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1. What would an independent Scotland look like?

The UK Government will no doubt be shocked if the referendum on 18 September results in a Yes vote. However, it has agreed to respect the outcome of the referendum and so we must assume that David Cameron will accept the Scottish Government’s invitation to open negotiations towards independence.

The first step will be the formation of two negotiating teams — Team Scotland and Team UK, as it were. These will be led by the governments of both Scotland and the UK, although the Scottish Government has indicated that it wants other political parties in Scotland to join with it in negotiating Scotland’s position. We would expect high level points to be set out by the governments, the detail to be negotiated by civil servants.

The Scottish Government anticipates a 19 month process between a Yes vote and a formal declaration of independence in March 2016.

What then would an independent Scotland look like?

The Scottish Government plan is for an interim constitution to be in place after March 2016 with a permanent constitution to be drafted by a constitutional convention composed of representatives of civil society after Scottish elections in May 2016.

The Scottish Government intends that the Queen will remain head of state. But this and other issues would presumably be up to the constitutional convention to determine in 2016.

Similarly the Scottish Parliament will continue to be a one chamber legislature, elected by proportional representation, a model rejected by UK voters for Westminster of course in a referendum in 2011.

The Scottish Government seeks to keep the pound sterling as the currency of an independent Scotland. The UK Government’s position is that Scotland can use the pound but that there will be no formal currency union. After a Yes vote this position could change but the unionist parties are united in denying any such possibility.

The UK has heavily integrated tax, pension, and welfare systems. It will certainly be possible to disentangle these but it may take longer than 19 months. In the course of such negotiations both sides may find that it makes sense to retain elements of close cooperation in the social security area, at least in the short to medium term.

Flags outside Parliament by Calum Hutchinson. CC-BY-SA-2.5 via Wikimedia Commons.
Flags outside Scottish Parliament, Edinburgh by Calum Hutchinson. CC-BY-SA-2.5 via Wikimedia Commons.

The Scottish Government has put forward a vision of Scotland as a social democracy. It will be interesting if it follows through on plans to enshrine social rights in the constitution, such as entitlements to public services, healthcare, free higher education, and a minimum standard of living. The big question is: can Scotland afford this? It would seem that a new tax model would be needed to fund a significantly higher commitment to public spending.

A third area of great interest is Scotland’s position in the world. One issue is defense. The SNP promises a Scotland free of nuclear weapons, including the removal of Trident submarines from the Clyde. This could create difficulties, both for Scotland in seeking to join NATO, but also for the remainder UK, which would need to find another base for Trident. The Scottish Government rejects firmly that it will be open to a deal on Trident’s location in turn for a currency union with London, but this may not be out of the question.

Another issue is that the Scottish Government takes a much more positive approach to the European Convention on Human Rights, than does the current UK government. In fact, the proposal is that the European Convention will become supreme law in Scotland, which even the Scottish Parliament could not legislate against. This contrasts with the current approach of the Conservative Party, and to some extent the Labour Party, in London which are both proposing to rebalance powers towards the UK Parliament and away from the European Court in Strasbourg.

Turning to the European Union, it seems clear to me that Scotland will be admitted to the EU but that the EU could drive a hard bargain on the terms of membership. Compromises are possible. Scotland does not, at present, qualify for, and in any case there is no appetite to join, the Eurozone, so a general commitment to work towards adopting the Euro may satisfy the EU. The Scottish Government also does not intend to apply for membership of the Schengen Area but will seek to remain a part the Common Travel Area, which would mean no borders and a free right to travel across the British and Irish isles.

The EU issue is also complicated because the UK’s own position in Europe is uncertain. Will the UK stay in the EU? The prospect of an in/out referendum after the next UK general election is very real. Another issue is whether an independent Scotland would gradually develop a much more pro-European mentality than we see in London. Would Scotland become positive rather than reluctant Europeans, and would Scotland seek to adopt the Euro in the medium to longer term? We don’t know for now. But if the UK votes to leave the EU, then this may well be the only option open to an independent Scotland in Europe.

To conclude, a written constitution, a stronger commitment to European human rights standards, a more pro-European Union attitude, and an attempt to build a more social welfarist state could bring about an independent Scotland that looks very different from the current UK. However, the bonds of union run deep, and if Scotland does achieve a currency union with the UK it will be tied closely to London’s tax structure. In such a scenario the economies, and therefore the constitutions, of the two countries, will surely continue to bear very many similarities. Much also depends upon relationships with the European Union. If the UK stays in the EU then Scotland and the UK could co-exist with a sterling currency union and a free travel area. If the UK votes to leave then Scotland will need to choose whether to do likewise or whether to align much more closely with Europe.

The post What would an independent Scotland look like? appeared first on OUPblog.

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2. Beyond the Headlines: Race, the Inner City, and Books That Delve Deeper

Like many Americans I walk an uneasy line between being appalled by the living conditions of the inner-city and being afraid of them. The educational and socio-economic disadvantages common in inner-city neighborhoods, along with the high rates of drug- and gang-related violent crime, are already hard problems to grasp and tackle. The fact that these [...]

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3. Catching up with Matthew Humphrys

Katherine Marshall sat down with her law department colleague to discuss life in the Oxford office, what’s on the bookshelf, and becoming Chancellor of the Exchequer.

What is your typical day like at Oxford University Press?

I normally start by planning each day in relation to the week and months ahead, prioritizing what needs to be done. Then I run through emails. After, the day can vary quite a lot depending on what needs doing for the various titles in production. I try to tackle the more complicated or sensitive items in the morning, such as going through complicated e-proof corrections, resolving complex issues (for example in terms of typesetting layout or corrections), checking covers, collating copy-edited files or proof corrections, or speaking to authors about queries or issues.

Later in the day, I might turn my attention to things such as reviewing schedules, booking freelancers, chasing up late corrections or responses, e-book checking, passing on files to the typesetters, sending titles to the printers, writing briefs to freelancers and suppliers or letters to authors, quality checking typescript PDF files, or dealing with invoices. These are all typical things a production editor might do in a day, indeed most of this list would be things I would turn my attention to in any given day. Everything is dealt with digitally these days, so a production editor is really glued to the computer screen.

Matthew Humphrys
Matthew Humphrys

What was your first job in publishing?

As the production editor of the Philosophy Press (sadly now defunct). It was an unusual role in a very small publishing company which involved running the company administratively, and helping to produce The Philosophers’ Magazine (print and digital) and a couple of titles about philosophy.

What are you reading right now?

One of the several books I’m reading at the moment (for the third time) is The Black Swan: the Impact of the Highly Improbable by Nassim Nicholas Taleb, which is about the impact of highly improbable events on life, particularly in terms of economics. One of the key subjects is about the widespread lack of understanding within economics about risk and probability, particularly in terms of the fractal nature of economic data which dictates that data cannot be predicted into the future from past events with any certainty. It covers a number of related psychological and epistemological subjects.

What’s the first thing you do when you get to work in the morning?

Have a cafetière of the strongest coffee I can find.

Open the book you’re currently reading and turn to page 75. Tell us the title of the book, and the third sentence on that page.

Cicero, “Discussions at Tusculum (V)” in On the Good Life (Penguin, 1971): “A man who lacks the absolute certainty that everything depends on himself and himself alone is in no condition to hold his head high and distain whatever hazards the chances of human life may inflict.”

If you could trade places with any one person for a week, who would it be and why?

Probably the Chancellor of the Exchequer, as I strongly disagree with the dominant contemporary approach to economics, which involves so much platonifying of ideas and then thrusting them upon a world which they bear so little relation to. I would do everything I could to switch the outlook to a much more Keynesian approach which is about being compatible and adaptable to the way people behave and aims at a full employment equilibrium. I appreciate I wouldn’t be able to achieve much in one week!

If you were stranded on a desert island, what three items would you take with you?

A copy of Edgar Alan Poe’s poetry and prose, some good coffee, and my iPod.

What is the most important lesson you learned during your first year on the job?

How to be efficient. I thought I was before, but I really wasn’t.

If you didn’t work in publishing, what would you be doing?

I would probably still be working as a pipe organ builder, which was my role before I made the move to publishing. Now, I keep my hand in by tuning instruments in my holidays.

The post Catching up with Matthew Humphrys appeared first on OUPblog.

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4. Policing by the book

Entry to the UK police force is changing. With Policing degrees are now available at over 20 universities and colleges across the UK – and the introduction of the direct entry scheme in a number of forces – fewer police officers are taking the traditional route into the force.

We spoke to officers, students, and course leaders to get their opinions on the relationship between theory and practice. Does a Policing degree make you a better officer?

On a personal level, a degree can help some students put their own career and practical training into context. Richard Honess had a “positive experience” in completing his Bachelor’s degree in Policing. “I now have a greater understanding of why we do what we do and the context of where our powers and policies originate; and why senior officers make the decisions they do. I have been able to merge my love of the job with my interest in science and scepticism with the development of ‘Evidence Based Policing’.”

“I have been bitten by the academic bug and I about to commence a Masters by Research in Policing, the ultimate in career development with a view to becoming a research ‘pracademic’!”

Experienced officers can also learn a thing or two. Darren Townsend operated as a Constable with 22 years’ service before deciding to take his degree. “The course opened my eyes completely around how policing worldwide operates, decision making processes especially in the wake of political interference, miscarriages of justice, [and] theory behind certain techniques of crime control.”

“In addition to all the operational aspects it has provided me with some fascinating ahandbook fro cademic reading which has generated an even greater interest in my chosen career which I believe will lead me to a greater professional performance and be far more open to opposing ideas, embrace positive change, and understand the difference academia and research can make to my already wide expanse of operational policing knowledge.”

However, some question whether academic study is really the best way to achieve the necessary skills. One contributor, who asked to remain anonymous, challenged the application of degrees in the field. “I personally do not possess a degree of any sort. My qualifications both within the police and previously in electrical engineering are more vocational. I have yet to see the benefit of policing degrees within policing and will be interested to see if, over time, they do improve policing. At lower levels of policing (up to inspector) I cannot foresee their worth: it is about communication and common sense at the front line.”

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Police line, by Ray Forster. CC-BY-SA-NoDerivs 2.0, via Flickr.

Paul Connor is series editor of the Blackstone’s Police Manuals and is a Police Training Consultant offering support for those sitting promotion exams. “Possession of a degree in any subject illustrates an ability to apply oneself and to learn but this does not equate an automatic right to pass every examination that follows in your life. This certainly applies to the OSPRE® Part I examination.”

“College of Policing research indicates that there is a correlation between the possession of a degree and success in OSPRE® Part I but a significant number of candidates without a degree pass the examination just as a significant number with a degree fail.”

The relationship between university research and its application in the field has also been put under scrutiny. Emma Williams is the Programme Director of the BSC Policing (In Service) degree at Canterbury Christ Church University. “Conversations about collaboration between universities and policing have never been so rife. Austerity and the need for resources to be used effectively have resulted in the College of Policing supporting the evidence based policing agenda and the commissioning of research by universities. Having spent eleven years in the Metropolitan Police as a senior researcher I am fully aware of some of the barriers that prevent research findings being fully implemented.”

“Officers can sense a loss of professional judgement when research further drives operational delivery and it can be seen as prescriptive and top down. Our degree programme fully encourages officers to use research and academic knowledge to assist them in their own decisions but to use it alongside their own experiential knowledge. Having knowledge of both the political and social context in which policing has developed and an understanding of theory and how it can assist them in their roles is in my opinion critical for this relationship to develop.”

The variance between theory and practice also raises questions about the structure of the degrees themselves. Susie Atherton previously worked on a police and PCSO training programme at De Montfort University. “It was very clear which were the ‘academic’ modules vs the ‘police training’. I do think there could have been better integration. We had to adapt and respond to their needs to make sure the academic modules did fit with their role, but this weakened their credibility as academic social science modules.”

“The new BA programmes promise employability through combining a three year policing studies degree with the Certificate in Knowledge of Policing. My worry is students who want to be police officers could leave after gaining the CKP, as undertaking this alongside 4 academic modules will be onerous and challenging. Students will perhaps question why they need to gain a full degree to get a job as a police officer, incurring 2 more years of fees, unless they wish to take advantage of direct entry. I am also aware of how valuable life experience, working in schools, military service and other roles are to the police service – transferable skills and knowledge about the world which cannot be gained doing a degree.”

“Fundamentally, if such programmes are to work, like any programme, they need proper investment, leadership and to respond to student feedback. Any weakness in these areas would jeopardise the continuation of programmes, but I do think policing programmes are vulnerable, simply because there are other options available”

The post Policing by the book appeared first on OUPblog.

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5. The US Supreme Court should reverse Wynne – narrowly

Maryland State Comptroller of the Treasury v. Brian Wynne requires the US Supreme Court to decide whether the US Constitution compels a state to grant an income tax credit to its residents for the out-of-state income taxes such residents pay on out-of-state income.

Brian and Karen Wynne live in Howard County, Maryland. As Maryland residents, the Wynnes pay state and county income taxes on their worldwide income. The Maryland income tax statute provides that Maryland residents who pay income taxes to states in which they do not live may credit against their Maryland state income tax liability the taxes paid to those states of nonresidence. However, the Maryland tax law grants no equivalent credit under the county income tax for out-of-state taxes owed by Maryland residents on income earned outside of Maryland.

When the Wynnes complained about the absence of a credit against their Howard County income tax for the out-of-state income taxes the Wynnes paid, Maryland’s Court of Appeals agreed. Maryland’s highest court held that such credits are required by the nondiscrimination principle of the US Constitution’s dormant Commerce Clause. The absence of a credit against the county income tax induces Maryland residents like the Wynnes to invest and work in-state rather than out-of-state. This incentive, the Maryland court held, may impermissibly “affect the interstate market for capital and business investment.”

For two reasons, the US Supreme Court should reverse. First, Wynne highlights the fundamental incoherence of the dormant Commerce Clause test of tax nondiscrimination: any tax provision can be transformed into an economically equivalent direct expenditure. No principled line can be drawn between those tax provisions which are deemed to discriminate against interstate commerce and those which do not. All taxes and government programs can incent residents to invest at home rather than invest out-of-state. It is arbitrary to label only some taxes and public programs as discriminating against interstate commerce.

Suppose, for example, that Howard County seeks to improve its public schools, its police services or its roads. No court or commentator suggests that this kind of routine public improvement violates the dormant Commerce Clause principle of nondiscrimination. However, such direct public expenditures, if successful, have precisely the effect on residents and interstate commerce for which the Court of Appeals condemned the Maryland county income tax as discriminating against interstate commerce: Better public services also “may affect the interstate market for capital and business investment” by encouraging current residents and businesses to stay and by attracting new residents and businesses to come.

There is no principled basis for labeling as discriminatory under the dormant Commerce Clause equivalent tax policies because they affect “the interstate market” of households and businesses. Direct government outlays have the same effects as do taxes on the choice between in-state and out-of-state activity. If taxes discriminate against interstate commerce because they encourage in-state enterprise, so do direct government expenditures which make the state more attractive and thereby stimulate in-state activity.

Snow Clouds Over a Snowy Field, Patuxent Hills, Maryland. Photo by Karol Olson. CC BY 2.0 via olorak Flickr.
Snow Clouds Over a Snowy Field, Patuxent Hills, Maryland. Photo by Karol Olson. CC BY 2.0 via olorak Flickr.

Second, the political process concerns advanced both by the Wynne dissenters in Maryland’s Court of Appeals and by the US Solicitor General are persuasive. Mr. and Mrs. Wynne are Maryland residents who, as voters, have a voice in Maryland’s political process. This contrasts with nonresidents and so-called “statutory residents,” individuals who are deemed for state income tax purposes to be residents of a second state in which they do not vote. As nonvoters, nonresidents and statutory residents lack political voice when they are taxed by states in which they do not vote.

Nonresidents and statutory residents require protection under the dormant Commerce Clause since politicians find it irresistible to export tax obligations onto nonvoters. The Wynnes, on the other hand, are residents of a single state and vote for those who impose Maryland’s state and local taxes on them.

In reversing Wynne, the Supreme Court should decide narrowly. The Wynnes, as residents of a single state, should not receive constitutional protection for their claim to a county income tax credit for the out-of-state taxes the Wynnes pay. However, the Court’s decision should not foreclose the Court from ruling, down the road, that credits are required to prevent the double income taxation of individuals who, for income tax purposes, are residents of two or more states. Such dual residents lack the vote in one of the states taxing them and thus require constitutional succor which the Wynnes do not.

Dissenting in Cory v. White, Justice Powell (joined by Justices Marshall and Stevens) argued “that multiple taxation on the basis of domicile” is unconstitutional. Since the Wynnes are taxed by only one state, the Supreme Court need not now confront this issue again. However, the Court should decide Wynne in a fashion which allows the Court to revisit this question in the future by holding that credits are constitutionally required to prevent the double taxation of dual residents.

The post The US Supreme Court should reverse Wynne – narrowly appeared first on OUPblog.

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6. Stop and search, and the UK police

The recent announcement made jointly by the Home Office and College of Policing is a vacuous document that will do little or nothing to change police practice or promote better police-public relations.

Let us be clear: objections to police stop and search is not just a little local difficulty, experienced solely in this country. Similar powers are felt to be just as discriminatory throughout North America where it is regarded as tantamount to an offence of ‘driving whilst black’ (DWB). This and other cross-national similarities persist despite differences in the statutory powers upon which the police rely. It would, therefore, seem essential to ask whether differences in legislation or policy have proven more or less effective in different jurisdictions. Needless to say, absolutely no evidence of experience elsewhere is to be found in this latest Home Office document. Instead, to assuage the concerns of the Home Secretary, more meaningless paperwork will be created.

One reason why evidence seems to be regarded as unnecessary is the commonplace assumption that ‘everyone knows’ why minorities experience disproportionate levels of stop and search: namely that officers rely not upon professional judgement, but upon prejudice, when exercising this power. Enticing though such an assumption is, it has serious weaknesses. As Professor Marion Fitzgerald discovered, when officers are deciding who to stop and search entirely autonomously, they act less disproportionately than when acting on specific information, such as a description.

Research that I and Kevin Stenson conducted in the early 2000s also found that the profile of those stopped and searched very largely corresponded to the so-called ‘available population’ of people out and about in public places at the times when stop and search is most prevalent. This is not to say that these stops and searches were conducted either lawfully or properly. Indeed, a former Detective Chief Superintendent interviewed a sample of 60 officers about their most recent stops and searches as part of this research. What he found was quite alarming, for in around a third of cases the accounts that officers freely gave about the circumstances of these 128 stops and searches could not convince any of us that they were lawful. There was also a woeful lack of knowledge amongst these officers about the statutory basis for the powers upon which officers were relying.

Uk police officer watches traffic at roadside. © RussDuparcq  via iStock.
UK police officer watches traffic at roadside. © RussDuparcq via iStock.

If officers were much better informed about their powers, then perhaps the experience of stop and search may be less disagreeable — it is unlikely ever to be welcomed — than it often is. Paragraph 1.5 of the Code of Practice governing how police stop and search states:

1.5   An officer must not search a person, even with his or her consent, where no power to search is applicable. Even where a person is prepared to submit to a search voluntarily, the person must not be searched unless the necessary legal power exists, and the search must be in accordance with the relevant power and the provisions of this Code.

The implication of this is quite clear: police may stop and search someone with their consent, but may not use such consent as a means of subverting the requirements under which the search would be lawful. Yet, so few officers seem even to be aware of this and conduct stop and search solely on the basis of their formal powers. I believe they do this as a ‘shield’; they imagine that if they go through the formal motions then no one can object to the lawfulness of the search. But they do object and do so most valuably, which gravely damages the public reputation of the police.

Research evidence aplenty confirms that it is not the possession of this power by the police that irks even those who are most at risk of stop and search. What they really object to is the manner in which the stop and search is conducted. A more consensual approach by police officers might just make the use of this power just a little more palatable.

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7. Time to see the end

Imagine that you’re watching a movie. You’re fully enjoying the thrill of different emotions, unexpected changes, and promising developments in the plot. All of a sudden, the projection is abruptly halted with no explanation whatsoever. You’re unable to learn how things unfold. You can’t see the end of the movie and you’re left with a sense of incompleteness you won’t ever be able to overcome.

Now imagine that movie is the existence of a human being which, out of the blue, is interrupted. Enforced disappearance cuts the life-flow of a person and it’s often impossible to discover how it truly ends. The secrecy that shrouds the fate of the disappeared is the distinctive element of this heinous practice and differentiates it from other crimes. All that you can imagine is that the end is not likely to be a happy one, but you will never give up hope. The impossibility to unveil the truth paralyses also the life of family members, friends, colleagues, and, to a certain extent, of society at large. If you don’t see the end, you’re unable to move on. You can’t grieve. You can’t rejoice. You’re trapped between hope and despair.

Today is the International Day of the Victims of Enforced Disappearances. Besides commemorating thousands of human beings who have been subjected to enforced disappearance throughout the world and honouring the memory of brave family members and human rights defenders who continue to combat against this scourge, is there anything to celebrate?

While the UN General Assembly decided to observe this Day beginning in 2011, associations of relatives of disappeared persons in Latin America had been doing so since 1981.

Over more than 30 years much has been done to eradicate enforced disappearance, both at domestic and international levels. Specific human rights bodies, such as the United Nations Working Group on Enforced or Involuntary Disappearances (WGEID) and the Committee on Enforced Disappearances (CED) have been established. Legal instruments, both of international human rights law and of international criminal law, deal with this crime in-depth and establish detailed obligations and severe sanctions. Regional human rights courts and UN Treaty Bodies have developed a rich, although not always coherent, jurisprudence. Domestic courts have delivered some landmark sentences, holding perpetrators accountable.

Ceremony organised by the Asian Federation against Involuntary Disappearances, held in Manila on 30 August 2009, to commemorate the International Day of the Victims of Enforced Disappearances. Photo by Gabriella Citroni.
Ceremony organised by the Asian Federation against Involuntary Disappearances, held in Manila on 30 August 2009, to commemorate the International Day of the Victims of Enforced Disappearances. Photo by Gabriella Citroni.

However, much remains to be done. First, the phenomenon has evolved: once mainly perpetrated in the context of military dictatorships, nowadays it is committed also under supposedly democratic regimes, and is being used to counter terrorism, to fight organised crime, or to suppress legitimate movements of civil protest. Enforced disappearance is practiced in a widespread and systematic manner in complex situations of internal armed conflict, as highlighted, among others, in the recent report “Without a Trace” concerning enforced disappearances in Syria.

During its latest session, held in February 2014, the WGEID transmitted 87 newly reported cases of enforced disappearance to 11 states. More than 43,000 cases, committed in a total of 84 states, remain under the WGEID’s active consideration.

Against this discouraging scenario, less than 15 states have codified enforced disappearance as an autonomous offence under their criminal legislation and thus lack the adequate legal framework to tackle this crime. Only a handful of states have adopted specific measures to regulate the legal situation of disappeared persons in field such as welfare, financial matters, family law and property rights. This causes additional anguish to the relatives of the disappeared and may also hamper investigation and prosecution. Amnesty laws or similar measures that have the effect of exempting perpetrators from any criminal proceedings or sanctions are in force in various countries and are in the process of being adopted in others. Recourse to military tribunals is often used to grant impunity.

Relatives of disappeared men from Lebanon and Algeria taking part in a gathering organised by the Fédération Euro-méditerranéenne contre les disparitions forcées in Beirut on 21 February 2013. Photo by Gabriella Citroni.
Relatives of disappeared men from Lebanon and Algeria taking part in a gathering organised by the Fédération Euro-méditerranéenne contre les disparitions forcées in Beirut on 21 February 2013. Photo by Gabriella Citroni.

States do not seem to be proactive in engaging in a serious struggle against enforced disappearance at the international level either. Opened for signature in February 2007, the International Convention on the Protection of All Persons from Enforced Disappearance has so far been ratified by 43 states, out of which only 18 have recognized the competence of the CED to receive and examine individual and inter-state communications.

Furthermore, states often fail to cooperate with international human rights mechanisms, hindering the fact-finding process, and proving reluctant in the enforcement of judgments. On their part, some of these international mechanisms, such as the European Court of Human Rights, narrowed their jurisprudence on enforced disappearance, undertaking a particularly restrictive approach when assessing their competence ratione temporis, when evaluating states’ compliance with their positive obligations to investigate on cases of disappearance, prosecute and sanction those responsible, and when awarding measures of redress and reparation.

One may wonder why 30 August was chosen by relatives of disappeared persons as the International Day against this crime. Purportedly, they picked a random date. They didn’t want it to be related to the enforced disappearance of anyone in particular: anyone can be subjected to enforced disappearance, anytime, and anywhere.

That was the idea back in 1981. Sadly, it still seems to be the case in 2014. It’s about time the obligations set forth in international treaties on enforced disappearance are duly implemented, domestic legal frameworks are strengthened, and legislative or procedural obstacles to investigation and prosecution are removed. It’s time to see the end of the movie. The end of enforced disappearance.

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8. What is the future of international law?

With the 10th European Society of International Law (ESIL) Anniversary Conference just around the corner some key thinkers share their thoughts on what they think the future of international law looks like.

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“International law traditionally flourishes with liberal hegemony, shared interests, or balance-of-powers parity. The first condition is visibly waning. The second and third conditions support regional and functional islands of multilateralism. While those islands may sometimes be shaky, they will continue to provide work for international lawyers. Beyond that, in the rough waters of war, peace, and even justice, the language of international law will also continue to pervade international relations. But it increasingly risks being perceived as an imprudent distraction. That is unless civil societies can unsettle the present monopolies that shape the terms of international legal discourse.”

Ingo Venzke, Research Fellow and Lecturer, Amsterdam Center for International Law, University of Amsterdam, author of How Interpretation Makes International Law: On Semantic Change and Normative Twists, and co-author of In Whose Name? A Public Law Theory of International Adjudication

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“The future of international law will be somewhat as with its present: we will witness the continued expansion of international law’s reach into new and emerging areas of common concern, wrought by climate change, technology, and continued processes of international and regional integration that are changing the nature of State-to-State relations. I do hope, however, that there will be continued and sustained critical reflection in scholarship on the impact of law on the international space—on who it empowers and excludes, on the nature of legalisation and its purposes—for it is only through heightened scrutiny, and not unquestioned application, that international law may serve as a progressive force.”

Gleider I. Hernandez, Lecturer in Law, Durham University, author of The International Court of Justice and the Judicial Function

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“In my opinion, the international law of the future will be less influenced by the ‘Westphalian model’, for at least two reasons: the increasing role played by non-state actors, in particular armed groups and multinational corporations, which challenges existing state-centred rules of international law, and the emergence of cyberspace as a separate domain, that will entail a rethinking of traditional concepts like territory, sovereignty, and jurisdiction. With regard to the future of international institutions, it remains to be seen whether the United Nations will be able to survive in its outdated structure.”

Marco Roscini, Reader in International Law, University of Westminster, author of Cyber operations and the use of force in international law

*   *   *   *   *

“The future of international law is likely to be as its past: a vital, though often misunderstood, medium through which social actors at various levels and in various forms can structure and order their interactions, reflect their desires and manifest their concerns. It is neither static nor predictable. Following a period in which there have been high expectations of what international law can achieve, the next few years may be times of challenge as it struggles to deliver solutions which have become expected of it. But this is merely part of the endless re-calibration necessary to reflect the tasks to which it is being put and the realities which need to be faced. If international law does not disappoint from time to time it will cease to be a source of aspiration – and that would make for a far bleaker future.”

Malcolm Evans, Professor of Public International Law, University of Bristol, author of International Law and Blackstone’s International Law Documents

*   *   *   *   *

Vienna, AT. Photo by  Luca Sartoni. CC BY-SA 2.0 via lucasartoni Flickr.
Vienna, AT. Photo by Luca Sartoni. CC BY-SA 2.0 via lucasartoni Flickr.

“International law has undergone dramatic change in the past fifty years, with issues from human rights to the environment to trade now the subjects of a wide range of hard and soft law instruments. Yet, many of the principles encapsulated within these documents remain unrealized due to the inability of international law to influence domestic law and national political priorities. Oftentimes, international law seems to remain distinct from domestic systems, treated with suspicion by national institutions.

“In the twenty first century, the national and international cannot be so easily separated. In areas such as refugee flows, arms proliferation, environmental degradation and combatting impunity, domestic initiatives and capability hold the key to international security. Agreement on and adherence to international standards is essential if global threats with national origins are to be managed effectively. International law must become not only the standard setter but the enabler and enhancer of domestic capacity. One of the key challenges will be to alter perceptions of international law itself. Rather than being viewed as something to be resisted or resented, side-stepped or paid lip service to, international legal standards must become part of domestic legislative and political agendas. The challenge is enormous, but essential, because, in the words of Anne-Marie Slaughter, the future of international law is domestic.”

Alison Bisset, Lecturer of Law, University of Reading, author of Blackstone’s International Human Rights Documents

*   *   *   *   *

“In the security regime, the future of international law looks increasingly dim. Attributability is a prerequisite for accountability, and powerful governments are discovering new ways to mask innovative forms of coercion behind a veil of anonymity. “Little green men” with no visible identification, untraceable drone strikes, “NATO” bombings that conceal belligerents’ identities, cyber-attacks masked by false flags—these sorts of intrusions all erode the rule of law by making it difficult if not impossible to impute responsibility. Should this trend continue, the security regime could look increasingly like Ferguson, Missouri—a juridical black hole where lawless police hide their badges.”

Michael J. Glennon, Professor of International Law, The Fletcher School of Law and Diplomacy, Tufts University, author of National Security and Double Government

*   *   *   *   *

“In my opinion, the future of international law in the coming decades will continue to be shaped by the continued tensions between sovereignty and other interests of the international community, such as the protection of the environment, the development of the Responsibility to Protect and more broadly human rights.

“On the one hand, states will obviously have to continue to accept that the traditional Westphalian model of international law is facing challenges and that things cannot be as they were in the past.

“But on the other hand, activists in various fields need to accept that the world is not changing as fast as they would like everyone to believe and that sovereignty remains a key feature of the international legal order. To a certain extent, as a feature of any given community, sovereignty is in fact conceptually unavoidable in one shape or another, whether at the domestic or the international level. Testimony to this is the continued relevance in international affairs of national(istic) claims which find their legal cristalisation in concepts such as statehood, self-determination and the prohibition of the use of force in international law.

“Accepting this reality is key in shaping realistic, effective and intellectually sound policies that not merely focus on individual rights, however important they are, but also take into account the collective dimensions and interests of any human society.”

Dov Jacobs, Associate Professor in International Law at the Grotious Centre, Leiden University, contributor to “Targetting the State in Jus post Bellum: Towards a theory of Integrated Sovereignties” in Jus Post Bellum: Mapping the Normative Foundations

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9. Remembering the slave trade and its abolition

On August 23rd the United Nations observes the International Day for the Remembrance of the Slave Trade and its Abolition. In honor of this day, we examine the history of slavery and its abolition, and shed light on contemporary slavery practices.

View the infographic below to learn more, or open it as a PDF to click through to freely available content from across our public international law resources.

OPIL_SLAVERY

Download a PDF copy of the infographic

Headline image credit: Photo by orythys, Public Domain CCo via pixabay

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10. Reading demeanor in the courtroom

When it comes to assessing someone’s sincerity, we pay close attention to what people say and how they say it. This is because the emotion-based elements of communication are understood as partially controllable and partially uncontrollable. The words that people use tend to be viewed as relatively controllable; in contrast, rate of speech, tone of voice, hesitations, and gestures (paralinguistic elements) have tended to be viewed as less controllable. As a result of the perception of speakers’ lack of control over them, the meanings conveyed via paralinguistic channels have tended to be understood as providing more reliable evidence of a speaker’s inner state.

Paradoxically, the very elements that are viewed as so reliable are consistent with multiple meanings. Furthermore, people often believe that their reading of another person’s demeanor is the correct one. Many studies have shown that people – judges included – are notoriously bad at assessing the meaning of another person’s affective display. Moreover, some research suggests that people are worse at this when the ethnic background of the speaker differs from their own – not an uncommon situation when defendants address federal judges, even in 2014.

The element of defendants’ demeanor is not only problematic for judges; it is also problematic for the record of the proceedings. This is due to courtroom reporters’ practice of reporting the words that are spoken and excluding input from paralinguistic channels.

One of the original Victorian Courtrooms at the Galleries of Justice Museum. Photo by Fayerollinson. CC BY-SA 3.0 via Wikimedia Commons.
One of the original Victorian Courtrooms at the Galleries of Justice Museum. Photo by Fayerollinson. CC BY-SA 3.0 via Wikimedia Commons.

I observed one case in which this practice had the potential for undermining the integrity of the sentencing hearing transcript. In this case, the defendant lost her composure while making her statement to the court. The short, sob-filled “sorry” she produced mid-way through her statement was (from my perspective) clearly intended to refer to her preceding tears and the delays in her speech. The official transcript, however, made no reference to the defendant’s outburst of emotion, thereby making her “sorry” difficult to understand. Without the clarifying information about what was going on at the time – namely, the defendant’s crying — her “sorry” could conceivably be read as part of her apology to the court for her crime of robbing a bank.

Not distinguishing between apologies for the crime and apologies for a problem with delivery of one’s statement is a problem in the context of a sentencing hearing because apologies for crimes are understood as an admission of guilt. If the defendant had not already apologized earlier, the ambiguity of the defendant’s words could have significant legal ramifications if she sought to appeal her sentence or to claim that her guilty plea was illegal.

As the above example illustrates, the exclusion of meaning that comes from paralinguistic channels can result in misleading and inaccurate transcripts. (This is one reason why more and more police departments are video-recording confessions and witness statements.) If a written record is to be made of a proceeding, it should preserve the significant paralinguistic elements of communication. (Following the approach advocated by Du Bois 2006, one can do this with varying amounts of detail. For example, the beginning and ending of crying-while-talking can be indicated with double angled brackets, e.g., < < sorry > >.) Relatedly, if a judge is going to use elements of a defendant’s demeanor in court to increase a sentence, the judge should be prepared to defend this decision and cite the evidence that was employed. Just as a judge’s decision based on the facts of the case can be challenged, a decision based on demeanor evidence deserves the same scrutiny.

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11. Changing legal education

Martin Partington discussed a range of careers in his podcasts yesterday. Today, he tackles how new legal issues and developments in the professional environment have in turn changed organizational structures, rules and regulations, and aspects of legal education.

Co-operative Legal Services: An interview with Christina Blacklaws

Co-operative Legal Services was the first large organisation to be authorised by the Solicitors Regulatory Authority as an Alternative Business Structure. In this podcast, Martin talks to Christina Blacklaws, Head of Policy of Co-operative Legal Services.

 

The role of chartered legal executives: An interview with Diane Burleigh

The Chartered Institute of Legal Executives sets standards for and regulates the activities of legal executives, who play an important role in the delivery of legal services. In this podcast Martin talks with Diane Burleigh, the Chief Executive of CILEX, about the challenges facing the legal profession and the opportunities provided for Legal Executives in the rapidly developing legal world.

 

Educating Judges and the Judicial College: An interview with Lady Justice Hallett

The Judicial College was created by bringing together separate arrangements that had previously existed for training judicial office-holders in the courts (the Judicial Studies Board) and Tribunals Service (through the Tribunals Judicial Training Group). In this podcast Martin talks to its Chairman, Lady Justice Hallett, about the reasons for the change and ways in which the College is developing new ideas about judicial education.

 

Headline image credit: Law student and lecturer or academic. © Palto via iStockphoto.

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12. Why referendum campaigns are crucial

As we enter the potentially crucial phase of the Scottish independence referendum campaign, it is worth remembering more broadly that political campaigns always matter, but they often matter most at referendums.

Referendums are often classified as low information elections. Research demonstrates that it can be difficult to engage voters on the specific information and arguments involved (Lupia 1994, McDermott 1997) and consequently they can be decided on issues other than the matter at hand. Referendums also vary from traditional political contests, in that they are usually focused on a single issue; the dynamics of political party interaction can diverge from national and local elections; non-political actors may often have a prominent role in the campaign; and voters may or may not have strong, clear views on the issue being decided. Furthermore, there is great variation in the information environment at referendums. As a result the campaign itself can be vital.

We can understand campaigns through the lens of LeDuc’s framework which seeks to capture some of the underlying elements which can lead to stability or volatility in voter behaviour at referendums. The essential proposition of this model is that referendums ask different types of questions of voters, and that the type of question posed conditions the behaviour of voters. Referendums that ask questions related to the core fundamental values and attitudes held by voters should be stable. Voters’ opinions that draw on cleavages, ideology, and central beliefs are unlikely to change in the course of a campaign. Consequently, opinion polls should show very little movement over the campaign. At the other end of the spectrum, volatile referendums are those which ask questions on which voters do not have pre-conceived fixed views or opinions. The referendum may ask questions on new areas of policy, previously un-discussed items, or items of generally low salience such as political architecture or institutions.

Another essential component determining the importance of the campaign are undecided voters. When voter political knowledge emanates from a low base, the campaign contributes greatly to increasing political knowledge. This point is particularly clear from Farrell and Schmitt-Beck (2002) where they demonstrated that voter ignorance is widespread and levels of political knowledge among voters are often overestimated. As Ian McAllister argues, partisan de-alignment has created a more volatile electoral environment and the number of voters who make their decisions during campaigns has risen. In particular, there has been a sharp rise in the number of voters who decide quite late in a campaign. In this case, the campaign learning is vital and the campaign may change voters’ initial disposition. Opinions may only form during the campaign when voters acquire information and these opinions may be changeable, leading to volatility.

The experience of referendums in Ireland is worth examining as Ireland is one of a small but growing number of countries which makes frequent use of referendums. It is also worth noting that Ireland has a highly regulated campaign environment. In the Oireachtas Inquiries Referendum 2011, Irish voters were asked to decide on a parliamentary reform proposal (Oireachtas Inquiries – OI) in October 2011. The issue was of limited interest to voters and co-scheduled with a second referendum on reducing the pay of members of the judiciary along with a lively presidential election.

The OI referendum was defeated by a narrow margin and the campaign period witnessed a sharp fall in support for the proposal. Only a small number of polls were taken but the sharp decline is clear from the figure below.

Figure One – The Campaign Matters (OI Referendum)
The Campaign Matters (OI Referendum)

Few voters had any existing opinion on the proposal and the post-referendum research indicated that voters relied significantly on heuristics or shortcuts emanating from the campaign and to a lesser extent on either media campaigns or rational knowledge. The evidence showed that just a few weeks after the referendum, many voters were unable to recall the reasons for their voting decision. An interesting result was that while there was underlying support for the reform with 74% of all voters in support of Oireachtas Inquiries in principle, it failed to pass. There was a very high level of ignorance of the issues where some 44% of voters could not give cogent reasons for why they voted ‘no’, underlining the common practice of ‘if you don’t know, vote no’.

So are there any lessons we can draw for Scottish Independence campaign? Scottish independence would likely be placed on the stable end of the Le Duc spectrum in that some voters could be expected to have an ideological predisposition on this question. Campaigns matter less at these types of referendums. However, they are by no means a foregone conclusion. We would expect that the number of undecided voters will be key and these voters may use shortcuts to make their decision. In other words the positions of the parties, of celebrities of unions and businesses and others will likely matter. In addition, the extent to which voters feel fully informed on the issues will also possibly be a determining factor. It may be instructive to look at another Irish referendum, on the introduction of divorce in the 1980s, during which voters’ opinions moved sharply during the campaign, even though the referendum question drew largely from the deep rooted conservative-liberal cleavage in Irish politics (Darcy and Laver 1990). The Scottish campaign might thus still conceivably see some shifts in opinion.

Headline image: Scottish Parliament Building via iStockphoto.

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13. Law careers from restorative justice, to legal ombudsman, to media

What range of career options are out there for those attending law school? In this series of podcasts, Martin Partington talks to influential figures in the law about topics ranging from restorative justice to legal journalism.

Restorative Justice: An interview with Lizzie Nelson

The Restorative Justice Council is a small charitable organisation that exists to promote the use of restorative justice, not just in the court (criminal justice) context, but in other situations of conflict as well (e.g. schools). In this podcast Martin talks to Lizzie Nelson, Director of the Restorative Justice Council.

 

Handling complaints against lawyers: An interview with Adam Sampson

In this podcast, Martin talks to Adam Sampson, Chief Legal Ombudsman. They discuss the work of the Legal Ombudsman, how it operates, the kinds of issue it deals with, and some of the limitations the office has to deal with matters raised by dissatisfied clients.

 

Reporting the law: An interview with Joshua Rozenberg

Joshua Rozenberg is one of a very small number of specialist journalists who cover legal issues in a serious and thoughtful way. He has worked in a wide variety of media, including the BBC, The Daily Telegraph, and The Guardian. In this interview, he describes how he decided to become a journalist rather than a practising lawyer and comments on the challenges of devising ways to enable legal issues to be raised in mass media.

 

Headline image credit: Law student and lecturer or academic. © Palto via iStockphoto.

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14. Can changing how prosecutors do their work improve public safety?

In the 1990s, policing in major US cities was transformed. Some cities embraced the strategy of “community policing” under which officers developed working relationships with members of their local communities on the belief that doing so would change the neighborhood conditions that give rise to crime. Other cities pursued a strategy of “order maintenance” in which officers strictly enforced minor offenses on the theory that restoring public order would avert more serious crimes. Numerous scholars have examined and debated the efficacy of these approaches.

A companion concept, called “community prosecution,” seeks to transform the work of local district attorneys in ways analogous to how community policing changed the work of big-city cops. Prosecutors in numerous jurisdictions have embraced the strategy. Indeed, Attorney General Eric Holder was an early adopter of the strategy when he was US Attorney for the District of Columbia in the mid-1990s. Yet, community prosecution has not received the level of public attention or academic scrutiny that community policing has.

A possible reason for community prosecution’s lower profile is the difficulty of defining it. Community prosecution contrasts with the traditional model of a local prosecutor, which is sometimes called the “case processor” approach. In the traditional model, police provide a continuous flow of cases to the prosecutor, and she prioritizes some cases for prosecution and declines others. The prosecutor secures guilty pleas in most of the pursued cases, often through plea bargains, and trials are rare. The signature feature of the traditional prosecutor’s work is quickly resolving or processing a large volume of cases.

Community prosecution breaks with the traditional paradigm and changes the work of prosecutors in several ways. It removes prosecutors from the central courthouse and relocates them to a small office in a neighborhood, often in a retail storefront. This permits the prosecutor to develop relationships with community groups and individual residents, even allowing residents to walk into the prosecutor’s office and express concerns. It frees the prosecutors from responsibility for managing the flow of cases supplied by police and allows them to undertake two main tasks. The first is that prosecutors partner with community members to identify the sources of crime within the neighborhood and formulate solutions that will prevent crime before it occurs. The second is that when community prosecutors seek to impose criminal punishments, they develop their own cases rather than rely on those presented by police, and they typically focus on the cases they anticipate will have the greatest positive impact on the local community.

In the past fifteen years, Chicago, Illinois, has had a unique experience with community prosecution that allowed the first examination of its impact on crime rates. The State’s Attorney in Cook County (in which Chicago is located), opened four community prosecution offices between 1998 and 2000. Each of these offices had responsibility for applying the community prosecution approach to a target neighborhood in Chicago, and collectively, about 38% of Chicago’s population resided in a target neighborhood. Other parts of the city received no community prosecution intervention. The efforts continued until early 2007, when a budget crisis compelled the closure of these offices and the cessation of the county’s community prosecution program. For more than two years, Chicago had no community prosecution program. In 2009, a new State’s Attorney re-launched the program, and during the next three years, the four community prosecution offices were re-opened.

Window of an apartment block at night. © bartosz_zakrzewski  via iStockphoto.
Window of an apartment block at night. © bartosz_zakrzewski via iStockphoto.

This sequence of events provided an opportunity to evaluate the impact of community prosecution on crime. The first adoption of community prosecution in the late 1990s lent itself to differences-in-differences estimation. The application of community prosecution to four sets of neighborhoods, each beginning at four different dates, enabled comparisons of crime rates before and after the program’s implementation within those neighborhoods. The fact that other neighborhoods received no intervention permitted these comparisons to drawn relative to the crime rates in a control group. Furthermore, Chicago’s singular experience with community prosecution – its launch, cancellation, and re-launch – furnished a sequence of three policy transitions (off to on, on to off again, and off again to on again). By contrast, the typical policy analysis observes only one policy transition (commonly from off to on). These multiple rounds of program application enhanced the opportunity to detect whether community prosecution affected public safety.

The estimates from this differences-in-differences approach showed that community prosecution reduced crime in Chicago. The declines in violent crime were large and statistically significant. For example, the estimates imply that aggravated assaults fell by 7% following the activation of community prosecution in a neighborhood. The estimates for property crime also showed declines, but they were too imprecisely estimated to permit firm statistical inferences. These results are the first evidence that community prosecution can produce reductions in crime and that the reductions are sizable.

Moreover, there was no indication that community prosecution simply displaced crime, moving it from one neighborhood to another. Neighborhoods just over the border of each community prosecution target area experienced no change in their average rates of crime. The declines thus appeared to reflect a true reduction instead of a reallocation of crime. In addition, the drops in offending were immediate and sustained. One might expect responses in crime rates would arrive slowly and gain momentum over time as prosecutors’ relationships with the community grew. But the estimates instead suggest that community prosecutors were able to identify and exploit immediately opportunities to improve public safety.

This evaluation of the community prosecution in Chicago offers broad lessons about the role of prosecutors. As with any empirical study, some caveats apply. The highly decentralized and flexible nature of community prosecution forbids reducing the program to a fixed set of principles and steps that can be readily implemented elsewhere. To the degree that its success depends on bonds of trust between prosecutor and community, its success may hinge on the personality and talents of specific prosecutors. (Indeed, the article’s estimates show variation in the estimated impacts across offices within Chicago.) At minimum, the results demonstrate that, under circumstances that require more study, community prosecution can reduce crime.

More broadly, the estimates suggest that the role of prosecutors is more far-reaching than typically thought. Crime control is conventionally understood to be primarily the responsibility of police. It was for this very reason that in the 1990s so much attention was devoted to the cities’ choice of policing style – community policing or order maintenance. Restructuring the work of police was thought to be a key mechanism through which crime could be reduced. By contrast, a conventional view of prosecutors is that their responsibilities pertain to the selection of cases, adjudication in the courtroom, and striking plea bargains. This article’s estimates show that this view is unduly narrow. Just as altering the structure and tasks of police may affect crime, so too can changing how prosecutors perform their work.

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15. Challenges facing UK law students

Making the leap between school and university can be a stretch at the best of times, but for UK law students it can be a real struggle. As there is no requirement to study law at school before beginning an undergraduate programme, many new law students have a very limited knowledge of how the law works and what they can expect from their studies.

We asked a group of 77 law students from around the UK about how they prepared for their courses. It turns out, only a third of them did any reading before starting, but a vast majority would have done, if only their university had given them a bit of advice.

infographic_web

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16. The First World War and the development of international law

On 28 June 1914, Archduke Franz Ferdinand and his wife Sophie, Duchess of Hohenberg, were assassinated in Sarajevo, setting off a six week diplomatic battle that resulted in the start of the First World War. The horrors of that war, from chemical weapons to civilian casualties, led to the first forays into modern international law. The League of Nations was established to prevent future international crises and a Permanent Court of International Justice created to settle disputes between nations. While these measures did not prevent the Second World War, this vision of a common law for all humanity was essential for international law today. To mark the centenary of the start of the Great War, and to better understand how international law arose from it, we’ve compiled a brief reading list.

The Oxford Handbook of the History of International Law, Edited by Bardo Fassbender, Anne Peters, and Simone Peter

How did international law develop from the 15th century until the end of World War II? This 2014 ASIL Certificate of Merit winnor looks at the history of international law in relation to themes such as peace and war, the sovereignty of states, hegemony, and the protection of the individual person. It includes Milos Vec’s ‘From the Congress of Vienna to the Paris Peace Treaties of 1919′ and Peter Krüger’s ‘From the Paris Peace Treaties to the End of the Second World War’.

Formalizing Displacement: International Law and Population Transfers by Umut Özsu

A detailed study into the 1922-34 exchange of minorities between Greece and Turkey, supported by the League of Nations, in which two million people were forcibly relocated. Check out the specific chapters on: Wilson and international law; US jurisprudence and international law in the wake of WWI; and the failed marriage of the US and the League of Nations and America’s reaction of isolationism through WWII.

The Birth of the New Justice: The Internationalization of Crime and Punishment, 1919-1950 by Mark Lewis

How could the world repress aggressive war, war crimes, terrorism, and genocide in the wake of the First World War? Mark Lewis examines attempts to create specific criminal justice courts to address these crimes, and the competing ideologies behind them.

A History of Public Law in Germany 1914-1945 by Michael Stolleis, Translated by Thomas Dunlap

How did the upheaval of the first half of the 20th century impact the creation of public law within and across states? Germany offers an interesting case given its central role in many of the events.

“Neutrality and Multilateralism after the First World War” by Aoife O’ Donoghue in the Journal of Conflict and Security Law

What exactly did ‘neutrality’ mean before, during, and after the First World War? The newly independent Ireland exemplified many of the debates surrounding neutrality and multilateralism.

The Signing of Peace in the Hall of Mirrors, Versailles, 28th June 1919 by William Orpen. Imperial War Museum. Public domain via Wikimedia Commons.
The Signing of Peace in the Hall of Mirrors, Versailles, 28th June 1919 by William Orpen. Imperial War Museum. Public domain via Wikimedia Commons.

“What is Aggression? : Comparing the Jus ad Bellum and the ICC Statute” by Mary Ellen O’Connell and Mirakmal Niyazmatov in the Journal of International Criminal Justice

The Treaty of Versailles marked the first significant attempt to hold an individual — Kaiser Wilhelm — accountable for unlawful resort to major military force. Mary Ellen O’Connell and Mirakmal Niyazmatov discuss the prohibition on aggression, the Jus ad Bellum, the ICC Statute, successful prosecution, Kampala compromise, and protecting the right to life of millions of people.

“Delegitimizing Aggression: First Steps and False Starts after the First World War” by Kirsten Sellars in the Journal of International Criminal Justice

Following the First World war, there was a general movement in international law towards the prohibition of aggressive war. So why is there an absence of legal milestones marking the advance towards the criminalization of aggression?

“The International Criminal Tribunal for the Former Yugoslavia: The Third Wang Tieya Lecture” by Mohamed Shahabuddeen in the Chinese Journal of International Law

What is the bridge between the International Military Tribunal, formed following the Treaty of Versailles, and the International Criminal Tribunal for the former Yugoslavia? Mohamed Shahabuddeen examines the first traces of the development of international criminal justice before the First World War and today’s ideas of the responsibility of the State and the criminal liability of the individual.

“Collective Security, Demilitarization and ‘Pariah’ States” by David J. Bederman in the European Journal of International Law

When are sanctions doomed to failure? David J. Bederman analyzes the historical context of the demilitarization sanctions imposed against Iraq in the aftermath of the Gulf War of 1991 from the 1919 Treaty of Versailles through to the present day.

“Peace Treaties after World War I” by Randall Lesaffer, Mieke van der Linde in the Max Planck Encyclopedia of Public International Law

How did legal terminology and provisions concerning hostilities, prisoners of war, and other wartime-related concerns change following the introduction of modern warfare during the First World War?

“League of Nations” by Christian J Tams in the Max Planck Encyclopedia of Public International Law

What lessons does the first body of international law hold for the United Nations and individual nations today?

“Alliances” by Louise Fawcett in the Max Planck Encyclopedia of Public International Law

Peace was once ensured through a complex web of diplomatic alliances. However, those same alliances proved fatal as they ensured that various European nations and their empires were dragged into war. How did the nature of alliances between nations change following the Great War?

“International Congress of Women (1915)” by Freya Baetens in the Max Planck Encyclopedia of Public International Law

In the midst of tremendous suffering and loss, suffragists continued to march and protest for the rights of women. How did the First World War hinder the women’s suffrage movement, and how did it change many of the demands and priorities of the suffragists?

“History of International Law, World War I to World War II” by Martti Koskenniemi in the Max Planck Encyclopedia of Public International Law

A brief overview of the development of international law during the interwar period: where there was promise, and where there was failure.
 
Headline image credit: Stanley Bruce chairing the League of Nations Council in 1936. Joachim von Ribbentrop is addressing the council. Bruce Collection, National Archives of Australia. Public domain via Wikimedia Commons.

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17. The OUP and BPP National Mooting Competition

Oxford University Press and BPP Law School are proud to co-sponsor this national mooting competition which provides law students from around the country with the opportunity to practise and hone their advocacy skills. The event is now one of the most prestigious mooting competitions in the UK, where student advocates debate a fictitious case in a mock court of appeal in front of a judge. Over 140 law students embark on the contest each October; run on a knock-out basis they are whittled down over 4 rounds to the 4 who compete in the nail-biting final.

The final of the OUP and BPP National Mooting Competition 2013-2014 took place on Thursday 10th July, and proved to be a very enjoyable night of mooting indeed. Teams from Aston University, the London School of Economics, Kaplan Law School and Queen Mary, University of London battled it out for the top prize, with Theodore Anthony Meddick Dyson and Darren Low of Queen Mary, University of London emerging as worthy moot champions.

His Honour Judge Charles Gratwicke of Chelmsford Crown Court presided over the final and kept the students on their toes with some keen questioning. In his summing up, Judge Gratwicke praised the hard work and depth of knowledge the students demonstrated, saying: “You have displayed an exceptionally high standard of advocacy skills and the differences between the teams are paper-thin. You will all be successful because people of quality always find their niche”.

All photos by Arnaud Stephenson.

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18. On unauthorized migrants and immigration outside the law

From news stories about unaccompanied minors from Central America to invisible workers without legal standing, immigration continues to stir debate in the United States. The arguments framing the issue are often inflected with distorted ideas and words. We sat down with Hiroshi Motomura, the author of Immigration Outside the Law, to discuss this contentious topic.

You use the term “unauthorized migrants” instead of “illegal” or “undocumented” immigrants. Why this choice of words?

This is a topic that is so controversial that even the labels provoke deep disagreement. The words “illegal” or “undocumented” often reflect very strong views. Because my goal is to explain what makes these debates so heated and then to analyze the issues carefully, I start with neutral terms, like “unauthorized” and “immigration outside the law.” I reach some firm conclusions about the nature of unauthorized migration and the best policy responses, but I try hard to work through the many arguments on both sides, acknowledging my own assumptions and taking all views seriously. This effort requires that I start with neutral terms.

What was the influence of the landmark 1982 US Supreme Court decision in Plyler v. Doe on our current discussion of immigration policy?

Plyler was pivotal. The Court said that the state of Texas couldn’t keep kids out of public schools just because they are in the United States unlawfully. It was a 5–4 decision, and we can debate whether the Court would come out the same way today. But Plyler it is much more than constitutional law. Plyler turned on three questions that remain at the heart of controversy. First, what does it mean to be in the United States lawfully––is “illegal” or “undocumented” more apt? Second, what is the state and local role in immigration policy? Third, should unauthorized migrants be integrated into US society—are they “Americans in waiting”?

A photograph of the May 1st, "Day without an Immigrant" demonstration in Los Angeles, California. © elizparodi via iStockphoto.

A photograph of the May 1st, “Day without an Immigrant” demonstration in Los Angeles, California. © elizparodi via iStockphoto.

Are unauthorized migrants “Americans in waiting”?

Many unauthorized migrants are Americans in waiting, meaning that their integration into American society should be recognized and fostered. Unauthorized migrants have contributed to US society, especially through work, often over a long period of time. Their contributions justify lawful immigration status and a path to citizenship. An argument that is just as strong, though less often heard, is that unauthorized migrants have come to the United States as part of an economic system that depends on them — to be tolerated when we need them and exposed to discretionary enforcement when we don’t. These two arguments aren’t mutually exclusive, and both find support in history and the reality of today’s America.

Can unauthorized migrants currently assert their rights within the US legal system?

Unauthorized migrants can assert rights in many settings. They can sue if an employer refuses to pay them. They have a right to due process in the courts. In many states, unauthorized residents are eligible for driver’s licenses and in-state tuition rates at public colleges and universities. They are not relegated to oblivion. Why not? These rights recognize in small ways that unauthorized migrants are Americans in waiting. To be sure, broad scale legalization proposals in Congress attract a lot of attention, but mini-legalizations take place every day in settings where decision-makers at all levels of government acknowledge the place of unauthorized migrants in American society.

What have state and local governments done to address immigration outside the law?

The state government authority was at the heart of Plyler, and the state and local role has been controversial ever since. States and localities have tried to enforce federal immigration laws directly or indirectly. Arizona’s SB 1070 is a prominent example. At the same time, other states and localities try to integrate unauthorized migrants, through driver’s licenses, ID cards, and access to higher education, and by curtailing cooperation with federal immigration enforcement. Does federal immigration authority displace both types of state or local laws? I think not. The compelling reason to limit state and local enforcement is preventative––so state and local officials can’t enforce immigration laws in ways that are selective and discriminatory. This concern doesn’t apply when states and localities recognize or foster the integration of unauthorized migrants.

A version of this article will appear in the UCLA School of Law alumni magazine.

Hiroshi Motomura is Susan Westerberg Prager Professor of Law at UCLA. He is the author of Immigration Outside the Law and Americans in Waiting.

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19. 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.

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20. 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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21. Are schools teaching British values?

By Stephanie Olsen


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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22. Humanitarian protection for unaccompanied children from Central America

By Jennifer Moore


We are approaching World Humanitarian Day, an occasion to honor the talents, struggles, and sacrifices of tens of thousands of humanitarian workers serving around the world in situations of armed conflict, political repression, and natural disaster. The nineteenth of August is also a day to recognize the tens of millions of human beings living and dying in situations of violence and displacement in West Africa, the Middle East, Central America, and every corner of the globe.

The notion of humanitarianism is linked to humanitarian law, the law of armed conflict or jus in bello, which strives to lessen the brutality of war, guided by the customary principles of distinction, necessity, proportionality, and humanity. But humanitarian workers animate these humanitarian principles on the ground in situations of human catastrophe that span the continuum of human and natural causation and overwhelm our capacity to categorize human suffering.

Today, humanitarian workers are active in every country in the world: from International Committee of the Red Cross workers in Nigeria helping displaced persons from communities attacked by Boko Haram insurgents; to UN High Commissioner for Refugees staff in Jordan and Lebanon assisting refugees from the civil war in Syria and Iraq; to Catholic Charities volunteers and staff in Las Cruces, New Mexico, United States sheltering women and children fleeing gang violence, human trafficking, and entrenched poverty in Central America.

US/Mexico border fence near Campo, California, USA. © PatrickPoendl via iStockphoto.

US/Mexico border fence near Campo, California, USA. © PatrickPoendl via iStockphoto.

Humanitarian emergencies, whether defined in military, political, economic or environmental terms, have certain basic commonalities: life and livelihood are threatened; communities and families are fractured; farms and food stores are destroyed; and people are forced to move — from village to village, from rural to urban area, from city to countryside, or from one country or continent to another.

Humanitarian workers who engage with communities in crisis are not limited to one legal toolkit. Rather, they stand on a common ground shared by humanitarian law, human rights law, and refugee law. Their life-affirming interventions remind us that all these frameworks are animated by the same fundamental concern for people in trouble. Whether we look to the 1949 Geneva Conventions and the principle of protecting the civilian population; to the 1948 Universal Declaration of Human Rights and its norms of family unity and child welfare; to the 1951 Refugee Convention and its prohibition against the forced return or refoulement of individuals to threatened persecution; or to the enhanced protections accorded unaccompanied children in the United States under the Trafficking Victims Protection Reauthorization Act of 2008, the essential rules are remarkably similar. Victims and survivors of war, repression, and other forms of violence are worthy of legal and social protection. It is humanitarian workers who strive to ensure that survivors of violence enjoy the safety, shelter, legal status, and economic opportunities that they require and deserve.

For the unaccompanied children from Central America seeking refuge in the United States, humanitarian protection signifies that they should have the opportunity to integrate into US communities, to have access to social services, to reunify with their families, and to be represented by legal counsel as they pursue valid claims to asylum and other humanitarian forms of relief from deportation. When the US Congress passed the Refugee Act in 1980, it was in recognition of our humanitarian obligations under international refugee law. As a signatory to the 1951 Convention relating to the Status of Refugees, the United States pledged not to penalize refugees for their lack of legal status, but rather to protect them from deportation to threatened persecution. These humanitarian obligations preexist, animate, and complement specific provisions of federal law, including those that facilitate the granting of T visas to trafficking victims, humanitarian parole to individuals in emergency situations, and asylum to refugees. When new emergencies arise, our Congress, our executive, and our courts fashion the appropriate remedies, not out of grace, but to ensure that as a nation we fulfill our obligations to people in peril.

As an American looking forward to World Humanitarian Day, I am thinking about the nearly 70,000 unaccompanied children from Central America apprehended by the US Customs and Border Protection agency over the past 10 months; the 200 Honduran, Salvadoran and Guatemalan women and children who have stayed at the Project Oak Tree shelter in the border city of Las Cruces, New Mexico this month; and the over 400 children and families detained within the Federal Law Enforcement Training Center in the small town of Artesia, New Mexico this very week. These kids and their families are survivors of poverty, targets of human trafficking, victims of gang brutality, and refugees from persecution. They have much in common with the displaced children of Northern Nigeria, Syria, and Iraq. Like their counterparts working with refugees and displaced persons throughout the world, the shelter volunteers, community residents, county social workers, immigration attorneys, and federal Homeland Security personnel who help unaccompanied children from Central America in the United States are all humanitarian workers. But so are our elected officials and legislators. And so are we. How will we honor World Humanitarian Day?

Jennifer Moore is on the faculty of the University of New Mexico School of Law. She is the author of Humanitarian Law in Action within Africa (Oxford University Press 2012). Read her previous blog posts.

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. The HSA/HRA response to Hobby Lobby

EZ Thoughts

By Edward Zelinsky


Few recent decisions of the US Supreme Court have engendered as much controversy as Burwell v. Hobby Lobby Stores, Inc. In that case, the Court decided that a closely-held corporation’s employer-sponsored medical plan need not provide contraception if the shareholders of such corporation object to contraception on religious grounds.

Responding to the resulting controversy, Senator Patty Murray, along with many of her Democratic colleagues, has proposed legislation to overturn Hobby Lobby. Senators Kelly Ayotte and Deb Fischer, along with many of their Republican colleagues, have introduced legislation confirming Hobby Lobby. In the current political environment, there is little chance of either bill becoming law any time soon.

However, there is a response to Hobby Lobby which would address the concerns of both contraception advocates and of religious objectors to contraception. In particular, any employer which objects to providing birth control should instead be required to fund for its employees independently-administered health savings accounts (HSAs) or health reimbursement arrangements (HRAs). An HSA or HRA permits the covered employee to spend employer-provided, pre-tax health care dollars on any medical service the employee chooses, from birth control to an MRI, without implicating the employer in the employee’s spending decision.

The HSA/HRA alternative respects the religious rights of sponsoring employers. With conventional insurance or self-insured health plans, the sponsoring employer’s plan provides a menu of choices which frames the employees’ decisions. In contrast, the HSA/HRA approach permits employees to spend health care dollars on whatever medical services employees select including services to which the employer objects – without the employer’s plan framing the employees’ choices. HSAs and HRAs are thus like cash wages which, when spent by the employee, do not entail participation by the employer.

Doctor With Piggy Bank

Justice Alito’s Hobby Lobby opinion identifies two other possible ways to provide contraception services without violating the rights of objecting employers. First, HHS might extend to closely-held for-profit firms the regulatory accommodation now limited to religious nonprofit entities other than churches. Under this accommodation, insurers or third-party administrators provide employees with contraception at no cost to the religious employer. Alternatively, the federal government might itself make birth control available to women who lack contraception coverage from their employer-sponsored health plans.

Commentators have expressed reservations about both these approaches. Some women’s health groups argue that a federal program will stigmatize the women who receive their contraception from such a program. Moreover, the problems of the Department of Veterans Affairs suggest the need for skepticism about the federal government as a provider of medical services. A number of religious groups contend that the current regulatory accommodation for religious employers does not go far enough and still makes employers participate in the provision of birth control to which they object.

In light of these concerns, HSAs and HRAs are compelling alternatives. HSAs and HRAs are analogous to cash wages which the employee spends as he chooses. Such accounts can assure women of the ability to obtain contraception which they seek with employer-provided, pre-tax health care dollars without burdening the religious beliefs of employers who object to involvement with contraception.

Suppose, for example, that Hobby Lobby is required to establish for each of its employees an HSA or HRA administered by the company’s bank. A Hobby Lobby employee could submit receipts to the bank for any type of medical care the employee selects. The employee would subsequently receive from the bank a reimbursement check for this care from his or her HSA/HRA account. Alternatively, HSA/HRA debit cards have become popular devices. These cards allow a covered employee to swipe when receiving health care services with the card.

These accounts could be used by each employee to defray any medical expense the employee elects including, but not limited to, the kinds of contraception to which the employer objects. However, the employer would not be complicit in the employee’s medical choices just as the employee does not participate in an employee’s decision to spend her wages on something with which the employer disagrees.

The HSA/HRA approach potentially has political legs. HHS (along with the Departments of the Treasury and Labor) could adopt regulations implementing this approach. Conservatives like HSAs and HRAs since these accounts implement a consumer-driven approach to health care. Liberals want to assure employees of contraception even if employers object to contraception. The HSA/HRA response to Hobby Lobby thus has bi-partisan appeal and is a compelling compromise as a matter of law and public policy.

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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24. Why do prison gangs exist?

By David Skarbek


On 11 April 2013, inmate Calvin Lee stabbed and beat inmate Javaughn Young to death in a Maryland prison. They were both members of the Bloods, a notorious gang active in the facility. The day before Lee killed Young, Young and an accomplice had stabbed Lee three times in the head and neck. They did so because Lee refused to accept the punishment that his gang ordered against him for breaking “gang rules.” Lee didn’t report his injuries to officials. Instead, he waited until the next day and killed Young in retribution.

While this might seem to provide evidence that gangs are inherently violent, that’s not so. The story is more complicated. Gangs enforce a variety of rules that they design to establish order. Lee violated these rules by giving his cellmate—who had a dispute with a rival gang—a knife. Many inmates would see this as encouraging violence, which gangs seek to control. The situation provides a glimpse at a major role played by prison gangs. They don’t form to promote chaos, but to limit spontaneous acts of violence.

Many people are surprised to learn about the extent to which gangs regulate inmate life. Not only do many inmates feel they must join a gang, but gangs even issue written rules about appropriate social conduct. These include who you may eat lunch with, which shower to use, who may cut your hair, and where and when violence is acceptable. One gang gives new inmates a written list of 28 rules to follow. Many gangs even require new inmates to provide a letter of introduction from gang members at other prisons. Moreover, gangs also encourage cooperation within their group by relying on elaborate written constitutions. These often include elections, checks and balances, and impeachment procedures.

Fence and lights. © JordiDelgado via iStockphoto.

Fence and lights. © JordiDelgado via iStockphoto.

Besides setting rules, prison gangs promote social order by adjudicating conflict. Inmates can’t turn to officials to provide this when dealing in illicit goods and services. An inmate can’t rely on a prison warden to resolve a dispute over the quantity or quality of heroin. They can’t turn to officials if someone steals their marijuana stash.

In short, prison gangs form to provide extralegal governance. They enforce property rights and promote trade when formal governance mechanisms don’t. The provide law for the outlaws.

Yet, gangs’ dominance today stands in stark contrast with the historical record. In California, the prison system existed for more than a century before prison gangs emerged. If gangs are so important today, then why didn’t they exist for more than 100 years?

A major cause of the growth of prison gangs is the unprecedented growth in the prison population in the last 40 years. The United States locks up a larger number and proportion of its residents than any other country. This amounts to about 2.2 million people (707 out of every 100,000 residents). With such large prison populations, officials can’t provide all the governance that inmates’ desire. Mass incarceration thus creates fertile conditions for the rise of organized prison gangs.

David Skarbek is a Lecturer in the Department of Political Economy at King’s College London. He is the author of The Social Order of the Underworld: How Prison Gangs Govern the American Penal System, which is available on Oxford Scholarship Online. Read the introductory chapter ‘Governance Institutions and the Prison Community’ for free for a limited time.

Oxford Scholarship Online (OSO) is a vast and rapidly-expanding research library, and has grown to be one of the leading academic research resources in the world. Oxford Scholarship Online offers full-text access to scholarly works 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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25. Hate crime and community dynamics

By Mark Austin Walters


Hate crimes are offences that are motivated by hostility, or where some form of demonstration of hostility is made, against the victim’s identity. Such crimes can have devastating impacts, both on those directly victimised and on other community members who fear they too may be targeted. While much has been written about the impacts of hate crime victimisation, there has been little which has focused on how the criminal justice system can effectively address the consequences of hate — other than through criminalising and punishing offenders.

A relatively new theory and practice of criminal justice is that of “Restorative Justice” (RJ). RJ seeks to bring the “stakeholders” of an offence together via inclusive dialogue in order to explore what has happened, why it happened, and how best those involved in the offence can repair the harms caused. There is now a substantial body of research into the effectiveness of RJ for violent and non-violent offences. Yet there has been little attention paid to whether such a process can effectively address crimes motivated by identity-based prejudice.

The harms caused by prejudice-motivated crime can relate both to the individual traumas experienced by victims, and the structural harms faced by many marginalised communities. The individual and structural harms caused by hate crime are not easily remedied. The current approach to combating hate crime via criminalisation and enhanced penalties, while important symbolically to the combatting of hate crime, does little to directly repair harm or challenge the underlying causes of hate-motivated offending.

In order to understand more about the reparative qualities of Restorative Justice for hate crime an empirical study of RJ projects was conducted where practices were used to address the causes and consequences of hate crime offences. The 18 month project involved 60 qualitative interviews with victims, restorative practitioners, and police officers who had participated in a restorative practice. In addition, 18 RJ meetings were observed, many of which involved face-to-face dialogue between victim, offender, and their supporters. One such project, administered by the Hate Crimes Project at Southwark Mediation Centre, South London, used a central restorative practice called Community Mediation, which employs a victim-offender or family group conferencing model. The cases researched involved “low-level” offences (including crimes aggravated by racial, religious, sexual orientation, and disability hostility) such as causing harassment, violence, or common assault, as well as more serious forms of violence including several cases of actual bodily harm and grievous bodily harm.

In the Southwark Hate Crimes Project, the majority of complainant victims (17/23) interviewed stated that the mediation process directly improved their emotional wellbeing. Further exploration of the process found that the levels of anger, anxiety, and fear that were experienced by almost all victims were reduced directly after the mediation process. Victims spoke at length about why the dialogical process used during mediation helped to improve their emotional wellbeing. First and foremost, participants felt they could play an active role in their own conflict resolution. This was especially important to most victims who felt that they had previously been ignored by state agencies when reporting their experiences of victimisation. Many noted that they were finally being listened to and their victimisation was now being taken seriously.

800px-Southwark_Bridge_at_night

It was of utmost importance to victims that the perpetrator signed an agreement promising to desist from further hate incidents. In terms of desistance, 11 out of 19 separate cases of ongoing hate crime incidents researched in Southwark ceased directly after the mediation process had taken place (participants were interviewed at least six months after the mediation process ended). In a further six cases incidents stopped after the community mediator included other agencies within the mediation process, including schools, social services, and community police officers.

Unfortunately, the positive findings reported from Southwark were not repeated for the restorative policing measures used for low-level offences by Devon and Cornwall Police. Just half of the 14 interviewees stated that they were satisfied with the outcome of their case, where an alternative restorative practice, called Restorative Disposal was used. There were several reasons for lower levels of harm reparation at Devon and Cornwall, most of which were directly linked to the (lack of) restorativeness of the intervention. For example, several participants felt pressured by the police to agree to the intervention which had direct implications for the voluntariness of the process – a key tenet of restorative justice theory and practice.

Collectively, these results suggested that where restorative justice is implemented by experienced practitioners committed to the values of “encounter,” “repair,” and “transformation” it could reduce some of the harms caused by hate. However, where Restorative Justice was done “on the quick” by facilitators who were not equipped with either the time or resources to administer RJ properly, victims will be left without adequate reparation for the harms they have endured.

Another key factor supporting the reparative qualities of restorative practice, is reconceptualising the central notion of “community”. It is important to understand the complex dynamics of “community” by recognising that it may have certain invidious qualities (that are causal to hate-motivated offences) as well as more benevolent virtues. Equally, “community” may provide a crucial conduit through which moral learning about “difference” can be supported and offenders can be reintegrated into neighbourhoods less likely to reoffend.

Although the notion of community is an elusive concept, it is important for the future use of restorative practices for practitioners to view community organisations as important components of local neighbourhoods. These organisations (including neighbourhood policing teams, housing associations, schools, colleges, and social services) have an important role to play in conflict resolution, and must work together using a multi-agency approach to addressing hate crime. Such an approach, if led by a restorative practitioner, allows the various agencies involved in tackling hate victimisation to combine their efforts in order to better support victims and manage offenders. Hence, Restorative Justice may have scope to not only mitigate against the traumas of direct victimisation but also some of the structural harms that marginalised groups continue to experience.

Dr Mark Austin Walters is a Senior Lecturer in Criminal Law and Criminal Justice at the University of Sussex, and the Co-Director of the International Network of Hate Studies. He is the author of Hate Crime and Restorative Justice: Exploring Causes and Repairing Harms, which includes a full analysis of the impacts of hate crime, the use of restorative justice, multi-agency partnerships and the importance of re-conceptualising “community” in restorative discourse in cases involving “difference”. A full text of the book’s introduction ‘Readdressing Hate Crime’ can be accessed online.

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Image credit: Southwark bridge at night, by Ktulu. CC-BY-SA-3.0 via Wikimedia Commons.

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