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Results 1 - 25 of 268
1. Jus post bellum and the ethics of peace

By Carsten Stahn, Jennifer S. Easterday, and Jens Iverson

Whenever there is armed conflict, international lawyers inevitably discuss the legality of the use of armed force and the conduct of the warring parties. Less common is a comprehensive legal analysis, informed by ethics and policy concerns, of the transition from armed conflict to peace. The restoration of peace after conflict is often sidelined in post-conflict legal analysis. Interventions and peace operations seeking to build a just and sustainable peace frequently suffer from a misalignment between ‘means’ and ‘ends.’ There can be stark discrepancies between the immediate reaction to conflict and post-conflict engagement. It is true that concepts such as ‘humanitarian intervention,’ the ‘Responsibility to Protect,’ (R2P) or the ‘protection of civilians’ (POC) have been used to establish capacity and political will to respond to atrocity situations. But attention shifts quickly to other situations of crisis once a cease-fire or peace agreement has been reached. Some of the underlying premises of engagement, such as ideas of responsibility or the ethics of care, receive limited attention in the aftermath of crisis and during the lengthy process of peacebuilding.

An old idea that seeks to mitigate these dilemmas is the concept of jus post bellum. The basic idea emerged in classical writings (e.g., Alberico Gentili, Francisco Suarez, Immanuel Kant) and has its most traditional and systemic rooting in just war theory. In this context, it is part of a structural ‘framework’ to evaluate the morality of warfare, and in particular the ‘right way to end a war’, including ’post-war-justice’ (Michael Walzer, Brian Orend). Outside just war theory, jus post bellum is largely unexplored. The notion was used sporadically in different contexts over the past decade: peacebuilding and post-conflict reconstruction, transformative occupation, transitional justice, and the law of peace (lex pacificatoria) more generally. But the concept has lacked consistency; there are almost as many conceptions of jus post bellum as scholars, within and across disciplines.

A modern understanding of jus post bellum requires a fresh look at each of the core components of the classical concept, namely the meanings of ‘jus,’ ‘post,’ and ‘bellum.’ In traditional scholarship, jus post bellum has mostly been understood as ‘justice after war’. However, in modern scholarship, the concept of ‘jus’ is debated. Does it mean ‘law,’ ‘justice,’ or a complicated mix of the two? The concept of time and what it means to be ‘post’ conflict, and even that of ‘war’ itself, with blurred distinctions between modern armed conflicts, are now more and more contested.

Functions of jus post bellum

Classical scholarship tied jus post bellum to the vindication of ‘rights’ and ‘duties,’ military victory, and the distinction between ‘victors’ and ‘vanquished’. Today, such conceptions require re-consideration. The experience of the two World Wars has confirmed the Kantian postulate that peace remains fragile if it contains tacitly reserved matter for a future war’ (Perpetual Peace). But in modern conflicts (e.g. Afghanistan, Iraq), the entire concept of ‘victory’ has become open to challenge.

Insights from contemporary conflict research indicate that it is not enough to deal with the formal ending of conflict or the ‘pacification’ of violence. Distinctions between ‘winners’ and ‘losers’ become muddied, making it more difficult to mitigate the risk of a return to violence. Structural approaches to peacebuilding require engagement with social injustices, the ‘violence of peace,’ the establishment of ‘trust’ in norms and institutions and other factors that make a society more  ‘resilient’ against conflict.

This makes it necessary to re-think the concept of ‘jus’ beyond its traditional focus on rights and post-war justice (i.e. punishment, responsibility). Past decades have witnessed a rapid rise of the ‘liberal justice model’ and norms and instruments of criminal justice. Core challenges of modern transitions lie therefore not so much in the definition of proper accountability mechanisms, but rather in their coordination with other rationales and priorities (i.e. protection of socio-economic rights) and their perception as elements of ‘just peace.’ This creates space for a modern function of jus post bellum. A modern jus post bellum may pursue different rationales beyond rights vindication or punishment:

(i) it may have a certain preventive function, by requiring actors to look into the consequences of action before, rather than ‘in’ and ‘after’ intervention.
(ii) it may serve as a constraint on violence in armed conflict; and
(iii) it may facilitate a succession to peace, rather than a mere ‘exit’ from conflict.

System, framework, or interpretative device?

The branding of jus post bellum as a modern concept comes with its own problems and politics. The very use of the label creates some risks (e.g. fears of abuse and instrumentalization) and concerns relating to the function and reach of law. But there is some space to ‘think outside the box.’ A modern jus post bellum does not necessarily have to be framed in the structure and form of established concepts, such as jus ad bellum or jus in bello. There is virtue in diversifying the foundations of jus post bellum.

First, Jus post bellum may be said to form a system of norms and principles applicable to transitions from conflict to peace. It provides, in particular, substantive norms and guidance for the organization of post-conflict peace. Some voices have even called for new codification, i.e. a fifth Geneva Convention. But more law and abstract regulation do not necessarily suffice to address tensions arising in the aftermath of conflict. There may a greater need for a better application of the existing law, and its adjustment to context, rather than the articulation of new norms and standards. Some promise may lie in the strengthening of informal mechanisms and flexible principles.

A second and more ‘modest’ conception of jus post bellum is its qualification as a ‘framework.’ This conception emphasizes the functionality of jus post bellum, such as its capacity to serve an instrument to evaluate action (e.g., legitimate ending of conflict) and to establish a public context for debate. Jus post bellum might be construed as an ‘ordering framework,’ or as a tool to coordinate the application of laws, solve conflicts of norms, and balance conflicting interests.

Thirdly, jus post bellum may constitute an interpretative device. The concept might inform a context-specific interpretation of certain normative concepts, such as ‘military necessity’ or the principle of proportionality. It might, for instance introduce a novel end in relation to the conduct of hostilities, namely the objective not to defeat the goal of sustainable peace through the conduct of warfare.

In moral philosophy, the idea of jus post bellum has been associated with the struggle for ‘justice’ and ‘just peace’ for centuries. It has been driven by ambitions to reconcile ideas of justice and punishment with moderation towards the vanquished. These dilemmas continue today. But underlying tensions have received increased attention in the legal arena since the 1990s. Many of the unexplored strengths and new opportunities lie in the broader role of the concept in relation to peacebuilding. It is here where the concept provides new prospects to rethink some of the fundamental elements of the table of contents and institutions of international law, not necessarily in the form of the ‘liberal’ peace idea, but in a novel, pluralistic way.

Carsten Stahn, Jennifer S. Easterday, and Jens Iverson are the editors of Jus Post Bellum: Mapping the Normative Foundations. Carsten Stahn is Professor of International Criminal Law and Global Justice and Programme Director of the Grotius Centre for International Studies, Universiteit Leiden. Jennifer S. Easterday is a Ph.D Researcher, Faculteit Rechtsgeleerdheid, Instituut voor Publiekrecht, Internationaal Publiekrecht, Universiteit Leiden. Jens Iverson is a Researcher for the ‘Jus Post Bellum’ project and an attorney specializing in public international law, Universiteit Leiden.

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

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2. The Defamation Act 2013: reflections and reforms

How can a society balance both the freedom of expression, including the freedom of the press, with the individual’s right to reputation? Defamation law seeks to address precisely this delicate equation. Especially in the age of the internet, where it is possible to publish immediately and anonymously, these concerns have become even more pressing and complex. The Defamation Act 2013 has introduced some of the most important changes to this area in recent times, including the defence for honest opinion, new internet-specific reforms protecting internet publishers, and attempts to curb an industry of “libel tourism” in the U.K.

Dr Matthew Collins SC introduces the Defamation Act 2013, and discusses the most important reforms and their subsequent implications.

Click here to view the embedded video.

Click here to view the embedded video.

Click here to view the embedded video.

Click here to view the embedded video.

Dr Matthew Collins SC is a barrister based in Melbourne, Australia. He is a Senior Fellow at the University of Melbourne, a door tenant at One Brick Court chambers in London, and the author of Collins On Defamation.

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3. The quest for ‘real’ protection for indigenous intangible property rights

By Keri Johnston and Marion Heathcote

Intellectual property rights (IPRs) and the regimes of protection and enforcement surrounding them have often been the subject of debate, a debate fuelled in the past year by the increased emphasis on free-trade negotiations and multi-lateral treaties including the now-rejected Anti-Counterfeiting Trade Agreement (ACTA) and its Goliath cousin, the Trans-Pacific Partnership Agreement (TPPA). The significant media coverage afforded to these treaties, however, risks thrusting certain perspectives of IPR protection and enforcement into the spotlight, while eclipsing alternative, but equally crucial voices that are perhaps in greater need of legitimate dialogue to safeguard their own collection of intangible rights. Caught in the vortex of inadequate recognition and ineffective protection, are the communal intellectual property rights of indigenous communities, centred on traditional knowledge (TK), traditional cultural expressions (TCE), expressions of folklore (EoF), and genetic resources (GR).

The fundamental incompatibility between current intellectual property rights regimes and the rights of indigenous peoples stems largely from the lack of understanding of the driving forces that have led to the development of traditional knowledge, traditional cultural expressions, expressions of folklore, and genetic resources – that of the protection of whole indigenous cultures through the preservation of the traditional knowledge acquired by these communities as a whole.

The issues are complex. Professor James Anaya’s 2014 keynote speech at the 26th Session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore at WIPO highlighted the differences governing the intangible rights of indigenous peoples generally, and why these world views have so often been left out of the current mainframe of intellectual property rights. Whereas, the majority view of IPRs tends to focus on the rights of the individual and their protection as such, indigenous cultures are inherently built over centuries and across generations on communal understandings and organic exchanges of knowledge, making it practically impossible to ascribe the ownership of a certain set of IPRs to one or a few individuals.

Apache Dancers at the Exhibit 'Dignity - Tribes in Transition'. United States Mission Geneva Photo: Eric Bridiers. CC-BY-ND-2.0 via US Mission Geneva Flickr.

Apache Dancers at the exhibit ‘Dignity – Tribes in Transition’. United States Mission Geneva Photo: Eric Bridiers. CC-BY-ND-2.0 via US Mission Geneva Flickr.

As Professor Anaya articulates and the other contemplate, the similarities between the inadequacies of the protection of tangible rights of indigenous peoples (e.g. indigenous land rights) and that of their intangible rights protection (including intellectual property rights) tend to stem from a common source – the failure to acknowledge the “inherent logic of indigenous peoples’ world views”.

Perhaps the solutions lie not just in finding ways to include indigenous intellectual property rights in current IPR regimes, but through the facilitation of an entire paradigm shift to capture the nuances of these issues both effectively and precisely. How, for instance, can indigenous IPRs be valued commercially, and how may adequate compensation models be developed in exchange for the commercial use of these rights? A key to increasing the recognition of the inherent value of indigenous IPRs within their traditional cultural settings may lie in developing methods to properly value this worth in tangible terms. What seems necessary is a model to adequately measure the significance of indigenous IPRs, starting at the source (the indigenous community), and finding ways of translating this value into benefit systems that can be returned to the communities from which the IPRs were sourced. Hence recognition is attributed to the crucial part these IPRs play within the cultures from which they are derived.

The strength of intellectual property law lies in its ability to meet the demands of a frenetically changing world, thus affording it vast amounts of power in shaping the law of the future; but this brings with it the challenge – can that power be harnessed to adequately protect rights of the past? Even if the answer is in the affirmative, it does not necessarily follow that the purpose of intellectual property rights protection should be to reduce IPRs to protectable commodities solely for the purpose of commercial exploitation. Protection of IPRs might be secured for any number of reasons, including the recognition of the right for ownership of those rights to be retained within the community. IPRs thus have the capacity to function both as shields and swords. Such weaponry however brings with it obligations: “With great power, comes great responsibility.”

Keri Johnston and Marion Heathcote are the guest editors of the Journal of Intellectual Property Law & Practice special issue on “The Quest for ‘Real’ Protection for Indigenous Intangible Property Rights”. The authors would like to thank Mekhala Chaubal, student-at-law, for her assistance. It is reassuring to know that a new generation of lawyers is willing and able. Keri AF Johnston is managing partner of Johnston Law in Toronto and Marion Heathcote is a partner with Davies Collison Cave in Sydney.

The Journal of Intellectual Property Law & Practice (JIPLP) is a peer-reviewed journal dedicated to intellectual property law and practice. Published monthly, coverage includes the full range of substantive IP topics, practice-related matters such as litigation, enforcement, drafting and transactions, plus relevant aspects of related subjects such as competition and world trade law.

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4. Overcoming everyday violence [infographic]

The struggle for food, water, and shelter are problems commonly associated with the poor. Not as widely addressed is the violence that surrounds poor communities. Corrupt law enforcement, rape, and slavery (to name a few), separate families, destroys homes, ruins lives, and imprisons the poor in their current situations. Gary A. Haugen and Victor Boutros, authors of The Locust Effect: Why the End of Poverty Requires the End of Violence, have experience in the slums, back alleys, and streets where violence is a living, breathing being — and the work to turn those situations around. Delve into the infographic below and learn how solutions like media coverage and business intervention have begun to positively change countries like the Congo, Cambodia, Peru, and Brazil.

Infographic Locust Effect

Download a copy of the infographic.

Gary A. Haugen and Victor Boutros are co-authors of The Locust Effect: Why the End of Poverty Requires the End of Violence. Gary Haugen is the founder and president of International Justice Mission, a global human rights agency that protects the poor from violence. The largest organization of its kind, IJM has partnered with law enforcement to rescue thousands of victims of violence. Victor Boutros is a federal prosecutor who investigates and tries nationally significant cases of police misconduct, hate crimes, and international human trafficking around the country on behalf of the U.S. Department of Justice.

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5. Preparing for the Vis Moot 2014

By Isabel Jones

This weekend will see the oral arguments for the 21st Annual Willem C. Vis International Commercial Arbitration Moot begin in the Law Faculty of the University of Vienna, an exciting event for students, coaches, arbitrators, and publishers. This yearly event is a highlight in the arbitration event calendar and a chance for lawyers and students from all over the world to meet. Oxford University Press will have a stand in the main meeting place, the Juridicum, and we’re looking forward to showcasing our great selection of products.

With nearly 100 mooting teams, the moot promises to be a busy, vibrant, and sociable event. To find out more about this year’s problem, visit the moot website. In case you didn’t know already, this year’s moot will be using the CEPANI rules.

At the OUP stand you will be able to find plenty of copies of the essential text, Redfern and Hunter on International Arbitration. Last year we caught up with the authors to discuss the book and the future of international arbitration, watch the videos below to find out more.

Click here to view the embedded video.

Click here to view the embedded video.

Click here to view the embedded video.

Also available will be the second edition of Principles of International Investment Law by Rudolf Dolzer and Christoph Schreuer, and the third edition of Schlechtriem & Schwenzer: Commentary on the UN Convention on the International Sale of Goods (CISG) edited Ingeborg Schwenzer. If you come to the stand you will be able to demo the fantastic newly re-lauched online service Investment Claims on our iPads.

It’s hard not to notice that Vienna is a great location for this event, and with so much do to in between moots that you’ll be spoilt for choice. Once you’ve had a good look at the OUP stand, why not:

  • Take a walk to the MuseumsQuartier, one of the largest cultural areas in the world. Here you can admire the mixture of baroque and modern architecture and visit a number of great galleries including Leopold Museum and the MUMOK
  • Have a coffee and cake in Café Central, only a short walk from the Juridicum and offers a great coffee house experience
  • Take a trip to the beautiful Schonbrunn Palace on the outskirts of Vienna
  • See Klimt’s famous painting ‘The Kiss’ at The Belvedere
  • Visit the amazing Faberge exhibition on at Kunsthistorisches Museum
  • Explore the Easter markets nearby, where you can buy beautiful painted eggs (if you can get them home intact!) along with traditional Austrian food and drink

We’ll be setting up our stand early on Saturday (13 April) morning and will be packing up on Tuesday morning. Do come by and say hello if you’re at the Moot, we’re looking forward to seeing you!

Isabel Jones is Senior Marketing Executive in OUP UK’s Law department.

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6. Make the tax system safe for interstate telecommuting: pass H.R. 4085

EZ Thoughts

By Edward Zelinsky

Telecommuting benefits employers, employees, and society at large. Telecommuting expands work opportunities for the disabled, for those who live far from major metropolitan areas, and for the parents of young children who value the ability to work at home. Telecommuting also removes cars from our crowded highways and enables employers to hire from a wider and more diverse pool of potential employees.

It is thus anomalous that New York State’s personal income tax discourages interstate telecommuting by taxing the compensation non-resident telecommuters earn on the days such telecommuters work at their out-of-state homes. Under the misleading label “convenience of the employer,” New York subjects telecommuters to double income taxation by their state of residence as well as by New York – even though New York provides non-resident telecommuters with no public services on the days such interstate telecommuters work at their out-of-state homes outside of New York’s borders.

Some of New York’s elected officials profess interest in making New York tax policy more rational and family-friendly. These officials, however, have shown no willingness to repeal the “convenience of the employer” rule to stop New York’s double state income taxation. Taxing non-resident, non-voters for public services they do not use is just too politically tempting for Albany to resist.

Fortunately, federal officials have begun to recognize the unfairness and irrationality of the double state income taxation inflicted on non-residents by New York’s “convenience of the employer” rule. Most recently, US Representative Jim Himes, joined by his House colleagues Elizabeth Esty and Rosa DeLauro, introduced H.R. 4085, The Multi-State Worker Tax Fairness Act of 2014.

Representative Himes, and his colleagues, are to be commended for introducing this much needed legislation. If enacted into law, H.R. 4085 would make the tax system safe for interstate telecommuting.

Metro-North EMD FL9 leaving Stamford, CT. Public domain via Wikimedia Commons.

In previous incarnations, legislation along these lines was denominated as The Telecommuter Tax Fairness Act. The legislation’s goal remains the same. For Congress, using its authority under the commerce clause of the US Constitution, to forbid New York and other states from double taxing no-nresidents’ incomes on the days such non-residents work at their out-of-state homes.

Consider in this context the spate of service stoppages experienced by MetroNorth railroad commuters this winter. During these stoppages, public officials quite sensibly urged MetroNorth commuters to work from home rather than clog the already crowded highways to reach Manhattan. However, no public official spoke candidly about the tax penalty such commuters triggered by working at their Connecticut homes.

New York’s double taxation of non-resident telecommuters is not limited to those who live and work at home in the northeast. Under the banner of employer convenience, New York projects its taxing authority throughout the nation. In widely reported cases, New York imposed its personal income tax on Thomas L. Huckaby for days he worked at his home in Tennessee, on Manohar Kakar for days he worked at his home in Arizona, and on R. Michael Holt for days he worked at his home in Florida.

Nor is the threat of double taxation limited to New York’s personal income taxes imposed on non-resident telecommuters. Fortunately, many states recognize that double taxing non-resident telecommuters is ultimately self-destructive, driving telecommuters and the firms which employ them to states with more welcoming tax policies. However, other states emulate the Empire State’s tax hostility to interstate telecommuting. For example, Delaware taxed Dorothy A. Flynn’s income for the days she worked at her Pennsylvania home, even though Ms. Flynn did not set foot in Delaware on these work-at-home days.

The unfairness and inefficiency of the double state income taxation of interstate telecommuters has led a broad national coalition to favor federal legislation like H.R. 4085. Among those supporting such legislation are the American Legion, the Christopher and Dana Reeve Foundation, the National Taxpayers Union, The Small Business & Entrepreneurship Council, the Association for Commuter Transportation, The Military Spouse JD Network, and the Telework Coalition.

Representative Himes, along with Representatives Esty and DeLauro, are to be commended for introducing H.R. 4085. If enacted into law, this much needed legislation would make the tax system safe for interstate telecommuting by forbidding double state income taxation of non-resident telecommuters.

ZelinskiEdward A. Zelinsky is the Morris and Annie Trachman Professor of Law at the Benjamin N. Cardozo School of Law of Yeshiva University. He is the author of The Origins of the Ownership Society: How The Defined Contribution Paradigm Changed America. His monthly column appears on the OUPblog.

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Image credit: Metro-North EMD FL9 leaving Stamford, CT. Public domain via Wikimedia Commons.

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7. Challenges to the effectiveness of international law

For the first time in its history, the American Society of International Law (ASIL) is partnering with the American Branch of the International Law Association (ILA) to combine each organization’s major conference into an extraordinary joint event. Oxford University Press is looking forward to exhibiting at the conference taking place in Washington on 7-12 April 2014. The conference theme is “The Effectiveness of International Law,” and no doubt there will be much to debate and discuss during the week. Organizers released a set of questions they hope will be addressed during the course of the conference. To kick off the debate we posed two of them to Ademola Abass, author of Complete International Law.

Are there greater challenges to effectiveness in some areas of international law practice than in others? If so, what are they, and how can they be addressed?

Keen followers of international affairs often wonder why, despite the prohibition on the use of force by the UN Charter, States still resort to this means of addressing international disputes. Explanations vary. Legal experts offer various technical explanations for this development. This includes that the rules governing the use of force are outdated and do not offer enough protection for States. Non-lawyers blame the ‘double-standard’ of international law which allows rich and powerful States to act with impunity while weak and poor States are held accountable for their conducts. Others blame the special status accorded to the five permanent members of the Security Council by the veto vote. Regardless of divergent viewpoints, all agree the prohibition of the use of force is less effective than other areas of international law. This is due principally to lack of compliance by some States, and lack of enforcement against rich and powerful States. It is also difficult for States not to defend themselves against threatening States until those have attacked them. The presence of nuclear weapons makes it difficult for most States to sit and wait for an attack before they respond. Overcoming these challenges requires making the Security Council work more evenly and responsibly; ensuring greater transparency and consistency in the administration of collective security by the United Nations. More importantly, it requires the interpretation of the law prohibiting the use of force in accordance with the reality of the twenty first century.

The United Nations Security Council Chamber in New York. Photo by Patrick Gruban, 2006. Creative Commons License via Wikimedia Commons.

Do the challenges facing international law vary in different parts of the world, and, if so, how might those challenges be met?

It is often argued that international law began in the West. While one can contest whether it is possible (or purposeful) to seek locating the birthplace of international law, in contradistinction from its development, not many will argue that international law faces severe challenges in the developing world in contrast to the developed world. In the developing world, the first problem of international law is lack of its popularity. This arises through a combination of lack of awareness, of most law students, about the utility and relevance of international law to their societies. Secondly, the marketing of international institution and materials, has almost a Western bias: international institutions such as the United Nations, the International Court of Justice, the International Criminal Court (ICC), World Bank, are all located in the West. Most international law books report cases and jurisdictions that are preponderant Western as if cases and courts in developing countries make no contribution to international law development.

Addressing these challenges calls for a greater balancing acts in the citing and administration of international institutions; it requires a more even coverage of international law; it necessitates making international law more visible to developing countries, and making their contributions to international law more visible to the world. On their own, developing countries must do more to popularize international law in their academic curricula, expose their judges more greatly to international law, and afford international lawyers from the developing countries more opportunity in the dissemination and practice of international law.

Professor Ademola Abass joined the UNU Institute on Comparative Regional Integration Studies (UNU-CRIS) as a Research Fellow in Peace and Security in 2010. He is also the Head of Peace and Security Programme. He is a former Professor of International Law and Organisation at Brunel University, West London and was educated at the Universities of Lagos, Cambridge, and Nottingham. He holds a Ph.D. in International Law and has previously taught in several British universities. He is the author of Complete International Law.

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

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Image credit: The United Nations Security Council Chamber in New York. Photo by Patrick Gruban, 2006. CC-BY-SA-2.0 via Wikimedia Commons.

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8. Preparing for International Council for Commercial Arbitration 2014

ICCA 2014

By Rachel Holt and Jo Wojtkowski

Oxford University Press is excited to be attending the twenty-second International Council for Commercial Arbitration (ICCA) conference, to be held at the InterContinental Miami, Florida, on 6-9 April 2014. This year’s theme, “Legitimacy: Myths, Realities, Challenges” gives opportunity for practitioners, scholars and judges to explore the issues surrounding, what has been dubbed by some, the legitimacy crisis. To find out more take a look at this year’s exciting program devised by Lucy Reed and her team.

The four-day conference is packed with informative panel discussions, interactive breakout sessions, ICCA Interest Groups lunch meetings and networking events. With over 1,000 participants from around the world, highlights include “Legitimacy: Examined against Empirical Data” chaired by Jan Paulson, Holder of Michael Klein Distinguished Scholar Chair, University of Miami, and the opening session “Setting the Scene: What Are the Myths? What Are the Realities? What Are the Challenges?”, where Oxford author Eric Bergsten is to receive the ICCA Award for Lifelong Contribution to the Field of International Arbitration. Here are some of the conference events we’re excited about:

  • Monday 7 April, 12:15 -13:30p.m.: Latin America: The Hottest Issues, Country-by-Country
    Lunch seminar chaired by Doak Bishop.
  • Monday 7 April, 13:45-15:00p.m.: Proof: A Plea for Precision
    Proof is fundamental and can be maddeningly elusive. But must proof of fact and law so often be so imprecise? This session will explore the often fudged and occasionally ignored elements of burden of proof, the standard of proof, methods of proof to establish applicable law, and the importance of addressing these topics in a procedural order.
  • Monday 7 April, 15:30 – 16:45p.m.: Premise: Arbitral Institutions Can Do More To Further Legitimacy. True or False?
    Have arbitral institutions been steady stewards of legitimacy in arbitration? Or, as more say, are they stagnant and protective of the status quo? In particular, can arbitration be legitimate if the arbitrator selection process is opaque, the quality of awards is variable, and the arbitral process lacks foreseeability? Particularly as the growth in regional institutions continues, are there consistent practices to be encouraged, and others to be eschewed, to promote and preserve legitimacy? This session will challenge whether institutions are doing enough to ensure the availability of diverse, well-trained arbitrators and to ensure first-rate, timely performance of their duties.
  • Tuesday, 8 April, 8:45 – 10:00p.m.: Matters of Evidence: Witness and Experts
    Witness statements and expert reports tell the story, but whose story is it to be told? How rigorous are tribunals in “gating” witnesses? This session will explore the “do’s and don’ts” of drafting witness statements; whether the weight given to statements should vary and, if so, precisely why; and the impact of witness nonappearance on the admissibility and weight of testimony. It will also examine parallel questions for experts and expert reports.
  • Tuesday, 8 April, 13:45 – 15:00p.m.: ‘Treaty Arbitration: Pleading and Proof of Fraud and Comparable Forms of Abuse’
    This session will explore and catalogue standards that govern the presentation and resolution of issues of fraud, abuse of rights, and similarly serious allegations that may impugn either a claim or the investment in treaty arbitrations. How do these issues arise? And how do tribunals address them? Is there a common understanding of pleading and proof standards for fraud, abuse of rights, or the bona fides of an investment? These are easy questions to ask, but precise answers are vexing.
  • Tuesday, 8 April, 12:15 -13:30p.m.: Spotlight on International Arbitration in Miami and the United States
    A mock argument of BG Group PLC v. Argentina—the first investment treaty arbitration case to be heard by the US Supreme Court—will be one of the stops on a tour of international arbitration in Miami and the United States. Other stops will include Miami’s favorable arbitration climate, enforcement of arbitral awards in the United States generally and Florida specifically, arbitration class actions in the US, and an update on the Restatement (Third), The US Law of International Commercial Arbitration.

There is even a “Spotlight on International Arbitration in Miami and the United States” session which is not to be missed, but there is more to this amazing city than just arbitration. Located on the Atlantic coast in south-eastern Florida, Miami is a major centre and a leader in finance, commerce, culture, and international trade. In 2012, Miami was classified as an Alpha-World City in the World Cities Study Group’s inventory. In her upcoming title, Ethics in International Arbitration (publishing summer 2014), author Catherine Rogers argues:

“Ultimately, the challenge of ethical self-regulation is a challenge for the international arbitration community to think beyond its present situation, to future generations and future developments in an ever-more globalized legal world. It is a challenge for international arbitration to bring to bear all the pragmatism, creativity, and sense of the noble duty to transnational justice that it has demonstrated in the very best moments of its history.”

This comment highlights just one of the challenges facing arbitral legitimacy in the ever-growing world of international arbitration, which further highlights the importance of the ICCA’s chosen theme for the 2014 conference. If you are joining us in Miami, don’t forget to visit the Oxford University Press booth #16 where you can browse our award-winning books, and take advantage of the 20% conference discount. Plus, enter our prize draw to for a chance to win an iPad Mini, and pick up a free access password to our collection of online law resources including Investment Claims. See you in Miami!

Jo Wojtkowski is the Assistant Marketing Manager for Law at Oxford University Press. Rachel Holt is Assistant Commissioning Editor for Arbitration products at Oxford University Press.

Oxford University Press is a leading publisher in arbitration including the Journal of International Dispute Settlement, edited by Dr Thomas Schultz, and the ICSID Review edited by Meg Kinnear and Professor Campbell McLachlan, as well as the latest titles from experts in the field, and a wide range of law journals and online products. We publish original works across key areas of study, from trademarks to patents, designs and copyrights, developing outstanding resources to support students, scholars, and practitioners worldwide.

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9. Preparing for the 2014 ASIL/ILA annual meeting

am14_header_sitetop_1 (1)

By Jo Wojtkowski

This year’s joint ASIL/ILA Annual Meeting is of historic importance for the international law community. It is the first time that ASIL and the International Law Association (ILA) have joined forces to create a single combined conference of epic proportions. According to ASIL it is “expected to be one of the largest in international law history.”

ASIL’s 108th Annual Meeting and ILA’s 76th Biennial Conference will be held in Washington, DC, at the Ronald Reagan Building and International Trade Center, from 7-12 April 2014.

The 2014 conference theme is ‘The Effectiveness of International Law’, and participants will be tackling difficult questions such as: When, how, and why is international law most effective? Do the challenges facing international law vary across the globe? What role do non-state actors play in making international law more or less effective? Oxford Journals have pulled together a collection of articles from across our international law journals to tie-in with the theme.

More than 40 program sessions will address key topics across international law including the Approach of Courts to Foreign Affairs to National Security, Intelligence Material and the Courts, the Internet and International Law, Domestic Human Rights Enforcement after Kiobel, and even The Dodd-Frank Wall Street Reform Act’s Turn to International Law, to name but a few.

Here are some of the conference events we’re excited about:

  • Tuesday, April 8, 2014, 4:00-5:30 p.m.
    Oxford Online Reception: Join us at the OUP Booth #1-3, for light cocktails, hors d’oeuvres, and scholarly conversation. Learn more about Oxford Online and receive two months of free access to our online law resources including Oxford Public International Law, Max Planck Encylopedia of Public International Law, Oxford Scholarly Authorities on International Law, Oxford Reports on International Law, and Oxford Constitutions of the World.
  • Wednesday, April 9, 2014, 5:00-6:30 p.m.
    Grotius Lecture: Radhika Coomaraswamy, former UN Special Representative of the Secretary General on Children and Armed Conflict and on Violence against Women, will discuss women and children in international law.
  • Thursday, April 10, 2014, 12:30-2:15 p.m.
    WILIG Luncheon: Women in International Law Interest Group will have remarks from Justice Sandra Day O’Connor, US Supreme Court (retired) and honorees include International Court of Justice Judges Julia Sebutinde, Joan Donoghue, and Xue Hanqin.
  • Thursday, April 10, 2014, 4:15-5:45 p.m.
    Brower Lecture: Sundaresh Menon, Chief Justice of Singapore, will discuss international dispute resolution.
  • Friday, April 11, 2014, 12:30-2:15 p.m.
    Hudson Medal Luncheon: Peter Tomka, International Court of Justice (Discussant, President) will speak with Hudson Medal Winner Alain Pellet, University Paris Ouest.
  • Friday, April 11, 2014, 4:15-5:45 p.m.
    Friday Plenary: If you missed in WILIG Luncheon, catch ICJ Judges Julia Sebutinde, Joan Donoghue, and Hanqin Xue in conversation.
  • Friday, April 11, 2014, 8:00-10:00 p.m.
    Gala Dinner: Join the luminaries of the international law community including Cherif Bassiouni (Butcher Medal) and the ASIL Certificate of Merit winners.

Don’t miss ILA’s 22 Committees and nine Working Groups, which include some of the top names in international law. We’re also thrilled to see so many of our authors among the speakers:

If you are lucky enough to be joining us in DC, don’t forget to visit the Oxford University Press booth #1-3, where you can browse our award-winning books, and take advantage of the 35% conference discount. Stop by to enter our prize draw for a chance to win an iPad Mini, and pick up a free access passwords to our collection of online law resources, and featured Oxford journals.

To follow the latest updates about the ASIL-ILA joint meeting as it happens, follow us @OUPIntLaw, ASIL @asilorg, and use the hashtag #ASILILA14.

See you in DC!

Jo Wojtkowski is an Assistant Marketing Manager on the Law team at Oxford University Press USA.

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

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10. A doctrine of ‘market sovereignty’ to solve international law issues on the Internet?

By Dan Jerker B. Svantesson

One of the most prominent features of jurisdictional rules is a focus on the location of actions. For example, the extraterritorial reach of data privacy law may be decided by reference to whether there was the offering of goods or services to EU residents, in the EU.

Already in the earliest discussions of international law and the Internet it was recognised that this type of focus on the location of actions clashes with the nature of the Internet – in many cases, locating an action online is a clumsy legal fiction burdened by a great degree of subjectivity.

I propose an alternative: a doctrine of ‘market sovereignty’ determined by reference to the effective reach of ‘market destroying measures’. Such a doctrine can both delineate, and justify, jurisdictional claims in relation to the Internet.
It is commonly noted that the real impacts of jurisdictional claims in relation to the Internet is severally limited by the intrinsic difficulty of enforcing such claim. For example, Goldsmith and Wu note that:

“[w]ith few exceptions governments can use their coercive powers only within their borders and control offshore Internet communications only by controlling local intermediaries, local assets, and local persons” (emphasis added)

However, I would advocate the removal of the word ‘only’. From what unflatteringly can be called a cliché, there is now a highly useful description of a principle well-established at least 400 years ago.

ethernet padlock

The word ‘only’ gives the impression that such powers are of limited significance for the overall question, which is misleading. The power governments have within their territorial borders can be put to great effect against offshore Internet communications. A government determined to have an impact on foreign Internet actors that are beyond its directly effective jurisdictional reach may introduce what we can call ‘market destroying measures’ to penalise the foreign party. For example, it may introduce substantive law allowing its courts to, due to the foreign party’s actions and subsequent refusal to appear before the court, make a finding that:

  • that party is not allowed to trade within the jurisdiction in question;
  • debts owed to that party are unenforceable within the jurisdiction in question; and/or
  • parties within the control of that government (e.g. residents or citizens) are not allowed to trade with the foreign party.

In light of this type of market destroying measures, the enforceability of jurisdictional claims in relation to the Internet may not be as limited as it may seem at a first glance.

In this context, it is also interesting to connect to the thinking of 17th century legal scholars, exemplified by Hugo de Groot (better known as Hugo Grotius). Grotius stated that:

“It seems clear, moreover, that sovereignty over a part of the sea is acquired in the same way as sovereignty elsewhere, that is, [...] through the instrumentality of persons and territory. It is gained through the instrumentality of persons if, for example, a fleet, which is an army afloat, is stationed at some point of the sea; by means of territory, in so far as those who sail over the part of the sea along the coast may be constrained from the land no less than if they should be upon the land itself.”

A similar reasoning can usefully be applied in relation to sovereignty in the context of the Internet. Instead of focusing on the location of persons, acts or physical things – as is traditionally done for jurisdictional purposes – we ought to focus on marketplace control – on what we can call ‘market sovereignty’. A state has market sovereignty, and therefore justifiable jurisdiction, over Internet conduct where it can effectively exercise ‘market destroying measures’ over the market that the conduct relates to. Importantly, in this sense, market sovereignty both delineates, and justifies, jurisdictional claims in relation to the Internet.

The advantage market destroying measures have over traditional enforcement attempts could escape no one. Rather than interfering with the business operations worldwide in case of a dispute, market destroying measures only affect the offender’s business on the market in question. It is thus a much more sophisticated and targeted approach. Where a foreign business finds compliance with a court order untenable, it will simply have to be prepared to abandon the market in question, but is free to pursue business elsewhere. Thus, an international agreement under which states undertake to only apply market destroying measures and not seek further enforcement would address the often excessive threat of arrests of key figures, such as CEOs, of offending globally active Internet businesses.

Professor Dan Jerker B. Svantesson is Managing Editor of the journal International Data Privacy Law. He is author of Internet and E-Commerce Law, Private International Law and the Internet, and Extraterritoriality in Data Privacy Law. Professor Svantesson is a Co-Director of the Centre for Commercial Law at the Faculty of Law (Bond University) and a Researcher at the Swedish Law & Informatics Research Institute, Stockholm University.

Combining thoughtful, high level analysis with a practical approach, International Data Privacy Law has a global focus on all aspects of privacy and data protection, including data processing at a company level, international data transfers, civil liberties issues (e.g., government surveillance), technology issues relating to privacy, international security breaches, and conflicts between US privacy rules and European data protection law.

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Image credit: Ethernet cable with a padlock symbolising internet security. © SKapl via iStockphoto.

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11. Is Amanda Knox extraditable from the United States to Italy?

By M. Cherif Bassiouni

The Amanda Knox case is complex in view of Italy’s complicated procedure in matters involving serious crimes. These crimes are tried before a special court called the Court of Assizes. These courts have two professional judges and six lay judges, much like a jury in Anglo-American cases. But, in Italy, the lay judges sit alongside the ordinary judges and decide on questions of law and fact. In the Italian system, a conviction or an acquittal can be appealed to the Court of Appeals, which can either examine the merits of the case and hold a new hearing on the facts or decide on the proper application of law, or both. It can also remand a case to the trial court for a new trial. Such appeals are trials de novo, but the Appeals Court of Assizes seldom hears witnesses again, though it can. Usually, it decides on the record both questions of facts and law. Any case can be appealed to the Court of Cassation. If any court certifies there is a constitutional question at issue, that court can refer the case to the Constitutional Court. This complex procedure is designed to benefit the rights of the accused.

The Facts and the Procedural History of the Case

Amanda Knox, a US citizen, was a student at the University of Perugia in November 2007 when she was arrested for the murder of her British roommate, Meredith Kercher. The two women were studying in Perugia, Italy. Meredith Kercher was found dead in the apartment she shared with Knox with her throat slit and with evidence of a sexual assault. Knox, her Italian boyfriend Raffaele Sollecito, and Rudy Guede from the Ivory Coast, an acquaintance of the couple, were all charged with murder and sexual violence.

2009 – The Perugia Trial Court of Assizes convicted Amanda Knox for murder and slander.

All three pled innocent but were convicted by the Assizes Trial Court in December of 2009 for murder and sexual violence. Amanda Knox was also convicted for slander, having accused Mr. Patrick Lumumba (the owner of the bar in which she occasionally worked) as the murderer. Amanda Knox was sentenced to 26 years in jail, Raffaele Sollecito to 25 years, and Rudy Guede (who had opted for the accelerate procedure) to 30 years (a conviction now affirmed by the Italian Court of Cassation, but with a reduction of the sentence to 16 years).

The convictions of Knox and Sollecito were due to the court not being convinced of Knox’s story that she and Sollecito were not in the apartment the night of the murder but were instead at Sollecito’s apartment. Witnesses testified that they had seen Knox and Sollecito near the apartment where Meredith Kercher’s body was found at around 23.00 hours; and the main scientific exhibits—specifically, Exhibit 36, a 6.5 inch knife found in Sollecito’s apartment with Knox’s DNA on the handle and Meredith Kercher’s DNA on the blade (low quantity of DNA)—were compatible with the wounds according to court experts, and Exhibit 165, a clasp, was found on the murder scene with Meredith Kercher’s DNA and Sollecito’s DNA.

The Appeal Is Held Of Amanda Knox Over The Guilty Verdict In The Murder Of Meredith Kercher

2011 – Amanda Knox appealed to the Appeals Court of Assizes of Perugia, which acquitted her of murder and affirmed her conviction for slander.

In October 2011, the Appeals Court of Assizes of Perugia acquitted both Knox and Sollecito after questions were raised by the defense regarding the protocol followed by the Italian police while gathering the forensic evidence that was used to convict them in 2009. The court’s judgment was also based on new scientific examinations that were previously requested by the defense during the first trial but were not authorized by the trial court. This evidence, according to the defense, would have disproved the presence of Knox and Sollecito at the crime scene. The appeals court concluded that the evidence that proved persuasive to the Perugia Trial Court of Assizes was obtained in a contaminated environment. More specifically, the appeals court concluded that (1) certain footprints initially attributed to Sollecito were also compatible with the size of Rudy Guede’s feet and (2) subsequent analysis on the 6.5 inch kitchen knife supposedly used to slit Meredith Kercher’s throat showed that the kitchen knife did not contain Knox’s DNA and that the kitchen knife could not have been the murder weapon.

2013 – The Prosecution appealed that decision to the Court of Cassation (Supreme Court), which remanded the case to the Appeals Court of Assizes of Florence.

Following the acquittal by the first appeals court in 2011, Knox left Italy and returned to the United States. In March 2013, the Prosecution in the Knox and Sollecito cases appealed to the Court of Cassation, Italy’s Supreme Court, which remanded the case to the Appeals Court of Assizes in Florence for reconsideration on the basis that there were discrepancies in testimony, inconsistencies, omissions, and contradictions in the ruling of the Appeals Court of Assizes of Perugia in 2011. The Court of Cassation upheld each of the grounds raised by the Perugia Chief Prosecutor. The Court of Cassation concluded that the Assizes Court of Appeals of Perugia, which reversed the murder conviction for Amanda Knox in 2011, had weighed the evidence in an inconsistent and piecemeal fashion.

2014 – The Appeals Court of Assizes of Florence overturned the acquittal by the Court of Appeals of Perugia for murder and affirmed the previous conviction of the trial court for murder and slander.

The case was then assigned to the Appeals Court of Assizes of Florence, which, on 30 January 2014, overturned the acquittals of the Perugia Assizes Court of Appeal based on the Court of Cassation’s previous judgment. This appeals court convicted Knox in absentia and sentenced her to 28 years and six months of imprisonment and sentenced Sollecito to 25 years of imprisonment. The Presiding Judge of the Florence Court has 90 days as of January 30, 2014 to write his judgment (with reasons) on the ruling. Lawyers for Knox and Sollecito have stated that as soon as the judgment is filed, they will appeal it to the Court of Cassation. The judgment is not final until the Court of Cassation rules on the eventual appeal of Knox and Sollecito.

Extradition from the United States to Italy

Italy is one of the few countries with this complex procedure, which it does not consider to be in violation of the constitutional prohibition of ne bis in idem (double jeopardy) reflected in article 649 of the Italian Code of Criminal procedure. The prohibition of ne bis in idem is included in the European Convention for the Protection of Human Rights and Fundamental Freedoms, but, so far, the European Court for Human Rights (ECHR) has not interpreted Italian law as violating the European Convention. Thus, the procedure described above has not been found to be in violation of ne bis in idem under the ECHR.

The 1983 U.S.–Italy Extradition Treaty states in article VI that extradition is not available in cases where the requested person has been acquitted or convicted of the “same acts” (in the English text) and the “same facts” (in the Italian text). Treaty interpretation needs to ascertain the intentions of the parties by relying on the plain language and meaning of the words. Italy’s law prohibiting ne bis in idem specifically uses the words stessi fatti, which are the same words used in the Italian version of article VI, meaning “same facts.” Because fatti, or “facts,” may include multiple acts, the Second Circuit Court of Appeals applied the test of “same conduct” in Sindona v. Grant, citing international extradition in US law and practice, based on this writer’s analysis.

Whatever the interpretation of article VI may be—“same act,” “same facts,” or the broader “same conduct”—Amanda Knox would not be extraditable to Italy should Italy seek her extradition because she was retried for the same acts, the same facts, and the same conduct. Her case was reviewed three times with different outcomes even though she was not actually tried three times. In light of the jurisprudence of the various circuits on this issue, it is unlikely that extradition would be granted.

The US Supreme Court can also make a constitutional determination under the Fifth Amendment of the applicability of double jeopardy to extradition cases, particularly with respect to a requesting state’s right to keep on reviewing its request for the same acts or facts in the hope of obtaining a conviction. But, no such interpretation was given to the Fifth Amendment in any extradition case to date. Surprising as it may be, neither the Supreme Court nor any Circuit Court has yet held that the Fifth Amendment’s “double jeopardy” provision applies to extradition. So far, double jeopardy defenses have been dealt with as they arise under the applicable treaty.

Conclusion: Amanda Knox’s extradition from the United States to Italy under existing jurisprudence is not likely.

M. Cherif Bassiouni is Emeritus Professor of Law at DePaul University where he taught from 1964-2012, where he was a founding member of the International Human Rights Law Institute (established in 1990), and served as President from 1990-2007, and then President Emeritus. He is also President, International Institute of Higher Studies in Criminal Sciences, Siracusa, Italy since 1989. He is the author of International Extradition: United States Law and Practice, Sixth Edition.

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Image credit: PERUGIA, ITALY – NOVEMBER 24: Amanda Knox is led away from Perugia’s Court of Appeal by police officers after the first session of her appeal against her murder conviction on November 24, 2010 in Perugia, Italy. © EdStock via iStockphoto.

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12. Western (and other) perspectives on Ukraine

By Robert Pyrah

Untangling recent and still-unfolding events in Ukraine is not a simple task. The western news media has been reasonably successful in acquainting its consumers with events, from the fall of Yanukovich on the back of intensive protests in Kiev, by those angry at his venality and signing a pact with Russia over one with the EU, to the very recent moves by Russia to annex Crimea.

However, as is perhaps inevitable where space is compressed, messages brief and time short, a habit of talking about Ukraine in binaries seems to be prevalent. Superficially helpful, it actually hinders a deeper understanding of the issues at hand – and any potential resolution. Those binaries, encouraged to some extent by the nature of the protests themselves (‘pro-Russian’ or ‘pro-EU/Western’), belie complex and important heterogeneities.

Ironically, the country’s name, taken by many to mean ‘borderland’, is one such index of underlying complexity. Commentators outside the mainstream news, including specialists like Andrew Wilson, have long been vocal in pointing out that the East-West divide is by no means a straightforward geographic or linguistic diglossia, drawn with a compass or ruler down the map somewhere east of Kiev, with pro-Western versus pro-Russian sentiment ‘mapped’ accordingly. Being a Russian-speaker is not automatically coterminous with following a pro-Russian course for Ukraine; and the reverse is also sometimes true. In a country with complex legacies of ethnic composition and ruling regime (western regions, before incorporation into the USSR, were ruled at different times in the modern period by Poland, Romania and Austria-Hungary), local vectors of identity also matter, beyond (or indeed, within) the binary ethnolinguistic definition of nationality.

The Bridge to the European Union from Ukraine to Romania. Photo by Madellina Bird. CC BY-NC-SA 2.0 via madellinabird Flickr

The Bridge to the European Union from Ukraine to Romania. Photo by Madellina Bird. CC BY-NC-SA 2.0 via madellinabird Flickr.

Just as slippery is the binary used in Russian media, which portrays the old regime as legitimately elected and the new one as basically fascist, owing to its incorporation of Ukrainian nationalists of different stripes. First, this narrative supposes that being legitimately elected negates Yanukovich’s anti-democratic behaviours since that election, including the imprisonment of his main political opponent, Yulia Tymoshenko (whatever the ambivalence of her own standing in the politics of Ukraine). Second, the warnings about Ukrainian fascism call to mind George Bernard Shaw’s comment about half-truths as being especially dangerous. As well-informed Ukraine watchers like Andreas Umland and others have noted, overstating the presence of more extreme elements sets up another false binary as a way of deligitimising the new regime in toto. This is certainly not to say that Ukraine’s nationalist elements should escape scrutiny, and here we have yet another warning against false binaries: EU countries themselves may be manifestly less immune to voting in the far right at the fringes, but they still may want to keep eyes and ears open as to exactly what some of Ukraine’s coalition partners think and say about its history and heroes, the Jews, and much more.

So much for seeing the bigger picture, but events may well still take turns that few historians could predict with detailed accuracy. What we can see, at least, from the perspective of a maturing historiographic canon in the west, is that Ukraine is a country that demands a more sophisticated take on identity politics than the standard nationalist discourse allows – a discourse that has been in existence since at least the late nineteenth Century, and yet one which the now precarious-seeming European idea itself was set up to moderate.

Robert Pyrah is author of the recent review article, “From ‘Borderland’ via ‘Bloodlands’ to Heartland? Recent Western Historiography of Ukraine” (available to read for free for a limited time) in the English Historical Review. Robert Pyrah is a Member of the History Faculty and a Research Associate at the Faculty of Medieval and Modern Languages at the University of Oxford

First published in January 1886, The English Historical Review (EHR) is the oldest journal of historical scholarship in the English-speaking world. It deals not only with British history, but also with almost all aspects of European and world history since the classical era.

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13. Elinor and Vincent Ostrom: federalists for all seasons

By John Kincaid

When Elinor Ostrom visited Lafayette College in 2010, the number of my non-political science colleagues who announced familiarity with her work astonished me. Anthropologists, biologists, economists, engineers, environmentalists, historians, philosophers, sociologists, and others flocked to see her.

Elinor’s work cut across disciplines and fields of governance because she deftly employed and developed interrelated concepts having applications in multiple settings. A key foundation of these concepts is federalism—an idea central also to the work of her mentor and husband, Vincent Ostrom.

Vincent understood federalism to be a covenantal relationship that establishes unity for collective action while preserving diversity for local self-governance by constitutionally uniting separate political communities into a limited but encompassing political community. Power is divided and shared between concurrent jurisdictions—a general government having certain nationwide duties and multiple constituent governments having broad local responsibilities. These jurisdictions both cooperate and compete. The arrangement is non-hierarchical and animated by multiple centers of power, which, often competing, exhibit flexibility and responsiveness.

From this foundation, one can understand why the Ostroms embraced the concept of polycentricity advanced in Michael Polanyi’s The Logic of Liberty (1951), namely, a political or social system consisting of many decision-making centers possessing autonomous, but limited, powers that operate within an encompassing framework of constitutional rules.

This general principle can be applied to the global arena where, like true federalists, the Ostroms rejected the need for a single global institution to solve collective action problems such as environmental protection and common-pool resource management. They advocated polycentric arrangements that enable local actors to make important decisions as close to the affected situation as possible. Hence, the Ostroms also anticipated the revival of the notion of subsidiarity in European federal theory.

connecting the dots

But polycentricity also applies to small arenas, such as irrigation districts and metropolitan areas. Elinor and Vincent worked on water governance early in their careers, and both argued that metropolitan areas are best organized polycentrically because urban services have different economies of scale, large bureaucracies have inherent pathologies, and citizens are often crucial in co-producing public services, especially policing (the subject of empirical studies by Elinor and colleagues).

The Ostroms valued largely self-organizing social systems that border on but do not topple into sheer anarchy. Anarchy is a great bugaboo of centralists, who de-value the capacity of citizens to organize for self-governance. Without expert instructions from above, citizens are headless chickens. But this centralist notion exposes citizens to the depredations of vanguard parties and budget-maximizing bureaucrats.

This is why Vincent placed Hamilton’s famous statement in Federalist No. 1 at the heart of his work, namely, “whether societies of men are really capable or not, of establishing good government from reflection and choice” rather than “accident and force.” The Ostroms expressed abiding confidence in the ability of citizens to organize for self-governance in multi-sized arenas if given opportunities to reflect on their common dilemmas, make reasoned constitutional choices, and acquire resources to follow through with joint action.

Making such arrangements work also requires what Vincent especially emphasized as covenantal values, such as open communication, mutual trust, and reciprocity among the covenanted partners. Thus, polycentric governance, like federal governance, requires both good institutions and healthy processes.

As such, the Ostroms also placed great value on Alexis de Tocqueville’s notion of self-interest rightly understood. Indeed, it is the process of self-organizing and engaging one’s fellow citizens that helps participants to understand their self-interest rightly so as to act in collectively beneficial ways without central dictates.

Consequently, another major contribution of the Ostroms was to point out that governance choices are not limited to potentially gargantuan government regulation or potentially selfish privatization. There is a third way grounded in federalism.

John Kincaid is the Robert B. and Helen S. Meyner Professor of Government and Public Service at Lafayette College and Director of the Meyner Center for the Study of State and Local Government. He served as Associate Editor and Editor of Publius: The Journal of Federalism, and has written and lectured extensively on federalism and state and local government.

More on the applications and reflections on the work of Elinor and Vincent Ostrom can be found in this recently released special issue from Publius: The Journal of Federalism. An addition to this, Publius has also just released a free virtual collection of the most influential articles written by the Ostroms and published in Publiues over the past 23 years.

Publius: The Journal of Federalism is the world’s leading journal devoted to federalism. It is required reading for scholars of many disciplines who want the latest developments, trends, and empirical and theoretical work on federalism and intergovernmental relations.

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14. Is there a “cyber war” between Ukraine and Russia?

By Marco Roscini

Alarming headlines have recently started to appear in the media (see, for example, the CNN’s “Cyberwar hits Ukraine”). This, however, is sensationalism. What has actually happened so far is limited disruption of mobile communications through Distributed Denial of Service (DDoS) attacks. In addition, certain state-run news websites and social media have been defaced and their content replaced with pro-Russian propaganda. In the months that preceded the current crisis, Ukrainian computer systems were also allegedly targeted by “cyberspies”.

If the above scenario sounds familiar it is because it isn’t the first time that cyber operations have occurred during a military crisis involving the Russian Federation. In 2008, immediately before and after the Russian troops entered the secessionist Georgian province of South Ossetia, several Georgian governmental websites were defaced and their content replaced with anti-Georgian propaganda, while DDoS attacks crippled the Caucasian nation’s ability to disseminate information. Estonia was also the target of severe DDoS attacks in 2007, although in the context of a political, and not military, confrontation with Russia. In neither case has it been convincingly demonstrated that Russia (or any other state) was responsible for the cyber operations. The same can be said of the cyber operations against Ukrainian computer systems and websites, which have also been, at least until now, far less severe than those on Georgia and on Estonia, leading some to suggest that Russia is exercising restraint in the use of its cyber capabilities.

Does international law apply in this scenario?

Fingers on the keyboard

While the DDoS attacks and the defacement of websites obviously don’t establish on their own an armed conflict between Russia and Ukraine, the fact that they have been conducted in the context of kinetic exchanges of fire and a situation of occupation may potentially lead to the application of the law of armed conflict (jus in bello). Two points are important from this perspective. First, although there have been no extensive armed hostilities between Ukraine and Russia yet, it has been reported that at least one Ukrainian soldier has been killed and another wounded, allegedly by Russian military forces or pro-Russian militias. Unlike in non-international armed conflicts, the jus in bello applies to any shot fired between states, regardless of intensity thresholds. The Commentary to Article 2 common to the 1949 Geneva Conventions on the Protection of the Victims of War clearly states that “[i]t makes no difference how long the conflict lasts, or how much slaughter takes place, or how numerous are the participating forces” (p. 23). Secondly, the fact that Crimea is now under the control of the Russian forces determines a situation of occupation that also falls under the scope of the law of armed conflict (Article 2(2) of the Geneva Conventions).

However, the law of armed conflict would extend to the DDoS attacks and other cyber operations against Ukraine only if these have a “belligerent nexus” with the hostilities and the occupation. Otherwise, they would be mere cyber crimes and would fall under the scope of domestic criminal laws. To have a belligerent nexus, the cyber operations must have been designed to cause a certain threshold of harm to a belligerent (Ukraine) in support of another (Russia) (see Recommendation V(3) of the International Committee of the Red Cross (ICRC)’s Interpretive Guidance on the Notion of Direct Participation in Hostilities). Harm must be either death, injury, or destruction on civilian persons or objects, or military harm, whether physical or not (Recommendation V(1)). Even though they didn’t result in material damage on protected persons and property, then, the threshold of harm would have been crossed if the DDoS attacks and other cyber operations had at least aimed at affecting the Ukrainian government’s ability to communicate with and the operability of its armed forces, so to disrupt Ukraine’s military operations or military capacity. From the information available, we don’t know whether this is the case.

Do the DDoS operations against Ukraine amount to “attacks” under the law of armed conflict? The question is important because the rules on targeting and protecting civilians, including the principles of distinction and proportionality and the duty to take precautions, only apply to “attacks”, defined in Article 49(1) of Protocol I Additional to the Geneva Conventions as “acts of violence against the adversary, whether in offence or in defence”. I have argued elsewhere that a cyber operation is an “attack” in this sense whenever it employs cyber capabilities that produce or are reasonably likely to produce “violent” consequences in the form of loss of life or injury of persons, more than minimal material damage to property, or loss of functionality of infrastructures. From the available information, this doesn’t seem to be the case of the DDoS attacks against the Ukrainian communication systems and, even less, of the defacement operations. Cyber “espionage” also doesn’t normally affect the functionality of the accessed system or amend/delete the data resident therein. It doesn’t have “violent” consequences and is therefore not an “attack”, although it may be an act of hostilities.

To conclude, we can’t establish for sure whether the international law of armed conflict applies to the cyber operations conducted so far against Ukraine because we don’t know whether they were designed to militarily support Russia to the detriment of Ukraine. What we do know is that the operations in questions are not “attacks”, and therefore the rules on targeting don’t apply to them, whether or not they have a belligerent nexus.

Dr. Marco Roscini is Reader in International Law at the University of Westminster. He has written extensively in international security law, including cyber warfare and nuclear non-proliferation law. His most recent book, Cyber Operations and the Use of Force in International Law, has just been published by OUP. He is also the author of ‘Cyber Operations as Nuclear Counterproliferation Measures’, published in the Journal of Conflict and Security Law (2014). Dr. Roscini regularly blogs at Arms Control Law and can be followed on Twitter at @marcoroscini.

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

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15. The political economy of policy transitions

By Michael Trebilcock

The long fight to end slavery, led by William Wilberforce, among many others, culminated in Britain with the enactment of the Slavery Abolition Act in 1833. This Act made provision for a payment of £20 million (almost 40% of the British budget at the time) in compensation to plantation owners in many British colonies — about US$21 billion in present day value. Moreover, only slaves below the age of six were initially freed while others were re-designated as “apprentices”, who were to be freed in two stages in 1838 and 1840. Wilberforce and many other abolitionists accepted that compensation and phased implementation was required to ensure enactment of the legislation, particularly by the House of Lords where plantation owners were strongly represented among the aristocracy.

Whenever governments change policies — whether tax, expenditure, or regulatory policies — even when the changes are on net socially beneficial, there will typically be losers. There will be people who have made investments predicated on or even deliberately induced by the pre-reform set of policies. Very few policy changes make somebody better off and nobody worse off according to their own subjective valuations (the economist’s concept of Pareto efficiency). The issue of whether and when to mitigate the costs associated with policy changes — whether through explicit government compensation, grandfathering, or phased or postponed implementation — is ubiquitous across the policy landscape.

Changes in land use regulations often exempt existing non-conforming structures. Environmental regulations, such as energy efficiency requirements for motor vehicles, are often phased in over time. More stringent requirements for qualification for entry into various professions often grandfather existing members of these professions. Stricter gun control laws often grandfather existing gun owners. In post-conflict nation building exercises, a qualified line in the sand is often drawn under past atrocities committed by antagonists.

Unfinished portrait of the MP and abolitionist William Wilberforce by the English artist Thomas Lawrence, dated 1828. National Portrait Gallery, London.

Unfinished portrait of the MP and abolitionist William Wilberforce by the English artist Thomas Lawrence, dated 1828. National Portrait Gallery, London.

The need to take transition cost mitigation strategies seriously, as a matter of political economy, stands in relatively sharp contrast to two long-standing traditions in economics which tend to marginalize this issue. Economists, from a normative welfare economics perspective, often publish academic studies that document the gross inefficiencies associated with various existing public policies. However, it is unrealistic to assume that once these inefficiencies are revealed, well-intentioned but unenlightened political representatives will immediately espouse the proposed reforms, or that alternatively an aroused citizenry will appropriately discipline venal political leaders that have been captured by rent-seeking interest groups.

An alternative positive tradition in economics — public choice theory — does take politics seriously but tends to view the existing policy outcomes of the political process as the best we can achieve in a world not populated by angels. An austere version of this theory offers few prospects that existing political equilibria can be disrupted; the iron triangle of incestuous relationships between politicians, regulators/bureaucrats, and rent-seeking interest groups is largely impermeable to change. This view is hard to square with the privatization of many state-owned enterprises and the deregulation of many industries in many countries from the 1980s onwards, and the dramatic growth in environmental, health and safety, and other forms of social regulation over this period, often over the opposition of concentrated interests.

I view the political process as much more fluid and malleable. Significant policy reforms are politically feasible with political leadership committed to judicious combinations of transition cost mitigation policies and astute framing of issues so as to engage not only the interests but also the values of a broad cross-section of a country’s citizens.

Michael J. Trebilcock is Professor of Law and Economics at the University of Toronto School of Law and the author of Dealing with Losers: The Political Economy of Policy Transitions. He specializes in law and economics, international trade law, competition law, economic and social regulation, and contract law and theory. He has won awards for his work, including the 1989 Owen Prize by the Foundation for Legal Research for his book, The Common Law of Restraint of Trade, which was chosen as the best law book in English published in Canada in the past two years.

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16. Unlearned lessons from the McMartin Preschool case

By Ross E. Cheit

It was the longest criminal trial in American history and it ended without a single conviction. Five people were charged with child sexual abuse based on extremely flimsy evidence. Some parents came to believe outlandish stories about ritual abuse and tunnels underneath the preschool. It is no wonder that the McMartin Preschool case, once labeled the largest “mass molestation” case in history, has come to be called a witch-hunt. In a commentary to a Retro Report in the New York Times earlier this month, Clyde Haberman, former Times reporter, repeated the view that the McMartin case was a witch-hunt that spawned a wave of other cases of “dubious provenance.” But does that description do justice to the facts?

A careful examination of court records reveals that the witch-hunt narrative about the McMartin case is a powerful but not entirely accurate story. For starters, critics have obscured the facts surrounding the origins of the case. Richard Beck, quoted as an expert in the Retro Report story, recently asserted that the McMartin case began when Judy Johnson “went to the police” to allege that her child had been molested. Debbie Nathan, the other writer quoted by Retro Report, went even further, asserting that “everyone overlooked the fact that Judy Johnson was psychotic.”

Both of these claims are false.

Judy Johnson did not bring her suspicions to the police; she brought them to her family doctor who, after examining the boy, referred him to an Emergency Room. That doctor recommended that the boy be examined by a child-abuse specialist. The pediatric specialist is the one who reported to the Manhattan Beach Police Department that “the victim’s anus was forcibly entered several days ago.”

Although Judy Johnson died of alcohol poisoning in 1986, making her an easy target for those promoting the witch-hunt narrative, there is no evidence that she was “psychotic” three years earlier. A profile in the now-defunct Los Angeles Herald-Examiner, published after Johnson died, made it clear that she was “strong and healthy” in 1983 and that she “jogged constantly and ate health food.” The case did not begin with a mythical crazy woman.


Retro Report also disposed of the extensive medical evidence in the McMartin case with a single claim that there was no “definitive” evidence. But defense lawyer Danny Davis allowed that the genital injuries on one girl were “serious and convincing.” (His primary argument to the jury was that much of the time that this girl attended McMartin was outside the statute of limitations.) The vaginal injuries on another girl, one of the three involved in both McMartin trials, were described by a pediatrician as proving sexual abuse “to a medical certainty.” Were the reporter and fact-checkers for Retro Report aware of this evidence?

None of this is to defend the charges against five (possibly six) teachers in the case. Nor is it an endorsement of claims, made by some parents, that scores of children had been ritually abused. Rather, it is a plea to treat the case as something that unfolded over time and the children as individuals, not as an undifferentiated mass. As it turns out, there are credible reasons that jurors in both trials voted in favor of a guilty verdict on some counts. Those facts do not fit the witch-hunt narrative. Instead, they portray the reality of a complicated case.

When the story of prosecutorial excess overshadows all of the evidence in a child sexual abuse case, children are the ones sold short by the media. That is precisely what Retro Report did earlier this month. The injustices in the McMartin case were significant, most of them were to defendants, and the story has been told many times. But there was also an array of credible evidence of abuse that should not be ignored or written out of history just because it gets in the way of a good story.

The witch-hunt narrative has replaced any complicated truths about the McMartin case, and Retro Report, whose mission is to bust media myths, just came down solidly on the side of the myth. It wasn’t all a witch-hunt.

Ross E. Cheit is professor of political science and public policy at Brown University. He is an inactive member of the California bar and chair of the Rhode Island Ethics Commission. His forthcoming book, The Witch-Hunt Narrative: Politics, Psychology, and the Sexual Abuse of Children (OUP 2014), includes a 70-page chapter on the McMartin case.

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17. ‘You can’t wear that here’

By Andrew Hambler and Ian Leigh

When a religious believer wears a religious symbol to work can their employer object? The question brings corporate dress codes and expressions of religious belief into sharp conflict. The employee can marshal discrimination and human rights law on the one side, whereas the employer may argue that conspicuous religion makes for bad business.

The issue reached the European Court of Human Rights in 2013 in a group of cases (Eweida and Others v. United Kingdom), following a lengthy and unsuccessful domestic legal campaign, brought by a group of employees who argued their right of freedom of religion and belief (under Article 9 of the Convention) had not been protected when the UK courts favoured their employers’ interests.

Christian woman with cross necklaceNadia Eweida, an airline check-in clerk, and Shirley Chaplin, a nurse, had been refused permission by their respective employers, British Airways and an NHS trust, to wear a small cross on a necklace so that it was visible to other people. The employer’s rationale in each case was rather different. British Airways wanted to maintain a consistent corporate image so that no ‘customer-facing staff’ should be permitted to wear jewellery for any reason. The NHS trust argued that there was a potential health and safety risk if jewellery were worn by nursing staff – in Ms Chaplin’s case a disturbed patient might ‘seize the cross’ and harm either themselves or indeed Ms Chaplin.

Both applicants argued that their sense of religious obligation to wear a cross outweighed the employer’s normal discretion in setting a uniform policy. They also argued that their respective employers had also been inconsistent because their uniform policies made a number of specific accommodations for members of minority faiths, such as Muslims and Sikhs.

A major difficulty for both Eweida and Chaplin was the risk that their cross-wearing could be dismissed as a personal preference rather than a protected manifestation of their beliefs. After all many – probably most – Christians do not choose to wear the cross. The UK domestic courts found that the practice was not regarded as a mandatory religious practice (applying a so-called ‘necessity’ test) but rather one merely ‘motivated’ by religion and not therefore eligible for protection. This did not help either Eweida or Chaplin as both believed passionately that they had an obligation to wear the cross to attest to their faith (in Chaplin’s case this was in response to a personal vow to God). The other major difficulty for both applicants was that the Court had also historically accepted a rather strange argument that people voluntarily surrender their right to freedom of religion and belief in the workplace when they enter into an employment contract, and so the employer has discretion to set its policies without regard to interfering with its employees religious practices. If an employee found this too burdensome, then he or she could protect their rights by resigning and finding another job. This argument, ignoring the realities of the labour market and imposing a very heavy burden on religious employees, has been a key reason why so few ‘workplace’ claims have been successful before the European Court.

Arguably the most significant aspect of the judgment was that the religious liberty questions were in fact considered by the Court rather than being dismissed as being inapplicable in the workplace (as the government and the National Secular Society had both argued). The Court specifically repudiated both the necessity test and the doctrine of ‘voluntary surrender’ of Article 9 rights at work. As a result, it has opened the door both to applications for protection for a much wider group of religious practices in the future and for claims relating to employment. From a religious liberty perspective this is surely something to welcome.

Nadia Eweida’s application was successful on its merits. It is now clear therefore that an employer cannot over-ride the religious conscience of its staff due to the mere desire for uniformity. However, Chaplin was unsuccessful, the Court essentially finding that ‘health and safety’ concerns provided a legitimate interest allowing the employer to over-ride religious manifestation. This is disappointing, particularly since evidence was presented that the health and safety risks of a nurse wearing a cross were minimal and that, in this case, Chaplin was prepared to compromise to reduce them still further. Hopefully this aspect of the judgment (unnecessary deference to national authorities in the realm of health and safety) will be revisited in future.

Whether that happens or not it is clear that religious expressions in the workplace now need to be approached differently after the European Court’s ruling. The idea that employees must leave their religion at the door has been dealt a decisive blow From now on, if corporate policy over-rides employees’ religious beliefs, then employers will be under a much greater obligation to demonstrate why, if at all, this is necessary.

Andrew Hambler and Ian Leigh are the authors of “Religious Symbols, Conscience, and the Rights of Others” (available to read for free for a limited time) in the Oxford Journal of Law and Religion. Dr Andrew Hambler is senior lecturer in human resources and employment law at the University of Wolverhampton. His research focusses on how the manifestation of religion in the workplace is regulated both at an organisational and at a legal level. Andrew is the author of Religious Expression in the Workplace and the Contested Role of Law, a monograph due for publication in November 2014. Ian Leigh is a Professor of Law at Durham University. He has written extensively on legal and human rights questions concerning religious liberty. He is co-author of Rex Ahdar and Ian Leigh, Religious Freedom in the Liberal State (2nd edition, OUP, 2013).

The Oxford Journal of Law and Religion is hosting its second annual Summer Academy in Law and Religion this coming June. The title of this year’s academy is “Versions of Secularism – Comparative and International Legal and Foreign Policy Perspectives on International Religious Freedom.” The meeting will take place June 23 – 27 at St. Hugh’s College, Oxford. Click for more details about the conference, confirmed speakers, and registration.

The Oxford Journal of Law and Religion publishes a range of articles drawn from various sectors of the law and religion field, including: social, legal and political issues involving the relationship between law and religion in society; comparative law perspectives on the relationship between religion and state institutions; developments regarding human and constitutional rights to freedom of religion or belief; considerations of the relationship between religious and secular legal systems; empirical work on the place of religion in society; and other salient areas where law and religion interact (e.g., theology, legal and political theory, legal history, philosophy, etc.).

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18. Law and the quest for justice

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By Raymond Wacks

The law is always news. It plays a central role of law in our social, political, moral, and economic life. But what is this thing called law? Does it consist of a set of universal moral principles in accordance with nature? Or is it merely a collection of largely man-made rules, commands, or norms? Does the law have a specific purpose, such as the protection of individual rights, the attainment of justice, or economic, political, and sexual equality? Can the law change society as it has done in South Africa?


Nelson Mandela, the first President of a democratic South Africa, with the author Raymond Wacks, following his release from 27 years of imprisonment.

Even the sensationalist criminal trials—real or imagined, staple movie and television fare—capture features of the law that routinely vex legal philosophers. They spawn awkward questions about moral and legal responsibility, the justifications of punishment, the concept of harm, the judicial function, due process, and many more. The philosophy of law, in other words, is by no means exclusively an abstract, intellectual pursuit. Indeed several legal philosophers contribute to important contemporary discussions about highly controversial questions such as abortion, euthanasia, pornography, and human rights.

No society can properly be understood or explained without a coherent conception of its law and legal doctrine. The social, moral, and cultural foundations of the law, and the theories which both inform and account for them, are no less important than the law’s ‘black letter’. Among the many topics within legal theory’s spacious borders is that of the definition of law itself: before we can begin to explore the nature of law, we need to clarify what we mean by this often elusive concept.

Ronald Dworkin (1931-2013) sought to show that law is inextricably bound up with moral values.

One question that continues to dominate legal philosophy is the seemingly intractable problem of the relationship between law and morals continues to dominate academic debate. Can law be as neutral and value-free as legal positivists seek to demonstrate, or is law steeped in inescapable moral values? Can law be analytically severed from morality? Or is the pursuit of neutrality and objectivity by legal positivists—from John Austin and Jeremy Bentham to the Realists and their modern followers—a sanguine will o’ the wisp? Is a ‘science of law’ (exemplified by Hans Kelsen’s ‘Pure Theory’) a fantasy? Is HLA Hart’s focus upon the ‘municipal legal system’ still helpful in our age of globalization and pluralism? If law does have a purpose, what might it be? Can it secure greater justice for all who share our planet?

None of these questions has a simple answer. But it is in their asking—and careful reflection upon them—that we might better understand the nature and purpose of law, and thereby perhaps secure a more just society. In the face of injustice, it is easy to descend into vague oversimplification and rhetoric when reflecting upon the proper nature and function of the law. Analytical clarity and scrupulous jurisprudential deliberation on the fundamental nature of law, justice, and the meaning of legal concepts are indispensable tools. Legal philosophy has a decisive role to play in defining and defending the values and ideals that sustain our way of life.

Raymond Wacks is Emeritus Professor of Law and Legal Theory. His areas of interest are legal theory, privacy, and human rights, and he has published numerous books and articles on various aspects of law, including Understanding Jurisprudence: An Introduction to Legal Theory (OUP, 2012), Law: A Very Short Introduction (OUP, 2008), and Privacy: A Very Short Introduction (OUP, 2010), and Philosophy of Law: A Very Short Introduction (OUP, second edition 2014)

The Very Short Introductions (VSI) series combines a small format with authoritative analysis and big ideas for hundreds of topic areas. Written by our expert authors, these books can change the way you think about the things that interest you and are the perfect introduction to subjects you previously knew nothing about. Grow your knowledge with OUPblog and the VSI series every Friday, and like Very Short Introductions on Facebook. Subscribe to Very Short Introductions articles on the OUPblog via emailor RSS.

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19. International Women’s Day: a time for action

By Janet Veitch

On Saturday, 8 March, we celebrate International Women’s Day. But is there really anything to celebrate?

Last year, the United Nations declared its theme for International Women’s Day to be: “A promise is a promise: Time for action to end violence against women.” But in the United Kingdom in 2012, the government’s own figures show that around 1.2 million women suffered domestic abuse, over 400,000 women were sexually assaulted, 70,000 women were raped, and thousands more were stalked.

So, why is there violence against women?

The United Nations talks about a context of deep-rooted patriarchal systems and structures that enable men to assert power and control over women.

In a nutshell, this means that men’s violence against women is simply the most extreme manifestation of a continuum of male privilege, starting with domination of public discourse and decision-making, taking the lion’s share of global income and assets, and finally, controlling women’s actions and agency by force if necessary.

Throughout history and in most cultures, violence against women has been an accepted way in which men maintain power. In this country, the traditional right of a husband to inflict moderate corporal punishment on his wife in order to keep her “within the bounds of duty” was only removed in 1891. Our lingering ambivalence over the rights and wrongs of intervening in the face of domestic violence (“It’s just a domestic” as the police used to say) continues more than a century later. An ICM poll in 2003 found more people would call the police if someone was mistreating their dog than if someone was mistreating their partner (78% versus 53%). Women recognise this culture of condoning and excusing violence against them in their reluctance even today to exert their legal rights and make an official complaint. The most recent figures from the Ministry of Justice show that only 15% of women who have been raped report it to the police. And when they do, they’re likely to be disbelieved: the ‘no-crime’ rate (where a victim reports a crime but the police decide that no crime took place) for overall police recorded crime is 3.4%; for rape it’s 10.8%. All this adds up to a culture of impunity in which violence can continue.

And it’s exacerbated by our media. When the End Violence against Women Coalition, along with some of our members, were invited to give evidence to the Leveson Inquiry, we argued that:

“reporting on violence against women which misrepresents crimes, which is intrusive, which sensationalises and which uncritically blames ‘culture’, is not simply uninformed, trivial or in bad taste. It has real and lasting impact – it reinforces attitudes which blame women and girls for the violence that is done to them, and it allows some perpetrators to believe they will get away with committing violence. Because such news reporting are critical to establishing what behaviour is acceptable and what is regarded as ‘real’ crime, in the long term and cumulatively, this reporting affects what is perceived as crime, which victims come forward, how some perpetrators behave, and ultimately who is and is not convicted of crime.”

When do states become responsible for private Call for helpacts of violence against women?

The UN Committee on the Elimination of All Forms of Discrimination against Women (CEDAW) says in its General Recommendation No. 19 that states may be responsible for private acts “if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence.”

Due diligence means that states must show the same level of commitment to preventing, investigating, punishing and providing remedies for violence against women as they do other crimes of violence. Arguably, our poor rates of reporting and prosecution suggest that the UK is not fulfilling this obligation.

What are some possible policy solutions to eliminate violence against women?

The last Government developed a national strategy to tackle this problem and the current Government has followed suit, adopting a national action plan that aims to coordinate action at the highest level. This has had the single-minded backing of the Home Secretary, Theresa May — who of course happens to be a woman. Under this umbrella, steps have been taken to focus on what works — although much more needs to be done, for example on the key issue of prevention –changing the attitudes that create a conducive environment for violence. Research by the UN in a number of countries recently showed that 70-80% of men who raped said did so because they felt entitled to; they thought they had a right to sex. Research with young people by the Children’s Commissioner has highlighted the sexual double standard that rewards young men for having sex while passing negative judgment on young women who do so. We need to rethink constructions of gender, particularly of masculinity.

What will the End Violence Against Women Campaign focus on this year?

End Violence Against Women welcomes the fact that the main political parties now recognize that this is a key public policy issue, and we’ll be using the upcoming local and national elections in 2014 and 2015 to question candidates on their practical proposals for ending violence against women and girls. We need to make sure that women’s support services are available in every area. And we’ll be working on our long-term aim of changing the way people talk and think about violence against women and girls — starting in schools, where children learn about gender roles and stereotypes — much earlier than we think. We hope Michael Gove will back our Schools Safe 4 Girls campaign. We also look forward to a historic milestone in April, when the UN special rapporteur on violence against women makes a visit to the UK to assess progress.

On International Women’s Day this year, what is the most urgent issue for the world to focus on?

As Nelson Mandela said: “For every woman and girl violently attacked, we reduce our humanity. Every woman who has to sell her life for sex we condemn to a lifetime in prison. For every moment we remain silent, we conspire against our women.” While women across the world are raped and murdered, systematically beaten, trafficked, bought and sold, ending this “undeclared war on women” has to be our top priority.

Janet Veitch is a member of the board of the End Violence against Women Coalition, a coalition of activists, women’s rights and human rights organisations, survivors of violence, academics and front line service providers calling for concerted action to end violence against women. She is immediate past Chair of the UK Women’s Budget Group. She was awarded an OBE for services to women’s rights in 2011.

On 22 March 2014, the University of Nottingham Human Rights Law Centre will be hosting the 15th Annual Student Human Rights Conference ‘Mind the Gender Gap: The Rights of Women,’ and Janet Veitch will be among the experts on the rights of women who will be speaking. Full details are available on the Human Rights Law Centre webpage.

Human Rights Law Review publishes critical articles that consider human rights in their various contexts, from global to national levels, book reviews, and a section dedicated to analysis of recent jurisprudence and practice of the UN and regional human rights systems.

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

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20. Sovereignty disputes in the South and East China Sea

By Merel Alstein

Tensions in the South and East China Seas are high and likely to keep on rising for some time, driven by two powerful factors: power (in the form of sovereignty over and influence in the region) and money (from the rich mineral deposits that lurk beneath the disputed waters). Incidents, such as the outcry over China’s recently announced Air Defence Identification Zone, have come thick and fast the last few years. One country’s historic right is another country’s attempt at annexation. Every new episode in turn prompts a wave of scholarly soul-searching as to the lawfulness of actions taken by the different countries and the ways that international law can, or cannot, help resolve the conflicts.

Maritime claims in the South China Sea by Goran tek-en. CC-BY-SA-3.0 via Wikimedia Commons.

Maritime claims in the South China Sea by Goran tek-en. CC-BY-SA-3.0 via Wikimedia Commons.

In order to help keep track of debate in blogs, journals, and newspapers on the international law aspects of the various disputes, we have created a debate map which indexes who has said what and when. It follows on from our previous maps on the use of force against Syria and the prosecution of heads of state and other high-profile individuals at the International Criminal Court. Blog posts in particular have a tendency to disappear off the page once they are a few days old, which often means that their contribution to the debate is lost. The debate maps reflect a belief that these transient pieces of analysis and commentary deserve to be remembered, both as a reflection of the zeitgeist and as important scholarly contributions in their own right.

To help readers make up their own minds about the disputes, the map also includes links to primary documents, such as the official positions of the countries involved and their submissions to the UN Commission on the Limits of the Continental Shelf.

One striking aspect of the map is how old some of the articles are, originating from the early 1970s. Controversies which seem new now actually go back some 40 years. In conflicts such as these, which cannot be understood without their history and where grievances often go back centuries, this awareness is key.

Another surprising feature is the uncertainty surrounding the legal basis of China’s claim to sovereignty over most of the South China Sea—its famous nine-dash line. Semi-official or unofficial statements by Chinese civil servants, or in one case by the Chinese Judge at the International Court of Justice, are seized on as indications of what China’s justifications are for its expansive maritime claims. A clearer official position, and more input from Chinese scholars, would significantly improve the debate.

Ultimately, the overlapping maritime claims and sovereignty disputes in the South and East China Seas are unlikely to be solved any time soon, and will keep commentators busy for years to come. We will keep the map up to date to facilitate and archive the debate. Your help is indispensable: please get in touch if you have any suggestions for improvements or for new blog posts and articles we can link to.

Merel Alstein is a Commissioning Editor for international law titles at Oxford University Press. She recently compiled a debate map on disputes in the South and East China Seas. Follow her on Twitter @merelalstein.

Oxford Public International Law is a comprehensive, single location providing integrated access across all of Oxford’s international law services. Oxford Reports on International Law, the Max Planck Encyclopedia of Public International Law, and Oxford Scholarly Authorities on International Law are ground-breaking online resources working to speed up research and provide easy access to authoritative content, essential for anyone working in international law.

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21. Why the lobbying bill is a threat to the meaning of charity

By Matthew Hilton

On 30 January 2014 the UK government’s lobbying bill received the Royal Assent. Know more formally known as the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act, it seeks to curb the excesses in election campaign expenditure, as well as restricting the influence of the trade unions.

However, as various groups pointed out throughout its controversial parliamentary journey, Part 2 of the legislation will also have implications for charities, voluntary societies and non-governmental organisations once it comes into effect. Specifically, in restricting the amount of expenditure that non-party political bodies can spend ahead of a general election, it will severely curtail their lobbying, campaigning and advocacy work that has been a standard feature of their activities for some decades.

Understandably the sector has not welcomed the Act. The problem is that the legislation conflates general political lobbying with campaigning for a specific cause that is central to the charitable mission of an organisation. Sector leaders have critiqued the Bill as ‘awful’, ‘an absolute mess’ and ‘a real threat to democracy’.

It is not difficult to see why. The impact of charities on legislation in Britain has been profound and the examples run into many hundreds of specific Acts of Parliament. To mention but a few, a whole range of environmental groups successfully lobbied for the Climate Change Act 2008. Homelessness charities such as Shelter and the Child Poverty Action Group fought a battle for many years that resulted in the Housing Act 1977. The 1969 abolition of the death penalty can be partly attributed to the National Campaign for the Abolition of Capital Punishment and two pieces of legislation in 1967, the Sexual Offences Act and the Abortion Act, were very much influenced by the work of the Homosexual Law Reform Society and the Abortion Law Reform Association.

A group of campaigners from Christian Aid lobbying for Trade Justice. Photo by Kaihsu Tai. CC-BY-SA 3.0

A group of campaigners from Christian Aid lobbying for Trade Justice, Oxford, 2005. By Kaihsu Tai. CC-BY-SA 3.0 via Wikimedia Commons.

The list could run on and on, but the impact of advocacy by charities on the policy process has become far more extensive than the straightforward lobbying of MPs. Charities have been key witnesses in Royal Commissions, for instance. From the 1944 Commission on Equal Pay Act through to the 1993 Commission on Criminal Justice, voluntary organisations contributed over a 1,000 written submissions. At Whitehall, they have sought a continued presence along the corridors of power in much the same manner as commercial lobbying firms. They have achieved much through the often hidden and usually imprecise, unquantifiable and unknowable interpersonal relationships fostered with key civil servants, both senior and junior.

In more recent years, charities have taken advantage of early day motions in the House of Commons. Once infrequently employed, by the first decade of the 21st century, there were on average 1,875 early day motions in each parliamentary session. The most notable have managed to secure over 300 signatures and it is here that the influence of charities is particularly apparent. The topics that obtain such general — and cross-party — support have tended to be in the fields of disability, drugs, rights, public health, the environment, and road safety; all subjects on which charities have been particularly effective campaigners.

Not all of these lobbying activities have been successful. Leaders of charities have often expressed their frustration at being unable to influence politicians who refuse to listen, else being outgunned and out-voiced by lobbyists with greater financial muscle supporting their work. But the important point is that charities have had to engage in the political arena and it is the norm for them to do so. To restrict these activities now — even if only in the year in the run-up to a general election — actually serves to turn back a dominant trend in democratic participation that has come increasingly to the fore in contemporary Britain.

Having explored the history of charities, voluntary organisations and NGOs, tracing their growing power, influence and support, we found was that rather than there having been a decline in democracy over the last few decades there has actually been substantial shifts in how politics takes place. While trade unions, political parties and traditional forms of association life have witnessed varying rates of decline, support for environmental groups, humanitarian agencies and a whole range of single-issue campaigning groups has actually increased. Whether these groups represent a better or worse form of political engagement is not really the issue. The point is that the public has chosen to support charities — and charitable activity in the political realm — because ordinary citizens have felt these organisations are better placed to articulate their concerns, interests and values. As such, charities, often working at the frontier of social and political reform, but often alongside governments and the public sector, have become a crucial feature of modern liberal democracy.

One might have expected a government supposedly eager to embrace the ‘Big Society’ particular keen to free these organisations from the bureaucracy of the modern state. But it is quite clear that the Coalition has held a highly skewed, and rather old fashioned, view of appropriate charitable activity. The Conservatives imagined a world of geographically-specific, community self-help groups that might pick up litter on the roadside in their spare time at the weekend and who would never imagine that their role might be, for instance, to demand that local government obtains sufficient resources to ensure that the public sector — acting on the behalf of all citizens and not just a select few — would continue to maintain and beautify the world around us. There are clearly very different views on what charity is and what it should do.

Indeed, it is remarkable that when government spokespeople did comment on the nature of the charitable sector, they were quick to condemn the work of the bigger organisations. Lord Wei, the ‘Big Society tsar’, even went so far as to criticise the larger charities for being ‘bureaucratic and unresponsive to citizens’. With such attitudes it is no wonder the Big Society soon lost any pretence of adherence from the many thousands of bodies connected to the National Council of Voluntary Organisation.

It is tempting to see the particular form the Conservatives hoped the Big Society would take as part and parcel of a policy agenda that is connected to the lobbying bill. That is, there has never been an embrace of charities by Cameron and his ministers as the solution to society’s – and the state’s – ills. Rather, in viewing these developments alongside the huge cuts in public sector funding (which often trickled down to national and community-based charities), there has actually been a sustained attack on the very nature of charity, or at least it has developed as a sector in recent decades. It is no wonder that many charity leaders and CEOs, feeling cut off at the knees by the slashes to their budgets and damaged by the sustained abuse in the press for their mistakenly inflated salaries, now feel the Lobbying Act is seeking to gag their voice as well.

Matthew Hilton is Professor of Social History at the University of Birmingham, and the author of The Politics of Expertise: How NGOs Shaped Modern Britain, along with James McKay, Nicholas Crowson and Jean-François Mouhot. Together they also compiled ‘A Historical Guide to NGOs in Britain: Charities, Civil Society and the Voluntary Sector since 1945′ (Palgrave, 2012). All the data contained in these two volumes, as well as that found above, is freely available on their project website.

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22. An interview with I. Glenn Cohen on law and bioscience

There are huge changes taking place in the world of biosciences, and whether it’s new discoveries in stem cell research, new reproductive technologies, or genetics being used to make predictions about health and behavior, there are legal ramifications for everything. Journal of Law and the Biosciences is a new journal published by Oxford University Press in association Duke University, Harvard University Law School, and Stanford University, focused on the legal implications of the scientific revolutions in the biosciences. We sat down with one of the Editors in Chief, I. Glenn Cohen, to discuss the rapidly changing field, emerging legal issues, and the new peer-reviewed and open access journal.

Journal of Law and the BiosciencesWhy have you decided to launch Journal of Law and the Biosciences?

This is an incredibly exciting time to be working in these areas and in particular the legal aspects related to these areas. We are seeing major developments in genomics, in neuroscience, in patent law, and in health care. We want to be in the forefront of this, and we think that a peer-review journal led by the leading research institutions working in this area in the United States is the way to go.

How has this subject changed in the last 10 years?

The genomics revolution, the reality of cheap whole genome sequencing, further developments in the ability to examine neuroscience, the realization that biosciences are a crucial aspect of criminal investigations, and the importance of research ethics have all become more prominent, as have roles that law and the biosciences play in the criminal justice system, health care delivery, and our understanding of ourselves.

What are the major intersections of law and the biosciences?

Neuroscience, genetics, research ethics, human enhancement, development of drugs and devices in biologics, and medical ethics, and many others.

What is it that makes this such a fast growing area of law?

First, we are fuelled by development in the biosciences, which is moving at an increasingly fast pace since we can build new technologies over old technologies. Second, there is increasing interest by jurists and by lawyers in these areas. Third is an increase in interest in health care and sciences more generally. From President Obama’s announcement of a major enterprise in studying the human brain to the passing of the Affordable Care Act, we are seeing a golden age in this field.

What do you expect to see in the coming years from both the field and the journal?

The ethical issues that have always been in the background are going to be made much more pressing, such as with cheap whole genome sequencing, fetal blood tests called non-invasive genetic testing, and increasingly science-based attempts to restrict abortion rights. All of these are raising questions that have always been present but are making them more pressing and also making it more likely that courts and legislatures will have to be the ones to wrestle with them correctly. We are hoping that the journal plays a role in answering those questions.

Last year, with the Advanced Notice of Proposed Rulemaking (ANPRM) and revisions to the common rule in human subjects’ research, there has also been a lot more emphasis and rethinking about the rules by which science operates at the level of human subject research regulation.

 What do you hope to see in the coming years from both the field and the journal?

Increasing number of law students and non-lawyers realizing the important role that law has to play in these disputes and enabling discourse at a deeper level than we have seen to this date.

What does Journal of Law and the Biosciences expect to focus on within the field (trends / new approaches)?

Stem cell technology, reproductive technologies, law and genetics, law and neuroscience, human subjects’ research, human enhancement, patent law, food and drug regulation, and predictive analytics and big data . . . but those are just off the top of my head. We are hoping to get submissions in many more areas as well.

Nita Farahany, I. Glenn Cohen, and Henry T. (Hank) Greely are the Editors of the Journal of Law and the Biosciences. I. Glenn Cohen, JD, is Professor of Law and Co-Director of the Petrie-Flom Center for Health Law Policy, Biotechnology & Bioethics at Harvard Law School. Cohen’s current projects relate to reproduction and reproductive technology, research ethics, rationing in law and medicine, health policy, and medical tourism. Nita Farahany, PhD, JD, is Professor of Law & Philosophy at Duke Law School and Professor of Genome Sciences and Policy at the IGSP. Since 2010, she has served on Obama’s Presidential Commission for the Study of Bioethical Issues. Henry T. (Hank) Greely, JD, is the Deane F. and Kate Edelman Johnson Professor of Law at Stanford University, where he directs the Center for Law and the Biosciences. He chairs the California Advisory Committee on Human Stem Cell Research, is a founder and director of the International Neuroethics Society, and belongs to the Advisory Council for the National Institute for General Medical Sciences and the Institute of Medicine’s Neuroscience Forum.

The Journal of Law and the Biosciences (JLB) is the first fully Open Access peer-reviewed legal journal focused on the advances at the intersection of law and the biosciences. A co-venture between Duke University, Harvard University Law School, and Stanford University, and published by Oxford University Press, this open access, online, and interdisciplinary academic journal publishes cutting-edge scholarship in this important new field. The Journal contains original and response articles, essays, and commentaries on a wide range of topics, including bioethics, neuroethics, genetics, reproductive technologies, stem cells, enhancement, patent law, and food and drug regulation.

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23. Iraq, detainee abuse, and the danger of humanitarian double standards

By Geoffrey S. Corn

Eleven years ago this month the US-led military coalition crossed the ‘line of departure’ from Kuwait into Iraq. The full spectrum dominance of these forces produced a rapid victory over the Iraqi armed forces. Unfortunately, winning the peace turned out to be far more complex than winning the war (although for the Americans who bore the burden of securing that initial victory there was certainly nothing ‘easy’ about it). Not long after defeating organized enemy resistance, coalition forces began the long process of occupation, counter-insurgency, and return to full Iraqi sovereignty. Each phase of this overall effort seemed to produce never-ending operational and tactical challenges, all of which were mirrored by associated legal challenges.

The Iraq campaign was not, however, conducted in a strategic vacuum. Instead, it was part of a broader US effort to disrupt and disable al Qaeda, the transnational terrorist organization responsible for the devastating September 11th attacks. But while perhaps strategically linked to this broader effort, Iraq was – at least for the most part – an operationally distinct effort, at least at the initial stage prior to the rise of al Qaeda Iraq. What is more significant is that unlike the so-called ‘war on terror’, Iraq was much more of a ‘conventional’ fight, generating legal issues that had been contemplated and addressed in international humanitarian law. Coalition forces followed well-established rules related to conduct of hostilities, belligerent occupation, and detainee capture, status, and treatment.

This last category of operational and tactical challenges – dealing with captives and detainees – unfortunately generated what might legitimately be characterized as the My Lai of the Iraq war: the detainee abuse incident at Abu Ghraib. This incident created a media firestorm and generated unquantifiable levels of criticism of US efforts. Much worse was the negative strategic impact, with the Abu Ghraib abuse incident is perhaps the most significant strategic debacle of the war, and provided a major stimulant to the then nascent Iraqi insurgency.

Why Abu Ghraib happened was and will continue to be debated for years to come. While the abuse of al Qaeda detainees captured and held outside Iraq was without question responsive to legal opinions and resulting policy decisions emanating from the highest levels of the US government, these policies never explicitly extended to Iraq. It does seem clear, however, is that the prohibitory effect of the law of war, and the Geneva Conventions more specifically, had been diluted for the US soldiers entrusted with the responsibility to manage and control this detention facility. This dilution ultimately contributed to gross abuses of detainees within the control of the United States and at the complete mercy of their captors. Abuse of power over such individuals should, and must always, engender outrage and condemnation, not merely because of the blatant violation of fundamental humanitarian protections, but because such misconduct is a derogation of the most basic notions of soldier professionalism.

There are important lessons to learn from this incident. These range from the strategic debacles that often flow from violations of the law of armed conflict, to the true meaning of ‘responsible command’ – training, supervising, and correcting subordinates to ensure compliance with all commands, including respecting legal obligations. However, there is another lesson to be drawn from this unfortunate episode: the danger of dehumanization.

Secretary of Defense Donald H. Rumsfeld takes a tour of the Abu Ghraib Detention Center in Abu Ghraib, Iraq, on May 13, 2004. Rumsfeld and Chairman of the Joint Chiefs of Staff Gen. Richard B. Myers are in Iraq to visit the troops in Baghdad and Abu Ghraib.   DoD photo by Tech. Sgt. Jerry Morrison Jr., U.S. Air Force. Public domain via defense.gov.

Secretary of Defense Donald H. Rumsfeld takes a tour of the Abu Ghraib Detention Center in Abu Ghraib, Iraq, on May 13, 2004. Rumsfeld and Chairman of the Joint Chiefs of Staff Gen. Richard B. Myers are in Iraq to visit the troops in Baghdad and Abu Ghraib. DoD photo by Tech. Sgt. Jerry Morrison Jr., U.S. Air Force. Public domain via defense.gov.

Every US soldier assigned to the Abu Ghraib prison, like every other US service-member who entered the Iraq theater of operations, was instructed to comply with the Geneva Conventions. It was part of their pre-deployment training; it was incorporated into Rules of Engagement cards; it was incorporated into command directives and orders. However, during this same time the United States was prosecuting another conflict against al Qaeda. Unlike the rules applicable to detainees at Abu Ghraib who were subject to the protections of the Fourth Geneva Convention, the conflict against al Qaeda involved no analogous emphasis on Geneva compliance. Instead, leaders at the highest level of US civilian and military organizations repeatedly emphasized that this enemy was composed of, ‘unlawful’ combatants — individuals who had no legitimate claim on the humanitarian protections of the laws and customs of war. Unlike a ‘legitimate’ enemy, this enemy could be subjected to detention and treatment conditions inconsistent with the most basic principle of humane treatment. In short, US forces were applying a genuine double-standard: detainees — whether military or civilian — considered ‘legitimate’ received the benefit of the law; those considered ‘illegitimate’ did not.

Encouraging soldiers to view certain enemies as unworthy of the most basic principles of humanity is a recipe for disaster. War involves an inherent need to dehumanize your opponent, an unfortunate necessity to enable soldiers to engage in the even more unfortunate necessity of killing on demand. Most moral beings are naturally averse to killing, and when doing so is not triggered by the survival instinct in response to an imminent threat, that aversion must be overcome. Dehumanization of the enemy serves this purpose.

But these same warriors must be capable of flicking the proverbial humanity switch, restoring the enemy to a status of human being at the moment the enemy is subdued. This is an even more complex task. Asking a soldier to show human mercy to an enemy, who, only moments prior was just trying to kill him, or perhaps just killed his best friend, is an immense leadership challenge. That challenge is facilitated by bright-line rules of war, rules that aid the warrior in navigating this moral abyss.

Diluting the clarity of these bright line rules is, therefore, terribly dangerous. These rules dictate to soldiers and their leaders that engaging in hostilities is, in the ultimate analysis, not ‘personal’, but instead an obligation imposed by the State or the non-state group. Thus, in a very real sense, the soldier is not acting in an individual capacity, but as the agent of the military organization ordering the soldier to participate in hostilities. In this capacity, the soldier is restrained from allowing the natural human instincts of vengeance and retribution to undermine the objectives of the organization writ large. The principle of humanity, when extended to captured opponents, implements this core tenet of organized hostilities; the struggle cannot be treated as personal.

There is a lesson that transcends the reminder that detainee abuse incidents produce profound strategic and tactical negative consequences. That lesson is that preservation and reinforcement of the bright line rules of humanity in warfare demand that distinctions between ‘categories’ of captured opponents must not be intended or perceived as a justification for treatment inconsistent with this core principle. When this occurs, the dilution may and often will very quickly infect the treatment of individuals granted a more protective status. This is precisely what happened when the United States authorized abusive treatment of unlawful combatants. Although none of the detainees in Iraq fell into that category, the broader message signaled by senior US (mainly civilian) leaders was clear: some captives are unworthy of the full protection of the law of armed conflict. Did this contribute to the inhumane treatment inflicted upon Iraqi detainees? It seems almost self-evident that the answer is yes. What beyond any doubt is that this could not have helped reinforce commitment to the legal obligations that so clearly applied to these victims.

Telford Taylor wrote several decades ago that war does not provide a license to kill; it imposes a duty to kill. But that duty is imposed by the State, and it is subordination to the interests of the State that defines warrior professionalism and permeates the restrictions imposed on warriors by the law of armed conflict. These restrictions serve both military and humanitarian interests, by protecting individuals from gratuitous violence and by facilitating mission accomplishment through the mitigation of resentment and disdain among opponents and potentially hostile civilian populations. But it is easy to understand why these restrictions may frequently be perceived as counter-intuitive for individuals engaged in mortal combat who must, in order to overcome the human aversion to killing, dehumanize their opponents. The States and military leaders who demand this conduct from men and women must, therefore, be vigilant in reinforcing these bright lines and avoid the temptation to extend the dehumanization that is an unfortunate necessity of pre-submission encounters with the enemy to their post-submission treatment. If this is a lesson learned from the Abu Ghraib debacle, then some good will ultimately be derived from that sad incident.

Geoffrey S. Corn is Presidential Research Professor of Law, South Texas College of Law; Lieutenant Colonel (Retired), U.S. Army Judge Advocate General’s Corps. Prior to joining the faculty at South Texas, Professor Corn served in a variety of military assignments, including as the Army’s senior law of war advisor, supervisory defense counsel for the Western United States, Chief of International Law for U.S. Army Europe, and as a tactical intelligence officer in Panama. He is the co-author of The War on Terror and the Laws of War: A Military Perspective with Michael Lewis, Eric Jensen, Victor Hansen, Richard Jackson, and James Schoettler.

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

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24. An international law reading list for the situation in Crimea

With the situation in Crimea moving rapidly, our law editors recently put together a debate map on the potential use of force in international law. To further support the background reading that many students and scholars of international law need, we’ve compiled a brief reading list to better understand the context and application of international law, including concepts of sovereignty, international responsibility, the laws of war, self-determination, secession, and statehood.

Brownlie’s Principles of Public International Law, Eighth Edition by James Crawford

Check Part III: Territorial Sovereignty, Part VI: International Transactions, Part IX: The Law of Responsibility, and Part XI: Disputes for overviews of the major issues in the Crimea crisis. Identify the different elements of the public international system at play.

Documents on the Laws of War, Third Edition, edited by Adam Roberts and Richard Guelff

Review the core rules, protocols, and conventions governing rights, duties, protections, and applications in wartime. What guidance can they provide?

The Law of International Responsibility, edited by James Crawford, Alain Pellet, and Simon Olleson; assistant editor Dr Kate Parlett

With discussion in Europe and the United States about their obligations to Ukraine, it’s essential to understand what protections there are to offer – and what qualifications must be met before enforcement.

Contested Statehood: Kosovo’s Struggle for Independence by Marc Weller

What can we learn from the international attempts to settle the Kosovo crisis and apply these lessons to Crimea? What failures can be avoided?

The Foreign Policy of Counter Secession: Preventing the Recognition of Contested States by James Ker-Lindsay

Gain insight from interviews with leading experts on the territorial integrity of states versus the right to self-determination.

The War Report: 2012, edited by Stuart Casey-Maslen

Much of the actions that the international community may take are predicated on the definition of war — or at least aggressive action. If Crimea doesn’t undergo a seamless transition, will this conflict be included the the 2014 war report?

Robert Beck on Grenada and Georg Nolte on Intervention by Invitation from Wolfrum (Ed.) in The Max Planck Encyclopedia of Public International Law

Crimea has voted for annexation and invited Russia into the country. What lessons can be drawn from Grenada 1983?

A panoramic view from Çufut Qale (Chufut Kale) in Crimea, Ukraine. Photo by Sergiy Klymenko. CC BY SA 3.0 via Wikimedia Commons.

A panoramic view from Çufut Qale (Chufut Kale) in Crimea, Ukraine. Photo by Sergiy Klymenko. CC BY SA 3.0 via Wikimedia Commons.

Louise Doswald Beck’s “The Legal Validity of Military Intervention by Invitation of the Government” in The British Year Book of International Law

While scholars debate the meanings of the basic theoretical principles of international law, how do they compare to historical interventions?

Two approaches to South Ossetia: Philip Leach from Wilmshurst (Ed.) The Classification of Conflicts and Angelika Nussberger from Wolfrum (Ed.) The Max Planck Encyclopedia of Public International Law

In 2008, tensions between Georgia and Russia spilled over into an armed conflict. Are there lessons for Russia’s conduct — as well as the international community’s — for today?

Georg Nolte and Albrecht Randelzhofer on Article 51 from Simma (Ed.) The Charter of the United Nations: A Commentary

There is no doubt the UN Charter will be invoked in the debates, so clear commentary is crucial to understanding it.

Both Stefan Oeter and Daniel Thurer on Self-Determination

If the people of Crimea choose to join Russia, who is the international community to stop them?

James Crawford on Secession from The Creation of States in International Law, Second Edition

What are the tests for international recognition now that Crimea has seceded?

Yves Beigbeder on Referendum from Wolfrum (Ed.) The Max Planck Encyclopedia of Public International Law

There have been a number of disputes over Crimea’s referendum — from lack of choice to intimidation at the polling stations.

Jens Ohlin on Aggression from Cassese (Ed.) The Oxford Companion to International Criminal Justice

Shots have been fired. If the conflict escalates, how and when does it qualify as aggression under international law?

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

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25. Victims of slavery, past and present

By Jenny S. Martinez

Today, 25 March, is International Day of Remembrance of the Victims of Slavery and the Transatlantic Slave Trade. But unfortunately, the victims of slavery were not all in the distant past. Contemporary forms of slavery and forced labor remain serious problems and some reputable human rights organizations estimate that there are some 21-30 million people living in slavery today. The issue is not limited to just a few countries, but involves complex transnational networks that facilitate human trafficking. Just as in the past, international cooperation is necessary to end this international problem.

International law played a key role in ending the transatlantic slave trade in the 19th century. In the year 1800, slavery and the slave trade were cornerstones of the Atlantic world and had been for centuries. Tens of thousands of people from Africa were carried across the Atlantic each year, and millions lived in slavery in the new world. In 1807, legislatures in both the United States and Britain — two countries whose ships had been key participants in the trade — banned slave trading by their citizens. But two countries alone could not stop what was a truly international traffic, which quickly shifted to the ships of other nations. International cooperation was required.

Beginning in 1817, Britain negotiated a series of bilateral treaties banning the slave trade and creating international courts to enforce that ban. These were, I suggest, the first permanent international courts and the first international courts created with the aim of enforcing a legal rule designed to protect individual human rights. The courts had jurisdiction to condemn and auction off ships involved in the slave trade, while freeing their passengers. The crews of navy ships that captured the illegal slave vessels were entitled to a share of the proceeds of the sale of the vessels, creating an incentive for vigorous policing. By 1840, more than twenty nations — including all the major maritime powers involved in the transatlantic trade — had signed treaties of various sorts (not all involving the international courts) committing to the abolition of slave trading. By the mid-1860s, the slave trade from Africa to the Americas had basically ceased, and by 1900, slavery itself had been outlawed in every country in the Western Hemisphere.

“East African enslaved people rescued by the British naval ship, HMS Daphne (1869)” via The National Archives UK on Flickr.

While treaties today prohibit slavery and the slave trade, international efforts at eradicating modern forms of slavery and forced labor trafficking are inadequate. Looking to the lessons of the past, international policy makers should consider implementing a more robust system for dismantling modern day slavery. A system of property condemnation with economic incentives for whistleblowers could again be used to leverage enforcement power; someone who turns in a human trafficker could be entitled to a share of the proceeds of a sale of the trafficker’s assets. Similarly, international courts could be used in especially severe cases. Enslavement is a crime against humanity under the statute of International Criminal Court, and severe cases involving transnational trafficking networks with large numbers of victims might meet the criteria for ICC jurisdiction. Violent acts in wartime are more visible international crimes, but the human impact of enslavement is no less severe or deserving of international justice.

It is not enough to remember past victims of enslavement; to truly honor their memory, we must do something to help those who are enslaved today.

Jenny S. Martinez is Professor of Law and Justin M. Roach, Jr., Faculty Scholar at Stanford Law School. A leading expert on international courts and tribunals, international human rights, and the laws of war, she is also an experienced litigator who argued the 2004 case Rumsfeld v. Padilla before the U.S. Supreme Court. Martinez was named to the National Law Journal’s list of “Top 40 Lawyers Under 40.” She is the author of The Slave Trade and The Origins of International Human Rights Law (OUP 2012), now available in paperback.

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