Tackling Ill-Treatment in Places of Detention: The Work of the Council of Europe’s “Torture Committee”

The article examines the working methods and effectiveness of the Council of Europe’s Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (the CPT) which, since 1990, has been carrying out visits to places of detention. It also examines the impact the Committee has had upon European standards and expectations, and, in particular, upon the jurisprudence of the European Court of Human Rights, and raises certain issues in respect of the establishment of the United Nation’s Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of the Committee against Torture. This article draws upon material to be published in The Treatment of Prisoners: European Standards (Council of Europe Press: 2006).     

Europe: Political,Not Cosmopolitan

The article challenges the established view according to which the authority of the EU is inexplicable in terms of collective civic self‐determination. Contrary to this widely held belief, it explains the condition under which it is plausible to impute the current shape of the Union to the collective self‐determination of European citizens. This condition is met if citizens approach the Union with a cosmopolitan attitude. The article then goes on to explain that while the Union may not appear optimal under this condition, it looks quite disastrous when approached from the perspective of political self‐determination. The argument makes an appeal to European citizens. They have to come to grips with their own self‐understanding. Should European citizens come to realise that they are, after all, political beings because they care about sustaining a form of life at specific place of the world, they will have to re‐appropriate Europe for themselves.     

The evolution of security industry regulation in the European Union

ABSTRACT

The European private security sector has grown from a handful of small companies at the end of the Second World War into a multibillion Euro industry with thousands of firms and millions of security staff. In Europe, the demands for security is not just expressed notionally but also officially in The European Agenda on Security stating the European Union (EU) aims to ensure that people live in an area of freedom, security, and justice. This article will begin by exploring the role of private security in society. It will then move on to consider the main phases in the development of private security regulation in Europe. Following on from this, some of the main areas of policy development will be considered, such as European bodies, initiatives, and standards. Finally, the article will explore some of the potential options for the future in better regulating the European private security sector. From a historical perspective, the evolution of private security regulation can be divided into three phases: the laissez-faire, the centrifugal, and the centripetal era – each with its own distinct characteristics and impact on the concurrent industry. In the EU where there is the legal framework for the development of a single market in services, the key social partners have been at the forefront of developing a series of standards and guidance documents which promote standards across borders at the European level. However, the institutions of the EU have been reluctant to intervene at a European level in setting minimum standards of private security regulation. Thus, the changing terrain of the EU relating to security, regulation, and the private security industry means the current trajectory may be in need of an injection of more radical thought and consideration.     

A Shift in Focus: Systematisation in European Private Law through EU Law

The discourse on the Europeanisation of private law appears gradually to be moving into new territory in which the central debate on convergence of private laws in Europe makes place for structural questions on private law development in a multi‐level European legal order. With the realisation that private law is and will remain complementary regulated at EU level and in national laws, a re‐orientation is called for that, in the words of Micklitz, ‘allows one to determine which norms shall be elaborated and enforced at what level and by whom’. This article accepts that such a re‐orientation is needed in relation to substance, process, instruments and enforcement; a more fundamental question needs to be addressed, however, in order to ensure coherence in the development of private law in Europe. As can be gleaned from existing practice in EU consumer law, competition law, and financial market regulation, a deeply engrained tension between market integration and protectionist policies in Community law has resulted in incoherent regulation at EU level, which filters through into national legal systems. This puts at risk fundamental values of private law, such as certainty and fairness. A solution for this is proposed by shifting the focus from national private laws to the political and doctrinal structure of EU private law, and the normative framework it provides. General principles of EU private law, it is argued, could and should provide a counterweight to the problem of conflicting policies and set out a guideline for the future development of European private law.     

Non-Electoral Accountability in Global Politics: Strengthening Democratic Control within the Global Garment Industry

This article challenges the widespread view that democraticaccountability is unattainable in global politics because ofthe impracticality of establishing global elections. Instead,it argues that global democratic accountability can potentiallybe achieved by instituting non-electoral mechanisms that performequivalent accountability functions through more workable institutionalmeans. This argument is defended at a theoretical level, andfurther illustrated by analysing an empirical case study ofthe institutions through which labour standards in the globalgarment industry are determined. The article first explainswhy electoral mechanisms are no longer a viable means for achievingdemocratic accountability in political contexts such as theglobal garment industry, that are characterized by the decentralizeddispersion of public decision-making power among a range oforganizationally disparate state and non-state actors. It thenidentifies the key democratic function of electoral accountabilityas that of ensuring a reasonable degree of public control overpublic decision-making, and argues that this normative functioncan, in principle, be legitimately performed through non-electoralas well as electoral mechanisms. Finally, it elaborates thekey institutional features of a legitimate framework of non-electoralaccountability – public transparency and public disempowerment– and illustrates how these functions could potentiallybe achieved in practice, with reference to the example of theglobal garment industry.     

Reforming Natural Gas Fracking Regulations in 2017–2018: How Should States Enforce Regulations?

While much scholarly work has been published on hydraulic fracturing regulatory frameworks, there is little discussion on the enforcement mechanisms of these regulations and statutes. This article explores state hydraulic fracturing regulations and the expansion of a criminal framework to enforce compliance. More specifically, this article takes a comparative look at fracking enforcement regimes in California and several states with the most hydraulic fracturing activities. First, the article discusses fracking's economic benefits and environmental issues. The article then analyzes federal regulations, (which essentially leaves the bulk of regulation and enforcement to state and local governments) and state enforcement systems in California and the four states with the most fracking wells (Texas, Wyoming, Pennsylvania, and Colorado). California, a state that is pushing for more renewable resources, has robust regulations under Senate Bill 4. In the end, states that rely heavily on fracking should reform the enforcement mechanisms to disincentive noncompliance. Regulatory regimes in the other states appear to have deficiencies that could be remedied by adopting stricter enforcement mechanisms—such as criminal sanctions—that would disincentivize noncompliance, which could lead to large-scale environmental disasters. This article postulates that a model system incorporating a variety of methods including increased criminal enforcement could provide for proper remedies, justice, and deterrence. An ideal enforcement framework for effective deterrence should focus on transparency, flexibility, trusted delegation, and proportionality.     

Sexual exploitation of children in europe: Child pornography

Abstract

Summary: This article is taken from a report entitled: Rhetorics and Realities: Sexual Exploitation of Children in Europe, of a study funded by the European Commission under the STOP Programme. It begins by re-visiting the knowledge base of child pornography and addresses a range of issues including: children's access to pornography; law enforcement and European policy. The article concludes with a number of pertinent questions which need both attention and answers.     

The exploitation of Business Register data from a public sector information and data protection perspective: A case study

Business Registers (BRs) are a very important information resource for investors, creditors, financial institutions and public authorities. The possibility to aggregate and interconnect these data at a European level could enhance the transparency of companies towards those actors and add a great deal of value to the raw Business Register data. The European BRITE project intended to provide adequate tools to meet these demands. BRITE will provide easier access and cross-border interoperability of Business Register data throughout Europe. On the other hand, the processing of BR data within the BRs and BRITE triggers several important European legislations such as the Data Protection Directive and the Directive on the re-use of public sector information. In this paper, the processing of BR data will be analysed from the perspective of both data protection and public sector information laws, analysing as well the relation between both regulations. Do these regulations strike an optimal balance between the interests of private data vendors to re-use BR data and enhance business transparency and the need to protect the personal data of natural persons?     

The Professionalization of Public Accounting: A Social Dilemma Perspective

This study uses a social dilemma model of auditing and a model of cooperative regulatory enforcement to provide a framework within which the evolution of self-regulation in the U.S. accounting profession is studied. From a social dilemma perspective, individual public accounting firms are best off, in a single period sense, by providing a low quality audit product, which is defined in terms of the degree of auditor acquiescence to managers' accounting method discretion. However, firms' collective welfare is maximized by high quality auditing. The cooperative regulatory model employed is premised on the existence of a plausible government threat of punishments and invasive regulations, which motivates self-regulation in an industry. We argue that prior to enactment of the securities acts, public accounting firms faced a social dilemma in which there were limited incentives for high quality auditing either voluntarily or through the establishment of self-regulation. The securities acts provided a plausible threat to which the accounting industry responded by implementing self-regulation in order to avoid invasive and costly government regulation. After the emergence of the accounting profession, there occurred a long period of cooperative regulation with the SEC. Management discretion over accounting methods increased during this time period and audit quality correspondingly decreased, suggesting possible inefficient capture of the SEC. Evidence of an evolution towards a tripartite form of regulation appeared in the 1970s when the SEC and public accounting began to be critically reviewed by Congress. From this time to the present, new regulatory threats have motivated a series of self-regulatory responses by public accounting to improve audit quality.     

The current status of forensic science laboratory accreditation in Europe

Forensic science is gaining some solid ground in the area of effective crime prevention, especially in the areas where more sophisticated use of available technology is prevalent. All it takes is high-level cooperation among nations that can help them deal with criminality that adopts a cross-border nature more and more. It is apparent that cooperation will not be enough on its own and this development will require a network of qualified forensic laboratories spread over Europe. It is argued in this paper that forensic science laboratories play an important role in the fight against crime. Another, complimentary argument is that forensic science laboratories need to be better involved in the fight against crime. For this to be achieved, a good level of cooperation should be established and maintained. It is also noted that harmonization is required for such cooperation and seeking accreditation according to an internationally acceptable standard, such as ISO/IEC 17025, will eventually bring harmonization as an end result. Because, ISO/IEC 17025 as an international standard, has been a tool that helps forensic science laboratories in the current trend towards accreditation that can be observed not only in Europe, but also in the rest of the world of forensic science. In the introduction part, ISO/IEC 17025 states that "the acceptance of testing and calibration results between countries should be facilitated if laboratories comply with this international standard and if they obtain accreditation from bodies which have entered into mutual recognition agreements with equivalent bodies in other countries using this international standard." Furthermore, it is emphasized that the use of this international standard will assist in the harmonization of standards and procedures. The background of forensic science cooperation in Europe will be explained by using an existing European forensic science network, i.e. ENFSI, in order to understand the current status of forensic science in Europe better. The Council of Europe and the European Union approaches to forensic science will also be discussed by looking at the legal instruments and documents published by these two European organizations. Data collected from 52 European forensic science laboratories will be examined and findings will be evaluated from a quality assurance and accreditation point of view. The need for harmonization and accreditation in forensic science will be emphasized. The steps that should be taken at the European level for increasing and strengthening the role of European forensic science laboratories in the fight against crime will be given as recommendations in the conclusion.     

Private roles in food safety provision: the law and economics of private food safety

Private food safety standards play a crucial role in ensuring the safety of the foods we consume. A voluntary instrument, private standards are so widespread to have become de facto mandatory for suppliers who wish to access the most profitable markets. Developed by retailers and business coalitions and enforced through third-party certification, private food safety standards constitute one of the principal food safety governance instruments of agribusiness value chains. Albeit private and voluntary, such standards have profound public implications because they contribute to food safety and protect consumers’ health. This article uses law and economics theory to identify their strengths and vulnerabilities and understand the relationship between public and private regulation. Specifically, it examines whether private standards can fulfill the public interest objective of protecting consumers’ health and whether they compete with or rather complement public regulation. The article argues that private standards have emerged in response to food scares to coordinate complex food value chains and have become ever more relevant in the context of intense market globalization, an area in which public regulation often failed. Among the advantages of private standards, are their flexibility and ability to rapidly respond to new risks. Through their focus on management-based regulation and strong market incentives for producers, private standards promote compliance better than traditional inspection methods. Private standards also present several gray areas including increased risk of capture due to their limited transparency and gaps in enforcement by third-party certifiers. The article suggests areas that deserve additional scrutiny, especially the opacity of standards vis-à-vis consumers and the public sector and the quality and reliability of third party certification.     

Online protection of the child within Europe

This article discusses the online protection available to children and young people within Europe. Children and young people are significant users of information technology and they must be able and comfortable to safely use this technology. The European Union and the Council of Europe have been at the vanguard of attempts to regulate the information society in order to protect young netizens.     

How far can Convention 108+ ‘globalise’? Prospects for Asian accessions

The ‘globalisation’ of Council of Europe data protection Convention 108 through non-European accessions has continued steadily, with eight such accessions since the first in 2013. The ‘modernisation’ of the Convention was completed on 10 October 2018 when the amending protocol for the new ‘Convention 108+’ became open for signature. Any new countries from outside Europe wishing to accede will have to accede to both Convention 108 and the amending Protocol (ie to 108+). The standards required of the laws of acceding countries by 108+ are higher than those required by 108, and are arguably mid-way between 108 and those of the European Union's General Data Protection Regulation (GDPR).This article examines to what extent each of the 26 ‘countries’ (separate jurisdictions) in Asia are likely to be able to accede to 108+, if they wish to. As yet, none have acceded to 108. It proposes an efficient way to consider such a question across such a complex set of jurisdictions. Fifteen of the 26 Asian countries already have data privacy laws, and two others have official Bills for such laws. An assessment of the prospects for accession can be done by considering in order the following grounds which may be impediments to accession: Jurisdictions which are not States; States which are not democratic; Laws of inadequate scope; Laws lacking an independent data protection authority; Laws with substantive provisions falling short of 108+ ‘accession standards’; States with proposed Bills only; and States with no relevant laws or proposed Bills.The most difficult step in this procedure is in deciding which of the substantive provisions of 108+ constitute its ‘accession standards’, or elements essential for accession to be invited. Neither the Convention, nor the guidelines issued by its Consultative Committee, shed much light on this question. However, previous practice under Convention 108, show there is some flexibility involved.The article concludes with suggestions as to how such flexibility can be made more transparent, and observations on which Asian countries, in light of the seven step assessment carried out in the article, are the most likely candidates to be able to accede to 108+, in both the short and medium terms.     

Spaces and Places: A Systems Theory Approach to Regulatory Competition in European Company Law

Abstract:  This article takes issue with the longstanding oppositional themes of harmonisation versus regulatory competition in European company law. Instead of embracing one approach over the other in exclusivity, the article draws attention to the persisting mixture of approaches to an emerging European-wide law regulating the business corporation. Against the background of an ongoing struggle over identifying the goals and taboos of the European legislator's mandate in regulating the company, the argument put forward here is that this very struggle is reflective of the nature of the evolution of company law in an 'integrating Europe and a globalising world'. European attempts of developing European company law as part of a larger initiative of improving the Union's potential for innovation and competition are thus likely to meet with the challenges that contemporary Nation States are facing when adapting their modes of regulation and representation to the demands of an increasingly complex and decentralised fields of market activities. Situating the law of the business corporation within the larger theme of European integration on the one hand, and of issues of market regulation, domestic, transnational, and international, on the other, suggests the adoption of a systems theory-based approach to understanding the boundaries of law in this multilevel and multipolar process.     

A Disabled Market: Free Movement of Goods and Services in the EU and Disability Accessibility

Individuals with a disability who wish to use goods and services can have a variety of specific needs, ranging from accessible written information to standard products and services which have disability accessibility features built into them. In light thereof, this article focuses on the impact which Community law has had, and could potentially have, on ensuring an EU‐wide market in products and services which are accessible to consumers with a disability. The article examines the (possible) impact of a variety of provisions, including the rules relating to the free movement of goods and services (Articles 28 and 49 EC, respectively), the internal market (Articles 94 and 95 EC), non‐discrimination (Article 13 EC), EU citizenship provisions, and the work of the European standardisation bodies such as CEN. The central question throughout the article is does EC law allow for, or discourage, the establishment of mandatory disability accessibility standards at the national or EU level, and have the provisions been used to permit or establish such standards to date?     

Judges as legislators

Among the regulatory measures intended to control the transboundary movement of hazardous waste is the European Community Regulation concerning the Supervision and Control of Shipments of Waste within, into and out of the European Community, 1993, and it is this Regulation, in particular, that this work intends to treat. In this context, the European Parliament's attempts to counteract the weight of economic argument in favour of the conflicting interests of human health and the environment will be examined. Despite international and European Community regulation, it is submitted that double standards in law and practice are continually applied to the transboundary movement of hazardous waste. Emphasis will be placed on both the international and European dilemma of defining hazardous waste.     

Economic incongruities in the European patent system

This article suggests that the consequences of the ??fragmentation?? of the European patent system are more dramatic than the mere prohibitive costs of maintaining a patent in force in many jurisdictions. The prevalence of national jurisdictions, which are highly heterogeneous in their costs and practices, over the validity and enforcement of European patents, induces a high level of uncertainty and an intense managerial complexity which reduce both the effectiveness and the attractiveness of the European patent system in its mission to stimulate innovation.     

Vulnerability as a normative argument for accommodating “justice” within the AFSJ

Vulnerability is a concept that stems from ethics and legal theory. It has progressively gained momentum in international human rights law, in particular in the European contextof the European Court of Human Rights adjudications. Also, the European Union is sensitive to it.By the introduction of competences in the Area of Freedom, Security and Justice (AFSJ) we are witnessing a progressive “vulnerabilisation” of EU law. This article intends in the first place to outline such a problematic notion and then to highlight the normative effects of vulnerability. In particular, this article will put forward the argument that such notion could serve to revamp the profile of “justice” of the AFSJ, which has been neglected so far, calling for the development of a more sophisticated ethics of State duties.     

Evaluating the Audit Explosion

This paper reviews the claim that there has been an audit explosion in recent years and seeks to refine the argument in terms of its institutional and behavioral effects and its underlying causes and consequences. A framework for greater comparative sensitivity is suggested, both in cross-national and cross-sectoral terms, which focuses on variation in the knowledge base, formal organization, and operational dimensions of auditing. Finally, a preliminary framework for evaluating the design of auditing practices is developed that could inform a post-Enron critical discussion of the problems and the potential for auditing in the future.