Whose Whales? Developing countries and the right to use whales by non‐lethal means

Abstract

While the clash between whaling and anti‐whaling interests in international fora, especially the International Whaling Commission (IWC), has escalated over the last two decades, very little attention, if any, has been paid to the active participation of developing country representatives and agencies (both governmental and non‐governmental) in the issues surrounding whale conservation, research and sustainable use. The failure to recognize the interests of developing nations in non‐lethal use of whales, as well as their marginalization in the IWC decision‐making process, has contravened their sovereign rights and thwarted efforts to develop a solid consensus on many critical issues.     

Rising crime rates amidst transformations in Eastern Europe: Socio‐political transition and societal response

Unprecedented and dramatic increases in crime rates in countries of Eastern Europe (data are available to document the increases for Poland, Bulgaria, Romania, the Czech Republic, Slovakia, and many of the former Soviet Republics) raise the issue of whether the political and social transformations that have been taking place in Eastern Europe must inevitably lead to social disruption and resulting crime increases. Since the nature of the phenomenon is historically unique (there has never been a similar revolutionary transition from socialism to capitalism), a new, unconventional, and innovative theoretical approach is needed to account for the phenomena being discussed here. Assuming that the transformations can be legitimately subsumed under the concept of ‘‘socio‐political process,’’ the purpose of the paper is to identify some basic and inherent characteristic features of the causal mechanism at work, specifically —?''How do the dynamics of the Eastern European socio‐political process explain the rising crime rates?'’ (''What causal factors inherent in the dynamics are responsible for the crime rises?'') Another issue to be examined is that because of the unprecedented nature of the process being talked about here, a different dimension of the socio‐political process theory must be realized and examined. The paper will be based on three hypotheses: 1. The Eastern European transformations imply a need for a new component of the socio‐political process theory (transition from socialism to capitalism, not vice versa as has historically been the case).

2. To the extent that crime is a product of socio‐political change, crime rates are bound to increase much more during a socialism‐to‐capitalism transition rather than during a capitalism‐to‐socialism transition.

3. Some inherent traits of socialism‐to‐capitalism transitions explain why crime rates increase much more during those transitions than during capitalism‐to‐socialism ones.

     

Reforming Relocation Law: An Evidence‐Based Approach

In recent years, there has been much discussion within international fora about the need for a greater consensus on how to approach relocation cases. Empirical research on the lived experience of parents and children who have been through relocation disputes has an important role to play in providing an evidence base for decisions on policy. In this article, we summarize the findings of a 5‐year prospective longitudinal study of relocation disputes in Australia and make recommendations in the light of this and other research evidence concerning a new approach to relocation law. We argue that there should be no presumptions. Nonetheless there is an appropriate place for legislative or appellate guidance on how to approach these disputes. “Good faith” should be irrelevant to decision making, and children should not be placed in the center of the conflict. The adjudication of relocation disputes should be on the basis of asking three questions: First, how close is the relationship between the nonresident parent and the child and how important is that relationship developmentally to the child? Second, if the relocation is to be permitted, how viable are the proposals for contact with the nonresident parent? Third, if the relationship between the child and the nonresident parent is developmentally important to the child and is likely to be diminished if the move is allowed, then (a) what are the viable alternatives to the parents living a long distance apart? and (b) is a move with the primary caregiver the least detrimental alternative?

Key Points for the Family Court Community
• Describes the findings of empirical research on relocation disputes in Australia on the lived experience of children and families postrelocation disputes.
• Reviews various features of relocation law and proposals for reform in the light of this research evidence.
• Proposes an approach to deciding relocation cases based upon three essential questions.

     

Romantic relationships across boundaries: global and comparative perspectives

ABSTRACT

In response to the mass globalization of the twenty-first century and associated migration, a recent boom in social-scientific research has analyzed various manifestations of ‘binational’, interreligious and interracial romantic relationships in the present and recent past. This special issue seeks to historicize this research by drawing on key case studies from around the world and across time and building on relevant historiography and theoretical literature. It seeks to chart how intermarriage and related relationships took shape: who participated in these unions? How common were they, and in which circumstances were they practiced (or banned)? With a global, diachronic and interdisciplinary perspective, we also aim to question some of the categories behind these relationships. Central to these issues, we argue, is the question of boundary formation. Here, we draw on social-scientific research that has emphasized multiple boundaries involved in the creation of identity and groups. We also highlight the intersectionality of those boundaries, meaning that notions about ethnicity, religion, gender and social class often overlap and intersect in various ways when it comes to relationships. Contributions to this collection tap a range of related questions, such as how did geographical boundaries – for example, across national lines, distinctions between colonies and metropoles or metaphors of the ‘East’ and the ‘West’ – shape the treatment of intermarriage? What role have social and symbolic boundaries, such as presumed racial, confessional or socio-economic divides, played? To what extent and how were those boundaries blurred in the eyes of contemporaries? How have bureaucracies and law contributed to the creation of boundaries preventing romantic unions? Romantic relationships, we suggest, provided a key test case for boundary crossings because they brought into sharp relief assumptions not only about community and assimilation, but also about the sanctity of the intimate sphere of love and family.     

Equal reproduction rights? The right to found a family in United Nations’ disability policy since the 1970s

ABSTRACT

With the adoption of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) in 2006, disability as an issue of human rights and international law can no longer be ignored. The history of this convention can be traced back to the 1970s, when disability was framed in United Nations (UN) declarations as a human-rights issue at the global level. One of the recurrent topics of debate during this trajectory was the right of people with disabilities to found a family. This right was far from self-evident and was evaluated very differently by various stakeholders.

This study follows the right to have a family in UN disability policy since the 1970s. The history of the family in relation to disability at the global level has been a neglected field of enquiry compared to other concepts such as gender and race. This study investigates how and why the right to found a family was framed in the Declarations on the Rights of Mentally Disabled Persons (1971) and Disabled Persons (1975), the International Year of Disabled Persons (1981), the International Decade of Disabled Persons (1983 ? 1992), the Standard Rules on the Equalization of Opportunities for Persons with Disabilities (1993) and the UNCRPD in 2006.

The trajectory of the right of people with disabilities to found a family that emerges from these cases shows a change in the 1990s from a social-policy to a human-rights approach towards disability – which reflects a broader trend in global and local histories of human rights. In the case of reproductive rights of people with disabilities this change meant that the emphasis was laid more on providing a legal protection for the individual against the interference of others (so-called negative freedom) than on enhancing the opportunities for disabled people to practice their (positive) freedom.     

Real Lives and Lost Lives: Making Sense of ‘Locked in’ Responses to Intimate Partner Homicide

The problem of intimate partner homicide is featuring increasingly on national and international policy agendas. Over the last 40 years, responses to this issue have been characterised by preventive strategies (including ‘positive’ policing; the proliferation of risk assessment tools, and multi-agency working) and post-event analyses (including police inquiries and domestic homicide reviews). In different ways, each of these responses has become ‘locked in’ to policies. Drawing on an analysis of police inquiries into domestic homicides in England and Wales over a 10-year period, this paper will explore the nature of these ‘locked in’ responses and will suggest that complexity theory offers a useful lens through which to make sense of them and the ongoing consistent patterning of intimate partner homicide more generally. The paper will suggest this lens in embracing what is known and unknown affords a different way of thinking about and responding to this problem.

     

Mapping the fragmentation of the international forest regime complex: institutional elements,conflicts and synergies

In the field of global environmental governance, a plethora of international regimes have emerged over the past decades. In some issue areas, multiple regimes aim to govern the issue, sometimes reinforcing, oftentimes conflicting with each other. Consequently, international regime complexes are an empirical phenomenon, which are inherently characterized by specific degrees of fragmentation. For any given issue area, one of the key questions is whether the institutional fragmentation encountered in such regime complexes is synergistic or conflictive in nature. Scrutinizing this question poses methodological challenges of how to delineate a regime complex and how to assess its fragmentation. Drawing on the highly fragmented case of the international forest regime complex, this paper aims to map its institutional fragmentation and to analyse the degrees to which it is conflictive or synergistic. For this we conceptualize the notion of institutional elements and develop a novel method for mapping regime complexes based on their core institutional elements. We then employ tools from the sub-discipline of policy analysis on the complex’s institutional elements for analysing in detail, which of the elements are mutually synergistic and conflictive with other elements of the regime complex. Our results indicate that synergistic relations mostly exist among rather vague elements, often built around sustainability as a core principle. On the contrary, conflictive relations prevail as soon as the elements are designed in more concrete and substantial ways. We conclude that the forest regime complex displays only degree of seemingly synergistic fragmentation through a number of non-decisions and the use of “sustainability” as an empty formula. De facto, conflictive fragmentation prevails among elements of concrete subject matter. This raises questions on whether vast parts of regime complexes merely serve symbolic functions, while conflicts on substance are being camouflaged.

     

Scientizing Food Safety: Resistance,Acquiescence, and Localization in India

Since the mid‐1990s, formal scientific risk management has been codified at all levels of food safety governance in affluent states: firm‐level standards, national regulation, and international law. Developing countries' access to affluent importers and power in international standard‐setting fora now hinges on their scientific capacity. This article explores the consequences of these developments in India, which moved quickly from resistance to acquiescence, and then later to mobilization around narratives of scientific risk management's local benefits. The case suggests a two‐stage model of scientization among developing countries: (1) coercive and competitive mechanisms drive adoption of science‐based governance models, and (2) as local actors mobilize to meet foreign demands, they attach their own interests and agendas to science‐based reforms. The outcome is a set of rational myths about the benefits of scientization. The article draws on content analysis of organizational, policy, and news documents and a small set of interviews with highly placed pubic officials and industry representatives.     

The rational design of regional regimes: contrasting Amazonian,Central African and Pan-European Forest Governance

Forests have been an important issue in world politics at least since the UNCED conference in Rio in 1992. Since then the focus of academic attention has been on global forest governance by an international forest regime complex consisting of several forest-related regimes. This strong focus leaves a research gap regarding regional regimes addressing forests as an issue area, which recently greatly gained in empirical and academic relevance. It is particularly important to understand the institutional structures on the one hand, and the policies developed within such regimes on the other. In order to obtain a better understanding of this in the forest case, the aim of this article is to analyse the institutional design of three regional forest regimes and to develop fields and hypotheses for future research. We built upon the rational design of international institutions framework developed by Koremenos et al. (Int Organ 55(4):761–799, 2001), and based our findings on content analysis of key documents as well as participant observations and expert interviews in selected occasions. The regional regimes chosen for this study were Amazonian, the Central African and pan-European forest cooperation. The results indicate that the designs of the three regimes greatly differ regarding membership, scope, control, centralisation, and flexibility. This seems to be mainly due to differing degrees of formality of the regimes (from treaty to non-treaty to hybrid regimes) as well as different power structures amongst members and regional hegemons involved. Based on our findings, future research fields for the study of regional forest-related environmental, trade, commodity, and management regime structures as well as regime policies are identified. Such insights advance our understanding of international forest governance not only by global, but by regional forest regimes as well. This is particularly true for our understanding that similar issue-specific problems, such as sustainable forest management, in terms of regime structures and regime policies may be addressed quite differently, largely depending on the preferences of regional powers and hegemons and other potential region-specific factors. We conclude by questioning a hypothesised diffusion of international institutions and propose the more precise concept of institutional osmosis instead.     

Status of Forces and Criminal Jurisdiction

This article examines the legal status of armed forces present in friendly foreign territory with a special focus on criminal jurisdiction. Traditionally, this issue has been considered from the perspective of public international law in which immunities play an important role. However, this perspective does not fully cover the criminal jurisdiction provisions in the international agreements dealing with the status of visiting forces (Status of Forces Agreements). This article introduces military operational law as an additional perspective to better understand this specifc approach of Status of Forces Agreements.

     

A Fine Line Between Pleasure and Pain: Would Decriminalising BDSM Permit Nonconsensual Abuse?

The increasing social visibility of Bondage/Domination, Discipline/submission and Sadism/Masochism (BDSM) within Western society has placed pressure on the criminal law to account for why consensual BDSM activities continue to be criminalised where they involve the infliction of even minor injuries on participants. With moralistic and paternalistic justifications for criminalisation falling out of favour, one key justification that is gaining traction within international commentary on BDSM is the “bogus BDSM argument”. The bogus BDSM argument contends that BDSM activities should be criminalised because otherwise false claims of BDSM will be used by defendants to excuse or minimise their criminal liability for nonconsensual abuse. This article refutes this argument by showing how it relies on premises that are unjustifiable, illogical and irrelevant. This article concludes that the decriminalisation of BDSM would not permit nonconsensual abuse so long as legal officials were equipped with sufficient knowledge about the norms and conventions of BDSM culture.

     

The impact of China's 2016 Cyber Security Law on foreign technology firms,and on China's big data and Smart City dreams

Chinese officials are increasingly turning to a policy known as Informatisation, connecting industry online, to utilise technology to improve efficiency and tackle economic developmental problems in China. However, various recent laws have made foreign technology firms uneasy about perceptions of Rule of Law in China. Will these new laws, under China's stated policy of “Network Sovereignty” (“网络主权” “wangluo zhuquan”) affect China's ability to attract foreign technology firms, talent and importantly technology transfers? Will they slow China's technology and Smart City drive? This paper focuses on the question of whether international fears of China's new Cyber Security Law are justified. In Parts I and II, the paper analyses why China needs a cyber security regime. In Parts III and IV it examines the law itself.     

The Case for a Multilateral Agreement on Competition Policy: A Developing Country Perspective

Although the issue of trade and competition policy has beendropped from the Work Programmes of the Doha Round of WorldTrade Organization (WTO) negotiations, it continues to be discussedin other fora and may return to the WTO after the completionof the Round. This article assesses the case for an agreementfrom the perspective of developing countries. It begins by reviewingthe ‘development dimension’ of the WTO debate andthen examines three specific antitrust issues that were of considerablerelevance to developing countries but were not pursued: exportcartels, anti-dumping and intellectual property rights (IPRs).There follows a critical assessment of the empirical and theoreticalarguments for the kind of agreement that was being advocatedto deal with international cartels. Alternative proposals, involvingdeveloping countries ‘outsourcing’ antitrust enforcementto developed countries, are also sceptically examined, as isthe relevance for developing countries of the kind of competitionpolicy that is currently in place in developed countries. Finally,a general approach to international trade agreements suggeststhat developing countries had nothing to gain from the proposalthat was on the table, and the article concludes by proposinga range of more suitable alternatives.     

Indigenous Peoples in International Environmental Cooperation: Arctic Management of Hazardous Substances

This article reviews the international legal framework on hazardous substances, with an emphasis on the Arctic and the roles of indigenous peoples. Persistent organic pollutants (POPs) and heavy metals pose significant risks to Arctic indigenous populations, mainly through the consumption of traditional foods. Treaties of particular relevance include the Protocols on Heavy Metals and POPs to the Convention on Long-Range Transboundary Air Pollution (1998) and the Stockholm Convention on POPs (2001). Arctic indigenous groups have exerted considerable influence on hazardous substance management through lobbying of national governments, participation in domestic and international scientific assessments, and direct advocacy in regional and global political fora. Their engagement on environmental issues has also helped to shape circumpolar consciousness and political activism among different indigenous groups. At the same time, there remain important limitations on the independent authority and ability to act of indigenous groups. Challenges for Arctic indigenous groups and States include continuing collaborative abatement work targeting many POPs and heavy metals, as well as addressing linkages between hazardous substances and climate change, which is another issue of great Arctic concern.     

Some Meta-Theoretical Questions for Restorative Justice

Abstract. Unquestionably, Restorative Justice (hereafter RJ) has finally gathered some real momentum. It has become a sine qua non topic in many national and international policy and statutory agendas. However, as the restorative practice expands to deal with crimes, ages and situations it has never addressed before (at least in its contemporary version), and as its application starts to make sense not only to national but also to regional and international bodies and fora, new theoretical problems are posed. In the fast‐growing literature many theories and Schools have been evoked to support RJ's claims. This paper will take the discussion a step back by looking at questions of meta‐theoretical character. In particular, the paper will ask: Does RJ have a place in the “world of theories,” and if it does, then what kind of theory is it, and on what level should it be placed? Second, does RJ theory need a philosophy, and why? Finally, how can restorative practices be morally justified?     

European health regulations and Brazil nuts: Implications for biodiversity conservation and sustainable rural livelihoods in the Amazon

Abstract

The Brazil nut industry comports with the principal objectives of European policy on development co‐operation (poverty reduction linked with environmental protection) and forest conservation (maintaining forest cover). However, European Regulation 1525–98 EC, which decreases acceptable levels of aflatoxins in Brazil nuts to 4 parts per billion, may cause a crash in the Brazil nut trade. Thus, European policies on food quality, development co‐operation and forest conservation are likely to operate a cross‐purposes. Brazil nut producer countries have questioned the legal basis of the Regulation in terms of scientific justification for the stricter limits on aflatoxin content and lack of conformity with international standards set by Codex Alimentarius. The EC has countered by invoking the precautionary principle. This article documents the debate in the context of the World Trade Organisation's Sanitary and Phytosanitary Agreement and discusses the implications for the relationship between agendas of trade, environment and sustainable development.     

Council of Europe/UNEP,Pan‐European biological and landscape diversity strategy,Invasive Alien Species

Abstract

The notion of sustainable development has become, over the last fifteen years, an integral part of international environmental law and policy. It is recognition that environmental issues do not exist in a vacuum, but rather arc part of much wider structural issues involving both economic and social dimensions. However, does this concern for sustainable development now mean that protecting the natural environment is no longer about ecological conservation per se, but rather is simply abour ensuring an adequate environment to maintain economic development? And if so, what of those environments where the economic value is a secondary consideration? Or where human activity has a disproportionate effect? Can sustainable development be interpreted in a way that reconciles these seemingly opposite demands? This paper examines these issues from the perspective of the 1991 Madrid Protocol on Environmental Protection to the 1959 Antarctic Treaty. It will suggest that sustainable development is a broader concept than one that simply requires an instrumental approach to environmental protection. In fact, the paper will conclude that sustainable development is a relatively meaningless notion if it docs not also contain a strong element of environmental conservation, and not only in such ecologically important areas as Antarctica.     

The Future of International Investment Regulation: Towards a World Investment Organisation?

With growth in foreign investment and in the number of companies investing in foreign countries, the application of general principles of public international law has not been deemed adequate to regulate foreign investment and there is, as yet, no comprehensive international treaty on the regulation of foreign investment. Consequently, states have resorted to bilateral investment treaties (BITs), regional trade and international investment agreements (IIAs) and free trade agreements to supplement and complement the regime of protection for foreign investors. In the absence of an international investment court, states hosting foreign investment or investor states have opted for investor-state dispute settlement mechanism (ISDS). This mechanism has brought about its own challenges to the international law of foreign investment due to inconsistency in the application and interpretation of the key principles of international investment law by such arbitration tribunals, and further, there is no appellate mechanism to bring about some cohesion and consistency in jurisprudence. Therefore, there are various proposals mooted by scholars to address these challenges and they range from tweaks to BITs and IIAs, the creation of an appellate mechanism and the negotiation of a multilateral treaty to proposals for reform of ISDS only. After assessing the merits and demerits of such proposals, this study goes further, arguing for the creation of a World Investment Organisation with a standing mechanism for settlement of investment disputes in order to ensure legal certainty, predictability and the promotion of the flow of foreign investment in a sustainable and responsible manner.

     

Balancing International Police Cooperation: INTERPOL and the Undesirable Trade-off Between Rights of Individuals and Global Security

With 194 members, INTERPOL is the most influential actor in matters of transnational policing. Regrettably, the organisation is vulnerable against cases of misuse. Certain states manage to exploit the tools of the organisation, to persecute and track political dissidents or non-aligned members of the media outside their borders. As such, INTERPOL has become a prime example on how non-democratic countries can exert their influence and expand their reach well beyond their domestic jurisdictions via their participation in international organisations. Not wanting to allow the proliferation of criminal havens in certain regions, the organisation has opted to connect with and bring together as many police forces of different states as possible. Evidently, such connections are created with little or no consideration of the state of criminal justice systems and forms of government of the countries involved, as well as any subsequent risks. Such a complex state of affairs demands a thorough reflection on whether it is acceptable to compromise between the need for security and the rights of individuals and procedural justice. The issue has vast legal and practical ramifications, and it is ultimately a question pertaining to the realm of global constitutionalism. Does INTERPOL have the legal authority to be in charge of finding a balance between security and procedural justice? If so, on what legal basis, and to what extent?

     

Positive Obligations and the International Criminal Tribunals’ Law of Detention: Funding Family Visits and the ICC Presidency’s Ngudjolo Decision

This article addresses the issue of whether the international criminal tribunals are under an obligation to fund family visits for indigent detainees. It examines the concept of positive obligations and its relation to the detention situation and describes the practice of funding family visits as it has developed at the International Criminal Court. It further analyses relevant developments in the Court’s case law. It argues that the Court is indeed obliged to fund family visits. In this regard, the mere recognition of a detainee’s right to family visits in the tribunals’ legal frameworks andin international soft-law penological standards can be said to inadequately reflect the particularities of international detention.