developed in other jurisdictions.

Stacie Strong is Associate Professor of Law at the University of Missouri School of Law. She is the author of Class, Mass, and Collective Arbitration in National and International Law and Research and Practice in International Commercial Arbitration: Sources and Strategies.

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24. Undermining society – the Immigration Act 2014

By Gina Clayton


Immigration it seems is always in the headlines. While UKIP and others make political waves with their opposition to European free movement, immigration is said to be one of the biggest issues of voter concern. However, the issues that make the headlines are only a tiny part of the picture. Restricting immigration is treated as an uncontroversial objective. Some air time, though less, is given to the damage done to migrants by restrictive laws and policies. Very little attention is given to the damage done to the social fabric by those same laws and policies, and to the reality that measures targeting migrants have an adverse effect on all of us.

In the last months of 2013 and the first of 2014 the Immigration Bill made its way through Parliament. Surprisingly, as immigration was a dominant political theme at that time, its provisions received minimal media attention. Provisions of the Immigration Act 2014 include:

  • All rights of appeal against immigration decisions are abolished, except where the decision is to refuse international protection or where removal would breach the Refugee Convention or the appellant’s human rights.
  • Banks and building societies are prohibited from opening accounts for individuals ‘who require leave to enter or remain in the UK but do not have it’.
  • Driving licences may not be issued to those who require leave but do not have it.
  • Charges for health care are to be levied on all migrants.
  • Landlords will be subject to penalties if they let property to individuals who ‘require leave to enter or remain in the UK but do not have it’.

The abolition of rights of appeal against immigration decisions comes after years of attrition of immigration appeal rights, and it is only this previous attrition that reduces the impact of these new measures.

gavel

Interestingly, an earlier episode of attrition of appeal rights was commented upon by Tony Blair in 1992:

“It is a novel, bizarre and misguided principle of the legal system that if the exercise of legal rights is causing administrative inconvenience, the solution is to remove the right. […] When a right of appeal is removed, what is removed is a valuable and necessary constraint on those who exercise original jurisdiction. That is true not merely of immigration officers but of anybody.”

Some effects of s.15 Immigration Act 2014 can be predicted:

  • There will be no independent remedy for an individual who has suffered due to a mistake.
  • There will be less incentive to improve Home Office decision-making.
  • Studies, work, and life plans of migrants and their families will be disrupted.
  • Employers and universities may lose employees and students.
  • Judicial review will likely proliferate.

When a student’s studies are prematurely ended or a specialist worker has to leave the country, not only they but others around them are affected. As well as the employer or university, friendships, treatment plans, agreements with landlords, voluntary work obligations, all are disrupted. Migrants do not live in isolation.

Most of us can accommodate to misfortune, but injustice is harder to live with. If our friend, our student or our colleague has not been able to put their case, what is the effect on our confidence in our own system of government? There is no right to be heard. Does this not have an impact on our belief in what are famously described as ‘British values’?

The prohibition on holding a driving licence, opening a bank or building society account not only affects the person who cannot get access to these basic features of ordinary life in the UK, it also affects the person who must decide whether to issue a licence or open an account.

A bank or building society employee must now assess a potential customer’s immigration status. Whether they wish to do so or not, the staff member is exercising a form of internal immigration control.

Bank and building society accounts have become essential to live ordinary life in the United Kingdom. People will be denied access to these facilities on faulty grounds. Bank and building society employees will find that their relationship with their customers has changed from service to scrutiny. All of us will be subject to immigration status checks.

The measures restricting access to private tenancies, bank and building society accounts and driving licences are not, as such, immigration control. They are penalties on those already resident. They apply not only to government matters but also to purely commercial and private transactions. They insert mutual surveillance into social relationships.

It was revealed by Sarah Teather MP that the government working group some of whose policies found their way into the Immigration Act was called ‘the Hostile Environment Working Group’. In the Immigration Act we are being recruited to the project of the hostile environment. We are required to treat other people as disentitled, not to a government benefit, which in the end we know is determined by government, but to a private facility. This asks us to change our perceptions of each other, and as such is hostile to us all.

Gina Clayton works on European asylum and migration projects, including reports for the Fundamental Rights Agency and the AIDA database, chairs refugee charities in South Yorkshire, and is an OISC adviser on asylum law. She is the author of Textbook on Immigration and Asylum Law.

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25. The Lady: One woman against a military dictatorship

Film is a powerful tool for teaching international criminal law and increasing public awareness and sensitivity about the underlying crimes. Roberta Seret, President and Founder of the NGO at the United Nations, International Cinema Education, has identified four films relevant to the broader purposes and values of international criminal justice and over the coming weeks she will write a short piece explaining the connections as part of a mini-series. This is the third one, following The Act of Killing and Hannah Arendt.

thelady

By Roberta Seret


When Luc Besson finished filming The Lady in 2010, Aung San Suu Kyi had just been released from being under house arrest since 1989. He visited her at her home in Yagoon with a DVD of his film as a gift. She smiled and thanked him, responding, “I have shown courage in my life, but I do not have enough courage to watch a film about myself.”

The recurring tenet of the inspiring biographical film, The Lady, is exactly that: one woman’s courage against a military dictatorial regime. Each scene reinforces her relentless fight to overcome the inequities of totalitarianism.

Aung San Suu Kyi was born the third child of General Aung San, leader of Burma during World War ll and Father of Independence from British rule. He was assassinated in 1947 before he saw his country’s sovereignty in 1948. His daughter has dedicated her life to continue his legacy – to bring democracy to the Burmese people.

The film, The Lady, begins in Oxford 1988 where she is a housewife and mother of two sons. After setting the stage of happy domesticity, she receives a phone call from her mother’s caretaker in Burma that the older woman is dying. And so begins the action.

After 41 years, Suu Kyi returns home to a different world than she remembers. The country’s name is changed from Burma to Myanmar, Ragoon has become Yagoon, and a new capital, Naypidaw, has been carved out of a jungle. Students are demonstrating and being killed in the streets of Yagoon while General Ne Winn rules with an iron fist. Suu Kyi is soon asked by a group of professors and students to form a new party, the National League for Democracy. She campaigns to become their leader.

French director, Luc Besson, was not allowed to film in Myanmar. Instead, he chose Thailand at the Golden Triangle, where Myanmar, Laos, and Thailand merge in a beautiful mountainous landscape. Most of his interior scenes, however, take place at the Lady’s house on Inya Lake in Yagoon, which Luc Besson recreated with help from Google Earth and computers. The Chinese actress, Michelle Yeoh, plays Suu Kyi, with perfectly nuanced facial and body expressions that are balanced with a subtle combination of emotion and control. But the Burmese, who were initially not allowed by the government to see the film, resented a Chinese actress portraying their icon. Even the police chased Ms. Yeoh from Myanmar when she tried to pay her respects to the Lady.

The film adheres closely to history and biography, which are inherently compelling. The director did not need to borrow from fiction to enhance his portrait of a brave, self-sacrificing woman. Luc Besson is a master filmmaker, and we see in the characters of his strong women, like Nikita (1990) and The Lady, the power of will and determination that go beyond limits to become personality cults.

The film depicts how Suu Kyi wins 59% of the votes in the general election of 1990, but instead of leading Parliament as Prime Minister, she has already been forced and silenced under house arrest by the Military where she stays for more than 15 years and three times in prison until 2010.

The Lady is a heart-breaking story of a woman’s personal sacrifice to free her people from the Military’s crimes against humanity. In 2012, once free and allowed to campaign, she won 43 seats in Parliament for her party, but this is only 7% of seats. She will campaign again in 2015 despite the Military’s opposition and a Constitution that has already been amended to block her from winning.

In Luc Besson’s film, we see a beautiful woman of courage and heart, a personage deserving the adulation of her people. “She is our hope,” they all agree. “Hope for Freedom.”

Roberta Seret is the President and Founder of International Cinema Education, an NGO based at the United Nations. Roberta is the Director of Professional English at the United Nations with the United Nations Hospitality Committee where she teaches English language, literature and business to diplomats. In the Journal of International Criminal Justice, Roberta has written a longer ‘roadmap’ to Margarethe von Trotta’s film on Hannah Arendt. To learn more about this new subsection for reviewers or literature, film, art projects or installations, read her extension at the end of this editorial.

The Journal of International Criminal Justice aims to promote a profound collective reflection on the new problems facing international law. Established by a group of distinguished criminal lawyers and international lawyers, the journal addresses the major problems of justice from the angle of law, jurisprudence, criminology, penal philosophy, and the history of international judicial institutions.

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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