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1. A brief history of Data Privacy Law in Asia

The OECD’s Guidelines on the Protection of Privacy and Transborder Flows of Personal Data (1980) were an early influence on the development of data privacy laws in Asia. Other bodies have since also been influential in the formulation of data privacy laws across Asia, including the 1981 Council of Europe Data Protection Convention, the United Nations Guidelines for the Regulation of Computer Data Files, the European Union’s Data Protection Directive, and the APEC Privacy Guidelines.

This timeline below shows the development of data privacy laws across numerous different Asian territories over the past 35 years. In each case it maps the year a data privacy law or equivalent was created, as well as providing some further information about each. It also maps the major guidelines and pieces of legislation from various global bodies, including those mentioned above.


Featured image credit: Data (scrabble), by justgrimes. CC-BY-SA 2.0 via Flickr.

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2. Is London the world’s legal capital?

2015 may be a watershed year for one part of the UK economy—the market for legal services.

Much is made of London’s status as the world’s legal capital. This has nothing to do with the legal issues that most people encounter, involving crime, wills, houses, or divorce. It concerns London’s pre-eminence in the resolution of international commercial disputes— those substantial business disputes, often involving foreign parties or contracts performed abroad, which might in principle be heard anywhere. That an English court is everyone’s court of choice in such cases has long been an article of faith, at least for English lawyers.

English law is often chosen as the law governing commercial contracts, even those having little or no connection with England, because it is valued for its certainty and commercial approach. So whether, say, a German company is liable for failing to perform a contract in Kazakhstan may depend on English rules. If English law is to be applied, however, it is perhaps obvious that this will be done best in the English courts. Those courts are also widely respected for their impartiality, for the quality of the judges, and for their experience in commercial matters. The quality and expertise of English lawyers, confirmed in a recent survey, and the availability of remedies unknown elsewhere, notably injunctions to prevent foreign proceedings and to freeze a defendant’s foreign assets, are also powerful attractions.

The assumption that London is the market leader in commercial disputes is also reflected in the numbers. Since 2008, when cases arising from the economic downturn began to emerge, more than 1,000 claims have been made each year in the London Commercial Court (housed in the state-of-the-art Rolls Building). But it is the nature of these cases, not the quantity, which is striking. 81% of those started in 2013 involved at least one foreign party, and 48% involved no party from the UK at all. The message is that the Court is not just a national court, but an international court favoured by litigants from around the world who could no doubt have taken their dispute elsewhere.

The effects of this dominance are significant. English law is recognized as setting the standard in resolving business disputes, and English judgments (and the work of English writers) are widely read around the world. The economic value of such disputes is also considerable, and the resolution of such cases is a major invisible export.

But London’s profile in resolving transnational disputes cannot be taken for granted. Even if the parties’ obligations are subject to English law, how their dispute is handled may not be. Whether a court can hear a case at all (the issue of jurisdiction) is in large part governed by EU law. Cases may ultimately be resolved not in London, but by the European Court in Luxembourg, under rules less flexible, and less commercially attuned, than the English courts have traditionally used. This matters because jurisdiction is at the heart of most commercial cases.

The threats to London’s prominence are also home-grown. The much prized certainty of English contract law has become less secure as the courts have toyed with requiring parties to comply not just with a contract’s terms but with an ill-defined duty of good faith. The courts have also become increasingly intolerant about failure to meet procedural deadlines, a hard thing to achieve in complex cases, which undermines (or may be seen to undermine) their traditionally flexible, common sense approach to litigation. They are also less willing to allow lengthy arguments about which country’s courts should hear a case, a particular issue when so many cases have little connection with England, which for the parties at least is usually the heart of their dispute. Most striking of all, the government has proposed charging premium fees for using the Commercial Court, significantly increasing the cost of litigation, partly to reflect concerns that the taxpayer should not be subsidising a court largely used by foreign litigants.

Some courts have sought to limit the fallout from this new approach, at least when it comes to contractual certainty, and managing cases inflexibly. There are also signs that the government has back-tracked on the controversial proposal to penalize commercial litigants with higher fees, given concerns that London’s dominance in the legal marketplace would suffer. But the genie is out of the bottle, and lawyers have become uneasy about official commitment to London’s role as a legal hub.

Such doubts, justified or not, are a dangerous thing in a competitive market, and London certainly faces increased competition from overseas courts. New commercial courts established in Dubai, Qatar and Singapore, generously funded by the state, may threaten London’s traditional dominance.

Neither the English courts nor Parliament can resolve the uncertainties of EU procedural law—short of leaving the EU altogether. But any damage done by making English law less certain, or by over-regulating civil disputes, or by exposing litigants to additional costs, is avoidable. Whether such self-inflicted injuries can be avoided and whether the English courts remain competitive depends, however, on making a choice—a choice for the courts and for politicians. Whether or not London is the world’s legal capital, do we want it to be?

The international standing of the English courts is unlikely to be featured in most people’s New Year’s resolutions. But for the courts and government perhaps it should.

Image Credit: Courts Closed. Photo by Chris Kealy. CC BY-NC-SA 2.0 via Flickr.

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3. Sovereign equality today

To speak of sovereign equality today is to invite disdain, even outright dismissal. In an age that has become accustomed to compiling “indicators“ of “state failure,” revalorizing nineteenth-century rhetoric about “great powers,” and circumventing established models of statehood with a nebulous “responsibility to protect,” sovereign equality seems little more than a throwback to a simpler, less complicated era.

To be sure, as a general principle, sovereign equality remains foundational to both customary and conventional international law. Article 2(1) of the UN Charter retains its nominally sacrosanct status, a foundational point of reference for a modern international law that promised to do away with the “standard of civilization”. Similarly, all the other classic articulations of independence and non-interference, especially the 1970 Friendly Relations Declaration, continue to be invoked, often with much the same spirit of solemnity.

Yet a great deal has also changed in recent decades. We have grown familiar to hearing that borders are no longer what they once were (or what, at any rate, they were once imagined to be). Traversed by goods, services, people, and capital, not to mention information, territorial frontiers have been characterized by wave upon wave of globalization theory as “fluid” and “porous”. Likewise, conventional legal models of recognition and jurisdiction have come under intense criticism. Among other things, the colonization of large chunks of international law scholarship by political science has generated a large literature on “rogue states”.

Not surprisingly, such developments have put the very idea of sovereign equality under pressure. And this, in turn, has had significant systemic consequences for international law as a whole.

Of course, sovereign equality is not without its problems. The principle has legitimated the very injustice it is purportedly designed to combat, enshrouding real inequality in a purely notional equality. After all, in itself, a bare assertion that states are equal and endowed with the same legal personality does remarkably little to rectify actually existing inequalities. Worse still, “rights of sovereignty” have been invoked to justify all manner of abuses, typically by national elites determined to augment and consolidate their class power.

Part of the difficulty here is that far from being inherently “progressive”, sovereign equality is a concept with a rather murky pedigree. While its roots reach back centuries, the principle assumed strong doctrinal form during the nineteenth century by way of the Concert of Europe’s commitment to the European balance of power. This commitment was typically premised upon the impermissibility of intervention in “civilized” states and the permissibility of intervention in “uncivilized” and “semi-civilized” regions. That is hardly an ideal foundation for an emancipatory principle.

All of this is true. But it is also worth keeping in mind that sovereign equality has frequently furnished politically and economically weaker states with a measure of protection against aggression and intervention. As a response to de facto inequality, international lawyers instinctively prioritize de jure equality. Absent such insistence on formally equal rights and obligations, it is often assumed, the will and interests of some states would be subordinated to the will and interests of other states, with predictably dire implications for international legal order.

To underscore the significance of sovereign equality today is not to cling to an outdated mode of conceiving international relations. Nor is it to deny that sovereign power has its “dark sides”. It is simply to stress the need for greater appreciation of the fact that sovereignty may under certain circumstances provide a buffer against some of the most direct and explicit forms of inter-state violence. It is worth recalling that the history of international law is to no small degree the history of attempts to secure recognition for (one or another account of) sovereign equality. This is anything but a puerile pursuit.

Headline image credit: Map of the world. CC0 via Pixabay.

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4. Fear vs terror: signal crimes, counter-terrorism, and the Charlie Hebdo killings

Signal crimes change how we think, feel, and act — altering perceptions of the distribution of risks and threats in the world. Sometimes, as with the recent assassinations and mass shootings in France, sending a message is the intention of the criminal act. The attackers’ target selection of the staff of Charlie Hebdo magazine, and that of taking and killing Jewish hostages, was deliberately designed to send messages to individuals and institutions.

Researchers examine social reactions to different kinds of crime events and the signals they send to a range of audiences. The aim is to determine how and why certain kinds of incidents and situations generate fear and anxiety responses that travel widely and, by extension, how processes of social reaction to such events are managed and influenced by the authorities.

The murder of Lee Rigby in London in 2013 can be understood as a signal crime as it triggered concern amongst the general public and across security institutions, owing to the macabre innovation of the killers in undertaking a brutally simple form of assault. Analysis of the crime has identified a number of key components to the overarching process of social reaction. Observing how events have unfolded in France, the collective reactions have followed a similar trajectory to what happened in London.

In the wake of both incidents there was ‘spontaneous community mobilisation’ as ordinary people sought to engage in collective sense-making of what had actually happened, coupled with collective action ‘to do something’ to evidence their opposition. Widespread use of social media platforms helped spread rumours as attempts were made to follow updates in the story; rapid moves were made to secondary conflicts as acts of criminal retaliation were committed against symbolic Muslim targets.

One prominent type of intervention evident in both cases has been a call from senior figures within security institutions and governments to urgently provide the authorities with enhanced legal powers, especially for digital and online surveillance. This is part of a wider reaction pattern that we might label ‘the legislative reflex’. This term seeks to capture how – following a terrorist atrocity and the public concern it induces – politicians who need to be seen to be ‘doing something’ almost automatically reach for new laws as their principal response. The presence of this reflex is evidenced by the fact that since 9/11, in the United Kingdom we have seen the introduction of a significant number of new laws including:

  • The Anti-terrorism, Crime and Security Act 2001, allowing for detention without trial (later overturned by the courts)
  • The Terrorism Act 2006, which extended the detention of suspects without charge from 14 to 28 days
  • The Counter-Terrorism Act 2008, under which police were permitted to continue questioning suspects after charge
  • The Terrorist Asset-Freezing Act 2010
  • The Counter-Terrorism and Security Bill, which is currently being debated by peers in the House of Lords

What we can detect here is how fear of not being able to protect against potential attacks is being mobilised to justify new preventative anti-terror legislation. In effect, public and political fear is being deployed to shape the reaction to terrorism, where reaching for new legislation has become part of the societal response to terrorist attacks.

However, it increasingly appears that this approach is inadequate and that we are dealing with a social problem that we cannot solve by legal means alone. Indeed, a more nuanced and sophisticated approach to counter-terrorism policy development would probably look elsewhere for solutions. After all, in both the French cases and that of Drummer Rigby, it transpired that the perpetrators were well known to the authorities as presenting a risk. Rather than creating legislative fixes to collect more intelligence, research suggests the focus must be on finding effective policy solutions to three inter-linked ‘wicked problems’ that have been identified in issues of radicalization and home-grown extremism.

The first of these, mentioned earlier, concerns the ability of the politics of counter-terrorism to resist the allure of introducing new security measures that might corrode levels of integration and cohesion. Over the long-term, over-reaction to terrorist provocations can be as harmful as the initial act itself.

This connects to the second ‘wicked problem’: tension between the tactical and strategic response to countering violent extremists. The police and security services focus upon stopping violent acts, often engaging with individuals whose ideas are not coherent with liberal democratic traditions. Preventing or stopping these acts does not reduce the longer term influence of these radical ideas.

Thirdly, all plausible theories of radicalisation into violent extremism identify a pivotal role played by ‘non-violent extremists': those who do not engage in violence directly, but whose ideas and rhetoric influence others to do so. These create a ‘mood music’ of ideas, values, and beliefs that presents violence as a permissible means to an end. In the wake of the killings in France, there has been a widespread call across Europe to protect the right to freedom of speech. However, this freedom will also be used by those motivated to undertake mass killings. Current counter-terrorism policy struggles with what to do with individuals who steer and propagate the radicalisation of others by engaging in activity that is troublesome and unpleasant, but not necessarily illegal.

One of the principal institutional effects of high profile signal crimes is to implant a political imperative to consider what can be done to predict, pre-empt, and prevent similar atrocities in the future. However, it is increasingly clear that it is not going to be possible to prevent all such attacks. Developing a conceptually robust evidenced understanding of how and why our collective processes of reaction occur in the ways they do, and the institutional effects that such assaults induce, seems vitally important if we are to collectively manage our reactions better when the next attack comes.

Headline image credit: Paris rally in support of the victims of the 2015 Charlie Hebdo shooting, 11 January 2015. Photo by “sébastien amiet;l”. CC BY 2.0 via Flickr.

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5. 35 years CISG and beyond

In the Preface to the 3rd edition of Commentary on the UN Convention on the International Sale of Goods (CISG), editor Professor Ingeborg Schwenzer notes:

“the CISG has enjoyed enduring success and continues to do so. Today, the Convention has 74 Contracting States. Most notably, on 19 June 2008, the Japanese parliament decided to adopt the Convention; the instrument of ratification was deposited on 1 July 2008 and the Convention came into force on 1 August 2009. Other important states such as Brazil, Turkey, and Portugal are expected to join the Convention in the near future.”

It is within this context that the University of Basel, the Swiss Association for International Law (SVIR/SSDI) and UNCITRAL are hosting a special conference which will mark 35 years of the Convention on the International Sale of Goods (CISG), from 29th-30th January 2015. In this conference, special focus will be given to open issues in regard to the CISG’s application and any possible further harmonization and unification of contract law.

The range of speakers at the Conference includes the world’s leading scholars on the CISG and comparative law, including fellow Oxford author Dr Pascal Hachem, who will be speaking on ‘Extending the CISG: Beyond Sales Contracts’. Among the speakers are members and rapporteurs of the CISG Advisory Council. Other speakers include Professor Dr. H. Flechtner, Professor of Law at the University of Pittsburgh School of Law; Professor Dr. S. Han, professor of Civil Law in Tsinghua University School of Law (Beijing) and a Fulbright Visiting Research Scholar visiting Harvard Law School and Professor Dr. B. Piltz, Partner of the law firm Ahlers & Vogel, Hamburg.

Basel in the morning, by dongga BS. CC-BY-NC-SA-2.0 via Flickr.
Basel in the morning, by dongga BS. CC-BY-NC-ND-2.0 via Flickr.

Other highlights from the conference programme include an economic analysis of the CISG, a focus on validity issues when extending the CISG and the future of unification of contract law. The conference dinner will be held at the Restaurant Safran Zunft, a location first documented in the 14th century.

The conference is hosted at the University of Basel in Switzerland, one of the leading universities in the country. Originally founded in in connection with the Council of Basel, it was officially opened in 1460, the deed of foundation having already been given in the form of a Papal bull in 1459 by Pope Pius II. The University of Basel was originally decreed to have four faculties—arts, medicine, theology and jurisprudence and The University Library of Basel has over three million books and writings and is the largest library in Switzerland.

Basel itself, Switzerland’s third largest city by population, is located where the Swiss, French and German borders meet. It has suburbs in France and Germany, and is situated in the north west of Switzerland on the river Rhine. Basel is an important cultural centre for Switzerland. The city houses many theatres and museums, including the Museum of Fine Arts, which contains the world’s oldest publicly accessible art collection.

Oxford University Press is proud to be a Gold Partner of 35 Years CISG and Beyond. If you are attending keep an eye out for the Oxford University Press stand, where we’ll be offering a discount on our renowned contract law commentaries and conducting demonstrations of our new online product Oxford Legal Research Library: International Commercial Law, which offers online access to both Commentary on the UN Convention on the International Sale of Goods (CISG) and Global Sales and Contract Law. If you’d like more information about CISG and the Global Sales Law Project ahead of the Conference, you can also watch Ingeborg Schwenzer introduce the topic.

Featured image credit: HerbstMesse Basel, by Niki Georgiev. CC-BY-2.0 via Flickr.

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6. Transforming the police through science

Amidst the images of burning vehicles and riots in Ferguson, Missouri, the US President, Barack Obama, has responded to growing concerns about policing by pledging to spend $75 million to equip his nation’s police with 50,000 Body Worn Videos. His initiative will give added impetus to an international movement to make street policing more transparent and accountable. But is this just another example of a political and technical quick fix or a sign of a different relationship between the police and science?

At the heart of the shift to Body Worn Video is a remarkable story of a Police Chief who undertook an experiment as part of his Cambridge University Masters programme. Rialto Police Department, California serves a city of 100,000 and has just over one hundred sworn officers. Like many other departments, it had faced allegations that its officers used excessive force. Its Chief, Tony Farrar, decided to test whether issuing his officers with Body Worn Video would reduce use of force and complaints against his officers. Instead of the normal police approach to issuing equipment like this, Farrar, working with his Cambridge academic supervisor, Dr Barak Ariel, designed a randomised field trial, dividing his staff’s tours of duty into control – no video – and treatment – with video. The results showed a significant reduction in both use of force and citizen complaints.

Why is this story so different? A former Victoria Police Commissioner described the relationship between the police and research as a “dialogue of the deaf”. The Police did not value research and researchers frequently did not value policing. Police Chiefs often saw research as yet another form of criticism of the organisation. Yet, despite this, research has had a major effect on modern policing. There are very few police departments in the developed world that don’t claim to target “hot-spots” of crime, an approach developed by a series of randomised trials.

However, even with the relative success of “hot-spot policing”, police have not owned the science of their own profession. This is why Chief Farrar’s story is so important. Not only was Farrar the sponsor of the research, but he was also part of the research team. His approach has allowed his department to learn by testing. Moreover, because the Rialto trial has been published to both the professional and academic field, its lessons have spread and it is now being replicated not just in the United States but also in the United Kingdom. The UK College of Policing has completed randomised trials of Body Worn Video in Essex Police to test whether the equipment is effective at gathering evidence in domestic violence investigations. The National Institute of Justice in the United States is funding trials in several US cities.

This is the type of approach we have come to expect in medicine to test promising medical treatments. We have not, up to now, seen such a focus on science in policing. Yet there are signs of real transformation, which are being driven by an urgent need to respond to a perfect storm created by a crisis of legitimacy and acute financial pressures. Not only are Chiefs trying to deal with the “Ferguson” factor, but they also have to do so against a backdrop of severe constraint.

“Science can provide a means to transform policing as long as police are prepared to own and adopt the science”

As the case of Body Worn Video has shown, science can provide a means to transform policing as long as police are prepared to own and adopt the science. But for Body Worn Video not to be an isolated case, policing will need to adopt many of the lessons from medicine about how it was transformed from eighteenth century barber surgeons to a modern science-based profession. This means policing needs an education and training system that does not just teach new recruits law and procedure, but also the most effective ways to apply them and why they work. It means that police leaders will need to target their resources using the best available science, test new practices, and track their impact. It will require emerging professional bodies like the College of Policing to work towards a new profession in policing, in which practice is accredited and expertise is valued and rewarded.

Obama’s commitment to Body Worn Video will not, of itself, solve the problems that Ferguson has so dramatically illustrated. The Rialto study suggests it may help – a bit. However, the White House announcement also included money for police education. If that is used wisely and police leaders grasp the opportunity to invest in a new science-based profession, then the future may be brighter.

Headline image credit: ‘Day 126 – West Midlands Police – CCTV Operator’ by West Midlands Police. CC BY-SA 2.0 via Flickr

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7. Credulity and credibility in police work

“Never waste a good crisis,” or so Rahm Emanuel (President Obama’s former Chief of Staff and now Mayor of Chicago) is reputed to have said. Well, whether Prince Andrew allegedly had sex with an underage girl at some time in the distant past looks like a crisis for the Royal Household. May be it’s an opportunity not to be wasted.

How might it be put to use? It could facilitate a debate into the supposed ‘rights of victims’. Such a debate has been a long time coming. There has been no shortage of inept police investigations that failed to recognise malign intentions even when staring officers in the face. The ‘Yorkshire Ripper’ (Sutcliffe) was interviewed nine times without the West Yorkshire Police appreciating that they were talking to the murderer. A succession of child abuse cases have revealed failures on the part of officers to become sufficiently suspicious of parents. Dr Harold Shipman murdered an unknown — but undoubtedly huge — number of his elderly patients without stirring police suspicions even after a fellow doctor expressed her concerns.

Over the past thirty years, victims have become a more visible and voluble beast in the criminal justice undergrowth. Feminists were in the vanguard of this movement, protesting about crimes against women, especially domestic violence and sex crimes. They were joined by those concerned with the welfare of children. Meanwhile, the Savile Affair and prosecution of a cast list of celebrities on charges of ‘historical child sexual abuse’, plus the shenanigans over the choice of who should chair the inevitable official inquiry, have kept the issue of child abuse at the top of the news agenda.

Enter Prince Andrew who has been accused (along with others) of having a sexual relationship with a young American woman who was under the age of consent. This has prompted Establishment figures, including his ex-wife, to step forward and insist that such allegations are ridiculous. I have no reason to doubt his supporters are genuine, but neither can I shake off the echoes of my own sense of incredulity when Rolf Harris (of all people) was convicted of sex crimes against young women. How do we know that a seemingly inoffensive person — whether a celebrity or a neighbour — has a vile secret?

I don’t claim to know the answer, but I do maintain that it is a legitimate question to ask. What I fear is a moral panic in which the police will be encouraged to look more suspiciously on those accused of heinous crimes. This, it seems to me, is the emphasis contained in two recent and authoritative reports. In March last year Her Majesty’s Inspector of Constabulary issued a report on the policing of domestic violence . When asked, victims said that the main cause of their dissatisfaction with the police handling of their allegations, was that they felt they were not believed. In response the HMIC recommended that the police should be more willing to accept allegations of domestic violence and abuse. Likewise, in the autumn Alexis Jay published her report into child sexual exploitation in Rotherham, revealing an unprecedented criminal conspiracy to abuse vulnerable young girls whilst agencies charged with their protection disregarded evidence that should have prompted action. Again, recommendations appeared to emphasise that officers should treat allegations made by young women in care much more seriously than they have in the past.

Should the police accept at face value accusations made by anyone? Or should they weigh the credibility of the accuser as well as the nature of the accusation? The ultimate arbiters of such allegations are juries, but when juries have deliberated on such allegations, they have not endorsed them all. There have been celebrities aplenty acquitted as well as those who have not and are now serving terms of imprisonment. Rape is a criminal charge that is notoriously difficult to prosecute.

This is not just a question that afflicts ageing celebrities and dilapidated northern cities, but is faced everyday by police officers who respond to contested allegations of wrongdoing. One party to a dispute alleges that the other has done wrong, but the other denies it and probably counter-claims that wrong has been done by their accuser. It happens most commonly in episodes of domestic conflict, as anyone who has been on the margins of a ‘messy’ divorce will attest. When viewed in this context, accusations tend to lack credibility because the parties have vested interests in making and denying such allegations.

The blue roof lights of a British police car. © trinity-of-one via iStock.
The blue roof lights of a British police car. © trinity-of-one via iStock.

The issue of the credibility of putative victims arose in the course of research that I and others are hoping to publish with Oxford University Press later this year. We asked focus groups throughout the Black Country region of the West Midlands to evaluate and discuss video clips of encounters between police and members of the public broadcast by the BBC (of the kind I’m sure you will be familiar with). One of the clips focused on the police response to an alleged knife-point robbery of an elderly man and his young female companion in the man’s home. Spontaneously, almost every focus group concluded that the elderly man’s companion was complicit in the robbery. What had ignited their suspicions? Well, wasn’t it odd that such a young woman would spend an occasional evening watching television with an elderly ‘friend of the family’? Wasn’t it suspicious that she became confused, even about whether the robber addressed her by name? How could she insist that the robber was ‘about 20’ years old, if she did not see his face? Why didn’t she scream when the man forced his way into the property? There was almost unanimous agreement that there was ‘more to this than met the eye’! Most focus groups were content with how the officers dealt with the investigation, but if they were critical then it was because the police had not arrested the young woman who was so ‘obviously’ guilty. What they were not to know was that in programme from which this episode was extracted, it was revealed that the young woman’s boyfriend was convicted of the robbery, but no charges were brought against her. On the other hand, when an officer could see on CCTV three youths breaking into a car, many of our focus groups felt that the officer too hastily assumed that they were attempting to steal it, rather than rescuing one of the lad’s girlfriend who had locked herself out of the car (which turned out to be the truth)!

Being ‘innocent until proven guilty’ is a legal principle that receives overwhelming endorsement. If so, the unpalatable corollary must surely be that those who allege guilt must overcome a formidable barrier before conviction can be secured. Crown Prosecutors must be convinced that there is a better than evens chance of overcoming that barrier before prosecuting someone alleged to have done wrong. This undoubtedly works to the disadvantage of those who regard themselves as genuine victims of wrongdoing. It is equally undoubtedly the case that offenders will do all in their power to exploit the ‘presumption of innocence’ to their malign advantage. Yet, it also protects the innocent victims of malign false allegations made for whatever reason. To be wrongfully accused is also an acutely painful experience from which a system of justice should surely also safeguard the innocent. Amid all this uncertainty, what is surely obvious is that prescriptions for the police to believe accusations at face value is no remedy.

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8. What’s it like to be a PCSO?

It’s important to preface any examination of a ‘typical day’ as a Police Community Support Officer (PCSO) with the reminder that the role responsibilities are remarkably varied. The role is interpreted, empowered, and utilised in different ways across each individual constabulary, which is reflected in a number of ways, from the different powers invested with PCSOs by a Chief Constable, to the uniforms that they wear during the course of duty. For example, some PCSOs carry handcuffs and others do not. Communities will have individual needs that you will need to tailor yourself to – a normal day for a town based officer will be noticeably different from that of a rural based officer. This necessity to adapt to ever-changing situations, demands, and challenges is one of the most rewarding elements of the role.

Equally, there are some key core functions that will always be a constant for any officer. The primary function of a PCSO that transcends all policing borders is the localised contact and familiar police presence that they provide on a daily basis. This channel of communication between the police and the local community is often achieved through high visibility patrolling (normally on foot or bicycle), engaging with residents and businesses about emerging issues or concerns, and attendance at key community groups. Other central aspects of the role can include development of community-based projects, the provision of crime prevention and safety advice, and also the employment of problem-solving techniques to resolve low-level incidents that have been referred to you from within the extended policing family.Being a PCSO gives officers continued contact with a particular geographical area so they will often be the first to identify trends in social issues, crime, and anti-social behaviour, as well as more vulnerable members of the community that may require additional support.

Two
Two Police Officers & PCSO by mrgarethm. CC-BY-NC-SA-2.0 via Flickr

As a specialist in a particular community, you are expected to gain vital intelligence that will support the wider policing function, and you will be required to liaise extensively with residents, businesses, and other partner agencies to gain detailed information. The knowledge that you obtain from speaking with people as a PCSO could be crucial in detecting or preventing an offence. Equally your presence may prevent an offence from occurring and offers a considerable amount of public reassurance. All of these activities outlined above can comprise the basis for a typical day as a PCSO, but you may also be presented with something totally unexpected that you have never previously encountered.

There are many elements to the PCSO role that make it a truly outstanding career to pursue. The team ethos within the policing environment is exceptional and the limitless support from colleagues is a true testament to the people that work within the police service, whatever their position. Having personal ownership for a particular community is my favourite aspect of the role as it allows you to develop strong associations with local residents and businesses. You will often be the recognised face of policing for many residents and they will appreciate your presence and assistance: you have a unique opportunity with the role to break down barriers between the police and communities. There is also the potential to develop entirely new ideas and imaginative solutions to problems. Witnessing these self-generated ideas develop and flourish into long term community projects is incredibly rewarding, and you certainly finish each shift knowing that you have made a difference to your particular community.

Personally, I viewed the PCSO role as an excellent opportunity to engage with a diverse range of people, contribute to the development and growth of local communities, whilst also working to address problems that were affecting people from a policing perspective. Having always been passionate about a career within the police service, I felt it could offer unique experiences and challenges, allow me to help others, whilst also being immensely rewarding and stimulating.

I also found the theoretical side of policing and criminal justice extremely interesting and I relished the chance to gain practical experience in the policing field. My career as a PCSO has delivered all of these things and immeasurably more.

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9. Why must we pay attention to the law of pension trusts?

Little has been written on the subject of pension trusts, and the ways in which pension laws and trust laws interact. As academic subjects, many issues such as the purpose of a pension trust, employer duties, and the duties of directors of trustee companies, have long been under-represented. However, pension trust law is a technical area that requires more attention, and is also considered to be an exciting area of law that has been ignored in academia for too long. Author of The Law of Pension Trusts, David Pollard, explains why he decided to fill this gap and what issues he felt needed to be tackled in the law of pension trusts:

David goes on to explain why he finds pension trust law so interesting, and what the most significant pension cases were in the past 12 months. He also predicts how pension schemes might change and develop in the future:

Do you agree with David about how pension schemes might change in the future? Write your responses in the comments below.

Feature image credit: Minhas Economias, My Savings by Jeff Belmonte. CC-BY-2.0 via Flickr.

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10. Congress should amend and enact the Marketplace Fairness Act

The “lame duck” session of the 113th Congress managed to avoid a shutdown of the federal government, but did not accomplish much else. Among the unfinished business left for the new, 114th Congress assembling this month is the Marketplace Fairness Act (MFA).

The MFA would permit states to require out-of-state Internet and mail order sellers to collect sales taxes if such sellers have annual gross revenues of $1,000,000 or more. The MFA would thus establish parity between such large out-of-state, online sellers and in-state sellers which must collect taxes on their sales because of their in-state physical presence.

Passage of the Marketplace Fairness Act is long overdue. It is neither fair nor efficient that a traditional brick-and-mortar store must collect sales taxes while an out-of-state Internet firm can ship the same products into the state without collecting sales tax because such Internet firm lacks an in-state physical location. While Internet and mail order purchasers are legally obligated to pay use taxes on their purchases, in practice, it is difficult for states to collect these taxes. The MFA would establish a level playing field by requiring large out-of-state sellers to collect taxes owed just as their in-state competitors must collect such taxes.

An interesting development during the 113th Congress was the growing recognition by many Republican lawmakers that the MFA implements conservative values. In the past, Internet firms have denounced the MFA as imposing a “new” tax, a label that is poison in the current political environment. However, as Rep. Steve Womack of Arkansas has recently observed, the status quo permits Internet shoppers “knowingly and willfully” to flout their obligation to pay use tax when Internet sellers do not collect such tax. Such disregard for legal duties, he states, “has never, never been a conservative value.”

Another important development has been the growing recognition by free market advocates that the status quo effectively constitutes heavy-handed industrial policy as the government effectively hobbles brick-and-mortar retailers in their competition with Internet sellers who do not collect sales tax.

A third interesting development has been the convergence of the business models of many Internet sellers and traditional retailers. Internet firms, most prominently Amazon, have sprouted local distribution centers to provide same day (sometimes one hour) delivery of products ordered online. In those states where Amazon builds distribution centers, Amazon must collect sales tax because of its in-state physical presence.

To compete with same day delivery, some traditional retailers are experimenting with Internet ordering. Under these experiments, customers purchase online with traditional retailers and then pick-up their goods that day at the store or have their goods shipped to them that day from a traditional brick-and-mortar location. Thus, the once bright line is blurring between traditional retailers required to collect sales tax and Internet sellers which need not collect tax because they lack in-state physical presence.

As Amazon and other electronic sellers collect sales tax in additional states, it is all the more anomalous for other Internet and mail order companies to refuse to collect such tax because they lack in-state physical presence.

The Marketplace Fairness Act would excuse from the duty to collect sales tax truly small Internet sellers, defined as those firms selling less than $1,000,000 annually over the Internet or by mail order. The only compelling objection to the MFA is that, if the MFA became law, a single dollar sale into a particular state would compel a covered seller to collect that state’s sales tax.

Infrequent and casual sales into any particular state should not trigger the obligation to collect that state’s sales tax. Hence, Congress should amend the MFA to require that an Internet seller need not collect the taxes of any particular state until that seller’s sales have have met some minimum threshold in that state. I would recommend that an Internet (or mail order) seller with $1,000,000 in aggregate sales be required to collect taxes for each state into which it sells $10,000 or more in any year.

So amended, the 114th Congress should enact the Marketplace Fairness Act.

Headline image credit: © hjalmeida via iStock.

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11. How the US government invented and exploited the “patent troll” hold-up myth

A patent like other property rights is a right to exclude others and not a right or an obligation to make the patented invention. Yet today there is a growing campaign by certain industry sectors and the government against patent holders that do not make any products but enforce their patent rights for licensing revenues, often pejoratively called patent “trolls.” In a recent White House report on the subject, President Barack Obama is quoted as saying that these patent holders “don’t actually produce anything themselves. They’re just trying to essentially leverage and hijack somebody else’s idea and see if they can extort some money out of them.” The government alleges that “trolls” are responsible for a patent litigation crisis. Armed with this narrative, the White House had recently announced executive actions for “taking on patent trolls.”

This narrative of harmful patent assertion by non-practicing entities is not new. A century ago, the Wright aircraft company was accused by US government officials of causing such harm because it had attempted to enforce the Wright airplane patent, which it did not practice, by sending licensing demand letters to alleged infringers. Government officials stated that the assertion of the Wright airplane patent was “injurious to the development of aircraft and the aircraft industry in the United States.” They argued that “any adequate return to the Wright stockholders upon their investment [in the Wright patent] must be through the manufacture and sale of airplanes … and not through patent channels,” and that “any return from patents must necessarily fade into insignificance.”

This myth that the assertion of the Wright patent harmed the development of aviation continues to be propagated and erroneous lessons drawn for patent policy today: In 2014, Goldstone’s book Birdmen was published as the latest in the constant reworking through time of the Wright brothers’ story. The widespread reviews of this book emphasized that the Wright brothers were patent “trolls” – Orville Wright was a “vindictive SOB whose greed and begrudgery [sic] were surpassed only by those of his brother Wilbur” and the brothers were “cursed with an addiction to malice to anyone who challenged their primacy or stood in their path to riches.” The purported tool of their “malice” was, of course, their patent. The ostensible general lesson for today is explicitly and erroneously drawn by Goldstone; “Patent law remains [today] the damper on innovation that it was when airplane development was nearly grounded in its infancy.”

734px-Wright-Fort_Myer
Orville demonstrating the flyer to the U.S. Army, Fort Myer, Virginia September 1908. Public domain via Wikimedia Commons.

We show using primary evidence that the origins of this century-old myth are factually unsupported letters of government manufacture used to persuade the President and Congress to authorize the appropriation of patented inputs at depressed royalty rates. Today these letters are treated as “primary historical sources” to support the myth that the Wright brothers’ patent retarded US aviation development and that it was therefore necessary for the government to intervene in the market for patents and force patent holders into a patent pool. The story that US government officials manufactured in 1917 is believed by many to be fact and for some people, again there is a simple, general ‘policy lesson’ – sometimes government must intervene in markets because private owners of property rights cannot otherwise strike a bargain and reach the optimum social and economic outcome.

But this entrenched and oft-repeated myth is not true, in any part. The Wright brothers licensed their patent early and with vigour into all developed markets. When they won their suit against the principal infringer of their patent, Glenn Curtiss, they never enjoined Curtiss’ manufacturing activities, leaving him free to develop the leading US aviation business. All the commercial and patenting evidence we collect shows that no patent hold-up or development suppression occurred before the government forced patentees into its preferred patent pool.

The result in 1917 was the government-designed patent pool agreement, which depressed royalties to the Wright patent holder to the extraordinarily low rate of 1% – at a time when Congress recognized in the 1917 ‘Trading with the Enemy Act’ that 5% was a fair royalty to pay for a single patent owned by enemies of the US!

The acceptance of the myth has blinded policymakers to the possibility that the design of the 1917 aircraft patent pool was an abuse of the government’s monopsony power that effectively attenuated the development-incentive provided by aviation patents. Patenting rate declined and aircraft sales exhibited little market growth for a decade after the formation of the aircraft patent pool. We hypothesize that as a result of the government intervention, a period followed when aviation innovation may have been depressed and future research should investigate this hypothesis further.

The government’s past use of the “troll” narrative encourages one to wonder whether today’s “troll” narrative, advanced once again to alleviate another purported patent litigation “crisis,” will have the unintended consequence of suppressing innovation.

Headline image credit: Wilbur making a turn with the Wright Glider, 1902. Public domain via Wikimedia Commons.

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12. International Law at Oxford in 2014

International law has faced profound challenges in 2014 and the coming year promises further complex changes. For better or worse, it’s an exciting time to be working in international law at Oxford University Press. Before 2014 comes to a close, we thought we’d take a moment to reflect on the highlights of another year gone by.

January

To start off the year, we asked experts to share their most important international law moment or development from 2013 with us.

We published a new comprehensive study into the development, proliferation, and work of international adjudicative bodies: The Oxford Handbook of International Adjudication edited by Cesare Romano, Karen Alter, and Yuval Shany.

February

The editors of the London Review of International Law reflected on the language of ‘savagery’ and ‘barbarism’ in international law debates. The London Review of International Law will now remain free online through the end of February, 2015. Make sure to read the first three issues before a subscription is required for access.

March

As the Russian ‘spring’ of 2014 gained momentum, our law editors pulled together a debate map on the potential use of force in international law focused on the situation in Crimea. We also heard expert analysis from Sascha-Dominik Bachmann on NATO’s response to Russia’s policy of territorial annexation.

Professor Stavros Brekoulakis won the first ever Rusty Park Prize of the Journal of International Dispute Settlement for his article, “Systemic Bias and the Institution of International Arbitration : A New Approach to Arbitral Decision-Making.” His article is free online.

The International Covenant on Economic, Social and Cultural Rights: Commentary, Cases, and Materials edited by Ben Saul, David Kinley, and Jaqueline Mowbray published in March, bringing together all essential documents, materials, and case law relating to the International Covenant on Economic, Social and Cultural Rights (ICESCR).

April

In early April, we were finalizing preparations for ASIL-ILA 2014, as were many of our authors and readers. By combining the American Society of International Law and the International Law Association, the schedule was full of interesting discussions and tough choices.

In line with the theme of ASIL-ILA, which focused on the effectiveness of international law, we asked our contributors, “Are there greater challenges to effectiveness in some areas of international law practice than in others? If so, what are they, and how can they be addressed?”

Throughout the conference we connected with authors, editors, and contributors to Oxford University Press publications.

Co-author of the UNCITRAL Arbitration Rules 2nd edition with OUP's very own Merel Alstein
David Caron, co-author of the UNCITRAL Arbitration Rules 2nd edition with OUP’s very own Merel Alstein
Antonios Tzanakopoulos, author of Disobeying the Security Council: Countermeasures against Wrongful Sanctions, and OUP's very own John Louth
Antonios Tzanakopoulos, author of Disobeying the Security Council: Countermeasures against Wrongful Sanctions, and OUP’s very own John Louth

We worked with the authors of The Locus Effect: Why the End of Poverty Requires the end of Violence, Gary A. Haugen and Victor Boutros, to develop an infographic and learn how solutions like media coverage and business intervention have begun to positively change countries like the Congo, Cambodia, Peru, and Brazil.

May

On 3 May, three years after a US Navy SEAL team killed Osama bin Laden, David Jenkins, discussed justice, revenge, and the law. Jenkins is one of the co-editors of The Long Decade: How 9/11 Changed the Law, which published in April 2014.

EJIL: Live!, the official podcast of the European Journal of International Law (EJIL), launched. Podcasts are released in both video and audio formats to coincide with the publication of each issue of EJIL. View all episodes.

John Yoo’s post on the OUPblog, Ukraine and the fall of the UN system, provided us with a timely analysis of Russia’s annexation of the Crimean peninsula. His book Point of Attack: Preventive War, International Law, and Global Welfare published in April 2014.

June

On World Oceans Day, 8 June, we created a quiz on Law of the Sea. We also developed a reading list for World Refugee Day from Oxford Scholarly Authorities on International Law.

In June, we celebrated the World Cup in Brazil with a World Cup Challenge from Oxford Public International Law (OPIL). The questions in the challenge all tie to international law, and the answer to each question is the name of a country (or two countries) who competed in the 2013 World Cup Games. Try to work out the answers using your existing knowledge and deductive logic, and if you get stuck, do a bit of research at Oxford Public International Law to find the rest.

The World Cup highlighted the global issue of exploitation of low and unskilled temporary migrant workers, particularly the rights of migrant workers in Qatar in advance of the 2022 World Cup and the abuses of those rights.

July

On 17 July we celebrated World Day for International Justice and asked scholars working in international justice, “What are the most important issues in international criminal justice today?”

In July, Malaysian Airlines Flight MH17 was shot down. Kevin Jon Heller answered the question, “Was the downing of flight MH17 a war crime?” in Opinio Juris. Sascha Bachman-Cohen discussed Russia’s potential new role as state sponsor of terrorism on the blog.

On 24 July we added 20 new titles to Oxford Scholarly Authorities on International Law.

August

To mark the centenary of the start of the Great War we compiled a brief reading list looking at the First World War and the development of international law.

In advance of September’s 10th anniversary European Society of International Law meeting, we asked our experts what they thought the future of international law might look like.

On 23 August we put together an infographic in honour of the UN’s International Day for the Remembrance of the Slave Trade and its Abolition.

On 30 August we put together a content map of international law articles in recognition of the International Day of the Victims of Enforced Disappearances. Click the pins below to be taken to the full text articles.

August saw the publication of the third edition of one of our best-regarded works on international criminal law — Principles of International Criminal Law by Gerhard Werle and Florian Jeßberge — as well as our latest addition to the Oxford Commentaries on International Law series — The Chemical Weapons Convention: A Commentary edited by Walter Krutzsch, Eric Myjer, and Ralf Trapp.

Finally, in August the OUPblog had a revamp! Explore our blog pieces in law.

September

In September, Scotland voted in a referendum. Anthony Carty and Mairianna Clyde addressed what might it have meant for Scottish statehood had Scotland voted for independence? And Stephen Tierney addressed the question, what would an independent Scotland look like?

In celebration of ESIL’s 10th anniversary conference in September, we put together a quiz featuring the eleven cities that have had the honour of hosting an ESIL conference or research symposium since the first in 2004. Each place is the answer to one of these questions – see if you can match the international law event to the right city.

We are the proud publisher of not one but two ESIL Prize Winners! Congratulations to Sandesh Sivakumaran, author of The Law of Non-International Armed Conflict, and Ingo Venzke, author of How Interpretation Makes International Law, on their huge achievement.

Ingo Venzke at the European Society of International Law meeting in Vienna
Ingo Venzke at the European Society of International Law meeting in Vienna

September saw the release of Human Rights: Between Idealism and Realism by Christian Tomuschat, an unique and fully updated study on a fundamental topic of international law.

Amal Alamuddin, Barrister at Doughty Street Chambers, co-editor of The Special Tribunal for Lebanon: Law and Practice, and contributor to Principles of Evidence in International Criminal Justice, married the actor George Clooney. Congratulations, Amal!

On 21 September we celebrated Peace Day. We put together an interactive map showing a selection of significant peace treaties that were signed from 1648 to 1919. All of the treaties mapped here include citations to their respective entries in the Consolidated Treaty Series, edited and annotated by Clive Parry (1917-1982).

On 24 September Oxford Historical Treaties launched on Oxford Public International Law. Oxford Historical Treaties is a comprehensive online resource of nearly 16,000 global treaties concluded between 1648 and 1919 (between the Peace of Westphalia and the establishment of the League of Nations).

October

On 10 October, the Nobel Peace Prize was awarded to Malala Yousafzai and Kailash Satyarthi. In recognition of their tremendous work, we made a selection of articles on children’s rights free to read online for the month of October.

Michael Glennon, the author of National Security and Double Government, analyzed the continuity in US national security policy during the US attacks on ISIS elements in Syria in mid-October with “From Imperial Presidency to Double Government” on the OUPblog.

On 16 October, Ruti Teitel gave a talk on her new book Globalizing Transitional Justice, which published in May 2014, at Book Culture in New York. The event included a panel discussion with Luis Moreno-Ocampo, the first Prosecutor (June 2003-June 2012) of the new and permanent International Criminal Court, and Jack Snyder, the Robert and Renee Belfer Professor of International Relations in the Department of Political Science and the Saltzman Institute of War and Peace Studies at Columbia.

Ruti Teitel at Book Culture in New York
Ruti Teitel at Book Culture in New York

In October, we were preparing for the 2014 International Law Weekend Annual Meeting at Fordham Law School, in New York City (24-25 October 2014). We were also busy preparing for the FDI Moot, which gathers academics and practitioners from around the world to discuss developments and gain a greater understanding of growing international investment, the creation of international investment treaties, domestic legislation, and international investment contracts. Read more here.

In recognition of UN Day this year on 26 October, we created a free article collection featuring content from international law journals, the Max Planck Encyclopedia of Public International Law, and The Charter of the United Nations.

In October we published the first in a major three-volume manual bringing together the law of the sea, shipping law, maritime environmental law, and maritime security law. Prepared in collaboration with the International Maritime Law Institute, the International Maritime Organization’s research and training institute, The IMLI Manual on International Maritime Law: Volume I: The Law of the Sea is edited by Malgosia Fitzmaurice, and Norman Martinez with David Attard as the General Editor.

November

In November we published our annual report on armed conflict around the world. The War Report: Armed Conflict in 2013, edited by Stuart Casey-Maslen, provides detailed information on every armed conflict which took place during 2013, offering an unprecedented overview of the nature, range, and impact of these conflicts and the legal issues they created.

In mid-November we published the second edition of Environmental Diplomacy: Negotiating More Effective Global Agreements, by Lawrence E. Susskind and Saleem H. Ali, which discusses the geopolitics of negotiating international environmental agreements. The new edition provides an additional perspective from the Global South and a broader analysis of the role of science in environmental treaty-making.

Judicial Review of National Security expanded our Terrorism and Global Justice Series in late November. Author David Scharia gave a book talk at NYU School of Law’s Center on Law and Security soon after the book published. The talk began with an introduction from President (ret.) Dorit Beinisch of the Supreme Court of Israel.

December

In celebration of Human Rights Day 2014, we asked some key thinkers in human rights law to share stories about their experiences of working in this field, and the ways in which they determined their specific focuses. These reflective pieces were collated into an article for the OUPblog. Additionally, we made a collection of over thirty articles from law and human rights journals free for six months, and promoted a number of books titles alongside the journal collection, on a central page. Finally, 50 landmark human rights cases were mapped across the globe.

Headline image credit: Gavel. CC0 via Pixabay.

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13. Gotham Greets the Justice League

JLeagueLogoColor 143x150 Gotham Greets the Justice LeagueOn Friday New York City Mayor Bill deBlasio met with protestors to discuss their demands for police reform after the shocking death of Eric Garner and the controversial grand jury decision that followed. The name of the activists’ organization will sound familiar to any comics fan: Justice League NYC.

That this prominent group of social justice warriors would share a name with DC Entertainment’s leading super-team is no coincidence. Just check out the group’s logo, which features two African-American superheroes flying out of New York City through a graffiti-style logo. Dig even deeper into contemporary activism’s history and we see even more connections: Ferguson protestors formed their own Justice League over the summer, a leading progressive journalist writes at JusticeLeagueTaskForce.wordpress.com, and as pretty much everyone here knows, the Occupy movement made the V for Vendetta Guy Fawkes’ mask a global icon.

The role of comics in recent protests will no doubt be the subject of any number of academic papers, most of which will bear a punny coloned title like “DC Nation: From Social Relevance Comics to Social Change.” Yet before folks explore what all this means at greater length, I want to offer a quick note on how this phenomenon ties into comics’ uneasy relationship with the law.

Before Photoshop and Final Cut made it possible for anyone to transcend their innate limitations, comics offered a cheap and easy way for people to give a visible form to their wildest thoughts. They became pop culture’s analogue to law as the magic mirror of society — photos may have showed us how the other half lives, but in comics we could create the world of tomorrow, free from the strictures of budget, politics, injury, death, and the real world’s ineffective legal system. What’s more, comics also did away with the shadows and fog that even today make inquiries such as the Serial podcast so frustrating — in the comics world we know who is good, who is evil, and who will win; the big question is how good will triumph.

That sensibility is in comics’ DNA, to both good and ill effect. An unreflective transfer of the comics’ approach to seemingly intractable problems would at its most extreme result in moral nihilism, as violence becomes the standard means of removing any obstacle to achieving what is right. At the same time, the comics’ metaphorical blend of constructive critique and unbounded possibility helps explain why the social relevance comics of the 1970s weren’t as much of a break from the past as some might think. We can draw a straight line back from the O’Neil & Adams Green Lantern/Green Arrow through to the Justice League, Shock SuspenStories, Captain America and Wonder Woman — and the same is true moving forward in time to today. Comics have always had the power to show us who we are and what we can be, and they are at their best when they resemble the magic mirror as ideally envisioned by Oliver Wendell Holmes – reflecting not just our own lives, but the lives of all people who have been.

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14. An enigma: the codes, the machine, the man

Prometheus, a Titan god, was exiled from Mount Olympus by Zeus because he stole fire from the gods and gave it to mankind. He was condemned, punished, and chained to a rock while eagles ate at his liver. His name, in ancient Greek, means “forethinker “and literary history lauds him as a prophetic hero who rebels against his society to help man progress. The stolen fire is symbolic of creative powers and scientific knowledge. His theft encompasses risk, unintended consequences, and tragedy. Centuries later, modern times has another Promethean hero, Alan Turing. Like the Greek Titan before him, Turing suffers for his foresight and audacity to rebel.

The riveting film, The Imitation Game, directed by Morten Tyldum and staring Benedict Cumberbatch, offers us a portrait of Alan Turing that few of us knew before. After this peak into his extraordinary life, we wonder, how is it possible that within our lifetime, society could condemn to eternal punishment such a special person? Turing accepts his tragic fate and blames himself.

“I am not normal,” he confesses to his ex-fiancée, Joan Clarke.

“Normal?” she responds, angrily. “Could a normal man have shortened World War ll by two years and have saved 16 million people?”

The Turing machine, the precursor to the computer, is the result of his “not normal” mind. His obsession was to solve the greatest enigma of his time – to decode Nazi war messages.

In the film, as the leader of a team of cryptologists at Bletchley Park in 1940, Turing’s Bombe deciphered coded messages where German U-boats would decimate British ships. In 1943, the Colossus machine, built by engineer Tommy Flowers of the group, was able to decode messages directly from Hitler.

The movie, The Imitation Game, while depicting the life of an extraordinary person, also raises philosophical questions, not only about artificial intelligence, but what it is to be human. Cumberbatch’s Turing recognizes the danger of his invention. He feared what would happen if a thinking machine is programmed to replace a man; if a robot is processed by artificial intelligence and not by a human being who has a conscience, a soul, a heart.

Einstein experienced a similar dilemma. His theory of relativity created great advances in physics and scientific achievement, but also had tragic consequences – the development of the atomic bomb.

The Imitation Game will open Pandora’s box. Viewers will ponder on what the film passed over quickly. Who was a Russian spy? Why did Churchill not trust Stalin? What was the role of the Americans during this period of decrypting military codes? How did Israel get involved?

And viewers will want to know more about Alan Turing. Did Turing really commit suicide by biting into an apple laced with cyanide? Or does statistical probability tell us that Turing knew too much about too many things and perhaps too many people wanted him silent? This will be an enigma to decode.

The greatest crime from a sociological perspective, is the one committed by humanity against a unique individual because he is different. The Imitation Game will make us all ashamed of society’s crime of being prejudiced. Alan Turing stole fire from the gods to give to man power and knowledge. While doing so, he showed he was very human. And society condemned him for being so.

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15. Santa Claus breaks the law every year

Each year when the nights start growing longer, everyone’s favourite rotund old man emerges from his wintry hideaway in the fastness of the North Pole and dashes around the globe in a red and white blur, delivering presents and generally spreading goodwill to the people of the world. Who can criticise such good intentions?

Despite this noble cause, Father Christmas is running an unconventional operation at best. At worst, the jolly old fool is flagrantly flaunting the law and his reckless behaviour should see him standing before a jury of his peers. Admittedly, it would be a challenge to find eleven other omnipotent, eternally-old, portly men with a penchant for elves.

Read on to find out four shocking laws Santa breaks every year. But be warned; this is just the tip of an iceberg of criminality that dates back centuries!

1) Illegal Surveillance – Regulation of Investigatory Powers Act 2000
Even before the Christmas season rolls around, Santa is actively engaged in full-time surveillance of 1.9 billion children. This scale of intelligence-gathering makes the guys at GCHQ look like children with a magnifying glass. In the course of compiling this colossal “naughty-or-nice” list, Santa probably violates every single privacy law ever created, but he is definitely breaking the Regulation of Investigatory Powers Act. Even if Secretary of State William Hague gave Santa the authorisation required to carry out intrusive surveillance on all the children of the UK, the British government would go weak-at-the-knees at the thought of being complicit in an intelligence scandal set to dwarf Merkel’s phone tap and permanently sour Anglo-global relations!

Merry Old Santa Claus
“Merry Old Santa Claus” by Thomas Nast, 1881. Public domain via Wikimedia Commons.

2) Drink Driving Laws – The Road Traffic Act 1988
Even conceding that Santa’s impressive paunch is due to a not-entirely-human ability to imbibe the massive quantity of mince pies and sherry left-out by eager children around the world, his rosy cheeks betray that while his tolerance is high, he can’t escape the effects of a two-unit-tipple in every single family household in the world. Assuming the world average is three children per family, Santa has to visit 630 million families! Half of the world’s population sadly live in poverty, so we can assume they don’t have the sherry on hand to keep Santa tanked-up during his rounds. Of the 316 million families from economically developed countries, 21 million abstain from alcohol on religious grounds. Taking that into account, that’s 295 million sherries left out for Santa, just shy of 600 million units. If we assume Santa weighs a conservative 240 pounds, that makes his blood alcohol a whopping 7,870,000%! Needless to say, by the time Santa finishes his quota he is most definitely over the limit and if he’s still breathing it’s safe to assume his sleigh flying ability is impaired.

3) Airspace Violations – Chicago Convention on International Civil Aviation 1944
While on his annual jaunt across the globe, Santa and his furry entourage enter the airspace of every single country. Even granting Saint Nick’s North Pole hideout the status of a sovereign state and signing him up to the convention, he only acquires the right to cross the 191 participating states and is obliged to make a landing if requested. There is no evidence of Santa ever touching down at the bequest of country and submitting to a customs search, which is unusual considering the quantity and variety of goods he is known to be carrying. Coupled with the fact that Santa’s definitely entered some questionable airspace during active conflicts and never been sighted or shot down, we can assume the red sleigh must be boasting next-generation stealth camouflage. Those tinkering elves are cleverer than they look!

4) Movement of Livestock – Animal Welfare Act 2006
Either Santa’s reindeer have incredible longevity or he’s running a full-scale reindeer breeding operation up there at the North Pole, as well as presiding over a city-sized workshop full of elves. Now assuming that Saint Nick has been at this game since his reported death in 270AD (when he slipped away to the North Pole and recruited his first elf) he’s been spreading cheer and making merry for 1744 years! A well-cared for reindeer can live as long as 20 years in captivity, which means that Dasher, Dancer, Prancer, Vixen, Comet, Cupid, Donner, Blitzen and Rudolph have died at least 87 times and been repeatedly replaced by reindeers with the same name. A worrying thought!

However, if those reindeer weren’t well-cared for, Santa could be well into a triple-figure reindeer mortality count. The Animal Welfare Act of 2006 states that reindeers undergoing transportation should all be fitted with an ear tag listing their identifying reference number, in accordance with the guidelines stipulated by the BDFA (British Deer Farmers Association). Santa should also be filling out the requisite AML24 document and reporting all movements of his herds to the authorities. As reindeers act as carriers for tuberculosis and ‘foot and mouth’ disease, failure to abide by these rules can pose a significant health risk. With such a laissez-faire attitude to animal welfare, Nick could be at the helm of animal welfare cover-up the likes of which have never been seen… and Rudolph’s red nose is obviously a symptom of infectious bovine rhinotracheitis.

Headline image credit: Santa Claus and Reindeer. Public domain via Pixabay.

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16. The other torture report

At long last – despite the attempts at sabotage by and over the protests of the CIA, and notwithstanding the dilatory efforts of the State Department – the Senate Select Committee on Intelligence has finally issued the executive summary of its 6,300-page report on the CIA’s detention and interrogation program. We should celebrate its publication as a genuine victory for opponents of torture. We should thank Senator Dianne Feinstein (whom some of us have been known to call “the senator from the National Security Agency”) for her courage in making it happen.

Like many people, I’ve got my criticisms of the Senate report. Suffice it to say that we’ve still got work to do if we want to end US torture.

We now know something about the Senate report, but many folks may not have heard about the other torture report, the one that came out a couple of weeks ago, and was barely mentioned in the US media. In some ways, this one is even more damning. For one thing, it comes from the international body responsible for overseeing compliance with the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment – the UN Committee Against Torture. For another, unlike the Senate report, the UN report does not treat US torture as something practiced by a single agency, or that ended with the Bush administration. The UN Committee Against Torture reports on US practices that continue to this day.

Here are some key points:

Guards from Camp 5 at Joint Task Force Guantanamo escort a detainee from his cell to a recreational facility within the camp.
Guards from Camp 5 at Joint Task Force Guantanamo escort a detainee from his cell to a recreational facility within the camp. Photo by US Navy Mass Communication Specialist 2nd Class Kilho Park. Public domain via Joint Task Force Guantanamo.
  • The United States still refuses to pass a law making torture a federal crime. It also refuses to withdraw some of the “reservations” it put in place when it signed the Convention. These include the insistence that only treatment resulting in “prolonged mental harm,” counts as the kind of severe mental suffering outlawed in the Convention.
  • Many high civilian officials and some military personnel have not been prosecuted for acts of torture they are alleged to have committed. It would be nice, too, says the Committee, if the United States were to join the International Criminal Court, where other torturers have already been successfully tried. If we can’t prosecute them at home, maybe the international community can do it.
  • The remaining 142 detainees at Guantánamo must be released or tried in civilian courts, and the prison there must be shut down.
  • Evidence of US torture must be declassified, especially the torture of anyone still being held at Guantánamo.
  • While the US Army Field Manual on Human Intelligence Collector Operations prohibits many forms of torture, a classified “annex” still permits sleep deprivation and sensory deprivation. These are both forms of cruel treatment which must end.
  • People held in US jails and prisons must be protected from long-term solitary confinement and rape. “Supermax” facilities and “Secure Housing Units,” where inmates spend years and even decades in complete isolation must be shut down. As many as 80,000 prisoners are believed to be in solitary confinement in US prisons today – a form of treatment we now understand can cause lasting psychosis in as short a time as two weeks.
  • The United States should end the death penalty, or at the very least declare a moratorium until it can find a quick and painless method of execution.
  • The United States must address out-of-control police brutality, especially “against persons belonging to certain racial and ethnic groups, immigrants and LGBTI individuals.” This finding is especially poignant in a period when we have just witnessed the failure to indict two white policemen who killed unarmed Black men: Michael Brown in Ferguson, Missouri, and Eric Garner in New York City. Like many who have been demonstrating during the last few weeks against racially selective police violence, the Committee was also concerned about “racial profiling by police and immigration offices and growing militarization of policing activities.”

Why should an international body focused specifically on torture care about an apparently broader issue like police behavior? In fact, torture and race- or identity-based police brutality are intimately linked by the reality that lies at the foundation of institutionalized state torture.

Every nation that uses torture must first identify one or more groups of people who are torture’s “legitimate” targets. They are legitimate targets because in the minds of the torturers and of the society that gives torture a home, these people are not entirely human. (In fact, the Chilean secret police called the people they tortured “humanoids.”) Instead, groups singled out for torture are a uniquely degraded and dangerous threat to the body politic, and therefore anything “we” must do to protect ourselves becomes licit. In the United States, with lots of encouragement from the news and entertainment media, many white people believe that African American men represent this kind of unique threat. The logic that allows police to kill unarmed Black men with impunity is not all that different from the logic that produces pogroms or underlies drone assassination programs in far-off places, or that makes it impossible to prosecute our own torturers.

At 15 pages, the whole UN report is certainly a quicker read than the Senate committee’s 500-page “summary.” And it’s a good reminder that, whatever President Obama might wish, this is not the time to close the book on torture. It’s time to re-open the discussion, to hold the torturers accountable, and to bring a real end to US torture.

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17. Digital evidence gathering during inspections

On the subject of competition law inspections and similar procedures, tensions have been building between the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (EUCJ). The latest case-law appears like a step in the direction of reconciling the two. One of the crucial points that must be resolved in the future is the lawfulness of the authorities’ extensive digital evidence gathering during on-site inspections. Such searches are nowadays a matter of routine, although the law seems to be lagging behind. Not only must the lawfulness of those measures be resolved, but also the matter of procedure. Companies subject to inspections have gone to court repeatedly in order to obtain up-front judicial control of specific measures such as copying and mirroring of hard drives and servers.

Delta Pekárny concerned a competition law inspection. The inspection began with an examination of digital correspondence. Delta Pekárny was subsequently fined for refusing to allow an in-depth examination of its data. It challenged that decision, arguing, among other points, that it was contrary to domestic law and to the European Convention on Human Rights (ECHR) for the Czech Competition Authority to carry out an inspection without having received prior authorisation from a court. In the judgment, the ECtHR makes references to EU law, to a comparative study of the investigative procedures prevailing in all Member States, and to the Commission’s inspection powers. The ECtHR considered that in the absence of a prior judicial authorisation by a judge, an effective control afterwards of the necessity of the measure, and rules on destruction of copies made, the procedural guarantees were insufficient to prevent the risk of an abuse of powers. There had been a violation of Article 8 of the ECHR (right to respect for private and family life, home and correspondence).

The ECtHR’s legal assessment in Delta Pekárny cannot, in my opinion, be seen as a criticism of the investigation procedure under Regulation 1/2003, a procedure that has been copied in several Member States. Rather, the outcome seems specific to the procedural rules applicable in the Czech Republic.

Delta Pekárny builds partly on Robathin, a case that concerned a search warrant at the office of an Austrian practicing lawyer who was suspected of aggravated theft, aggravated fraud and embezzlement. The warrant was issued by an investigating judge in the context of criminal proceedings. All files of the lawyer’s computer system were copied. The ECtHR held that domestic law and practice must afford adequate and effective safeguards against any abuse and arbitrariness. There should be particular reasons to allow the search of all data, having regard to the specific circumstances prevailing in a law office. There were no such reasons either in the search warrant itself or in any other document. The ECtHR found that the seizure and examination of all data went beyond what was necessary to achieve the legitimate aim. There was a violation of Article 8 of the ECHR.

The Robathin case concerned classic or hard core criminality. Depending on the circumstances, a competition law fine can be considered a criminal penalty. Competition law cases nevertheless  lean more towards the administrative enforcement side, and this can influence the procedural requirements.

Mail baiting by James Russell theholyllama via Flickr
Part of ECHR in Strasbourg, by James Russell. CC-BY-SA-2.0 via Flickr

A hint at how the ECtHR may regard competition law dawn raids came in Bernh Larsen Holding. The case concerned a tax inspection.Three companies used a server jointly and the Norwegian tax authorities copied the entire sever content. The inspection order was adopted without prior judicial authorisation. Volumes of surplus information without importance for the tax inspection had been copied, including private correspondence and business secrets. The ECtHR accepted considerations of efficiency of the tax audit, but made clear that this did not confer on the tax authorities an unfettered discretion. The Court assessed whether the measure was necessary and proportionate. There was a wider margin of appreciation since the measure was aimed at legal persons and not at an individual. The nature of the interference was not of the same seriousness and degree as in the case of search and seizure carried out under criminal law since the consequences of a tax subject’s refusal to cooperate were exclusively administrative. The outcome was that the Norwegian order had been subject to important limitations and was accompanied by effective and adequate safeguards against abuse. There was no violation of Article 8 of the ECHR.

The judgments of the ECtHR can be seen in relation to those of the EUCJ. In Nexans, the Commission carried out a dawn-raid and decided to remove four DVD-ROM discs and a copy of the hard drive of the laptop of an employee of Nexans France, for later review at its premises in Brussels. The inspection decision, as well as the mirroring measures and other measures, were appealed to the General Court. Nexans’ claim relating to the Commission’s decision to remove copies of certain computer files and of the hard drive, was deemed inadmissible. After reminding that Nexans could bring its claims within an appeal against a final decision, the General Court pointed out that Nexans could also bring an action for damages against the Commission if it believed that copying of several computer files and of a hard drive for later examination in its offices was illegal and had caused harm. There was consequently no assessment in substance.

“Step by step, the Court in Strasbourg is moving into domains that have, for many years, primarily been a matter for the EUCJ”

An outcome which appears opposite can be observed in Deutsche Bahn. Deutsche Bahn challenged three Commission inspection decisions. One of the claims was that Deutsche Bahn’s defence rights had been infringed in view of irregularities during the first inspection. According to Deutsche Bahn, the second and third inspections were based on information that had been unlawfully obtained during the first inspection. Among other things, the Commission had searched certain e-mails that were clearly unrelated to the subject-matter of the first inspection. Allegedly the Commission officials had also used certain keywords unrelated to the inspection during their electronic search. The General Court looked into all those aspects in relative detail and finally rejected the plea as unfounded. The General Court’s judgment has been appealed.

While the General Court’s judgment in Nexans seems somewhat difficult to reconcile with the case-law of the ECtHR, the approach in Deutsche Bahn appears to be more in line with the methodology envisaged by the ECtHR in Robathin and Bernh Larsen Holding. The facts of Delta Pekárny may be too specifically related to Czech domestic law to be of general application. Nevertheless, the ECtHR’s approach is telling. Step by step, the Court in Strasbourg is moving into domains that have, for many years, primarily been a matter for the EUCJ. This as such, should come as no surprise. The EUCJ has made references to the ECHR for decades in competition law rulings. Can we in the years to come expect to see a mutual alignment?

Featured image credit: FW Pomeroy’s statue of Justice atop the Old Bailey. Photo by Ben Sutherland. CC-BY-2.0 via Flickr

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18. Is international law just?

For almost a hundred years, international law has been on the receiving end of relentless criticism from the policy and academic worlds. That law, sometimes called the law of nations, consists of the web of rules developed by states around the world over many centuries through treaties and customary practices, some bilateral, some regional, and some global. Its rules regulate issues from the very technical (how our computers communicate internationally or the lengths of airport runways) to areas of common global concern (rules for ships on the seas or ozone pollution) to the most political for individual states (like when they can go to war or the minimum standards for human rights).

The first challenge to international law comes from those politicians, pundits, and political scientists who see it as fundamentally ineffective, a point they see as proved ever since the League of Nations failed to enforce the Versailles Treaty regime against the Axis in the 1930s. But those who really know how states relate to each other, whether diplomats or academics, have long found this criticism an unrealistic caricature. While some rules have little dissuasive power over some states, many if not most important rules, are generally followed, with serious consequences for violators, like ostracism, reciprocal responses, or even sanctions. The list of routinely respected rules is enormous, from those on global trade to the law of the sea to the treatment of diplomats to the technical areas mentioned above. Most international cooperation is grounded in some legal rules.

The second challenge to international law has come from domestic lawyers and some legal scholars who asserted that international law is not really “law” because it lacks the structure of domestic law, in particular an executive or police force that can enforce the rules. But this too is a canard. As the British legal scholar H.L.A. Hart pointed out more than a half-century ago, one does not need to have perfect enforcement for a rule to be “law,” as long as the parties treat the rules as law. With international law, states certainly interact in a way that shows they treat those rules as law. They expect them to be followed and reserve special opprobrium and responses for law violators. Certainly, powerful states can get away with some law violations more easily than weak states, but that has nothing to do with whether international law is law.

Third, international law has faced a challenge from some philosophers and global leaders that it is fundamentally immoral. They claim that its rules reflect self-interested bargains among governments, but lack moral content. It is intriguing that this moral criticism actually comes from two opposite directions. On the one hand, so-called cosmopolitan philosophers, who think people’s moral duties to one another should not turn on nationality or national borders (which they view as morally arbitrary), condemn many rules for sacrificing concern for the individual, wherever he or she may live, for the mere interests of states. On the other hand, leaders of many developing world nations claim that many of international law’s rules are immoral for not privileging states enough, in particular because they see the rules as part of a move by Northern states to undermine poor nations’ national sovereignty.

Perevalne, Ukraine - March 4, 2014: Russian soldier guarding an Ukrainian military base near Simferopol city. The Russian military forces invaded Ukrainian Crimea peninsula on February 28, 2014. © AndreyKrav via iStockphoto
Perevalne, Ukraine – March 4, 2014: Russian soldier guarding an Ukrainian military base near Simferopol city. The Russian military forces invaded Ukrainian Crimea peninsula on February 28, 2014. © AndreyKrav via iStock

One example shows the criticism. Consider the rule on secession, a rule that helps us evaluate, for instance, whether Crimea’s separation from Ukraine, and Russia’s engineering of that move, is illegal. International law has a “black-letter” rule that strictly limits the possibility for a group of people disaffected with their government to secede unilaterally from their state, only endorsing it if the government is severely denying them representation in the state. The point of the rule is to avoid the violence that comes from secessions – as we have seen from the break-up of Yugoslavia, the war between Sudan and the recently formed South Sudan, and the Ukraine-Russia conflict today. Cosmopolitan philosophers condemn the rule for not allowing individuals enough choice, by forcing people to remain tied to a state when they would prefer to have their own state, just for the sake of the stability of existing and arbitrary inter-state borders. Developing world leaders, often intolerant of minority groups in their state, criticize the rule for the opposite – for harming states by opening the door, however slightly, for some groups to secede and form their own states.

I think both of these criticisms miss the mark. In my view, many core rules of international law are indeed just because they do what all rules of international law must do – they promote peace, interstate or domestic, while respecting basic human rights. We need international rules to promote peace because the global arena is still characterized by a great deal of interstate and internal violence. At the same time, we cannot tolerate rules that trample on basic human rights, which are a sort of moral minimum for how we treat individuals.

This standard for a just system of international law is different from the more robust form of justice we might expect for a domestic society. The great theory of contemporary justice, that of John Rawls, demands both an equal right to basic liberty for all individuals within a state and significant redistribution of material wealth to eliminate the worst economic inequality. But we can’t really expect international law to do this right (particularly the second) now. Why? Because we cannot assume the domestic tranquility on which to build that more robust justice, and because the international arena does not have the same kind of strong institutions to force those sorts of rules on everyone (even though it can force some rules on recalcitrant states).

To return to my example about secessions, I think the rule we have strikes the right balance between peace and human rights. It promotes interstate and internal peace by disallowing merely unhappy groups to separate unilaterally; but it keeps the door open to that possibility if they are facing severe discrimination from the central government. So the Scots, Quebecers, or ethnic Russians in Ukraine do not have a right to secede, but Estonians did, and maybe Kurds still do. Other rules of international law will also meet this test, though I think some of them do risk undermining human rights.

Why should we care whether international rules are just? Because, as I stated earlier, those norms actually do guide much governmental action today. If a norm of international law is just, we have given global leaders and the public good reasons to respect it – as well as good reasons to be wary of changing it without careful reflection. And for those that are not, we can use an ethical appraisal to map out a course of action to improve the rules. That way, we can develop an international law that can promote global justice.

Headline image credit: Monument. CC0 via Pixabay.

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19. Human Rights Day: abolishing the death penalty

Every year, on December 10, UN Human Rights Day commemorates the day in 1948 on which the United Nations General Assembly adopted the Universal Declaration of Human Rights. Although the Declaration itself said nothing about the death penalty, the International Covenant on Civil and Political Rights (ICCPR) that incorporated its values in 1966 made it clear in Article 6(6) that ‘nothing … should be invoked to delay or to prevent the abolition of capital punishment by any State Party to the … Covenant,’ which now has been ratified by all but a handful of nations.

Today, we pause to consider the considerable changes that have taken place in the use of capital punishment around the world over the past quarter of a century, changes which have shifted our pessimism – believing that in many regions of the world there was little hope of worldwide abolition occurring soon – towards increasing optimism. Since the end of 1988, the number of actively retentionist countries (by which we mean countries that have carried out judicial executions in the past 10 years) has declined from 101 to 39, while the number that has completely abolished the death penalty has almost trebled from 35 to 99; a further seven are abolitionist for all ordinary crimes and 33 are regarded as abolitionist in practice: 139 in all. In 2013 only 22 countries were known to have carried out an execution and the number that regularly executes a substantial number of its citizens has dwindled. Only seven nations executed an average of 20 people or more over the five year period from 2009 to 2013: China (by far the largest number), Iran (the highest per head of population), Iraq, North Korea, Saudi Arabia, the United States, and Yemen. The change has been truly remarkable. Indeed, we have witnessed and recorded a revolution in the discourse on and practice of capital punishment since the fall of the Berlin Wall.

We have witnessed and recorded a revolution in the discourse on and practice of capital punishment since the fall of the Berlin Wall.

This year’s Human Rights Day slogan – Human Rights 365 – encompasses the idea that every day is Human Rights Day. It celebrates the fundamental proposition in the Universal Declaration that each one of us, everywhere, at all times is entitled to the full range of human rights, that human rights belong equally to each of us and bind us together as a global community with the same ideals and values. What better day then to reflect on the dynamo for this new wave of abolition – the development of international human rights law and norms.

Arising in the aftermath of the Second World War and linked to the emergence of countries from totalitarian imperialism and colonialism, the acceptance of international human rights principles transformed consideration of capital punishment from an issue to be decided solely or mainly as an aspect of national criminal justice policy to the status of a fundamental violation of human rights: not only the right to not to be arbitrarily deprived of life but the right to be free from cruel, inhuman, or degrading punishment or treatment. The idea that each nation has the sovereign right to retain the death penalty as a repressive tool of its domestic criminal justice system on the grounds of its purported deterrent utility or the cultural preferences and expectations of its citizens was being replaced by a growing acceptance that countries that retain the death penalty – however they administer it – inevitably violate universally accepted human rights.

A prison cell in Kilmainham Gaol. Photo by  Aapo Haapanen. CC BY 2.0 via Flickr.
A prison cell in Kilmainham Gaol. Photo by Aapo Haapanen. CC BY 2.0 via Flickr.

The human rights dynamic has not only resulted in fewer countries retaining the death penalty on their books, but also in the declining use of the ultimate penalty in many of those countries. Since the introduction of Safeguards Guaranteeing Protection of the Rights of those Facing the Death Penalty, which were first promulgated by the UN Economic and Social Council resolution 1984/50 and adopted by the General Assembly 30 years ago, there have been attempts to progressively restrict the use of capital punishment to the most heinous offences and the most culpable offenders and various measures to try to ensure that the death penalty is only applied where and when defendants have had access to a fair and safe criminal process. Hence, in many retentionist countries juveniles, the mentally ill, and the learning disabled are exempt from capital punishment, and some countries restrict the death penalty to culpable homicide.

There has been some strong resistance to the political movement to force change ever since the Second Optional Protocol to the ICCPR was adopted by the UN General Assembly in 1989. Attempts by the abolitionist nations at United Nations Congresses, in the General Assembly, beginning in 1994, and at the Commission on Human Rights, annually from 1997, to press for a resolution calling for a moratorium on the imposition of death sentences and executions met with hostility from many of the retentionist nations. By 2005, when an attempt had been made at the Commission on Human Rights to secure sufficient support to bring such a resolution before the United Nations, it had been opposed by 66 countries on the grounds that there was no international consensus that capital punishment should be abolished. Since then, as the resolution has been successfully brought before the General Assembly, the opposition has weakened as each subsequent vote was taken in 2007, 2008, 2010, and 2012, when 111 countries (60 per cent) voted in favour and 41 against. Just three weeks ago, 114 of the UN’s 193 member states voted in favour of the resolution which will go before the General Assembly Plenary for final adoption this month. The notion behind Human Rights 365 – that we are a part of a global community of shared values – is reflected in this increasing support for a worldwide moratorium as a further step towards worldwide abolition. We encourage all those who believe in human rights to continue working towards this ideal.

Headline image credit: Sparrow on barbed wire. Photo by See-ming Lee. CC BY 2.0 via seeminglee Flickr.

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20. Across the spectrum of human rights

What are the ties that bind us together? How can we as a global community share the same ideals and values? In celebration of Human Rights Day, we have asked some key thinkers in human rights law to share stories about their experiences of working in this field, and the ways in which they determined their specific focuses.

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“My area of research is complementary forms of international protection, which is where international refugee law and international human rights law merge. Since the beginning of time, there has been an element of compassion in customary and religious norms justifying the acceptance of and assistance to persons banned from their communities or forced to leave their homes for reasons of poverty, natural disasters, or other reasons outside their control. Based on a general conviction that the alleviation of suffering is a moral imperative, many industralized countries included in their domestic migration practice the possibility to grant residence permits to certain categories of persons, who seemingly fall outside their international obligations, but who they considered to deserve protection and assistance because of a sense that this is what humanity dictates. In the past twenty years, many of these categories have become regulated and categorized as beneficiaries of protection, either through a broad interpretation of the refugee concept or through the adoption of new legislation confirming the domestic practice of States, such as the EC Qualification Directive. I find this to be a fascinating area of international law because, it shows how human rights and the notion of ‘humanitarianism’ (i.e. reasons of compassion, charity or need) have generated legal obligations to protect and assist aliens outside their country of origin.”

Liv Feijen, Doctoral Candidate in international law at the Graduate Institute of International and Development Studies, and author of ‘Filling the Gaps? Subsidiary Protection and Non-EU Harmonized Protection Status(es) in the Nordic Countries’ in the International Journal of Refugee Law

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“My work focuses on the forms and functions of the law when faced with contemporary mass crimes and their traces (testimony, archives, and the (dead) body). It questions the relationship between law, memory, history, science, and truth. To do so, I call into question the various legal mechanisms (traditional/alternative, judicial/extrajudicial) used in the treatment of mass crimes committed by the State and their heritage, especially at the heart of criminal justice (national and international), transitional justice, international human rights law, and constitutional law. In this context I have explored the close relationship between international criminal law and international human rights law. These two branches of law, that have distinct objects and goals, are linked by what they have in common: the protection of the individual. Their interaction culminated in the 90s when international criminal law, and in a larger sense transitional justice, boomed: an actual human rights turn took place with the strong mobilization of human rights in favour of the ‘fight against impunity’ of the gravest international crimes. At the heart of this human rights turn lays the consecration of a new human right, namely, the ‘right to the truth’, which is the object of my current research.”

Sévane Garibian, Assistant Professor, University of Geneva, and lecturer, University of Neuchâtel, and author of ‘Ghosts Also Die: Resisting Disappearance through the ‘Right to the Truth’ and the Juicios por la Verdad in Argentina’ in the Journal of International Criminal Justice

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“I decided early on to focus in my work on how rights perform when they are put under some kind of strain. That could be panic and fear emerging from a terrorist attack, or resource limitations at national or international level, or political structures that make effective enforcement of rights (un)feasible, for example. It seemed to me to be important to think about the resilience of the language and structures, as well as the law, of human rights because in the end of the day we rely on states to deliver rights in a meaningful way and this raises all sorts of challenges around legitimacy, will, embeddedness, international relations, domestic politics, legal systems, constitutional frameworks, and so on. These are factors that have to be accounted for when we think about what makes human rights law work as a means of ensuring human rights in practice; as a means of limiting the power of states to do as it wishes, regardless of the impact on individual and group welfare, dignity, and liberty. Thus, rather than specialise in any particular right per se, my interest is in frameworks of effective rights protection and understanding what makes them work, or makes them vulnerable, especially in times of strain or crisis.”

Fiona de Londras, Professor of Law, Durham Law School, and author of ‘Declarations of Incompatibility Under the ECHR Act 2003: A Workable Transplant?’ in the Statute Law Review

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“I have always been interested in the protection of individual rights from undue interference by executive authority. So, my scholarly roots arguably originate in classic social contractarianism. In my work, I have been mostly focusing on civil and political rights, whether in the context of constitutional law, criminal justice, or international (human rights) law. An important part of my research examines the (alleged) tension between ‘liberty’ and ‘security’ and explores how this tension plays out in both domestic and international contexts, often addressing the interface between the two dimensions. National security issues, such as terrorism, have featured prominently in my scholarship, but my human rights-related work also extends to the field of preventive justice, including questions relating to the post-sentence detention of ‘dangerous’ individuals for public safety purposes. A fascinating development that has captured my attention recently concerns the expansion of executive power of international organisations. International bodies such as the UN Security Council have become increasingly active in the administration and regulation of matters that once used to be the exclusive domain of States. This shift in governance functions, however, has not been accompanied by the creation of mechanisms to restrain or review the exercise of executive power. I suspect that it is in this area that much of my research will be carried out in the years ahead.”

Christopher Michaelsen, Associate Professor, Faculty of Law, UNSW Australia, member of Australian Human Rights Centre, and author of ‘Human Rights as Limits for the Security Council: A Matter of Substantive Law or Defining the Application of Proportionality?’ in the Journal of Conflict and Security Law

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“I specialize in the interaction between international financial markets and human rights, both in relation to (a) understanding international legal obligations relating to socio-economic rights in the context of financial processes and dynamics; and (b) the business and human rights debate as it applies to financial institutions. My focus on these areas resulted from an awareness that as the world economy globalised over the last twenty years, the financial markets changed beyond all recognition to become a predominant force shaping economic processes. Therefore, although they are generally seen as remote from immediate human rights impacts, they set the context of socio-economic rights enjoyment. The practical challenges involved in realising these rights can only be fully understood by accepting the way financial markets shape economic and policy making options, and outcomes for individuals. As this is a huge field of enquiry and many of the connections have not so far been extensively explored from a human rights point of view, my focus tends to be determined by (a) a desire to bring new areas of the financial markets into a human rights framework, and (b) a desire to respond to issues of importance as they arise, such as financial crisis and austerity.”

Mary Dowell-Jones, Fellow, Human Rights Law Centre, University of Nottingham, and author of ‘Financial Institutions and Human Rights’ in the Human Rights Law Review

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“My research covers a variety of human rights issues, however I have a particular interest in the analysis of domestic violence as a human rights issue. Domestic violence affects vast numbers of people in every state around the globe. The practice of domestic violence constitutes a breach of internationally recognised rights such as the right to be free from torture and inhuman or degrading treatment; the right to private and family life; and, in some circumstances, the right to life itself. However it is only relatively recently that domestic violence has been analysed through the lens of human rights law. For example, it is only since 2007 that judgments of the European Court of Human Rights have been issued which directly focus on domestic violence. Nevertheless, there is now an ever-increasing awareness of domestic violence as a human rights issue, and there have been a number of important recent developments, such as the adoption of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, which entered into force on 1 August 2014.”

Ronagh McQuigg, lecturer in School of Law, Queen’s University Belfast, and author of ‘The Human Rights Act 1998—Future Prospects’ in the Statute Law Review

*   *   *   *   *

“Human rights discourse has been proliferating. Yet I feel that the proliferation of the discourse of human rights does not contribute to the success of implementing human rights on the ground. Perhaps one reason is that human rights scholarship and activism has great appeal to idealists and while idealists whom I admire are good in articulating ideals, they are less capable of carrying out these ideals. I believe that a major difficulty in implementing human rights is the costs of implementation. Human rights organizations may be justifiably appalled by police brutality and urge states to restructure their police forces, but such a restructuring is not costless and it may be detrimental to other urgent concerns including human rights concerns. The good intentions of activists and the scholarly work of theorists (to which I have been committed in the past) may ultimately turn out to be detrimental to the protection of human rights. What I think is urgently needed in order to carry out the lofty ideals is not more human rights scholarship but scholarship which will focus its attention on the best ways to implement the most urgent and basic humanitarian concerns. This is not what I have been doing in my own work but I am convinced it is what needs at this stage to be done. In doing so one ought to constrain idealism in favor of modest pragmatism. Ironically those who can most effectively pursue modest pragmatism are not human rights activists or theorists.”

Alon Harel, Professor in Law, Hebrew University Law Faculty and Center for Rationality, and author of ‘Human Rights and the Common Good: A Critique’ in the Jerusalem Review of Legal Studies

*   *   *   *   *

“It had long been assumed that the best protection of human rights was a strong, Western-style democracy – if it came to the test, the people would always decide in favour of human rights. Recent developments, however, have challenged this assumption: human rights restrictions introduced after 9/11 in the United States and other Western democracies had strong popular support; the current British government’s plans to weaken (or even withdraw from) the ECHR system seem primarily designed to gain votes; Swiss voters have approved several popular initiatives that conflict with international human rights guarantees. Is the relationship between democracy and human rights not as symbiotic as it is often thought? Do direct democratic systems lend themselves more to tyranny of the majority than representative democracies? What is needed so that the human rights of those in the minority can be effectively protected? These, I believe, are among the most pressing questions that human rights lawyers must confront today.”

Daniel Moeckli, Assistant Professor of Public International Law and Constitutional Law, University of Zurich, co-editor of International Human Rights Law, Second Edition

*   *   *   *   *

Headline image credit: Canvas Orange by Raul Varela via the Pattern Library.

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21. Christmas crime films

In order to spread some festive cheer, Blackstone’s Policing has compiled a watchlist of some of the best criminal Christmas films. From a child inadvertently left home alone to a cop with a vested interest, and from a vigilante superhero to a degenerate pair of blaggers, it seems that (in Hollywood at least) there’s something about this time of year that calls for a special kind of policing. So let’s take a look at some of Tinseltown’s most arresting Christmas films:

1. Die Hard, directed by John McTiernan, 1988

Considered by many to be one of the greatest action/Christmas films of all time, Die Hard remains the definitive cinematic alternative to the usual saccharine cookie-cut Christmas film offering. This is the infinitely watchable story of officer John McClane’s Christmas from hell. When a trip to win back his estranged wife  goes awry and he unwittingly finds himself amidst an international terrorist plot, he must find a way to save the day armed only with a few guns, a walkie talkie, and a bloodied vest. With firefights and exploding fairy lights abundant, this Bruce Willis tour de force is the undisputed paragon of policing in Christmas films.

2. Home Alone, directed by Chris Columbus, 1990

In a parental blunder tantamount to criminal neglect, the McCallister family accidentally leave their youngest member, Kevin (played by precocious child star Macaulay Culkin), ‘home alone’ to fend for himself over Christmas as two omnishambolic burglars target the McCallister household. As the Chicago Police Department work through the confusion of the situation, Kevin traverses his way through a far from silent night. Cue copious booby traps and slapstick as the imagination of an eight-year-old boy ingeniously holds the line in this family-fun classic.

3. Batman Returns, directed by Tim Burton, 1992

Gotham is a city perennially infested with arch-criminals whose seemingly endless financial resources demand that they be tackled head-on by a force who can match them pound-for-pound (or dollar-for-dollar, if you prefer). Enter Gotham’s very own Christmas miracle: billionaire Bruce Wayne and his vigilante alter ego Batman (Michael Keaton), who provides a singular justice-hungry scourge against the criminal underworld. As the Penguin (Danny DeVito) hatches a nefarious plot which threatens the city, Batman’s wholly goodwill must prove resilient. Though director Tim Burton went on to make The Nightmare Before Christmas the following year, Batman Returns itself is hardly a Christmas classic.

4. Lethal Weapon, directed by Richard Donner, 1987

Ward Bond (1903-1960) as Bert, the cop in It's a Wonderful Life (1946) by Insomnia Cured Here. CC-BY-2.0 via Flickr.
Ward Bond (1903-1960) as Bert the cop in It’s a Wonderful Life (1946) by Insomnia Cured Here. CC-BY-2.0 via Flickr.

With a blizzard of bullets and completely bereft of snow, LA-based Lethal Weapon lacks nearly all the usual trimmings of a Christmas film. Seasoned detective Roger Murtaugh (Danny Glover) is close to retirement when he’s paired with the young (and morose) Martin Riggs (Mel Gibson) to tackle a drug smuggling gang. As their stormy investigation progresses, Murtaugh and Riggs’ unlikely union flourishes into a double-act worthy of Donner and Blitzen (and, judging by the pair’s return in a subsequent three installments of the series, their entertaining policing partnership always leaves audiences wanting myrrh…).

5. National Lampoon’s Christmas Vacation, directed by Jeremiah Chechik, 1989

In this third installment of the Griswold family’s catastrophic holidays, Clark (Chevy Chase) navigates his way through the perils of yet another disastrous calamity, but at least this time he has his Christmas bonus to look forward to. Things take a bizarre turn for the criminal when the bonus isn’t forthcoming, resulting in a myriad of mishaps of Christmas paraphernalia and SWAT teams. As the tagline for the film attests, ‘Yule crack up!’

6. Kiss Kiss Bang Bang, directed by Shane Black, 2005

Petty thief Harry Lockhart (Robert Downey Jr.) finds himself embroiled in a series of increasingly byzantine cases of mistaken identity as both a method actor and criminal investigator. Reality cuts through when Harry is shepherded into a murder investigation involving the sister of his childhood crush, Harmony Lane (Michelle Monaghan). Perhaps one of the less christmassy films on this list, there are definitely still a few seasonal signs parceled  in to this murder/mystery thriller.

“There’s something about this time of year that calls for a special kind of policing”

7. Miracle on 34th Street, directed by George Seaton, 1947

Arguably the ultimate Christmas film, Miracle on 34th Street is the classic tale of the legal battle around the sanity and freedom of a man who claims to be the real Santa Claus. This original film won three Academy Awards including Best Actor in a Supporting Role for Edmund Gwenn’s portrayal of Kris Kringle (‘the real Santa Claus’). Despite being remade in 1994 and adapted into various other forms, the 1947 version remains the quintessential Christmas film which no comprehensive watchlist could be without.

8. Bad Santa, directed by Terry Zwigoff, 2003

Dastardly duo Willie (Billy Bob Thornton) and Marcus (Tony Cox) make their criminal living by posing as Santa and his Little Helper for department stores, and then opportunistically stealing as much as they can. As the security team for their latest blag hunts them down, Willie meets a boy determined that he is the real Santa and the race is on for the degenerate pair to reform their lifestyles before they are stuffed.

What would would you add to this list? Tell us your favourite policing Christmas film in the comments section below or let us know directly on Twitter. Merry Christmas everyone!

Headline image credit: [365 Toy Project: 019/365] Batman: Scarlet Part 1. CC-BY-NC-SA-2.0 via Flickr.

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22. Human Rights Awareness Month case map

To mark Human Rights Day, we have produced a map of 50 landmark human rights cases, each with a brief description and a link to a free article or report on the case.

The cases were chosen in conjunction with the editors of the Oxford Reports on International Law. These choices were intended to showcase the variety of international, regional, and national mechanisms and fora for adjudicating human rights claims, and the range of rights that have been recognized.

The following map provides a quick tour to these cases, highlighting trends and themes, some positive, some negative.

Major Historical Events

A lot of these cases are important because of the way they demonstrate the possibility of righting historic injustices: for the disappeared of Honduras, for victims of Argentina’s “dirty war,” for Hitler’s slaves, heroes of the Chernobyl disaster, and East Germans gunned down trying to reach the West. They also shine a light on what happens in the aftermath of war: Peruvian politicians attempting to pass amnesty laws to prevent accountability, people on the losing side of World War II having their property stolen, and the operation of post-World War I minorities treaties.

Africa

From a human rights standpoint we probably have a number of preconceptions about Africa – large scale atrocities and impunity. While that is horribly true in places there are also aspects of the cases highlighted in our map that might surprise some. The one case about an investor’s rights (Diallo) features an African state, not one of the typical capital exporting states, taking legal action on behalf of its citizen. There is also the range of fora in Africa that offer remedies. In addition to the obvious forum – the Commission and Court of the African regional human rights system, we have cases from the East-African Court of Justice and the ECOWAS Community Court both finding that they are empowered to adjudicate on human rights issues as universal as the rights of indigenous peoples and anti-slavery. Whereas you wouldn’t be surprised to see a post-Apartheid decision from the South African domestic courts in this list, it is instructive to see a case from Ugandan domestic courts on press freedom.

Expansion of Rights

The modern proliferation of rights is often a topic of humorous exaggeration. These cases exemplify a great breadth of rights beyond the classic civil and political rights of freedom from torture, or free speech. Where it does address these topics there is a novel twist: on torture, whether it is OK to extradite criminals to a place where they face torture; on free speech, whether Holocaust denial should be protected. Several have gender aspects: states’ obligations to prevent domestic violence, women being required to prove they are the “breadwinner” in order to have access to unemployment benefits, sexual violence against women as a means to silence political dissent. Others bring in group rights: self-determination, rights of indigenous peoples, and even the rights of tribes imported via the slave trade. Add to these cases on the execution of minors, anti-homosexuality laws, and treating a person’s DNA as their private matter, and we see how far the law has developed.

Unattractive Victims

Opponents of human rights litigation often point out that these rights are frequently claimed by people whom we deplore. It is true that many of the people making claims in these cases were accused of murder and terrorism, or at least were sworn enemies of the state that (allegedly) abused them. So the lesson here is that these are human rights, not “nice people’s” rights.

Human Rights as an Excuse

With so many human rights remedies available there is a temptation for litigants, whether states or individuals, to use human rights as a way to get an issue before a court. You would expect the case between Georgia and the Russian Federation at the International Court of Justice (ICJ) to be about the illegal use of force by Russia. Instead, Georgia sued under a human rights treaty: the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). Why? Ordinarily Russia could refuse to submit to a legal procedure at the ICJ, but the CERD contains a provision saying that in any dispute under that treaty between two states that have ratified it (which Russia and Georgia had) both parties must agree to the jurisdiction of the ICJ. So Georgia gets minor revenge for Russia’s invasion and annexation by suing Russia for racial discrimination.

Misleading Maps

You might think the clustering of pins in our map is about abuses, but actually it demonstrates access to a legal process (and, depending on implementation) a remedy. So plenty of pins in Europe, and Israel, but none in Saudi Arabia or North Korea.

These 50 cases are by no measurable sense the 50 greatest or most important cases, but they do amply demonstrate the expansion and increasing profile of this, mostly admirable, element of the rule of law.

Featured image credit: Roosevelt’s “Four Freedoms”. Photo by dbking. CC-BY-SA-2.0 via Wikimedia Commons

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23. Kenneth Roth on human rights

Today, 10 December, is Human Rights Day, commemorating The Vienna Declaration and Programme of Action. In celebration, we’re sharing an edited extract from International Human Rights Law, Second Edition by Kenneth Roth, Executive Director of Human Rights Watch.

The modern state can be a source of both good and evil. It can do much good – protecting our security, ensuring our basic necessities, nurturing an environment in which people can flourish to the best of their abilities. But when it represses its people, shirks its duties, or misapplies its resources, it can be the source of much suffering.

International human rights law sets forth the core obligations of governments toward their people, prescribing the basic freedoms that governments must respect and the steps they must take to uphold public welfare. But the application of that law often differs from the enforcement of statutes typically found in a nation’s law books.

In countries that enjoy the rule of law, the courts can usually be relied on to enforce legislation. The rule of law means that courts have the independence to apply the law free of interference, and powerful actors, including senior government officials, are expected to comply with court orders.

In practice, there is no such presumption in most of the countries where my organization, Human Rights Watch, works, and where international human rights law is most needed. The judges are often corrupt, intimidated, or compromised. They may not dare hold the government to account, or they may have been co-opted to the point that they do not even try, or the government may succeed in ignoring whatever efforts they make.

International human rights law should be seen as a law of last resort when domestic rights legislation fails. Judicial enforcement is always welcome, but when it falls short, human rights law provides a basis that is distinct from domestic legislation for putting pressure on governments to uphold their obligations.

Human rights groups investigate and report on situations in which governments fall short of their obligations. The resulting publicity, through the media and other outlets, can undermine a government’s standing and credibility, embarrassing it before its people and peers and generating pressure for reform.

Beyond documenting and reporting violations of human rights law, human rights groups must shape public opinion to ensure that the exposure of government misconduct is met with opprobrium rather than approval. In part this is done by citing international law to convince the public of a global consensus about what is right or wrong in a given context. By presenting an issue in terms of rights, human rights groups help the public to develop a moral framework for assessing governmental conduct beyond public sentiment in any particular case or incident.

For the law to play this role of moral instruction, it is not enough simply to recite it. When people’s security or traditions are at stake, it takes more than a mere reference to the law to change the public’s sense of moral propriety. Human rights groups must be creative in moving the public to embrace what the law demands.

Sometimes it is difficult to convince a local public to disapprove of its government’s conduct. Thus, the great challenge facing human rights groups is often less concerned with arguing the law’s fine points or applying them to the facts of a case than with convincing the public that violations are wrong. That requires the hard work of helping the public to identify with the victim’s plight, making the law come alive, and generating outrage at its violation with some public of relevance. When human rights law can be made to correspond with the public’s sense of right and wrong, governments face intense pressure to respect that law. Shame can be a powerful motivator.

Headline image credit: Hands raised. CC0 via Pixabay.

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24. Selfies and model bottoms: monkeying around with intellectual property rights

When “The Case of the Black Macaque” scooped media headlines this summer, copyright was suddenly big news. Here was photographer David Slater fighting Wikipedia over the right to disseminate online a portrait photo of a monkey which had, contrary to all expectations and the law of averages, managed within just a few jabs of a curious finger, to take a plausible, indeed publishable “selfie”. Did Slater have the right to control the image since it was his camera on which it was recorded, or was it free for the world to use on the basis that he was not its author, the true creator being the crested black macaque who, for all her charm and dexterity, was neither a real nor legal person and therefore disentitled to any legal rights?

Disputes like this make great headlines, but cause even greater headaches for the intellectual property (“IP”) community. Most have little legal substance to them and are interesting only because of their facts, but that’s what drives journalists’ involvement and readers’ interest, making it easier for the media to attract paying advertisers. By the time they pass through the media machine these tales are frequently mangled to the point at which IP lawyers can scarcely recognise them. In one recent case involving a well-known chocolate brand, a company was said to have patented its copyright in England in order to sue a business in Switzerland for trade mark infringement.  To the layman this may sound fine, but it’s about as sensible to the expert as telling the doctor that you’ve got a tummy ache in your little finger because your cat ate the goldfish last night.  We IP-ers try to explain the real story, but monkeys and selfies are far more fun than the intricacies of copyright law and, by the time we’ve tried to put the record straight, the next exciting story has already broken.

“By the time they pass through the media machine, these tales are frequently mangled to the point at which IP lawyers can scarcely recognise them”

The next selfie episode to hit the headlines, far from featuring a portrait, was quite the opposite end of the anatomical spectrum. Model Kim Kardashian objected that Jen Selter’s selfies constituted copyright infringements of photos which had been taken of Kim Kardashian’s bottom (occasionally colloquially described as her “trademark” bottom, but not yet registered in conventional legal fashion). Here the only questions IP lawyers address are (i) are the pictures of Kim Kardashian’s backside copyright-protected works and (ii) does the taking by Jen Selter of selfies of her own posterior constitute an infringement? For press and public, however, the issue morphs into the much more entertaining, if legally irrelevant, one of whether a person has copyright in their own bottom.

By Self-portrait by the depicted Macaca nigra female. See article. (Wtop.com) [Public domain], via Wikimedia Commons
Self-portrait by the depicted Macaca nigra female. Public domain via Wikimedia Commons

There are many IP rights apart from copyright and they all have their macaque moments. Trade mark law is full of episodes of evil corporations stealing words from the English language and stopping anyone else using them. Patent law (in which the legal protection of body parts very much smaller than bottoms, such as sequences of DNA, does have some relevance) is garnished with tales of greed and intrigue as people seek to steal one another’s ideas and avariciously monopolise them. Confidentiality and the right to publicity have their own rip-roaring encounters in court as amorous footballers who are “playing away” seek to hush up their extramarital (that’s one word, not two) exploits. Meanwhile, the women with whom they shared moments of illicit intimacy seek to cash in on their news value by selling them to the highest bidder. For IP lawyers the legal issues are serious and, when cases come to court, they achieve precedential status that governs how future episodes of the same nature might be handled. For press and public, the issues are different: who is the footballer, who is the woman — and are there any pictures (ideally selfies)?

Seriously, the rate at which not just eye-catching tales like those related above but also far less glamorous tales result in litigation, or even legislation, makes it hard-to-impossible for practitioners, academics, administrators and businessmen to keep abreast of the law, let alone understand its deeper significance for those affected by it: businesses, governments, consumers, indeed everyone. Publishers like OUP are increasingly raising the tempo of their own responses to the IP information challenge, utilising both formal and informal media, in print and online.  Since legal publishing is largely reactive, we can narrow the gap between the time an exciting new event or legal decision hits the popular media and the point at which we can strip it down to its bare legal essentials. But it will take more than a little monkeying around before we can close that gap completely.

Featured image credit: Camera selfie, by Paul Rysz. CC-BY-2.0 via Flickr.

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25. Traveling patients, traveling disease: Ebola is just the tip of the iceberg

Many in the media and academia (myself included) have been discussing the Ebola crisis, and more specifically, the issues that arise as Ebola has traveled with infected patients and health care workers to the United States and infected other US citizens.

These discussions have been fascinating and frightening, but the terrifying truth is that Ebola is just the tip of the iceberg. Diseases have long traveled with patients, and as the phenomena of medical tourism and the more general globalization of health care grow, these problems are likely to grow as well.

Medical tourists are very good targets of opportunities for pathogens. Many are traveling with compromised or suppressed immune systems to destination countries for treatment with relatively high infection rates, including the risk of exposure to multi-drug–resistant pathogens.

Doctors typically distinguish commensals—the bugs we normally carry on our skin, mouth, digestive tracts, etc.—from pathogens, the harmful bacteria that cause disease through infection. But what is commensal for a person in India might be an exotic pathogen for a US population. Medical tourist patients are transporting their commensals and pathogens to the hospital environments of the destination countries to which they travel, and are exposed to the commensals and pathogens of hospitals and population at large in the destination country. These transmissions tax the health care system and the knowledge of physicians in the home country to whom the new microbe may be unknown, and diagnosis and treatment more difficult.

Air travel can involve each of the four classical modes of disease transmission: contact (e.g. body-to-body or touching an armrest), common vehicle (e.g. via food or water), vector (e.g. via insects or vermin), and airborne (although more recent planes are equipped with high efficiency particulate air (HEPA) filters reducing transmission risk, older planes are not).

We have seen several diseases travel in this way. The Severe Acute Respiratory Syndrome (SARS) outbreak of 2003 involved a three-hour flight from Hong Kong to Beijing carrying one SARS-infected passenger leading to sixteen passengers being subsequently confirmed as cases of SARS, with eight of those passengers sitting in the three rows in front of the passenger.

In January 2008, a new type of enzyme was detected in bacteria found in a fifty-nine-year-old man with a urinary tract infection being treated in Sweden. The man, Swedish but of Indian origin, had in the previous month undergone surgeries at two hospitals in India. The enzyme, labeled “New Delhi metallo-beta-lactamase-1 (NDM-1)” was able to disarm a lot of antibiotics, including one that was the last line of defenses against common respiratory and urinary tract infection.

In 2009, a study found that twenty-nine UK patients had tested positive for the bacteria-carrying NDM-1 and that seventeen of the twenty-nine (60%) had traveled to India or Pakistan in the year before. A majority of those seventeen received medical treatment while abroad in those countries, some for accidents or illness while traveling and others for medical tourism, either for kidney and bone marrow transplants or for cosmetic surgery.

High-income countries face significant problems with these infections. A 2002 study estimated that 1.7 million patients (ninety-nine thousand of whom died as a result) developed health care-acquired infections in the United States that year. In Europe these infections have been estimated to cause thirty-seven thousand deaths a year and add US $9.4 billion in direct costs

What can be done? Although in theory airline or national travel rules can prevent infected patients from boarding planes, detecting these infections in passengers is very difficult for the airline or immigration officials, and concerns about privacy of patients may chill some interventions. A 2007 case of a man who flew from the United States to Europe with extensively resistant tuberculosis and who ultimately circumvented authorities who tried to stop him on return by flying to Montreal, Canada and renting a car, shows some of the limits on these restrictions.

Part of the solution is technological. The HEPA filters discussed above on newer model planes reduce the risk substantially, and we can hope for more breakthroughs.

Part of the solution is better regulating the use of antibiotics: overuse of antibiotics when not effective or necessary, underuse of antibiotics when they are needed, failure to complete a full course of antibiotics, counterfeit drugs, and excessive antibiotic use in food animals. This is not a magic bullet, however, and we see problems even in countries with prescription systems such as the United States.

We also need much better transparency and reaction time. Some countries reacted quickly to the report of the NDM-1 cases discussed above in issuing travel warnings and informing home country physicians, while others did not.

Finally, as became evident with Ebola, we need better protocols in place to screen returning medical tourism patients and to engage in infection control when needed.

Headline image credit: Ebola virus virion by CDC microbiologist Cynthia Goldsmith. Public domain via Wikimedia Commons.

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