Switzerland and the Hague Convention

Any suggestion that 2006 has been a quiet year in the internationaltrust world is likely to be quickly denied. Of course, the worldof international trusts never stops changing. A popular conferencetopic is ‘Challenges of the trust today’ or a similartitle which calls upon the speaker to present his views on whatis happening preferably with some crystal ball gazing of impendinglegislation. The source of change offers ample opportunity for discourse.First, case law produces its finely ground decisions to resolveindividual disputes laying down jurisprudence for future settlorsand their advisers to follow. Sometimes it is favourable. Therecent re-adoption and expansion of the Hastings-Bass principle(Re Hastings-Bass (Dec’d), Hastings v IRC [1974] 2 AllER 193), whereby trustees may make good an oversight, has beenfavourable to trustees, provided (naturally) liberties werenot taken with the rules.     

Military Criminal Procedures and Judicial Guarantees: The Example of Switzerland

Since the Nuremberg and Tokyo Trials, scant attention has beendevoted to military tribunals. Only with the creation of theICTY and the ICTR has civil society started reconsidering thequestion of which fora might be better suited for trying individualsresponsible for war crimes and other gross human rights violations.The aim of this paper is to illustrate the Swiss military judicialsystem. It analyses, on the one hand, the judicial guaranteesprovided for in the Swiss Military Penal Code and the Code ofMilitary Penal Procedure. On the other hand, it discusses thejudicial guarantees afforded in the only two war-crimes trialsheld by the Swiss military justice — the G case and theNiyonteze case — which involved civilians with foreignnationality. Finally, the paper argues against the abolitionof military judicial systems.     

Girl Members of Deviant Youth Groups,Offending Behaviour and Victimisation: Results from the ISRD2 in Italy and Switzerland

Although a lot of research has been conducted on the delinquency of boys who are members of gangs, only a few quantitative studies have analysed the involvement of girl gang members in delinquency and its link with victimisation. In this study, the prevalence rates of girls who are members of gangs in Italy and in Switzerland are shown. We compared the Italian data (N = 5.784) and Swiss data (N = 3.459) from the second wave of the International Self-Reported Delinquency Study (ISRD-2); the population used for this comparison was made up of teenagers from the ages of 13 to 16. Members of deviant youth groups accounted for 5.7% of the Italian sample and 4.7% of the Swiss sample; in both countries, about a third of gang members were girls. In general, girls who are members of gangs commit more delinquent acts than both girls and boys who are not members of gangs. Girl gang members are also more often victimised than girls and boys who are not members of a deviant youth group.     

The political-criminal nexus in the united states

Summary The 1967 Task Force Report on Organized Crime (TFR) found that “...all available data indicate that organized crime flourishes only where it has corrupted public officials.” 48 From that standpoint, neutralizing local law enforcement would appear to be central to criminal operations. That conclusion would depend on (a) how one defines “organized crime” and (b) the assumption that organized crime described by the Task Force covers all cases and species of it including what is referred to as “non-traditional” organized crime. A conclusion that seems unchallengeable in the Report is the observation that it was impossible to determine “the extent of the corruption of public officials in the United States.” The lack of information on this question was aggravated by the fact that many of those who provided information to the Task Force were themselves public officials.     

Great Expectations: The Implementation of the Rome Statute in Italy

This article first explores whether Italy is under an obligationto implement the Rome Statute that it ratified in 1999. It thenidentifies the general sets of inconsistencies between Italianlegislation and the Rome Statute and analyses whether and towhat extent the former needs to be amended or integrated inorder to implement the substantive provisions of the latter,in particular in relation to the definition of crimes, generalprinciples of criminal responsibility, defences and other barsto prosecution. Finally, the exercise of jurisdiction by Italiancourts over crimes in the Rome Statute is discussed in the lightof the principle of complementarity on which the jurisdictionof the International Criminal Court is based.         Mere dreams,mere dreams!         W.B. Yeats,Meditations in Time of Civil War, I (1928)     

当前强制执行法律制度中亟待修改完善的几个问题

The judgment enforcement in a legal framework is concerned with many principles that underlie and enrich macro-theory. The current theory has made progress in it, but few is related to the specific structure of the regime. This article analyzes the present problems of enforcing court’s judgment in China. In accordance with relevant theories and by reference to experiences of other countries and areas, it treats with the problems concerning enforcement body, enforcement jurisdiction, the term of enforcement application, enforcement notice, property investigation of the forced measures, enforcement assistance, enforcement termination, enforcement remedies, enforcement deterrence and so on, which are calling on to improve the enforcement framework. __________ Translated from Xiandai Faxue 现代法学 (Modern Law Science), 2007, 29 (2): 105–111     

The spy who came in from the cold

Some words occur to us in pairs, often to the extent that wefind it difficult to hear the one without recalling the other.Thus ‘Romeo’ suggests ‘Juliet’; ‘Anthony’invokes ‘Cleopatra’; ‘Héloïse’follows ‘Abélard’ and so on. Many furtherexamples exist, particularly in the case of lovers. In intellectual property circles the concepts of ‘author’and ‘royalties’ are also closely linked—buttheir relationship is strained. While the author's love forroyalties is sincere and undiminished     

Unearthing the realities of rape: Utilising Victorian newspaper reportage to fill in the contextual gaps

This article examines the realities of rape and sexual offences and their treatment through the legal process by use of media reportage, Victorian and modern; using this to contextualise and so to challenge the official record. The starting point is an identification of what constitutes ‹best’ evidence for an exploration of rape and sexual offences – evidence that permits better insights into the impact of such offences on the individuals involved, as well as into the factors governing the ability of the criminal justice process to promote the conviction rate in rape cases. By using a comparative historical perspective, and using media presentations (especially newspaper reportage) this article shows the enduring nature of stereotypes which govern the decisions reached by legal personnel and by jurors – stereotypes which have, since the Victorian period, remained profoundly gendered in ways that are unhelpful to the ‹victims’.     

'Innocent infringement' and the Community unregistered design right: the position in the UK and Ireland

Legal context and Key Points: This article systematically examines ‘innocent infringement’—highlightsits non-uniform nature and summarizes defence it offers as toliability and/or remedies across a range of national UK andIrish IP rights—particularly copyright and design. It considers ‘innocent infringement’ in contextof community unregistered design right (directly applicablein all EC member states under EC Reg 6/2002) and assesses ifit affords defence to liability or financial remedies—suggestsanswer depends on meaning and effect of Article 19 (2), Article89 (Reg 6/2002) and consideration of; the harmonizing effectof the Enforcement Directive (2004/48/EC); the ensuing respectiveUK and Irish IP Enforcement Regulations 2006; the UK's CommunityDesign Regulations.2005. It concludes: limited scope of Reg 6/2002 indicates ‘innocentinfringement’ affords neither defence to liability nora limited defence to damages, but contrasts the role of discretionaryremedy of account of profits, and nevertheless predicts UK andIrish Design Courts may seek to justify ‘innocent infringement’offers limited defence to damages. Practical significance: Given that the community unregistered design right, applicableEC wide, is useful and of interest in many commercial fields(eg fashion, furnishings, etc.), which require short-term protectionagainst copying by over enthusiastic competitors, understandingthe status and effect of ‘innocent infringement’on liability and financial remedies is important.     

The “Conventionalization” of Safety Crimes in the Post-Communist New Member States of the European Union

This article begins by presenting a brief overview of the neglected area of “safety crime” in the post-communist states of Central and Eastern Europe. Quantitative and qualitative evidence is reviewed, suggesting both the widespread nature of safety crimes, and a deteriorating work environment, in which safety crimes are routinely tolerated. Evidence of the “institutionalized tolerance of non-compliance” is provided through a case study of labor inspection in the new member states, focusing on Latvia, currently the worst performer in health and safety in Europe. Against a background of general violations of labor rights, current innovations in European-level regulatory strategies are critiqued, in particular, the shift towards “soft law” and compliance-based strategies, relying on appeals to corporate social responsibility, together with the encouragement of various forms of voluntary initiatives. It is suggested that such (self)-regulatory strategies may be inappropriate as forms of crime control in the new member states of the European Union. In effect, a convergence domestic and European Union policies may open the door to the further “conventionalization” of safety crimes in the new member states.This article is based on a paper first presented to a seminar, “Regulating Corporate Crime and White-Collar Crime: Developments across Europe”, Finnish Police College, Helsinki, 3–4 September, 2004. Financial support for the research was provided by a European Commission Marie Curie chair award (no: 509727). The author would like to thank Kit Carson and Steve Tombs, as well as the participants in the Helsinki seminar for their helpful comments. Any errors remain those of the author alone.     

Imperial Violence: the ‘Ethnic’ as a Component of the ‘Criminal’ Class in Victorian England

This article seeks to identify how, and in what ways, the debate over ethnic identity acquired saliency during the different phases of black settlement in England, especially against the backcloth of the socio-cultural processes and the economics of colonialism. It outlines how the ‘other’ was constituted in different discourses, policies, and practices, and how these constructions were appropriated by the criminal justice agencies. Critically, ethnic identity as subordinate and ‘inferior’ was produced by many of the same mechanisms as was developed with regard to the indigenous ‘criminal’ class in Victorian England. Societal reaction, through criminal and civil statutes, established the identity of the ethnic minorities of early nineteenth century England, not just as subordinate strata, but also by a more complex process, as a variant of the newly emergent ‘criminal’ class. It is argued that, caught in the hub of empire, the ‘ayahs’, the ‘lascars’ and the domestic servants (See R. Visram, The Ayahs, Lascars and The Princes (London: Pluto).) in England’s ports found themselves reconstructed as part of the ‘criminal’ class and subsequently subjected to disciplinary measures of social control and surveillance. The author argues with regard to the indigenous population, conceptions of the threat of the non-Western crystallised around the same popular images of ‘savagery’ and of moral degeneracy, a process reinforced in imperial fiction. A desire to ‘civilise’ and improve the peculiar habits of the non-Western followed directly from indigenous precedent.     

The importance of “spillovers” in the policy mission of the advanced technology program

Government policies like the Advanced Technology Program (“ATP”) are intended, at least in part, to remedy the “market failure” inherent in the fact that a significant portion of the social benefits of new knowledge and technology are not captured by a firm that invests in R&D. ATP’s project selection, and its evaluation of the impact of its program, can be made more effective by explicitly incorporating the analysis of such “spillovers.” For project selection, this means identifying technological, organizational and economic factors that tend to oint to a large “spillover gap,” or deviation between the social and private rates of return to a proposed project. For program evaluation and assessment, it means adapting existing study methods that measure social returns to innovation in ways that explicitly capture spillover effects. This paper is based on a study that I performed for the ATP, Economic Analysis of Research Spillovers: Implications for the Advanced Technology Program, NIST GCR 97-708. I have benefited from comments and useful discussions with Zvi Griliches, Jeanne Powell, Rosalie Ruegg, and Richard Spivack. Some of the ideas in this paper grew out of previous joint research with James Adams. The views expressed herein are my own, however, and should not be attributed to any of these individuals or to the ATP.     

Interdisciplinary research on international relations theory and international law in China over the past 10 years

From the origin, there has been a strong connection between international relations and international law. In the development of the history of different academic subjects, the research on international relations and international law are interdependently promoting each other. As a result, the realization of interdisciplinary research on international legal theory and the study of international law is inevitable. As a matter of fact, even though the interdisciplinary research of the two subjects has been separated for almost half a century, the need for the development of the subject and the changing world political and economical status give them a new chance for reunification. Recently, the interdisciplinary research on international relations theory and international law by the Western academic is becoming the order of the day, which has become the latest shining point of the recent development of the two subjects, which is even regarded as the new revolution of international relations theory and the study of international law. In this context, the past ten years is a period of emergence of Chinese international relations and the interdisciplinary research of international law. In the past ten years, some scholars have overcome “the difficulty of interdisciplinary research,” “the prejudice within the subject” and “the gap among different subjects,” and made pioneering research in the field of “systematic connection” and “issues in overlapping field.” Moreover, they gradually make the interdisciplinary research to be a popular method and a common recognition. Based on the current studies, interdisciplinary research will have a broad future in the fields such as “the interchange of concepts,” “the exchange of method,” and “the mutual assistance of materials,” which will provide scholars in this area with a broad space for research.     

罪刑法定视域中的刑法适用解释

The judicial interpretation of criminal law should be an application interpretation to individual cases that is guided by judges and participated by the prosecutor and the accused, for which the judicial judgment should be combined with the application of criminal law of specific cases, and the criminal precedents should be as a carrier. The Supreme People’s Court should change from the previous practices of issuing normative and abstract interpretation to the dual approaches of the interpretation of criminal law application through direct creation and indirect acknowledgement. Liang Genlin, Professor and Vice Dean of Law School of Peking University and as a visiting professor of University of Tuebingen (2001–2002). His main research focuses on criminal law and criminal policy, and his important publications include “On the Structure of Punishment”, “Liang Genlin’s Review on Criminal Policy, Volume I, Criminal Policy: Standpoint and Category”, “Liang Genlin’s Review on Criminal Policy, Volume II, the Arm of the Law: Expand and Limit”, “Liang Genlin’s Review on Criminal Policy, Volume III, Criminal Sanction: Manner and Choice”. Besides, he has also published over 40 discourses on criminal law and criminal policy since 1996.     

Significant 2007 case law on the Community trade mark from the ECJ and the CFI

Legal context: This article looks at the important decisions of 2007 on theCommunity trade mark made by the Luxembourg courts. Key points: The cases discussed concern the application of Council Regulation(EC) No. 40/94 of 20 December 1993 on the Community trade mark(the ‘CTMR’), Commission Regulation (EC) No. 2868/95of 13 December 1995 implementing the CTMR (the ‘CTMIR’),and the Council Directive 89/104/EEC of 21 December 1988 (‘Directive89/104’). Practical significance: The purpose of this article is to give a quick overview of themost significant trade mark cases decided in 2007 by the Luxembourgcourts. The article has a practical bias and is aimed at readerswho wish to find quickly the key decisions of 2007.     

The crime control industry and the management of the surplus population

This essay examines what we are calling the ‘crime control industry’ and how the growth of such an industry relates to growing inequality and the need to ‘manage’ or ‘contain’ the ‘surplus population.’ Profits are a major moving force in this process, rather than the goal of reducing crime and suffering. An important component of this industry is the ‘prison industrial complex,’ one of the fastest growing industries in the U.S. Also included is a rapidly growing private security industry that includes private police and security guards, along with a growing supply of technology to aid in the ‘war on crime.’ Other components include drug testing companies, gated communities, and a booming gun industry. We conclude by outlining possible explanations for the growth of this industry.     

From the Right to Return to the Return of Rights: Completing Post-War Property Restitution in Bosnia Herzegovina

Given the numbers displaced as part of the means and methodsof the armed conflict during the war in Bosnia Herzegovina between1992–95, it is not surprising that the return processhas been long and drawn out. Nevertheless, a remarkable processof post-war reconciliation has quietly drawn to completion inBosnia Herzegovina. In less than a decade after the end of thewar, over 90 per cent of the 211,871 claims for the restitutionof real property made by internally displaced persons (IDPs) and refugees have been resolved. Annex 7 of the Dayton Agreement, The Agreement on Refugees andDisplaced Persons, provided for the return of IDPs and refugees,but it was the object of obstruction in the mid to late 1990s.However, by the middle of the first decade of the 21^st century,restitution was all but complete. The significance of this turn-aroundextends far beyond the hundreds of thousands of Bosnians whobenefited directly. It is a model, both positive and negative,for the resolution of many other conflicts around the worldin which land is a major issue. While a number of factors contributedto the dramatic acceleration of the restitution process in Bosnia,certainly the unexpected staying power — and, indeed,concerted action on property restitution — of the internationalcommunity played its part. A ‘carrot and stick’strategy manifested itself in high-profile funding, admittanceto international bodies, and the removal of obstructive officials.As this paper shall argue, the greatest factor in seeing theprocess through to the end was the shift from a process thatfocused primarily upon ethnically-linked ‘return’,sometimes at the expense of individual property rights, to onethat was driven primarily by the recognition of property rightsand the rule of law. This was possible for a number of reasons.Uniquely, international human rights conventions were incorporateddirectly into post-war Bosnian domestic law. Influenced by this,legislative amendments and changes in implementation strategyprogressively slanted the process in favour of simple, almostintuitive, rights recognition. Shifting away from the emphasison ‘return’ removed a subjective element from implementationand, combined with greater emphasis on the ‘rule of law’,narrowed the scope for the system to be manipulated and thwarted.This, thereby, de-politicised restitution.     

The end of organised crime in the European Union

So much has been written—and vigorously contested—about ‘organised crime’ (OC) that the impending fall of this familiar icon may come as a shock, both to its detractors and to those who take it for granted. Yet that moment may be upon us, for reasons that this paper will explore, as the European Union shifts the vocabulary within which policies on police cooperation are articulated. A pivot of this change is the EU Council Decision on Europol, first debated by the Council in late 2006 and anticipated as applying from 2010 onwards. This will shift the scope of Europol’s work from ‘organised crime’ (attributing qualities to criminality) to ‘serious crime’ (concern with impacts and harms falling on individual and collective victims); will transfer financing of Europol to the Community budget; and so will initiate parliamentary scrutiny. These issues in security governance are explored from ‘northern’, ‘southern’ and ‘eastern’ European perspectives and in the contexts of ongoing enlargement and democratisation of the EU.

---

The Descent of Power: Possession,Mysticism, and Initiation in the Śaiva Theology of Abhinavagupta

This paper surveys the key terms śaktipāta and samāveśa (both of which refer to religious experience) in the primary sources of Tantric Śaivism over several centuries of textual development, building up a theory as to their range of meanings. It specifically focuses on their usage by Abhinavagupta (Kāshmīr, 10th century) by presenting a complete translation of chapter 11 of his Tantrasāra. The paper thus serves to (a) illuminate the nature of spiritual experience and the qualifcations for religious praxis in Śaivism, (b) give insight into the worldview of the Tantric Śaivas, and (c) help in pinpointing a specific and significant issue in the phenomenological study of religion generally. An earlier version of this paper has been published in a somewhat different form in Evam: Forum on Indian Representations vol. 4, published by Samvad India, New Delhi, India. This paper could not have been written without two years of intensive study with Professor Alexis Sanderson of All Souls College, Oxford, whose scholarship has proved essential in advancing my understanding of Śaivism. Also very helpful was Dr. Somadeva Vasudeva, now of Columbia University, whose database and encyclopedic knowledge have been invaluable. The germ of the idea for this article was suggested to me when Professor Paul Muller-Ortega (University of Rochester) first pointed out to me the passage beginning at MVT 2.14.     

The Defeat of Shabina Begum in the House of Lords

The Court of Appeal last year delivered a well-publicised judgment declaring that now 17-year-old Shabina Begum had been unlawfully excluded from Denbigh High School when she insisted on wearing the Islamic ‘jilbab’ ([2005] EWCA Civ. 199; [2005] 1 W.L.R. 3372; [2005] 2 All E.R. 396 (Judgment of 2 March 2005); The Times, 4 March 2005, at p. 85. See also J. Gau, “Muslim Dress – School Exclusion – Human Rights”, Ecclesiastical Law Journal 8/37 (2005), pp. 239–240.). The dispute received huge national and international press coverage, but on Wednesday 22nd March 2006, in a remarkable u-turn, the House of Lords overturned the Court of Appeal’s decision on all counts (R (On the Application of Begum) v Headteacher and Governors of Denbigh High School [2006] UKHL 15 (Judgment of 22 March 2006); The Guardian, 23 March 2006, at p. 6; and The Independent, 23 March 2006, at p. 4. Members of the Appellate Committee were Lord Bingham of Cornhill; Lord Nicholls of Birkenhead; Lord Hoffmann; Lord Scott of Foscote and Baroness Hale of Richmond.). The reversal meant Shabina’s Article 9 right to manifest a belief had not been violated by the school. This analysis will briefly examine the reasoning behind their Lordship’s judgment and will provide a short commentary on the likely effect the decision will have on religious groups wishing to wear religious symbols in UK schools. LLB (Hons), LLM, Cert. Ed. Mohammad Idriss is Senior Lecturer in Public Law at Coventry University, United Kingdom and is a PhD Candidate at the University of Birmingham; M.Idriss@Coventry.ac.uk