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Viewing: Blog Posts Tagged with: Law, Most Recent at Top [Help]
Results 1 - 25 of 416
1. How do Russians see international law?

Russia’s annexation of Crimea in 2014 was a watershed in international relations because with this act, Moscow challenged the post-Cold War international order. Yet what has been fascinating is that over the last years, Russia’s President and Foreign Minister have repeatedly referred to ‘international law’ as one of Russia’s guiding foreign policy principles.

The post How do Russians see international law? appeared first on OUPblog.

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2. How do we protect ourselves from cybercrime?

Modern society requires a reliable and trustworthy Internet infrastructure. To achieve this goal, cybersecurity research has previously drawn from a multitude of disciplines, including engineering, mathematics, and social sciences, as well as the humanities. Cybersecurity is concerned with the study of the protection of information – stored and processed by computer-based systems – that might be vulnerable to unintended exposure and misuse.

The post How do we protect ourselves from cybercrime? appeared first on OUPblog.

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3. Surrogacy: how the law develops in response to social change

In its recent decision in Mennesson v. France (App no. 65192/11), the Fifth Section of the European Court of Human Rights in Strasbourg ruled that surrogate children—in this case, born in the US and having US citizenship—should not be prevented from registering as French citizens, as this would be a violation of their right to respect for their private life. The Strasbourg court’s view, which is very understandable, is that nationality is an important part of a person’s identity.

The post Surrogacy: how the law develops in response to social change appeared first on OUPblog.

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4. International copyright: What the public doesn’t know

Copyright these days is very high up on the agenda of politicians and the public at large. Some see copyright as a stumbling stone for the development of digital services and think it is outdated. They want to make consumers believe that copyright protection is to be blamed, when music or other ‘content’ is not available online, preferably for free. From Brussels we hear that ‘national copyright silos’ should be broken up, that the EU Internal Market is fragmented when it comes to copyright.

The post International copyright: What the public doesn’t know appeared first on OUPblog.

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5. Preparing for IBA and ICSID’s 18th Annual International Arbitration Day

The 18th Annual International Arbitration Day will take place 26-27 February 2015 at the Ronald Reagan Building in Washington, DC. A joint conference presented by the International Bar Association (IBA) Arbitration Committee and the International Centre for Settlement of Investment Disputes (ICSID), International Arbitration Day will gather lawyers and academics to look back on investment arbitration and discuss its future, a theme that coincides with ICSID’s 50th anniversary.

The post Preparing for IBA and ICSID’s 18th Annual International Arbitration Day appeared first on OUPblog.

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6. Why has France banned surrogate motherhood?

Shortly after it emerged in the 1980s, surrogate motherhood was dealt a severe blow in France by a decision of the Cour de Cassation, its highest civil court: in 1991, it ruled that an agreement entered into by a woman to conceive, bear a child, and relinquish it at birth, albeit for altruistic reasons, was contrary to the public policy principle of unavailability of both the human body and civil status. This prohibition was confirmed in the Bioethics Act of 1994 and enshrined in the Civil Code as a regulation which is “a matter of public policy,” i.e. belonging to a category of mandatory rules created by the state to protect fundamental values of society and from which citizens have no freedom to derogate.

The post Why has France banned surrogate motherhood? appeared first on OUPblog.

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7. Is Broadchurch a classic crime drama?

January saw the critically acclaimed and award winning Broadchurch return to our TV screens for a second series. There was a publicity blackout in an attempt to prevent spoilers or leaks; TV critics were not sent the usual preview DVDs. The opening episode sees Joe Miller plead not guilty to the murder of Danny Latimer, a shock as the previous season’s finale ended with his admission of guilt. The change of plea means that the programme shifts from police procedural to courtroom drama – both staples of the TV schedules. Witnesses have to give evidence, new information is revealed through cross-examination, and old scores settled by witnesses and barristers.

The post Is Broadchurch a classic crime drama? appeared first on OUPblog.

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8. Trust in the aftermath of terror

In the days following the terrorist attack in Paris on 11 January, thousands of people took to the street in solidarity with the victims and in defense of free speech, and many declared ‘Je suis Charlie’ on social media around the world. The scene is familiar with what we have seen in several other countries in the aftermath of major terrorist attacks.

The post Trust in the aftermath of terror appeared first on OUPblog.

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9. Thoughts on teaching in prison on World Day of Social Justice

On an overcast day in January 2013, with no criminal justice background and no real teaching experience, I entered the stark grounds of New Jersey’s only maximum-security women’s prison to co-teach a course on memoir writing. The youngest in a classroom of thirteen women, many of whom were serving life or double-life sentences, plus my two mentors and co-teachers, Courtney Polidori and Michele Tarter, my mind began spinning with concern and doubt.

The post Thoughts on teaching in prison on World Day of Social Justice appeared first on OUPblog.

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10. The Grand Budapest Hotel and the mental capacity to make a will

Picture this. A legendary hotel concierge and serial womaniser seduces a rich, elderly widow who regularly stays in the hotel where he works. Just before her death, she has a new will prepared and leaves her vast fortune to him rather than her family.

For a regular member of the public, these events could send alarm bells ringing. “She can’t have known what she was doing!” or “What a low life for preying on the old and vulnerable!” These are some of the more printable common reactions. However, for cinema audiences watching last year’s box office smash, The Grand Budapest Hotel directed by Wes Anderson, they may have laughed, even cheered, when it was Tilda Swinton (as Madame Céline Villeneuve Desgoffe und Taxis) leaving her estate to Ralph Fiennes (as Monsieur Gustave H) rather than her miffed relatives. Thus the rich, old lady disinherits her bizarre clan in what recently became 2015’s most BAFTA-awarded film, and is still up for nine Academy Awards in next week’s Oscars ceremony.

Wills have always provided the public with endless fascination, and are often the subject of great books and dramas. From Bleak House and The Quincunx to Melvin and Howard and The Grand Budapest Hotel, wills are often seen as fantastic plot devices that create difficulties for the protagonists. For a large part of the twentieth century, wills and the lives of dissolute heirs have been regular topics for Sunday journalism. The controversy around the estate of American actress and model, Anna Nicole Smith, is one such case that has since been turned into an opera, and there is little sign that interest in wills and testaments will diminish in the entertainment world in the coming years.

“[The Vegetarian Society v Scott] is probably the only case around testamentary capacity where the testator’s liking for a cooked breakfast has been offered as evidence against the validity of his will.”

Aside from the drama depicted around wills in films, books, and stage shows, there is also the drama of wills in real life. There are two sides to every story with disputed wills and the bitter, protracted, and expensive arguments that are generated often tear families apart. While in The Grand Budapest Hotel the family attempted to solve the battle by setting out to kill Gustave H, this is not an option families usually turn to (although undoubtedly many families have thought about it!).

Usually, the disappointed family members will claim that either the ‘seducer’ forced the relative into making the will, or the elderly relative lacked the mental capacity to make a will; this is known as ‘testamentary capacity’. Both these issues are highly technical legal areas, which are resolved dispassionately by judges trying to escape the vehemence and passion of the protagonists. Regrettably, these arguments are becoming far more common as the population ages and the incidence of dementia increases.

Wes Anderson, director of The Grand Budapest Hotel. By Popperipopp. Public domain via Wikimedia Commons.
Wes Anderson, director of The Grand Budapest Hotel. By Popperipopp. Public domain via Wikimedia Commons.

The diagnosis of mental illness is now far more advanced and nuanced than it was when courts were grappling with such issues in the nineteenth century. While the leading authority on testamentary capacity still dates from a three-part test laid out in the 1870 Banks v Goodfellow case, it is still a common law decision, and modern judges can (and do) adapt it to meet advancing medical views.

This can be seen in one particular case, The Vegetarian Society v Scott, in which modern diagnosis provided assistance when a question arose in relation to a chronic schizophrenic with logical thought disorder. He left his estate to The Vegetarian Society as opposed to his sister or nephews, for whom he had a known dislike. There was evidence provided by the solicitor who wrote the will that the deceased was capable of logical thought for some goal-directed activities, since the latter was able to instruct the former on his wishes. It was curious however that the individual should have left his estate to The Vegetarian Society, as he was in fact a meat eater. However unusual his choice of heir, the deceased’s carnivorous tendencies were not viewed as relevant to the issues raised in the court case.

As the judge put it, “The sanity or otherwise of the bequest turns not on [the testator’s] for food such as sausages, a full English breakfast or a traditional roast turkey at Christmas; nor does it turn on the fact that he was schizophrenic with severe thought disorder. It really turns on the rationality or otherwise of his instructions for his wills set in the context of his family relations and other relations at various times.”

This is probably the only case around testamentary capacity where the testator’s liking for a cooked breakfast has been offered as evidence against the validity of his will.

For lawyers, The Grand Budapest Hotel’s Madame Céline Villeneuve Desgoffe und Taxis is potentially a great client. Wealth, prestige, and large fees for the will are then followed by even bigger fees in the litigation. If we are to follow the advice of the judge overseeing The Vegetarian Society v Scott, Gustave H would have inherited all of Madame Céline’s money if she was seen to be wholly rational when making her will.

Will disputes will always remain unappealing and traumatic to the family members involved. However, as The Grand Budapest Hotel has shown us, they still hold a strong appeal for cinema audiences and will continue to do so for the foreseeable future.

Feature image: Reflexiones by Serge Saint. CC-BY-2.0 via Flickr.

The post The Grand Budapest Hotel and the mental capacity to make a will appeared first on OUPblog.

       

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11. The bicentenary of the Congress of Vienna (1814–1815)

The centenary of the Great War in 2014 has generated impressive public as well as scholarly attention. It has all but overshadowed some other major anniversaries in the history of international relations and law, such as the quarter-centenary of the fall of the Berlin Wall (1989) or the bicentenary of the Vienna Congress (1814–1815). As with the turn of the year the interest in the Great War seems to be somewhat subsiding, and the anniversary of the most epic and dramatic event of the Vienna period (the Battle of Waterloo of 18 June 1815) is approaching, the commemoration of the Vienna Congress gains a bit of the spotlight.

The Congress of Vienna marked the establishment of a new political and legal order for Europe after more than two decades of turmoil and war following the French Revolution. The defeat of Napoleon (1769–1821) in 1813–1814 by a huge coalition of powers under the leadership of Britain, Russia, Austria, and Prussia gave the victorious powers an opportunity to stabilise Europe. This they intended to do by containing the power of France and recreating the balance between the great powers.

At Vienna, between November 1814 and June 1815, the representatives of more than 200 European polities – many from the now-defunct Holy Roman Empire – met to debate a new European order. The Congress of Vienna stands in the tradition of great European peace conferences, beginning with Westphalia (1648) and continuing with Nijmegen (1678–1679), Rijswijk (1697), Utrecht (1713), Vienna (1738), Aachen (1748), and Paris (1763) to the Paris peace conference that ended the American War of Independence (1783). Yet, in several ways, it was also a departure from it.

Europe after the Congress of Vienna. Public domain via Wikimedia Commons
Europe after the Congress of Vienna. Public domain via Wikimedia Commons

At the prior peace conferences, the major order of business had been to agree on the conditions to end war and restore peace. Whereas this implied discussions on the future order of Europe, the major interest was to settle the claims that lay at the origins of the war and the focus was thus largely backwards-looking. In the case of Vienna, peace had already been made between France and the major allies before the conference met. Peace had been formally achieved through the First Peace of Paris of 30 May 1814. This peace had taken the traditional form of a set of bilateral peace treaties between the different belligerents. In this case it concerned six peace treaties between France on the one hand and Britain, Russia, Austria, Prussia, Sweden, and Portugal on the other hand. These treaties were identical but for some additional and secret articles. Professor Parry published the treaty between France and Britain as well as these separate articles (63 CTS 171). On 20 July 1814, France concluded a seventh peace treaty with Spain (63 CTS 297). Article 32 of the identical treaties provided for a general congress at Vienna to ‘complete the provisions of the present Treaty’. The peace treaties contained the major conditions of peace, including the new borders of France. It was left to the Congress to lay out the conditions of the general political and legal order of Europe for the future.

Not even the return of Napoleon from Elba and the eruption of new war diverted the Congress from its forward-looking agenda. The congress was not suspended nor was a new peace treaty made at Vienna. After Napoleon’s defeat at Waterloo and the second restoration of the Bourbons to the French throne, a new set of peace treaties was made under the Second Peace of Paris of 20 November 1815 (65 CTS 251), between France and each of the four great powers of the coalition. Numerous other powers later acceded to the peace.

As prior conferences had done, the Vienna Congress produced a whole set of – mostly bilateral – treaties. But the conference also chose an innovative form for its closing as its main conclusions were formally laid down in a general instrument, the Final Act of Vienna of 9 June 1815 (64 CTS 453). This act was signed and ratified by the seven powers which had concluded peace at Paris on 30 May 1814, with Spain and some other powers later acceding. Article 118 of the Final Act incorporated 17 treaties which had been concluded at Vienna and annexed them to the instrument, thus committing all signatories of the Final Act to them. In turn, Article 11 of the Second Peace of Paris would later confirm the Vienna Final Act, as well as the First Peace of Paris.

As it is generally established in the scholarly literature, the new order of Europe which came out of the Vienna Congress was based on two main pillars. Firstly, the Vienna powers aspired to restore and safeguard the balance of powers and made this into a leading maxim in drafting the new territorial map of Europe. This was done by reducing France to its borders of 1792 – allowing it to keep some of its conquests from the Revolutionary Period – and strengthening its neighbours. The greatest riddle to the balance of power was the future of Germany. The solution was found somewhere between the extremes of a return of the  division of the Holy Roman Empire, which would have made it defenceless against new French expansionism, and its unification, which would have disrupted the balance of Europe. The new German Confederation would contain only 39 states instead of the over 300 of the old Empire. Within the Confederation, a balance was created between the two leading powers, Austria and Prussia, both of which made considerable territorial gains to ensure their capability to contain France, and each other.

Secondly, the Vienna order was built on the principle that the great powers – a group into which France retook its traditional place – would take common responsibility for the general peace and stability of Europe. The four victorious great powers had already agreed on this principle in different instruments prior to the Vienna Congress, the main one of these being the Treaty of Chaumont of 1 March 1814 (63 CTS 83). This ‘great power principle’ also determined the organisation and working of the congress itself. Although over 200 delegations were present, the major negotiations and decisions took place in the Committees of Five (Britain, Russia, Austria, Prussia, and France) and of Eight (also including Spain, Sweden, and Portugal), relegating the other powers to roles as lobbyists for their own interests. As the chief French negotiator, Charles Maurice de Talleyrand-Périgord (1754–1838) had it, ‘Vienna was the Congress that was not a Congress’. The Final Act did, however, lack a provision for the future implementation of the great power principle apart from the fact that the eight great powers were bound to all its provisions and thus were all guarantors of the territorial and legal order of Europe as laid down in the act. This was remedied by the Second Peace of Paris of 20 November 1815. Article 6 of the bilateral treaty of alliance signed between Britain and Austria provided for the convening of conferences between the great powers to discuss matters of common interest and the maintenance of peace in Europe. Through its incorporation in the identical peace treaty, this committed all its signatories.

The basic features of the reorganisation of Europe from Vienna would survive for more than five decades, until the German unification. Whereas Europe was plagued by numerous armed conflicts and wars, the Vienna order proved at the same time sufficiently grounded and flexible to allow the great powers the leeway necessary to prevent these wars from escalating into a new general war. Even the disruption of the balance of power through the defeat of France in the Franco-German War and the ensuing unification of Germany in 1870 did not lead to an end to the endeavours by the great powers to manage the system and to sustain peace. The breakdown of the peace and the total conflagration of 1914–1918 destroyed the credit of one of the pillars of the Viennese settlement, the balance of power. But the other survived. Even more so, the idea that the best guarantee for order and peace was their joint management by the great powers became the backbone of the institutional organisation of collective security in the League of Nations in 1919 and the United Nations Organisation in 1945.

Headline image credit: Congress of Vienna. Public domain via Wikimedia Commons.

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12. Selma and re-writing history: Is it a copyright problem?

A few days ago The Hollywood Reporter featured another interesting story concerning Martin Luther King or – to be more precise – his pretty litigious estate.

This time the fuss is about already critically acclaimed (The New York Times critic in residence, AO Scott, called it “a triumph of efficient, emphatic cinematic storytelling”) biopic Selma, starring David Oyelowo as the Rev Dr Martin Luther King, Jr.

The film starts with King’s acceptance of the Nobel Peace Prize in December 1964 and focuses on the three 1965 marches in Alabama that eventually led to the adoption of the Voting Rights Act later that year.

The King estate has not expressly objected to the making of this film. However, back in 2009 the same estate had granted DreamWorks and Warner Bros a licence to reproduce King’s speeches in a film that Steven Spielberg is set to produce but has yet to see the light. Apparently Selma producers attempted in vain to get permission to reproduce King’s speeches in their film. What happened in the end was that the authors of the script had to convey the same meaning of King’s speeches without using the actual words he had employed.

Put it otherwise: Selma is a film about Martin Luther King that does not feature any actual extracts from his historic speeches.

Still in his NYT review, AO Scott wrote that “Dr. King’s heirs did not grant permission for his speeches to be quoted in “Selma,” and while this may be a blow to the film’s authenticity, [the film director] turns it into an advantage, a chance to see and hear him afresh.”

Indeed, the problem of authenticity has been raised by some commentators who have argued that, because of copyright constraints, historical accuracy has been negatively affected.

But is this all copyright’s fault? Is it really true that if you are not granted permission to reproduce a copyright-protected work, you cannot quote from it?

“The social benefit in having a truthful depiction of King’s actual words would be much greater than the copyright owners’ loss.”

Well, probably not. Copyright may have many faults and flaws, but certainly does not prevent one from quoting from a work, provided that use of the quotation can be considered a fair use (to borrow from US copyright language) of, or fair dealing (to borrow from other jurisdictions, e.g. UK) with such work. Let’s consider the approach to quotation in the country of origin, i.e. the United States.

§107 of the US Copyright Act states that the fair use of a work is not an infringement of copyright. As the US Supreme Court stated in the landmark Campbell decision, the fair use doctrine “permits and requires courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity that the law is designed to foster.”

Factors to consider to determine whether a certain use of a work is fair include:

  1. the purpose and character of the use, including whether the use is commercial or for nonprofit educational purposes (the fact that a use is commercial is not per se a bar from a finding of fair use though);
  2. the nature of the copyright-protected work, e.g. if it is published or unpublished;
  3. amount and substantiality of the taking; and
  4. the effect upon the potential market for or value of the copyright-protected work.
Martin Luther King leaning on a lectern, 1964. Public domain via Library of Congress.
Martin Luther King leaning on a lectern, 1964. Public domain via Library of Congress.

There is fairly abundant case law on fair use as applied to biographies. With particular regard to the re-creation of copyright-protected works (as it would have been the case of Selma, should Oyelowo/King had reproduced actual extracts from King’s speeches), it is worth recalling the recent (2014) decision of the US District Court for the Southern District of New York in Arrow Productions v The Weinstein Company.

This case concerned Deep Throat‘s Linda Lovelace biopic, starring Amanda Seyfried. The holders of the rights to the “famous [1972] pornographic film replete with explicit sexual scenes and sophomoric humor” claimed that the 2013 film infringed – among other things – their copyright because three scenes from Deep Throat had been recreated without permission. In particular, the claimants argued that the defendants had reproduced dialogue from these scenes word for word, positioned the actors identically or nearly identically, recreated camera angles and lighting, and reproduced costumes and settings.

The court found in favour of the defendants, holding that unauthorised reproduction of Deep Throat scenes was fair use of this work, also stressing that critical biographical works (as are both Lovelace and Selma) are “entitled to a presumption of fair use”.

In my opinion reproduction of extracts from Martin Luther King’s speeches would not necessarily need a licence. It is true that the fourth fair use factor might weigh against a finding of fair use (this is because the Martin Luther King estate has actually engaged in the practice of licensing use of his speeches). However the social benefit in having a truthful depiction of King’s actual words would be much greater than the copyright owners’ loss. Also, it is not required that all four fair use factors weigh in favour of a finding of fair use, as recent judgments, e.g. Cariou v Prince or Seltzer v Green Day, demonstrate. Additionally, in the context of a film like Selma in which Martin Luther King is played by an actor (not incorporating the filmed speeches actually delivered by King), it is arguable that the use of extracts would be considered highly transformative.

In conclusion, it would seem that in principle that US law would not be against the reproduction of actual extracts from copyright-protected works (speeches) for the sake of creating a new work (a biographic film).

This article originally appeared on The IPKat in a slightly different format on Monday 12 January 2015.

Featured image credit: Dr. Martin Luther King speaking against war in Vietnam, St. Paul Campus, University of Minnesota, by St. Paul Pioneer Press. Minnesota Historical Society. CC-BY-2.0 via Flickr.

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13. An estate tax increase some Republicans might support

In his State of the Union address, President Obama proposed several tax increases aimed at affluent taxpayers. The President did not suggest one such increase that some Republicans might be persuaded to support: limit the estate tax deduction for bequests to private foundations. In light of the significant economic and political power wielded by the families which control such foundations, it is compelling to limit the estate tax charitable deduction for bequests to such foundations.

As I discuss in a recent paper in the Florida Tax Review, the federal estate tax charitable deduction is unlimited. In contrast, the federal income tax charitable deduction includes detailed limitations which restrict the proportion of an individual taxpayer’s income which may be deducted as a charitable contribution. Through these limits, the income tax charitable deduction implements the ethic that everyone – even taxpayers who devote their entire incomes to charity – should pay some federal income tax.

The federal estate tax should be amended to similarly restrict an estate’s charitable deduction to a percentage of the estate. Then, every estate large enough to trigger federal estate liability would pay some estate tax, even if that estate devolves in its entirety upon charitable recipients.

In the current political environment, this change does not seem feasible. However, it might be possible to garner bi-partisan support for a less sweeping reform, namely, an estate tax charitable deduction limit only applicable to bequests to private foundations.

On the one side are the policy of encouraging charitable bequests to maintain a vibrant charitable sector and the recognition that resources transferred to charity do not directly descend to the decedent’s family. On the other hand, the public fisc has legitimate claims for the services it provided during the decedent’s lifetime. The estate tax is the final accounting for the governmental benefits the decedent received while alive. Most importantly, bequests to a private foundation often, in dynastic fashion, perpetuate substantial economic and political power for the decedent’s family which controls that foundation.

Many private foundations are admirable institutions. I am a fan of the Gates Foundation and of the Buffett family’s charitable efforts. These private foundations appear to be well run, genuinely charitable enterprises.

However, other private foundations are considerably less commendable. Such foundations often serve the thinly-disguised political and economic interests of the families controlling them. Even laudable foundations, like the Gates and Buffett foundations, entail considerable political and financial power for the Gates and Buffett families.

William Gates, Sr., is an attorney and a leader of Responsible Wealth, a coalition of wealthy individuals who favor a federal estate tax. Attorney Gates has written eloquently of the need for federal estate taxation. Few, if any, Republicans will join his call for retaining the federal estate tax.

But some Republicans may be concerned about the realities of private foundations. Looking at these realities, Republicans and Democrats might agree that the estate tax charitable deduction should be limited for bequests to private foundations including the Gates and Buffett families’ foundations.

Image Credit: “Tax.” Photo by Alan Cleaver. CC by 2.0 via Flickr.

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14. State responsibility and the downing of MH17

Two hundred and ninety-eight passengers aboard Malaysian Airlines flight MH17 were killed when Ukrainian rebels shot down the commercial airliner in July 2014. Because of the rebels’ close ties with the Russian Republic, the international community immediately condemned the Putin regime for this tragedy. Yet, while Russia is certainly deserving of moral and political blame, what is less clear is Russian responsibility under international law. The problem is that international law has often struggled assigning state responsibility when national borders are crossed and two (or more) sovereigns are involved. The essence of the problem is that under governing legal standards, a state could provide enormous levels of military, economic, and political support to another state or to a paramilitary group in another state – even with full knowledge that the recipient will thereby violate international human rights and humanitarian law standards — but will not share any responsibility for these international wrongs unless it can be established that the sending state exercised near total control over the recipient.

The leading caselaw in this area has been handed down by the International Court of Justice (ICJ) but what adds another layer of complexity to the present situation is that the Ukraine and Russia are both parties to the European Convention; it is possible that the European Court of Human Rights (ECtHR) might well provide a different answer.

To be clear, this article concerns itself only with determining Russian responsibility for the downing of MH17. Following this tragic event, approximately five thousand Russian troops took part in what now appears to have been a limited invasion of areas of the Ukraine. Thus, there are elements of both “indirect” and “direct” Russian involvement in the Ukraine, although only the former will be addressed. The larger point involves the legal uncertainty when states act outside their borders and in doing so contribute to the violation of international human rights standards.

International Court of Justice

The two leading cases regarding transnational or extraterritorial state responsibility have been handed down by the International Court of Justice. In Nicaragua v. United States (1986) Nicaragua brought an action against the United States based on two grounds. One related to “direct” actions carried out by US agents in Nicaragua, including the mining of the country’s harbors, and on this claim the Court ruled against the United States. The second claim was based on the “indirect” actions of the United States, namely, its support for the contra rebels who were trying to overthrow the ruling Sandinista regime. Nicaragua’s argument was that because of the very close ties between the United States and the contras, the former should bear at least some responsibility for the massive levels of human rights violations carried out by the latter.

The Court rejected this position employing an “effective control” standard, which in many ways is much closer to an absolute control test. Or to quote from the Court itself: “In light of the evidence and material available to it, the Court is not satisfied that all the operations launched by the contra force, at every stage of the conflict, reflected strategy and tactics wholly devised by the United States” (par. 106, emphases supplied).

Nearly a decade later, the International Court of Justice was faced with a similar scenario in the Genocide Case (Bosnia v. Serbia). The claim made by Bosnia was that because of the deep connections between the Serbian government and its Bosnian Serb allies, the former should have some responsibility for the acts of genocide carried out by the latter. Yet, as in Nicaragua, the ICJ ruled that Serbia had not exercised the requisite level of control over the Bosnian Serbs. Thus, the Court ruled that Serbia was not responsible for carrying out genocide itself, or for directing genocide, or even for “aiding and assisting” or “complicity” in the genocide that occurred following the overthrow of Srebrenica. However, in a part of its ruling that has received far too little attention, the Court did rule that Serbia had failed to “prevent” genocide when it could have exercised its “influence” to do so, and that it had also not met its Convention obligation to “punish” those involved in genocide due to its failure to fully cooperate with the International Criminal Tribunal for the Former Yugoslavia.

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 iStockphoto

Turning back to the situation involving MH17, while no action has yet been filed with the International Court of Justice (and perhaps never will be filed), according to the Nicaragua-Bosnia line of cases any attempt to hold Russia responsible for the downing of MH17 would appear likely to fail for the simple reason that the relationship between the Russian state and its Ukrainian allies was nowhere near as strong as the relationship between the United States and the contras (Nicaragua) or that between the Serbian government and its Bosnian Serb allies (Genocide Case). The point is that if responsibility could not be established in these other cases it is by no means likely that it could be established in the present situation.

European Court of Human Rights

Because Russia and the Ukraine are both parties to the European Convention of Human Rights, what also needs to be considered is how the European Court of Human Rights (ECtHR) might address this issue if a case were brought either under the inter-state complaint mechanism, or (more likely) by means of an individual complaint filed by a family member killed in the crash.

Although the European Court of Human Rights has increasing dealt with cases with an extraterritorial element, in nearly every instance the claim has been based on European states carrying out “direct” actions in other states – whether it be NATO forces dropping bombs in Serbia and killing civilians on the ground (Bankovic), or Turkish officials arresting a suspected terrorist in Kenya (Ocalan), or British troops killing civilians in Iraq (Al-Skeini) – rather than instances where the Convention states have acted “indirectly.” The most pertinent ECtHR case is Ilascu v. Russia and Moldova where the applicants (Moldovan citizens) claimed they were arrested at their homes in Tiraspol by security personnel, some of whom were wearing the insignia of the former USSR. Unlike the ICJ’s “effective control” standard, the ECtHR ruled that Russia had exercised what it termed as “effective authority” or “decisive influence” over paramilitary forces in Moldova and because of this they bore responsibility for violations of the European Convention suffered by the applicants. Thus, on the basis of Ilascu, there is at least some possibility that due to the “effective authority” or the “decisive influence” that Russia appeared to exercise over its Ukrainian rebel allies, the ECtHR, unlike the ICJ, could assign responsibility to Russia for the downing of MH17.

Conclusion

Notwithstanding the immediate international condemnation of the Putin regime following the MH17 tragedy, international law seems to exist in a totally removed from international opinion and consensus. Under the caselaw of the International Court of Justice, Russia would appear not to be responsible for the downing of MH17 on the basis that it would be difficult to establish that the Russian government had exercised the requisite level of “effective control” over its Ukrainian rebel allies. On the other hand, if a case were brought before the European Court of Human Rights, there is at least some chance of establishing Russian responsibility on the basis of the Court’s previous ruling in Ilascu, although it should be said that this is not a particularly strong precedent.

The larger point is to ask why state responsibility is so difficult to establish when international borders are crossed and states act in another country, at least indirectly, as in the present situation. The key element ought to be the extent to which a state has acted in a way that leads to violations of international human rights and humanitarian law standards. Employing such a standard, it would be eminently clear – would it not? – that Russia would be at least partly responsible because of its strong relationship with Ukrainian rebels that were both armed (by Russia) and dangerous, and which had already shown a complete disregard for international law.

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15. Essential considerations for leadership in policing (and beyond)

There are problems with defining the term ‘leadership’. Leadership often gets confused with the management function because, generally, managers are expected to exhibit some leadership qualities. In essence, leaders are instruments of change, responsible for laying plans both for the moment and for the medium and long-term futures. Managers are more concerned with executing plans on a daily basis, achieving objectives and producing results.

Top police leaders have a responsibility for deciding, implementing, monitoring, and completing the strategic plans necessary to meet the needs and demands of the public they serve. Their plans are then cascaded down through the police structure to those responsible for implementing them. Local commanders may also create their own plans to meet regional demands. The planner’s job is never finished: there is always a need to adapt and change existing measures to meet fresh circumstances.

Planning is a relatively mechanical process. However, the management of change is notoriously difficult. Some welcome change and the opportunities it brings; others do not because it upsets their equilibrium or places them at some perceived disadvantage. Mechanisms for promoting plans and dealing with concerns need to be put in place. Factual feedback and suggestions for improvement should be welcomed as they can greatly improve end results. When people contribute to plans they are more likely to support them because they have some ownership in them.

Those responsible for implementing top-level and local plans may do so conscientiously but arrangements rarely run smoothly and require the application of initiative and problem solving skills. Sergeants, inspectors, and other team leaders – and even constables acting alone – should be encouraged to help resolve difficulties as they arise. Further, change is ever present and can’t always be driven from the top. It’s important that police leaders and constables at operational and administrative levels should be stimulated to identify and bring about necessary changes – no matter how small – in their own spheres of operation, thus contributing to a vibrant leadership culture.

The application of first-class leadership skills is important: quality is greatly influenced by the styles leaders adopt and the ways in which they nurture individual talent. Leadership may not be the first thing recruits think of when joining the police. Nonetheless, constables are expected to show leadership on a daily basis in a variety of different, often testing situations.

“Leaders are instruments of change, responsible for laying plans both for the moment and for the medium and long-term futures.”

Reflecting on my own career, I was originally exposed to an autocratic, overbearing organisation where rank dominated. However, the force did become much more sophisticated in its outlook as time progressed. As a sergeant, inspector, and chief inspector, my style was a mixture of autocratic and democratic, with a natural leaning towards democratic. Later, in the superintendent rank, I fully embraced the laissez-faire style, making full use of all three approaches. For example, at one time when standards were declining in the workplace I was autocratic in demanding that they should be re-asserted. When desired standards were achieved, I adopted a democratic style to discuss the way forward with my colleagues. When all was going well again, I became laissez-faire, allowing individuals to operate with only a light touch. The option to change style was never lost but the laissez-faire approach produced the best ever results I had enjoyed in the police.

Although I used these three styles, the labels they carry are limiting and do not reveal the whole picture. Real-life approaches are more nuanced and more imaginative than rigidly applying a particular leadership formula. Sometimes more than one style can be used at the same time: it is possible to be autocratic with a person who requires close supervision and laissez-faire with someone who is conscientious and over-performing. Today, leadership style is centred upon diversity, taking into account the unique richness of talent that each individual has to offer.

Individual effort and team work are critical to the fulfillment of police plans. To value and get the best out of officers and support staff, leaders need to do three things. First, they must ensure that there is no place for discrimination of any form in the police service. Discrimination can stunt personal and corporate growth and cause demotivation and even sickness. Second, they should seek to balance the work to be done with each individual’s motivators. Dueling workplace requirements with personal needs is likely to encourage people to willingly give of their best. Motivators vary from person to person although there are many common factors including opportunities for more challenging work and increased responsibility. Finally, leaders must keep individual skills at the highest possible level, including satisfying the needs of people with leadership potential. Formal training is useful but perhaps even more effective is the creation of an on-the-job, incremental coaching programme and mentoring system.

Police leaders need to create plans and persuade those they lead to both adopt them and see them through to a satisfactory conclusion. If plans are to succeed, change must be sensitively managed and leaders at all levels should be encouraged to use their initiative in overcoming implementation problems. Outside of the planning process, those self-same leaders should deal with all manner of problems that beset them on a daily basis so as to create a vibrant leadership culture. Plans are more liable to succeed if officers and support staff feel motivated and maintain the necessary competence to complete tasks.

Headline image: Sir Robert Peel, by Ingy The Wingy. CC-BY-ND-2.0 via Flickr.

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16. Judicial resistance? War crime trials after World War I

There was a great change in peace settlements after World War I. Not only were the Central Powers supposed to pay reparations, cede territory, and submit to new rules concerning the citizenship of their former subjects, but they were also required to deliver nationals accused of violations of the laws and customs of war (or violations of the laws of humanity, in the case of the Ottoman Empire) to the Allies to stand trial.

This was the first time in European history that victor powers imposed such a demand following an international war. This was also the first time that regulations specified by the Geneva and Hague Conventions were enforced after a war ended. Previously, states used their own military tribunals to enforce the laws and customs of war (as well as regulations concerning espionage), but they typically granted amnesty for foreigners after a peace treaty was signed.

The Allies intended to create special combined military tribunals to prosecute individuals whose violations had affected persons from multiple countries. They demanded post-war trials for many reasons. Legal representatives to the Paris Peace Conference believed that “might makes right” should not supplant international law; therefore, the rules governing the treatment of civilians and prisoners-of-war must be enforced. They declared the war had created a modern sensibility that demanded legal innovations, such as prosecuting heads of state and holding officers responsible for the actions of subordinates. British and French leaders wanted to mollify domestic feelings of injury as well as propel an interpretation that the war had been a fight for “justice over barbarism,” rather than a colossal blood-letting. They also sought to use trials to exert pressure on post-war governments to pursue territorial and financial objectives.

The German, Ottoman, and Bulgarian governments resisted extradition demands and foreign trials, yet staged their own prosecutions. Each fulfilled a variety of goals by doing so. The Weimar government in Germany was initially forced to sign the Versailles Treaty with its extradition demands, then negotiated to hold its own trials before its Supreme Court in Leipzig because the German military, plus right-wing political parties, refused the extradition of German officers. The Weimar government, led by the Social Democratic party, needed the military’s support to suppress communist revolutions. The Leipzig trials, held 1921-27, only covered a small number of cases, serving to deflect responsibility for the most serious German violations, such as the massacre of approximately 6,500 civilians in Belgium and deportation of civilians to work in Germany. The limited scope of the trials did not purge the German military as the Allies had hoped. Yet the trials presented an opportunity for German prosecutors to take international charges and frame them in German law. Although the Allies were disturbed by the small number of convictions, this was the first time that a European country had agreed to try its own after a major war.

General Stenger. Public domain via the French National Archive. http://gallica.bnf.fr/ark:/12148/btv1b53063910x.r=Stenger.langEN
General Stenger. Public domain via the French National Archive.

The Ottoman imperial government first destroyed the archives of the “Special Organization,” a secret group of Turkish nationalists who deported Greeks from the Aegean region in 1914 and planned and executed the massacre of Armenians in 1915. But in late 1918, a new Ottoman imperial government formed a commission to investigate parliamentary deputies and former government ministers from the Turkish nationalist party, the Committee of Union and Progress, which had planned the attacks. It also sought to prosecute Committee members who had been responsible for the Ottoman Empire’s entrance into the war. The government then held a series of military trials of its own accord in 1919 to prosecute actual perpetrators of the massacres, as well as purge the government of Committee members, as these were opponents of the imperial system. It also wanted to quash the British government’s efforts to prosecute Turks with British military tribunals. Yet after the British occupied Istanbul, the nationalist movement under Mustafa Kemal retaliated by arresting British officers. Ultimately, the Kemalists gained control of the country, ended all Turkish military prosecutions for the massacres, and nullified guilty verdicts.

Like the German and Ottoman situations, Bulgaria began a rocky governmental and social transformation after the war. The initial post-war government signed an armistice with the Allies to avoid the occupation of the capital, Sofia. It then passed a law granting amnesty for persons accused of violating the laws and customs of war. However, a new government came to power in 1919, representing a coalition of the Agrarian Union, a pro-peasant party, and right-wing parties. The government arrested former ministers and generals and prosecuted them with special civilian courts in order to purge them; they were blamed for Bulgaria’s entrance into the war. Some were prosecuted because they lead groups of refugees from Macedonia in a terrorist organization, the Internal Macedonian Revolutionary Organization. Suppressing Macedonian terrorism was an important condition for Bulgaria to improve its relationship with its neighbor, the Kingdom of the Serbs, Croats, and Slovenes. In 1923, however, Aleksandar Stambuliski, the leader of the Agrarian Union, was assassinated in a military coup, leading to new problems in Bulgaria.

We could ask a counter-factual question: What if the Allies had managed to hold mixed military tribunals for war-time violations instead of allowing the defeated states to stage their own trials? If an Allied tribunal for Germany was run fairly and political posturing was suppressed, it might have established important legal precedents, such as establishing individual criminal liability for violations of the laws of war and the responsibility of officers and political leaders for ordering violations. On the other hand, guilty verdicts might have given Germany’s nationalist parties new heroes in their quest to overturn the Versailles order.

An Allied tribunal for the Armenian massacres would have established the concept that a sovereign government’s ministers and police apparatus could be held criminally responsible under international law for actions undertaken against their fellow nationals. It might also have created a new historical source about this highly contested episode in Ottoman and Turkish history. Yet it is speculative whether the Allies would have been able to compel the post-war Turkish government to pay reparations to Armenian survivors and return stolen property.

Finally, an Allied tribunal for alleged Bulgarian war criminals, if constructed impartially, might have resolved the intense feelings of recrimination that several of the Balkan nations harbored toward each other after World War I. It might also have helped the Agrarian Union survive against its military and terrorist enemies. However, a trial concentrating only on Bulgarian crimes would not have dealt with crimes committed by Serbian, Greek, and Bulgarian forces and paramilitaries during the Balkan Wars of 1912-13, so a selective tribunal after World War I may not have healed all wounds.

 

Image Credit: Château de Versailles Hall of Mirrors Ceiling. Photo by Dennis JarvisCC BY-SA 2.0 via Flickr.

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17. 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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18. 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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19. 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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20. 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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21. 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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22. 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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23. 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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24. 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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25. 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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