The Role of Principles and General Principles in the ‘Constitutional Processes’ of International Law

Netherlands International Law Review - The fundamental elements of the international legal system remain subject to debate. Constitutionalism is merely the latest instalment of this continuing...     

The ‘good’, the ‘bad’ and the ‘Charlie’: the business of cocaine smuggling in Greece

This article examines the social organisation of cocaine smuggling in Greece. Emphasis is placed on the involvement of professionals from the shipping industry and actors from the ‘upper society echelons’ who play a pivotal role in the transportation and importation of cocaine to Western Europe and Greece. After considering empirical evidence from a variety of sources, our findings indicate that the cocaine market in Greece is ‘organised’ by a system of collaborative relationships between state, business and civil society actors. It is suggested that to better understand the nature of this illegal market, further research is required to take a closer look into the economic, socio-cultural and political incentives of these actors.     

‘Fear’ and ‘Hope’ in Graphic Fiction: The Schismatic Role of Law in an Australian Dystopian Comic

The rise in popularity in recent times of dystopian fiction (particularly among young adults) is reflective of contemporary anxieties about law: the inhumanity of judicial-coercive machinery; the influence of corporate power; the lack of democratic imagination despite the desperate need for political reform; and the threat of order imposed through violence and victimisation. These dystopian texts often tell fear-inducing stories of law’s failure to protect; or of law’s unsuccessful struggle against unbridled power; or even sometimes of law’s ‘bastardised’ reconstruction. Indeed comics, with their visual and narrative intricacies, thrive on dystopia as a key vehicle for contributing to collective notions of fear and trembling about the future. Yet, at the same time, these texts also contain within them the blueprints for hope—the idea that with transformation, heroic intervention, and/or faith in ‘justice’, the law will ultimately prevail. Law’s ability to be transformed is thus simultaneously portrayed as society’s downfall (when manipulated and disrupted), AND as the key to enlivening humanity (when redeemed and restored). This article attempts to understand this schismatic role of law as presented in the recent dystopian comic book series From Above by Australian creator Craig Bruyn. In this series set in futuristic Melbourne, where law has given way to an unaccountable corporate rule, the social divide is made manifest by the absence of ‘order’, ‘law’ and ‘justice’ in certain segments of society, and yet hope in law’s return is ever-present. The paper will interrogate expectations of law and justice that is mediated through the complex interaction of fear and hope, and contextualise this within current contemporary anxieties.     

‘Narcoballads’: The Psychology and Recruitment Process of the ‘Narco’

There have been several studies conducted about racist groups, gangs, cults, terrorist and other criminal organisations, but very little has been written about the psychology and recruitment process of the ‘narcotrafficker’. This is because like most criminal organisations, they tend to be secretive and difficult to penetrate by law enforcement, academics and others who wish to study them. Using an audio‐recorded content analysis of ‘narcocorridos’ — ballads glorifying the activities of the ‘narcos’ and describing their successes' — as well as Social Identity and Group theories, the author describes some of the techniques used to recruit individuals into drug cartels; the labels, stereotypes and images of the in-group versus the out-group and the similarities in the socialisation and recruitment process of other criminal organisations. This study shows the recruitment of individuals into drug cartels follow similar patterns to other criminal organisations including the need for power, belonging, respect, security and pride.     

The Stock Market to the Rescue? Carbon Disclosure and the Future of Securities-Related Climate Change Litigation

This article considers the role that securities litigation can play in forcing public companies to disclose climate change risks to their investors and potential shareholders. Such disclosure can prove to be a strong incentive for companies to manage their greenhouse gas emissions and climate change exposure better. Securities regulators in North America have, for the most part, resisted efforts effectively to enforce obligations by companies to disclose climate change risks. This led to a recent action by the Office of the Attorney-General in New York, which exemplifies the role that litigation can play in this area. Investors themselves may soon bring their own actions against companies over their carbon disclosure, the basis for which is already provided in securities legislation.     

Between the ‘Home’ and ‘Institutional’ Worlds: Tensions and Contradictions in the Practice of House Arrest

In this paper we argue that the theoretical work of Goffman (1961) on “total institutions,” Foucault’s (1977) insights into the workings of disciplinary power, and an account of contemporary forms of punishment and social control in postmodern society (Staples 2000) help us better understand the experiences of those individuals sentenced to house arrest. Based on face-to-face interviews with twenty-three people being electronically monitored in a Midwestern metropolitan area, our analysis identifies three themes that illustrate the ways in which electronic monitoring is experienced as a complex amalgam of what Goffman (1961, p. 13) saw as the distinct “home world” and the “institutional world”. These themes include (1) “Home is Where the Machine Is,” (2) “Producing Docile Bodies,” and (3) “Threat of Sanctions”. We reassert our claim (Staples 1994, 2000) that contemporary forms of social control such as electronic monitoring reflect an ongoing struggle to deal with problems and issues set in motion with the birth of modernity.     

The Effect of ‘Stabilization’ in the Mandates and Practice of UN Peace Operations

Netherlands International Law Review - In the last decade UN peace operations have begun to explicitly seek ‘stabilization’ in the states to which they are deployed. Despite the term...     

The Role of the People’s Armed Police in Chinese Policing

This study examines the role of the People’s Armed Police (PAP) in Chinese policing. While the PAP has been in existence for over five decades, very little research has paid attention to the critical position that the PAP occupies in Chinese policing. The history of the PAP between 1949 and 1982 was highlighted by a number of changes in name and a constant change of direct control between the military and the public security. The PAP experienced a great expansion and became more stabilized in organizational structure and missions after 1983. While it is part of China’s military forces, the PAP is currently involved in a wide variety of law enforcement, order maintenance, and service activities. Its law enforcement function is carried out chiefly through preventive patrol in urban areas. The most important order maintenance function shouldered by the PAP is the disposition of mass incidents, which have increased dramatically in number and size and have become better organized over the past two decades. The Chinese government also often mobilizes the PAP to undertake emergency rescue and disaster relief tasks. The PAP will continue to be a critical force in the Chinese police system. Its leaders as well as the government should seek ways to improve the legitimacy of the force.     

The ‘Strasbourg Effect’ on data protection in light of the ‘Brussels Effect’: Logic,mechanics and prospects

This article considers various factors that will shape the potential effect of the Council of Europe's modernised Convention on data protection (Convention 108+) on non-European states’ regulatory policy. It does so by elucidating the logic and mechanics of this effect in light of the ‘Brussels Effect’ that is commonly attributed, in part, to EU data protection law. The central arguments advanced in the article are that the impact of Convention 108+ beyond Europe will rest primarily on the Council of Europe's ideational power tempered by processes of acculturation, and secondarily on the degree to which the EU is willing to use the ‘Brussels Effect’ as a vehicle for promoting non-European states’ accession to the Convention.     

‘That Exalted and Noble Science of Jurisprudence’: The Recruitment of Jurists with ‘Superior Qualifications’ by the Middle Temple in the Mid-Nineteenth Century

By looking at the references of those who applied for the Middle Temple Readership in Civil Law and Jurisprudence in the middle of the nineteenth century this article reveals the seriousness with which ‘a great experiment’ was undertaken in the years between 1846 and 1862. New courses were established for would-be barristers. Reformers at the Inns believed that lecturers should be chosen on merit, and the use of references in this context raised novel issues. More generally, the reformers believed barristers should know about English jurisprudence and continental traditions of legal thought. It was a lively episode in which common lawyers showed interest in the ideas of English jurists and, at the same time, looked for inspiration far beyond the shores of England. In the early years at least, it was a time of hope in legal education.     

The NHS Information Revolution: ‘Choice of Control’ to ‘Choice’ and ‘Control’

This paper provides a novel and critical analysis of the necessary and important balance between ‘individual privacy’ and ‘collective transparency’. We suggest that the onset of the Information Revolution has created a dilemma for the National Health Service (NHS) in terms of how it addresses its obligation to use information to improve best practice in healthcare for society (‘collective transparency’) whilst also keeping sensitive personal information confidential (‘individual privacy’). There is clearly a need to consider both whether the NHS is balancing this critically important informational relationship and whether its approach is fit for purpose. We argue that the NHS's ‘proxy-individual’ information guardian role could inadvertently mask individuals' intended roles, effectively circumventing autonomy-based laws by limiting the power of individuals to be autonomous. In this article we have identified three issues – first the prevailing ‘Mindset’ (the ‘M’) of ‘privacy’, which is viewed as individualistic, resulting in an overpowering concept of confidentiality; second, the quality and control of Information (the first ‘I’); and third, the concept of innovation (the second ‘i’), which is being used as a ‘solution’ rather than a vehicle for transparency. Indeed, transparency is our target of ‘best practice,’ and we suggest that individual privacy and collective transparency are best embedded within a complementary privacy framework that offers a better fit than the current split of control between the roles of the NHS and the roles of the individual. It is suggested that when facilitated by transparency, ‘control’ and ‘privacy’ form a continuum, aligning through the desire for choice. Therefore, the choice of control could facilitate control and choice. Together, they could replace the concept of privacy by empowering ‘informed patients’ to support the NHS's ‘No decision about me, without me’ pledge.     

The problem with ‘dots’: questioning the role of rationality in the online environment

Regulatory theorists often use the ‘dot’ as a metaphor to help conceptualise their models of a given environment. Lessig famously used the ‘pathetic dot’ in his classic, ‘Code and Other Laws of Cyberspace’ and Murray’s ‘Regulation of Cyberspace’ used interconnected dots to help describe networked communitarianism and to discuss the effectiveness and implementation of symbiotic regulation. However in both models, the dot is seen as a rational actor. The rational ‘dot’ is presumed to have a complete set of preferences and the ability to gather all the necessary information in order to make an informed decision that optimally reflects their choices and preferences. However, research from psychology and, increasingly, economics has shown that humans are often prone to making errors in judgements. The paper argues that using the metaphor of dots to describe how rational actors behave in the digital environment is problematic. Actors deploy heuristics when making judgements, resulting in systematic errors and biases, often compromising the assumptions of the regulator. Accordingly, the way actors behave in the online environment is not rational at all; thus, models built on rationality start from a false premise.     

The Role of Fear (Bhaya) in the Nikāyas and in the Abhidhamma

According to Buddhist soteriology, fear is a direct cause of suffering and one of the main obstacles in the path to liberation. Pāli Suttas and Abhidhamma present a number of sophisticated strategies to deal with fear and to overcome it. Nevertheless, in the Nikāyas and in the Abhidhamma there are also consistent instructions about implementing fear in meditative practices and considering it as a valuable ally in the pursuit of nibbāna By means of a lexicographical study of selected passages and especially of two compounds (bhayūparata and abhayūparata), this paper demonstrates that fear may have the crucial function of stimulating the meditator: through reiterated admonishments and reflections that evoke a feeling of dread, the meditator gets weary of unwholesome patterns and is prompted to put effort in his/her own practice. Evidence proves that this set of instructions is ultimately consistent with the several teachings that emphasize the importance of counteracting fear and fostering fearlessness, which is described as a quality of liberation as well as an attitude to be cultivated. In fact, a close analysis of the dynamics involved in bhaya (fear) and abhaya (fearlessness) as graphically depicted in the Nikāyas and in the Abhidhamma texts, reveals that stirring fear and letting go of fear are two essential steps of the same process.     

The Origins of ‘Alien Status’ in the English Common Law

In his 2001 monograph on Aliens in Medieval Law: The Origins of Modern Citizenship, Dr Keechang Kim suggested that there was no evidence before the late fourteenth century that birth beyond the sea made a person an alien. This article discusses a series of cases heard from the mid-thirteenth century onwards in which tenants pleaded the claimant's birth overseas by way of bar to hereditary claims to land and in which it seems to have been treated as a bar in itself, though one to which the king might grant special exemption. This seems to have remained the position until legislation of 1351 (triggered by doubts about the eligibility of two sons of Edward III born overseas to succeed to the throne) which not only confirmed their eligibility but also made the first general extension of the right to inherit to children born overseas to parents in the king's allegiance.