Tuesday, November 7, 2017

Call for Papers: Slavery Past, Present & Future: 3rd Global Meeting (Berlin July 10, 2018)

Throughout history, slavery (the purchase and sale of human beings as chattel), enslavement (through conquest, and exploitation of indebtedness, among other vulnerabilities), and similar extreme forms of exploitation and control have been an intrinsic part of human societies. 

Is slavery an inevitable part of the human condition?


Controversial estimates indicate that up to 35 million people worldwide are enslaved today.  This modern re-emergence of slavery, following legal abolition over two hundred years ago, is said to be linked to the deepening interconnectedness of countries in the global economy, overpopulation, and the economic and other vulnerabilities of the individual victims and communities.

This conference will explore slavery in all its dimensions and, in particular, the ways in which individual humans and societies understand and attempt to respond to it. 


The varieties of contemporary forms of exploitation appear to be endless.  Consider, for example, enslavement or mere “exploitation” among:


fishermen in Thailand’s booming shrimping industry,
children on Ghana’s cocoa plantations,
immigrant farmworkers on U.S. farms,
truck drivers in the port of Los Angeles.
prostituted women and girls on the streets and in the brothels of Las Vegas,
the dancing boys (bacha bazi) of Afghanistan,
the sex workers of The Netherlands’ Red Light Districts and in Italian cities,
Eritrean and other sub-Saharan Africans fleeing to Israel and trafficked and exploited in the Sinai,
Syrian refugees in Jordan, Turkey, and Lebanon, and
migrant workers from Southeast Asia and other countries who flock to the oil rich Gulf States for work.


Does the persistence and mutations of different forms of extreme human-of-human exploitation mean that the world may not have changed as much as contemporary societies would like to believe since worldwide abolition and the recognition of universal individual and collective human rights?  Like the ‘consumers’ of past eras, such as early industrialization, are we dependent on the abhorrent exploitation of others? 

Potential themes and sub-themes of the conference include but are not limited to:


Defining Slavery: What do we mean when we talk about “slavery”
Using “slavery” to obscure other endemic forms of exploitation
Teaching and learning about historic slavery and contemporary forms of exploitation
Slaveries of the Past
Classical (Egyptian, Greco-Roman, etc.) slavery
Conquests and colonizations – Aboriginal Australians, indigenous peoples of the New World, dividing and colonizing Africa and Asia
Slaveries in Europe before the Trans-Atlantic Slave Trade and Industrialization, such as villeinage and serfdom
Trans-Atlantic Slavery and the trans-Atlantic Slave Trade
Systems of slavery in tribal and traditional societies
WWII and post-WWII forced labor camps
Human Trafficking and other Forms of Contemporary Exploitation
Definitions
Types of human trafficking
Organ trafficking
The focus on sex trafficking: reasons, purpose, effects
Can nation states enslave?
Is human trafficking “slavery”
Contemporary usage and depictions of slavery
Civil society anti-trafficking activism:
   Methodologies
   Effectiveness
Anti-trafficking policies and legislation
Assessing contemporary anti-trafficking and/or anti-“slavery” Initiatives
Systems and Structures of Enslavement and Subordination (historic and contemporary)
Role of slavery in national and global economies
Economic, political, legal structures – their role in enslavement and exploitation
Slavery’s impact on culture
Cultural impacts of historic slavery
Voices of the Enslaved
Slave narratives of the past and present
Descendants’ interpretation of their enslaved and slave-holding ancestors
Legacies of slavery
Identifying and mapping contemporary legacies – economic, social, cultural, psychological
Assessment of slavery’s impact – economic, political, other
Commemorations of enslavers and/or the enslaved
Debating reparations
Anti-slavery movements:
Reparations
Economic compensation
Restorative justice
Teaching and learning about slavery
Relationship to the global racial hierarchy
Abolitionism and law: effects and (in)effectiveness
The role of media and social media


Submissions to this conference are sought from people from all genders and walks of life, including academics (from multiple disciplines, such as art, anthropology, sociology, history, ethnic studies, politics, social work, economics) and non-academics; social workers, activists, and health care professionals; government representatives and policy makers; former slaves and indentured laborers; members of at-risk populations such as migrant and guest workers, non—regularized immigrants, and refugees.  


Conference Committee:
Karen E. Bravo (Indiana University Robert H. McKinney School of Law, IN, USA)
David Bulla (Augusta University, GA, USA)
Sheetal Shah (Webster University, Leiden, The Netherlands)
Polina Smiragina (University of Sydney, Australia)


Submitting Your Proposal


Proposals should be submitted no later than Friday, March 2, 2018 to:


Karen E. Bravo, Indiana University Robert H. McKinney School of Law, Indianapolis: kbravo@iupui.edu
E-Mail Subject Line: Slavery Past Present & Future 3 Proposal Submission
File Format: Microsoft Word (DOC or DOCX)
The following information must be included in the body of the email:
Author(s)
Affiliation as you would like it to appear in the conference program
Corresponding author email address


The following information must be in the Microsoft Word file:
Title of proposal
Body of proposal (maximum of 300 words)
Keywords (maximum of ten)


Please keep the following in mind:


All text must be in Times New Roman 12.
No footnotes or special formatting (bold, underline, or italicization) must be used.


Evaluating Your Proposal
All abstracts will be double-blind peer reviewed and you will be notified of the Organizing Committee’s decision no later than Friday, 16 March 2018.  If a positive decision is made, you will be asked to promptly register online. You will be asked to submit a draft paper of no more than 3000 words by Friday, 01 June 2018.
The conference registration fee is Euro (€) 200. Please note that we are not in a position to provide funding to facilitate your participation.


Publication:
A selection of papers will be published in an edited volume, to be submitted to Brill’s ‘Studies in Global Slavery’ book series.

November 7, 2017 | Permalink | Comments (0)

Friday, October 20, 2017

Constitutional disorder: The perils of the Catalonian crisis in the populist zeitgeist

Today's guest post was written by Ana Cannilla-a doctoral researcher at the University of Readings' School of Law.

 

Events in the Catalonian crisis are unfolding at high speed. Over the last years, demands for greater devolved powers and the call for a referendum seeking independence in Catalonia have encountered several legal and political resistances. Remarkably, the Spanish Constitutional Court watered-down the expansive 2010 reform of the Catalan Statute of Autonomy while alternative channels for a legal consultation have remained unattended – as accurately explained by Andrés Boix Palop´s in the Verfassungsblog and by Elisenda Casanas Adam in the UKConstitutionalLawBlog. In the aftermath of the financial crisis, the pro-independence movement won space in the social arena and, in 2015, parties representing this view gained 47.7% of votes in the plebiscitary elections held in Catalonia. On September 2017, the resulting secessionist majority enacted the Self-Determination Referendum Act -which was immediately suspended by the Spanish Constitutional Court- calling for a referendum on the 1st October. As the international media has informed, the referendum had a considerable turnout of 42%, despite being openly illegal and heavily repressed by the Spanish forces.


But what has happened since the 1-O referéndum? Last Tuesday, and in an atmosphere of absolute uncertainty, the President of Catalonia, Carles Puigdemont, addressed the Catalonian parliament and stated the following: “I hereby assume, in presenting the results of the referendum, the people’s mandate that Catalonia becomes an independent state [sic]”. His words were cheerfully celebrated by the crowd gathered around the Parliament but only briefly since, a few seconds later, Puigdemont stated: “I urge this Parliament to suspend the effect of this declaration in order to open a process of dialogue”. Despite the reasonable confusion upon such curious speech, Catalonia was not independent for those 8 seconds. As provided by article 4 of the Referendum Act -and by basic commitment to the rule of law and separation of powers principles- an unilateral declaration of independence was to be solemnly declared by the Catalonian Parliament. Puigdemont’s declaration had thus no pretension of legal validity - it is clear he has no legitimacy to declare an UDI under the current conditions. Still, in a new turn on the ontology of constitutional law and even before the Parliament’s session had finished, the Constitutional Court announced that the declaration would be nullified the next day.


So far, this has not occurred because the Spanish Prime Minister, Mariano Rajoy, resorted on Wednesday to the article 155 of the Spanish Constitution. This article is twofold: Rajoy must urge Catalonia to comply with the Spanish law and if Catalonia ignores the order, the Spanish Senate will consider the implementation of necessary measures to force the territory to comply with it. For the time being, Rajoy has urged Puigdemont to clarify by next Thursday whether any Catalan authority has or has not declared Catalonia’s independence. A few minutes after the request, the leader of the opposition party, Pedro Sánchez, announced an agreement with Rajoy to reform the Spanish Constitution without giving details on its content and extension. On the same day, the radical left party (CUP) that supports Puigdemont in the Catalan Government threatened to abandon Parliament until independence is declared. Upon this context, it is difficult to foresee how the situation will evolve in the coming days - snap elections in Catalonia, called by Puigdemont or forced by Rajoy through article 155 are a bet on rise.


In any event, such a bewildering situation should not distract us from the extremely alarming scenario behind it. As it is known, Spain suffers a severe economic crisis whose effects are still heavily felt in domestic economies, discontent towards our political leaders is towering and trust in our political institutions is in its lowest levels. In the middle of this situation, reactions to the 1-O referendum reminds us that nationalisms (both Spanish and Catalan) can emerge as the most efficient mechanism of social and political articulation that political leaders can use. Unfortunately, the different demonstrations repeated throughout these days have allowed us to verify that the fact that Spain has not openly witnessed the rise of a far-right party does not mean that the extreme-right is inexistent nor ill-equipped. Indeed, Spain is exemplary in its peaceful demonstrations. Rallies and activities regarding the Catalan issue have developed most of the time untroubled, as shown in the conciliatory demonstration spontaneously called through social media under the motto Hablemos? (Shall we talk?). However, some exceptions are clearly disturbing. Several demonstrations organized by pro-referendum groups have suffered violent attacks by ultra groups, as is the extreme case of Valencia. Ultra-catholic and far-right groups followed eagerly the demonstration for the unity of Spain in which members of the government and the opposition participated. The days prior to the referendum, the far-right besieged an act organized by the left party Podemos in Zaragoza and another concentration in Madrid included Nazi salutes and the Francoist hymn. In an questionable decision, the Government decided during Thursday’s celebration of the Spanish National Day (Columbus Day), and for the first time since 1983, that the military march would include a prominent representation of the national police, whose violent intervention in the Catalan referendum was highly polemical. On the same day, Barcelona suffered new riots from ultra groups. None of these images, together with the lack of strong condemnation from the Spanish Government in the rise of these actions, will help to delegitimize violence and radicalism.


The current situation shows the difficult position in which Spanish political parties are today. While it is obvious that the only solution to the Catalan demand will at some point be a legal referendum (80% Catalans want to vote), Rajoy cannot assume the costs of a transfer of unionist voters to its competitor Ciudadanos. In this sense, sceptics are right to lack faith on the new proposal of a constitutional reform put forward by PP and PSOE. Indeed, a constituent process or a substantial reform of the constitution would be a great chance to solve some of the problems that Spain encounters; but it is unfeasible to complete a reform that satisfies Catalan demands for self-determination or for higher levels of self-government under Rajoy´s mandate. The Spanish Constitution allows two kinds of reforms. Under article 167 (“express” reform), several reforms have been completed in agreement between PP and PSOE before. This article allows for partial reforms of the constitution that do not modify its core sections, such as the “indivisibility of the Spanish nation”. Complete reforms or core reforms (article 168) have never occurred before and as I just mentioned, it is doubtful that it will happen in the short term. In a final ironic turn of the Catalan case for self-determination, the former reform would require a majority vote in the Senate (where PP enjoys absolute majority), while the latter would actually require a national referendum!


In the current situation, thus, there are no easy solutions for the Catalan problem. It is yet to see what will be Puigdemont´s next move on Thursday; and how Rajoy will react to it – both are under high pressure from their supporters and electoral competitors. Despite the many troubles already encountered, and despite the terrible threat that an escalating strategy implies in relation to the Spanish far-right movement, it seems that a dialogue process will not follow shortly. This has only just started.

October 20, 2017 | Permalink | Comments (0)

Monday, October 2, 2017

Wrongful Enrichment: A Study of Comparative Law and Culture (Oxford: Hart)

Dr Nahel Asfour, who has lectured on Private Law and Culture, Property and Restitution Law Theory at the University of Vienna and currently lectures on Remedies Law at Tel-Aviv University as teaching fellow, has recently published a comparative legal study of the doctrine of wrongful enrichment. 

From the publisher:

This book analyzes enrichment law, its development, and underpinning in social culture within three geographical regions: the United States, western members of the European Union, and the late Ottoman Empire. The regions chosen correspond, though imperfectly, with three different legal traditions, namely, the American, continental, and Islamic traditions.

The book argues that we should understand law as a mimetic artefact. In so doing, it explains how typical patterns and exemplary articulations of wrongful enrichment law capture and reiterate vocal cultural themes found in the respective regions. Nahel Asfour identifies remarkable affinities between poetic tendencies, structures, and default dispositions of wrongful enrichment law and cultural world-views. Asfour offers bold accounts of each region's law and culture, providing fertile grounds for external and comparative elucidations of the legal doctrine.

October 2, 2017 | Permalink | Comments (0)

Friday, September 29, 2017

The Spanish Constitutional Tsunami: is a Spectre Haunting Europe? Guest Post by Domenico Giannino

 

The next 1st of October will be a pivotal moment in Spanish constitutional history because of the by now famous Catalan Llei del referèndum d'autodeterminació, which regulates the holding of a binding self-determination referendum on the independence of Catalonia.

This law is the climax of almost ten years of Catalan drift towards independence started with the massive 2010 Catalan autonomy protest. Theodore Roosevelt famously stated that “the more you know about the past, the better you are prepared for the future"; in the case of the Catalan independence referendum, the past is represented by the issues related to the Estatuto de Autonomía de Cataluña. The Catalan statute was approved by the Catalan Parliament on September 2005 with a majority of 88% (only the Spanish Popular Party voted against) and sent to the national Parliament for approval by law. The national legislative assembly strongly amended the act with the result that the Catalan statute was defined, by Professor Roberto Blanco Valdes, apocryphal and the turnout to the confirmative referendum was relatively low.

The icing on the cake was the sentence of the Spanish Constitutional Tribunal n.31/2010 on the Catalan statute, where we find everything and its opposite. Without going into too much legal detail, the restrictive interpretation of the Tribunal of large portions of the Catalan statute – approved with substantial majorities by both the Spanish and Catalan parliaments – was questionable at best. There were very sharp political reactions in Catalonia against this sentence that culminated on the 10th July 2010 in the massive autonomy protest "Som una nació. Nosaltres decidim”. In the following years – as history often repeats itself – it was again the Spanish Constitutional Tribunal who led the ‘Catalan performance’, at least from a legal point of view. In March 2014 the Constitutional Court ruled against the Declaration on the Sovereignty and Right to Decide of the People of Catalonia, recognizing – within the Spanish constitutional framework – the right to decide, which cannot be extended to self-determination. Finally, the court has ruled – on 7 September 2017 – not only to suspend the Catalan referendum law, approved by the parliament of the Generalitat of Catalonia, but also personally to warn the 948 Catalan mayors and 62 senior officials of the Generalitat that they cannot participate in the organization of the referendum.

In 2014 the Catalan government decided to carry on with the referendum transforming it in a process of citizen participation, the results of which were in favour of the independence; however the ridiculously low turnout supports the theory of pro-unity silent majority. The Catalan government these days is clearly showing its intention to go ahead with the 1-O independence referendum.

The legal aspects of the referendum are simpler than the political debate suggests, the Spanish and Catalan governments are clearly fighting a media battle where there is no room for truth. The tension between national police and demonstrators, after the arrest of some Catalan officials, shows that both governments are playing a dangerous game that can easily go out of control.  

However the ‘false truth’ of the Spanish government is supported – whether we like it or not – by strong legal and constitutional grounds.

Firstly in the Spanish legal system calling for a referendum is a competence of the central government, consequently the Catalan government did not have the constitutional power to approve the Llei del referèndum d'autodeterminació. Furthermore even if the referendum had been legal, it would have been only advisory and consultative.

Secondly in International law, even less in EU law, it is quite hard to find rational legal grounds to support this act. As underlined by the constitutional law professor Ismael Peña, this is an unprecedented event and we should not use XX century international law to address XXI century issues. In my opinion the legal system should not be used to solve political problems, a serious and fair political negotiation is the only way out from the Spanish constitutional tsunami.

The Catalan case is opening a totally new scenario in the history of Europe: it is the first time a European region – as the former Commissioner for Human Rights of the Council of Europe, Álvaro Gil-Robles, has stated – acts against the democratic constitutional order of its own State using a referendum which is unconstitutional, unilateral and not recognised by any other State. This may be one of the symptoms of a process of legal ‘glocalisation’, with the States losing their sovereign powers in favour of both supranational organisations and subnational entities. This twofold tendency has been bolstered by the effects of the ongoing economic crisis, as Napoleon has taught as, c’est l’argent qui fait la guerre.

 

This blog is authored by Domenico Giannino, PhD in Public Comparative Law at University of Calabria, Italy; Associate Lecturer at London Metropolitan University, UK; and Law Module leader at Kaplan International College.

September 29, 2017 | Permalink | Comments (0)

Monday, September 25, 2017

The Rise of the Far Right in Germany

Although Angela Merkel retained her Chancellorship in yesterday's German election, the far right (Alternative fuer Deutschland-AfD) party won a remarkable 12.6% of the vote.  According to the preliminary results, the AfD's expected 88 seats in the Bundestag outpace the number of seats won by the other non-dominant parties: FDP (80), Left (69), and the Greens (67).  The party brought 690,000 voters to the polls who had not voted in 2013. 

Unsurprisingly, the AfD did well in the states that formed party of the former East Germany securing 20.5% of the vote in the East and only 10.7% in the West. Early reports cite voters concerns about the benefits that immigrants are drawing while some Germans, most notably those in the eastern states, suffer from high unemployment, small pensions, as well as drug and alcohol problems. Still it would be a mistake to define the party as comprised only of individuals who are doing less well economically. In fact, 39% of party members earn a higher than average income.

It is not a given that the party's rise in support will cause Merkel to dramatically shift the government's current policies. The party's leadership is not cohesive. In fact, one of the party's leaders, Frauke Petry, who lobbied the party to adopt a pragmatic political approach announced today that she would not represent the party in the Bundestag. In addition, when Merkel was asked whether the increase in the AfD's strength would affect Germany's foreign, European, and refugee parties, she replied in the negative. The bigger concern is whether the dissatisfaction with the country's immigration policies will affect the treatment of immigrants on the streets.

September 25, 2017 | Permalink | Comments (0)

Sunday, September 17, 2017

Policing and Terrorism: Guest Post by Dr. Melissa Hamilton

We are pleased to publish this guest post by Dr. Melissa Hamilton. Dr. Hamilton is a Senior Lecturer of Law and Criminal Justice at the University of Surrey School of Law. Her SSRN page may be accessed here.

Recent terrorist acts in the United Kingdom (e.g., Parsons Green tube station; Manchester) and the United States (e.g., Charlottesville; Alexandria) led me to consider the differences between the nations in terms of how they each have empowered (or not) local police officers to prevent terrorism. The focus herein is not on specialized counter-terrorist squads, border patrols, or immigration enforcement. Instead, this discussion concerns search and seizure powers of police officers on the streets when they might encounter potential terrorist activities.


The UK Parliament has afforded street officers special investigatory powers with respect to terrorism that US officials have not. This disparity suggests that in the UK, line officers are more likely seen as having a potential role to play in preventing and investigating illegal activities that rise to the level of terrorism. One wonders why US officials, whether federal or state, have not likewise more prominently embraced the capacity and abilities of local police officers in this respect.

In brief, the UK’s Terrorism Act 2000, as amended, permits police to take certain search and seizure actions that they would otherwise not have the legal ability to perform regarding non-terrorist crimes. These include the following:

• Police may, within a specified area in which a senior officer “reasonably suspects that an act of terrorism will take place,” stop a vehicle, search the vehicle and items within, and search persons in the vehicle. Police may stop and search any pedestrians in the designated area. Such searches are permissible even without any suspicion that the vehicles or persons specifically are involved in terrorist activities or that evidence of terrorism will be found. In addition, within the specified area, an officer may seize any items that the officer “reasonably suspects may constitute evidence” of terrorism.


• Police may cordon off an area designated by a senior officer who “considers it expedient for the purposes of a terrorist investigation” for 14 days and order persons to leave the area, remove vehicles, and prohibit access by pedestrians or vehicles.


• Police may arrest without a warrant a person who is reasonably suspected to be a terrorist. The suspect may be detained for longer periods of time than non-terror arrestees. Under certain circumstances (generally regarding risk of violent retribution or loss of evidence), police may decline to notify the terror suspect’s family or friends of the detention and/or deny the suspect access to counsel.


It appears reasonably likely that similar provisions would be upheld by American courts within the Fourth Amendment’s search and seizure protections. These sorts of targeted rules arguably fall within the United States Supreme Court’s “special needs” doctrine. The Court has approved various exceptions in its Fourth Amendment jurisprudence when authorities are able to justify them as serving important governmental interests.


Examples of approved special-needs types of searches and seizures are drunk driving roadblocks, strip searches of arrestees at jail intakes, and drug tests of US Customs employees. Perhaps more relevant is the Supreme Court’s approval of certain suspicionless searches at the border because of the government’s heightened interest in national security. In another case, the high court in dicta noted that police actions to thwart an imminent terrorist act may justify a warrantless stop and search which would not otherwise be legally permissible in other circumstances.


Importantly, terrorism investigations should no longer be the exclusive domain of specialized and elite counter-terrorism squads. While intelligence gathering of terrorist groups may require targeted training, resources, and technological capabilities, group-based terrorism is not the only concern these days. Lone wolf terrorists are also wreaking havoc in Western countries. Empowering street officers to be able to detect, deter, and investigate all terroristic activities might well justify additional intrusions upon individual privacy and liberty to the greater public benefit.

 

 

 

September 17, 2017 | Permalink | Comments (0)

Friday, August 25, 2017

Conference for "Younger" Comparative Law Scholars - Japan, July 2018

We are pleased to share a link for this conference for the "younger" comparative law scholars among us.

 

http://www.iconnectblog.com/2017/06/call-for-papers-younger-scholars-forum-in-comparative-law-xxth-international-congress-fukuoka-japan-july-25-2018.

August 25, 2017 | Permalink | Comments (0)

Tuesday, August 15, 2017

Puzzling over Big Data and Data Protection Rights in a European Perspective

We are pleased to publish this guest post by Monica Cappelletti, a Post-Doc Researcher, at Dublin City University (DCU).

Puzzling over Big Data and Data Protection Rights in a European Perspective1

The Big Data phenomenon,2 the latest evolution of information and communication revolution, is radically transforming the daily lives of people. At the same time, redefines the relationship between individuals and power, whose definition itself is becoming more and more nuanced and articulated. In this context, we should wonder about the legal notion of Big Data and, consequently, what the impact of this phenomenon is on privacy and data protection rights.

From a technical point of view, Big Data is a type of data that has 4Vs: it is a high-Volume, high-Velocity, high-Value and high-Variety “information assets that demand cost-effective innovative forms of information processing for enhanced insight and decision making."3 In other words, Big Data derives from a complex data analysis process, which leads to varied techniques, such as the use of algorithms, the collection of “all data”, and the opacity of the processing.4

Focusing on the European legal framework and the new General Data Protection Regulation (Regulation EU 2016/679 - GDPR) , it is worth noting three open questions: one regarding the non-expressed definition of Big Data in legal term; another one concerning the consequences on personal data notion; and a third one dealing with the concept of data protection right as a fundamental right.

1. Big Data definition
Although there is no explicit definition of Big Data in the GDPR, it is possible to recover this concept indirectly from the notion of profiling. This “consists of any form of automated processing of personal data evaluating the personal aspects relating to a natural person, in particular to analyze or predict aspects concerning the data subject’s performance at work, economic situation, health, personal preferences or interests, reliability or behavior, location or movements” (recital 71 and article 4, GDPR).5

Given the complexity and the evolutionary nature of Big Data, the EU legislator preferred not to mention or specify this particular type of data as an autonomous one, but instead to focus on activities of the process, more precisely on those activities and analysis that are possible through this data. In some ways, we have been moving from the definition of type of data perspective (personal data, sensitive data, etc.) to the specification of the process approach, that elaborates different categories of data.

This trend of emphasizing the process in order to conceptualize Big Data6 has been confirmed recently by the European Parliament, arguing that “big data refers to the collection, analysis and the recurring accumulation of large amounts of data, including personal data, from a variety of sources, which are subject to automatic processing by computer algorithms and advanced data-processing techniques using both stored and streamed data in order to generate certain correlations, trends and patterns.”7


2. Personal Data definitions and Big Data
The shift towards the process may have an impact on the European traditional categories of data (personal data and sensitive data, articles 4, n.1 and 9, GDPR), that tend to blur. In fact, compared to classification of personal/ sensitive data, we are faced with something innovative. Although Big Data can consist of personal, or even sensitive data, new data categories are emerging, such as observed data, derived data or inferred data. These new categories are generated automatically by technology even if they are linked partially to a person. Consequently, we should wonder what kind of legal guarantees should be implemented in order to ensure the same standard of protection of fundamental rights, whenever these new data categories affect directly individuals’ private life.

Furthermore, the GDPR has specified some peculiar sensitive data, such as genetic and biometric data (article 14, nn. 13 and 14, GDPR). Regarding the latter, it is worth pointing out that this notion is broad enough to include physical and physiological features of a person, as well as behavioral characteristics. In other words, we should reshape the conception of sensitive data, since it seems to identify not only “racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership” (article 9, GDPR), but also what is linked with our behavior as a whole. In this perspective, we should, firstly, delineate what behavior is, and secondly identify the “new” line between what it is sensitive and what is not.

3. Data Protection as a fundamental right
The third open query set is the issue of data protection as a fundamental right, more specifically if it is an autonomous right or a specification of privacy right . Due to the Big Data phenomenon, we should address a different phase in the legal debate. As a matter of fact, the essence of the guarantee should be more centered towards data and right of individuals to protect and control their own personal information, considering that there is a new asymmetry between these two rights. In other words, the axis should be no longer imbalanced in favor of protecting privacy of individuals, but be increasingly in favor of the protection of personal data.

4. Concluding remarks
The multidimensional Big Data phenomenon suggests new and unprecedented fronts in the field of personal data protection. The challenge depends not only on the achievable implementation of privacy by design principles, already embodied in the GDPR, but also on the strengthening of data protection right as an autonomous and distinct fundamental right, providing for specific safeguards and guarantees increasingly.

However, since a large part of information used in Big Data analytics may concern “behavioral information” of people, constitutional and legal solutions (in terms of individuals - rectius data subjects - rights and data security requirements) should coincide with a greater awareness of each person about its rights to control its own data flow in an effective and transparent way.
As freedom of expression had shaped the democratic society, data protection right would be the pillar of future hyper-technological society.

Footnotes

1.  Short summary of the discussion paper presented at the 2017 ICON Annual Conference (University of Copenhagen, 5-7 July 2017).
2. Big Data is currently a hot topic that requires much scrutiny. Consider the everyday news regarding Big Data, for example, such as concerning the use of algorithm in finance or security. Recently, O’Neil, How can we stop algorithms telling lies?, in The Guardian, July 16, 2017, available at https://www.theguardian.com/technology/2017/jul/16/how-can-we-stop-algorithms-telling-lies. Regarding a preliminary legal reflection consider Zeno-Zencovich, Vincenzo, and Giannone Codiglione, Giorgio, Ten Legal Perspectives on the “Big Data Revolution”, 23 Concorrenza e Mercato 2016 (February 1, 2017). - Special Issue on Big Data (F. Di Porto ed.), 29-57, available at SSRN: https://ssrn.com/abstract=2834245.
3. For the 4Vs theory see Iafrate, Fernando, Advances in information systems set. From big data to smart data [2015]. Consider also Information Commissioner’s Office, Big Data, artificial intelligence, machine learning and data protection, 6 [2017], available at https://ico.org.uk/for-organisations/guide-to-data-protection/big-data/.
4. Information Commissioner’s Office describes aspects of big data analytics in Big Data context, see Information Commissioner’s Office, Big Data, artificial intelligence, cit., 10-14.
5. Regarding Big Data and the new Regulation refers to European Commission, The EU Data Protection Reform and Big Data (Factsheet), March 2016, available at http://ec.europa.eu/justice/data-protection/files/data-protection-big-data_factsheet_web_en.pdf.

6. In the European framework there are a lot of definitions of Big Data. However, all these notions point out the “process nature” of it. Refer to the European Data Protection Supervisor, Opinion 7/2015, Meeting the challenges of big data, 19 November 2015, 7. Recently, ID., Opinion 8/2016, EDPS Opinion on coherent enforcement of fundamental rights in the age of big data, 23 September 2016. Consider also that one of the Article 29 Data Protection Working Party, Statement of the WP29 on the impact of the development of big data on the protection of the individuals with regards to the processing of their personal data in the EU, adopted on 16 September 2014. Lastly, it is remarkable to mention that even the Council of Europe has recently adopted Guidelines on the protection of individuals with regards to the processing of personal data in a world of Big Data (T-PD(2017)01), Strasbourg, 23 January 2017.

7. European Parliament, Fundamental rights implications of big data. European Parliament resolution of 14 March 2017 on fundamental rights implications of big data: privacy, data protection, non-discrimination, security and law-enforcement (2016/2225(INI)), P8_TA-PROV(2017)0076 (Provisional Edition), March 17, 2017.
8. Information Commissioner’s Office, Big Data, artificial intelligence, cit., 12-14.
9. Biometric data definition according the GDPR “biometric data means personal data resulting from specific technical processing relating to the physical, physiological or behavioral characteristics of a natural person, which allow or confirm the unique identification of that natural person, such as facial images or dactyloscopic data” (article 4, n. 14, Regulation (EU) 2016/679).

10. In the EU context privacy right and data protection right are expressly recognized by articles 7 and 8 of the EU Charter of Fundamental Rights. There is a wide legal debate regarding autonomous or separated nature of these rights; among different comments, please refers to Lynskey, Orla, The Foundations of EU Data Protection Law, Oxford University Press, 2015; Tzanou, Maria, Is Data Protection the Same as Privacy? An Analysis of Telecommunications’ Metadata Retention Measures, 17(3) Journal of Internet Law, 2013, 20-33.

August 15, 2017 | Permalink | Comments (0)

Thursday, August 3, 2017

Call for Comparative Law Syllabi

For all of you who have taught Comparative Law, if you would be willing to share your syllabus, I'd be most grateful! I'm slated to teach the course this fall and have elected to use the Glendon et al. casebook, but I'm not entirely satisfied with the coverage. In particular, I've taught Japanese Law in the past and have found it greatly beneficial to my students the discussions the course raised about cultural attitudes toward the rule of law, socio-cultural and religious influences on the law's treatment of minorities, women, family law, separation between church and state, and so on. I don't know that these subjects have been covered in as much depth in the Comparative Law casebooks currently available, so I would welcome all suggestions!!!

August 3, 2017 | Permalink | Comments (1)

Tuesday, July 18, 2017

Book Announcement: The Foundations and Traditions of Constitutional Amendment

Hart Publishing has released a new book as a part of the Hart Series in Comparative Public Law entitled THE FOUNDATIONS AND TRADITIONS OF CONSTITUTIONAL AMENDMENT. Editor(s): Richard Albert, Xenophon Contiades, Alkmene Fotiadou.

From the book announcement: 

There is growing interest in constitutional amendment from a comparative perspective. Comparative constitutional amendment is the study of how constitutions change through formal and informal means, including alteration, revision, evolution, interpretation, replacement and revolution. The field invites scholars to draw insights about constitutional change across borders and cultures, to uncover the motivations behind constitutional change, to theorise best practices, and to identify the theoretical underpinnings of constitutional change.

This volume is designed to guide the emergence of comparative constitutional amendment as a distinct field of study in public law. Much of the recent scholarship in the field has been written by the scholars assembled in this volume. This book, like the field it hopes to shape, is not comparative alone; it is also doctrinal, historical and theoretical, and therefore offers a multiplicity of perspectives on a subject about which much remains to be written.

This book aspires to be the first to address comprehensively the new dimensions of the study of constitutional amendment, and will become a reference point for all scholars working on the subject. The volume covers all of the topics where innovative work is being done, such as the notion of the people, the trend of empirical quantitative approaches to constitutional change, unamendability, sunrise clauses, constitutional referenda, the conventional divide between constituent and constituted powers, among other important subjects. It creates a dialogue that cuts through these innovative conceptualisations and highlights scholarly disagreement and, in so doing, puts ideas to the test. The volume therefore captures the fierce ongoing debates on the relevant topics, it reveals the current trends and contested issues, and it offers a variety of arguments elaborated by prominent experts in the field. It will open the way for further dialogue.

Hart

 

July 18, 2017 | Permalink | Comments (0)

Thursday, July 13, 2017

The Death of Nobel Prize Winner Liu Xiaobo

      China's Nobel Peace Prize winner and political prisoner, Liu Xiaobo, died Thursday. Liu was first imprisoned following the pro-democracy protests in Beijing's Tiananmen Square. Following those protests, the Chinese government killed untold numbers of individuals and imprisoned hundreds for crimes linked to the demonstrations.

       Despite that initial imprisonment, Liu continued to advocate for human rights, freedom of expression, and an independent judiciary. He was imprisoned three more times and spent his final days in a hospital after being diagnosed with advanced liver cancer.

       Liu is only the second winner of the Noble Peace Prize to die while being held in prison. The first was Carl von Ossietzky, who died in a German prison in 1938 while serving a sentence for opposing  Hitler's Nazi regime.

July 13, 2017 | Permalink | Comments (0)

Tuesday, July 11, 2017

Top Ten Recent SSRN Downloads for Comparative Law

 

    Rank        Downloads
1

Between Universalism and Regional Law and Politics: A Comparative History of the American, European and African Human Rights Systems
Alexandra Valeria Huneeus and Mikael Rask Madsen

University of Wisconsin Law School and University of Copenhagen - iCourts - Centre of Excellence for International Courts
Date Posted: 29 May 2017
Last Revised: 08 Jul 2017

 160

 

 2

Chinese Constitutionalism: An Oxymoron?
Wen-Chen Chang and David S. Law

National Taiwan University College of Law and Washington University in St. Louis - School of Law
Date Posted: 02 Jun 2017
Last Revised: 05 Jun 2017

 130
 3

How a Court Becomes Supreme
Richard Albert

Boston College - Law School
Date Posted: 30 May 2017
Last Revised: 30 May 2017

 123
 4

Determining the Territorial Scope of State Law in Interstate and International Conflicts: Comments on the Draft Restatement (Third) and on the Role of Party Autonomy
Hannah L. Buxbaum

Indiana University Bloomington Maurer School of Law
Date Posted: 17 May 2017
Last Revised: 17 May 2017

 116
 5

Qualitative Methods for Law Review Writing
Katerina Linos and Melissa Carlson

University of California, Berkeley - School of Law and University of California, Berkeley, College of Letters & Science, Charles and Louise Travers Department of Political Science, Students
Date Posted: 07 Jun 2017
Last Revised: 10 Jun 2017

 114
 6

The Political Economy of Chinese Bilateral Investment Treaty Policy
Tyler Cohen and David Schneiderman

Paul, Weiss, Rifkind, Wharton & Garrison LLP and University of Toronto - Faculty of Law
Date Posted: 11 May 2017
Last Revised: 11 May 2017

  93
 7

How to Regulate the Regulators: Applying Principles of Good Corporate Governance to Financial Regulatory Institutions
Hadar Yoana Jabotinsky and Mathias M. Siems

Hebrew University of Jerusalem - Faculty of Law and Durham University - Durham Law School
Date Posted: 02 Jun 2017
Last Revised: 02 Jun 2017

  93
 8

EU Company Law Harmonization Between Convergence and Varieties of Capitalism
Martin Gelter

Fordham University School of Law
Date Posted: 01 Jun 2017
Last Revised: 16 Jun 2017

  91
 9

Land Law and Limits on the Right to Property: Historical, Comparative and International Analysis - LSGL Human Rights Group Paper
Yiğit Sayın, Amnon Lehavi, Bertil Emrah Oder, Murat Onok, Domenico Francavilla, Victor Torre de Silva and Dean Sudarshan

Koc University, Interdisciplinary Center Herzliyah - Radzyner School of Law, Koc University, Koc University, University of Torino, Instituto de Empresa and OP Jindal Global University - Jindal Global Law School (JGLS)
Date Posted: 23 May 2017
Last Revised: 29 May 2017

  89
10

Corporate Governance of SIFI Risk-Taking: An International Research Agenda
Steven L. Schwarcz and Aleaha Jones

Duke University School of Law and Duke University, School of Law, Students
Date Posted: 23 May 2017
Last Revised: 07 Jul 2017

  81
 

 

July 11, 2017 | Permalink | Comments (0)

Tuesday, May 16, 2017

Digital Boundlessness and Legal Boundaries: Cyberattacks and the Need to Rethink Legal Categories

We are happy to publish this timely guest post by Pietro Ortolani who is a Senior Fellow at the Max Planck Institute Luxembourg for International, European, and Regulatory Procedural Law.

The Attack

On 12 May 2017, over 230,000 computers all over the world were infected by WannaCry, a virus encrypting the users’ files and demanding a ransom in bitcoin. The virus is based on a malicious piece of software, developed by the Equation Group (widely thought to be affiliated to the U.S. National Security Agency) and later stolen by a hacker group called ‘the shadow brokers’. The attack hit not only private users, but also national service providers such as the National Health Service in the UK and Deutsche Bahn in Germany. The purpose of this post is to offer some brief reflections on the increasing inadequateness of our traditional legal categories in the face of events like this, and the need to re-think the role of the law as a tool of State governance in times of digital globalization. 

A disruption of traditional legal boundaries

As a result of the global interconnectedness made possible by the Internet, conceptual legal boundaries such as private/public and national/international lose a lot of their explanatory purchase. Not only does digital globalization evince the growing untenability of the Westphalian representation of the world as a juxtaposition of self-contained national legal system; more interestingly, events like the recent cyberattack demonstrate the obsolescence of the legal tools we traditionally use to address cross-border phenomena, such as judicial cooperation or private international law. What national authorities should have jurisdiction to prosecute a crime with no substantial territorial link and an instantaneous random worldwide outreach? What forum should have jurisdiction for claims in tort arising out of similar events?

In the EU, the emergence of cyber torts has already demonstrated the inadequacy of criteria for the allocation of jurisdiction developed before the digital age. Criteria such as territoriality, which for a long time have been crucial for the allocation of jurisdiction among States, today are likely to result in chaotic overlaps.

Events such as the WannaCry attack highlight the urgent need to change our approach to the law as a tool of governance in an increasingly globalized world. 

The need to re-think the role of law

These basic observations suggest that States should radically re-think the way they react to cybersecurity threats, and more generally to transnational social phenomena. The central and quasi-monopolistic role that the State plays in our conception of both domestic and international law presupposes the existence of strong public regulatory powers, in respect of which private actors are (to borrow Jedediah Purdy’s words) ‘a plastic object of regulation’. The habit itself to refer to ‘the State’ as an abstract and idealized sovereign entity demonstrates how such a way of world making fundamentally shapes the thinking of both domestic and international lawyers. Globalization (of both trade and investment capital flows, and digital communications) challenges this cluster of institutional and ideological premises, and forces us to find new solutions, demonstrating the need for cooperation along two main axes: State-State and State-private.

From the first point of view, it is increasingly unconceivable for single States to react to such phenomena unilaterally, without a global coordination of efforts relying on basic shared policy choices. Such cooperation will probably need to go beyond the current framework of the Budapest Convention, whose territorial scope of application remains mainly limited to Western democracies. From the second point of view, these global events confirm the relevance of the problem of societal constitutionalism, exposing how multinational corporations (e.g. developers of operative systems) enable the provision of fundamental services and provide timely solutions, in a way that States (even with coordinated efforts) could not do alone.

In a nutshell, the most evident lesson we can draw from the WannaCry events is that the diffusion of digital technology on a global scale forces all States to cooperate not only with one another, but also with non-State actors whose embeddedness in different social systems blur the boundary between public and private. In other words, regulatory reactions to cyberattacks are likely to be effective only inasmuch as they are transnational, reflecting policy options widely shared by both public and private actors.

The need for States to re-imagine their role as global regulators is unavoidably mirrored by a similar challenge for us, for jurists. We must change the way we think about the law, and our position as lawyers, beyond the paradigm of State authority. Potentially, the transnationalization of law as a social science may force us to radically re-design the way we teach and learn our discipline in Universities, and the way we use legal categories in our professional and intellectual life. For lawyers, the digital revolution seems to trigger more questions than answers.

 

May 16, 2017 | Permalink | Comments (0)

Wednesday, April 26, 2017

Top Ten Recent SSRN Downloads for Comparative Law

1 260 The Trajectory of American Corporate Governance: Shareholder Empowerment and Private Ordering Combat
Jennifer G. Hill
University of Sydney - Faculty of Law
Date posted to database: 22 Feb 2017
Last Revised: 15 Mar 2017
2 252 Choice of Law in the American Courts in 2016: Thirtieth Annual Survey
Symeon C. Symeonides
Willamette University - College of Law
Date posted to database: 17 Feb 2017
Last Revised: 27 Feb 2017
3 177 Statutory Divestiture of Tribal Sovereignty
Matthew L. M. Fletcher
Michigan State University College of Law
Date posted to database: 22 Feb 2017
Last Revised: 11 Apr 2017
4 173 Massively Discretionary Trusts
Lionel Smith
McGill University, Faculty of Law, Paul-André Crépeau Centre for Private and Comparative Law
Date posted to database: 16 Mar 2017
Last Revised: 19 Apr 2017
5 112 What Does It Mean to Compare, and What Should It Mean?
Christopher McCrudden
Queen's University Belfast - School of Law
Date posted to database: 10 Mar 2017
Last Revised: 17 Mar 2017
6 94 Dual Sovereignty in Europe? A Critique of Habermas's Defense of the Nation-State
Vlad Perju
Boston College - Law School
Date posted to database: 15 Mar 2017
Last Revised: 15 Mar 2017
7 90 Going Global? Canada As Importer and Exporter of Constitutional Thought
Ran Hirschl
University of Toronto
Date posted to database: 22 Mar 2017
Last Revised: 22 Mar 2017
8 89 Proportionality and Stare Decisis: Proposal for a New Structure
Vlad Perju
Boston College - Law School
Date posted to database: 25 Feb 2017
Last Revised: 10 Mar 2017
9 88 Hohfeldian Analysis, Liberalism and Adjudication (Some Tensions)
Pierre Schlag
University of Colorado Law School
Date posted to database: 29 Mar 2017
Last Revised: 8 Apr 2017
10 87 Governance Challenges of Listed State-Owned Enterprises Around the World: National Experiences and a Framework for Reform
Curtis J. Milhaupt and Mariana Pargendler
Columbia Law School and Fundação Getulio Vargas Law School at São Paulo
Date posted to database: 29 Mar 2017
Last Revised: 24 Apr 2017

 

April 26, 2017 | Permalink | Comments (0)

Friday, April 21, 2017

Outrageous Torture of Gay Men In Chechnya

Despite much of the negative optics surrounding the current administration's foreign policy, this week, Nikki Haley, U.S. Ambassador to the U.N. condemned reports of Chechnya's ongoing torture of gay men. Amidst reports of widespread torture as well as the imprisonment, Ambassador Haley stated, “We are against all forms of discrimination, including against people based on sexual orientation. . . When left unchecked, discrimination and human rights abuses can lead to destabilization and conflict."

While Chechen President Ramzan Kadyrov has repeatedly denied reports of abuse and torture, a growing list of international organizations have condemned the government-promoted actions occurring in Chechnya.

 

April 21, 2017 | Permalink | Comments (0)

Monday, March 27, 2017

Top Ten Recent SSRN Downloads for Comparative Law

Rank Downloads Paper Title
1 316 Freedom of Information Beyond the Freedom of Information Act
David Pozen
Columbia Law School
Date posted to database: 1 Feb 2017
Last Revised: 27 Feb 2017
2 289 The Basic Governance Structure: The Interests of Shareholders as a Class
John Armour, Luca Enriques, Henry Hansmann and Reinier Kraakman
University of Oxford - Faculty of Law, University of Oxford Faculty of Law, Yale Law School and Harvard Law School
Date posted to database: 26 Jan 2017
Last Revised: 14 Mar 2017
3 222 The Trajectory of American Corporate Governance: Shareholder Empowerment and Private Ordering Combat
Jennifer G. Hill
University of Sydney - Faculty of Law
Date posted to database: 22 Feb 2017
Last Revised: 15 Mar 2017
4 211 Choice of Law in the American Courts in 2016: Thirtieth Annual Survey
Symeon C. Symeonides
Willamette University - College of Law
Date posted to database: 17 Feb 2017
Last Revised: 27 Feb 2017
5 173 Statutory Divestiture of Tribal Sovereignty
Matthew L. M. Fletcher
Michigan State University College of Law
Date posted to database: 22 Feb 2017
Last Revised: 22 Feb 2017
6 137 Imposed Constitutions with Consent?
Richard Albert
Boston College - Law School
Date posted to database: 4 Feb 2017
Last Revised: 4 Feb 2017
7 137 Transnational Legal Ordering and Regulatory Conflict: Lessons from the Regulation of Cross-Border Derivatives
Hannah L. Buxbaum
Indiana University Bloomington Maurer School of Law
Date posted to database: 25 Jan 2017
Last Revised: 25 Jan 2017
8 108 Massively Discretionary Trusts
Lionel Smith
McGill University, Faculty of Law, Paul-André Crépeau Centre for Private and Comparative Law
Date posted to database: 16 Mar 2017
Last Revised: 16 Mar 2017
9 96 The Modular Approach to Micro, Small, and Medium Enterprise Insolvency
Ronald B. Davis, Stephan Madaus, Alberto Mazzoni, Irit Mevorach, Riz Mokal, Barbara J. Romanine, Janis P. Sarra and Ignacio Tirado
University of British Columbia (UBC) - Faculty of Law, Martin-Luther-University Halle-Wittenberg, Catholic University of Milan, University of Nottingham, South Square Chambers, Alberta Court of Queen's Bench, University of British Columbia (UBC), Faculty of Law and Universidad Autónoma de Madrid
Date posted to database: 26 Jan 2017
Last Revised: 26 Jan 2017
10 93 The Administrative State and Its Law
Michael Greve
George Mason University - Antonin Scalia Law School, Faculty
Date posted to database: 24 Jan 2017
Last Revised: 24 Jan 2017




March 27, 2017 | Permalink | Comments (0)

Monday, March 20, 2017

Top Ten Recent SSRN Downloads for Comparative Law

RECENT TOP PAPERS for all papers first announced in the last 60 days
19 Jan 2017 through 20 Mar 2017

Rank Downloads Paper Title
1 307 Freedom of Information Beyond the Freedom of Information Act
David Pozen
Columbia Law School
Date posted to database: 1 Feb 2017
Last Revised: 27 Feb 2017
2 270 The Basic Governance Structure: The Interests of Shareholders as a Class
John Armour, Luca Enriques, Henry Hansmann and Reinier Kraakman
University of Oxford - Faculty of Law, University of Oxford Faculty of Law, Yale Law School and Harvard Law School
Date posted to database: 26 Jan 2017
Last Revised: 14 Mar 2017
3 203 Choice of Law in the American Courts in 2016: Thirtieth Annual Survey
Symeon C. Symeonides
Willamette University - College of Law
Date posted to database: 17 Feb 2017
Last Revised: 27 Feb 2017
4 168 Statutory Divestiture of Tribal Sovereignty
Matthew L. M. Fletcher
Michigan State University College of Law
Date posted to database: 22 Feb 2017
Last Revised: 22 Feb 2017
5 161 The Trajectory of American Corporate Governance: Shareholder Empowerment and Private Ordering Combat
Jennifer G. Hill
University of Sydney - Faculty of Law
Date posted to database: 22 Feb 2017
Last Revised: 15 Mar 2017
6 146 Comparative Contract Law and Development: The Missing Link?
Mariana Pargendler
Fundação Getulio Vargas Law School at São Paulo
Date posted to database: 17 Jan 2017
Last Revised: 22 Jan 2017
7 132 Transnational Legal Ordering and Regulatory Conflict: Lessons from the Regulation of Cross-Border Derivatives
Hannah L. Buxbaum
Indiana University Bloomington Maurer School of Law
Date posted to database: 25 Jan 2017
Last Revised: 25 Jan 2017
8 130 Imposed Constitutions with Consent?
Richard Albert
Boston College - Law School
Date posted to database: 4 Feb 2017
Last Revised: 4 Feb 2017
9 92 The Modular Approach to Micro, Small, and Medium Enterprise Insolvency
Ronald B. Davis, Stephan Madaus, Alberto Mazzoni, Irit Mevorach, Riz Mokal, Barbara J. Romanine, Janis P. Sarra and Ignacio Tirado
University of British Columbia (UBC) - Faculty of Law, Martin-Luther-University Halle-Wittenberg, Catholic University of Milan, University of Nottingham, South Square Chambers, Alberta Court of Queen's Bench, University of British Columbia (UBC), Faculty of Law and Universidad Autónoma de Madrid
Date posted to database: 26 Jan 2017
Last Revised: 26 Jan 2017
10 84 The Administrative State and Its Law
Michael Greve
George Mason University - Antonin Scalia Law School, Faculty
Date posted to database: 24 Jan 2017
Last Revised: 24 Jan 2017




March 20, 2017 | Permalink | Comments (0)

Thursday, January 19, 2017

Guest Post: Brexit and Its Consequences

We are pleased to publish this guest post by  Tom McDonnell who is a Professor of Law at the Elisabeth Haub School of Law at Pace University.

The United Kingdom vote last June to leave the European Union shocked then UK Prime Minister David Cameron, the so-called London elites, a large portion of the UK public, and the other EU countries. Brexit also presaged the success of Donald Trump in the United States. Theresa May, installed as UK Prime Minister in Cameron’s place, is now talking about a “hard Brexit” and is saying that she soon wishes to invoke article 50 of the Lisbon Treaty, the EU exit provision.

The Referendum

On January 7 at the Annual Meeting of American Law Schools in San Francisco, a panel of experts analyzed Brexit and its likely consequences. Darren Rosenblum, a professor at Pace University’s Elisabeth Haub School of Law, questioned the wisdom and validity of making such a momentous decision by a narrowly passed referendum. The vote was 51.9 percent to 48.1 percent. Timothy Nelson, a partner at the law firm of Skadden, Arps, observed that the 51.9 percent majority represents about 37 percent of UK voters, from mostly the British equivalent of US’s flyover states.  He criticized the manner in which the referendum was worded, comparing it to the Pepsi versus Coke test, but leaving out the Coke.  The wording looks facially neutral:  “Should the United Kingdom remain a member of the European Union or leave the European Union?”  His point appears to be that the question hardly helped the voter to understand the consequences of the choice.

Trade

From a trade perspective, Attorney Nelson and Roger Goebel, a Fordham Law School professor, noted that, on leaving the European Union, the UK would lose its free trade rights with the other 27 European Union members, and its goods and services would be subject to an average 4 percent tariff under the World Trade Organization. They predicted, as others have, that this result would deleteriously affect London’s finance and banking industry. Professor Goebel believed that EU organizations in the UK, organizations that employ a considerable number of Britons, would be transferred to other EU states. He did characterize as “good news” that Britons working in EU institutions in other parts of the EU apparently will not be discharged.

 Racism and Immigration

A member of the panel criticized the Brexit vote as stemming from racism, particularly towards immigrants. Hate crimes were reported to be up 57  percent in the UK within four days of the vote. While more immigrants have moved to the UK, Attorney Nelson observed that thousands of Britons moved to other EU countries. Some commentators have noted that when the EU expanded to admit poorer countries like Poland, which paid their workers on average far less than more developed EU states, unsurprisingly a large number of people from the poorer countries immigrated to wealthier EU jurisdictions, like the UK.  Since 2004 when Poland was admitted, more than 800,000 Poles have moved to the United Kingdom, with 65 million inhabitants.  Professor Goebel predicted that the EU in the future will limit free immigration among the EU member countries.

Scotland and Northern Ireland

Attorney Nelson noted that Scotland voted by 62 percent to remain in the EU and Northern Ireland so voted by 56 percent.  He predicted that should there be a “hard Brexit,” Scotland would likely move towards independence.  Both Scotland and Northern Ireland have sought to participate in the case, discussed below, questioning the government’s power to leave the EU.

 The United Kingdom Supreme Court

A lawsuit pending in the UK Supreme Court has challenged the Prime Minister’s authority to invoke article 50 without first obtaining the consent of Parliament. The British High Court (which is below the UK Supreme Court) ruled in November that the British ministers did not have the executive power to invoke article 50.  The government appealed to the UK Supreme Court, which just announced that it will deliver its judgment next Tuesday, January 24. Should the UK Supreme Court affirm, it is expected that Parliament will nonetheless vote to leave the EU. A British law professor in the audience at the panel discussion urged the Conservative Party leadership to let the members of Parliament vote their conscience rather than hold them to the party line. He believed that a Parliament vote of conscience would result in the UK staying in the EU.

            Nothing seems certain about Brexit’s consequences except uncertainty. Brexit does harken back to rising nationalism, mistrust of elites, and, at a minimum, a discomfort with “the other.” As in the United States, governments need to address the economic impact of deindustrialized communities and the displacement of the average worker by automation and outsourcing while at the same time stemming attitudes and policies of exclusion and racial, ethnic, and nationality discrimination.

January 19, 2017 | Permalink | Comments (0)

Friday, January 13, 2017

New Book for Spanish-English Speaking Lawyers

Lawyers who speak both Spanish and English may be interested in a new book written by Professors S.I. Strong of the University of Missouri, Katia Fach Gómez of the University of Zaragoza and Laura Carballo Piñeiro of the University of Santiago de Compostela.  Comparative Law for Spanish-English Lawyers: Legal Cultures, Legal Terms and Legal Practices / Derecho comparado para abogados anglo- e hispanoparlantes: Culturas jurídicas, términos jurídicos y prácticas jurídicas (Edward Elgar Publishing Ltd., 2016), is an entirely bilingual text that seeks to help those who are conversationally fluent in a second language achieve legal fluency in that language. 

The book, which is aimed primarily at private international and comparative lawyers, is appropriate for both group and individual study, and provides practical and doctrinal insights into a variety of English- and Spanish-speaking jurisdictions.  The book is available in both hard copy and electronic form, and Elgar is currently offering a discount on website sales.  See http://www.e-elgar.com/shop/comparative-law-for-spanish-english-lawyers for more  information.

January 13, 2017 | Permalink | Comments (0)

Sunday, January 1, 2017

Guest Post: Racism in India

We are pleased to publish this guest post by Dr. Nafees Ahmad,LL.M, Ph. D. Professor Ahmad is an Indian national who holds a Doctorate (Ph.D.) in International Refugee Law and Human Rights from the Aligarh Muslim University of India.

Racism in India: Equality Constitutionalism and Lego-Institutional Response

Introduction

The 20th century has witnessed an agenda consisting of Left and liberal Left advocacy of international human rights alongside the liberal internationalism and an entrenched anti-state rhetoric. One of the most important U.S. advocates of international human rights towards the end of the preceding century Louis Henkin opines: “ours is the age of rights”. Therefore, human right is an inalienable part of equality constitutionalism across the geo-political spectrum. The pedigree of modern idea of human rights emanates from the 19th century to protect ethnic, racial and religious minorities and fight against racism and hate crimes. Minorities’ treaties under League of Nations and instruments of International Labour Organization are the testimony to substantiate the world commitment to curb and eliminate racism in its all forms. Further, United Nations Organizations (UNO), other Inter-governmental Organizations along with many individuals of international standing like Eleanor Roosevelt (US) and Hansa Mehta (India) immensely contributed in promoting and propagating the philosophy of human right and gender equality as the core element in law-making.        

Racism is a reality and it is being perennially practiced and blatantly bloated in all societies across the geo-political spectrum in World Wide Web of equality, liberty and fraternity. Racism attacks all-encompassing normative system and erodes all aspects of human values in life. Primarily, racism is the most callous and conspicuous negation of human equality ordained by the collective wisdom in divinities, spiritualties and mundanities. However, the citadels of racism are still alive and kicking in every nook and corner of the world and India is not an exception. Despite the fact, India has been a victim since its existential history of staggering stages of colonialism and imperialism whereunder racism was the inalienable part of governance trajectory. Though, today Indians in US, UK, Canada, Australia and other parts of the world are being subjected to racial crimes attributable to the emerging trends of far right-wing political discourse in these countries. Even then India is still indulges with this profane practice with impunity. India is blessed with great diversity consisting of 29 States (Provinces) and 7 Union Territories (Federally Administered Provinces). India promotes “unity in diversity” shibboleth and prides its multi-culturalism and pluralism. As per government record, there are five major races in India such as Australoid, Mongoloid, Europoid, Caucasian, and Negroid who get proportionate representation in all walks of national life in India.

Gender Equality and Constitution of India

The scenario of the present day state of gender inequalities in every walk of life is clearer than ever. Human rights are social institutions and concern the quality of social relationships, economic equities and Institutional Justicialism within the gamut of common heritage of humankind and Justicial Developmentalism. The existence of human rights encourages individuals to demand more and more for themselves with little regard for how these demands may be met or who may be expected to provide for them contrary to their ostensive onus and ontology. In the world of gender parity, the situation has attained appalling proportions as women perform more than 67% hours of work but eke out only 10% of world’s income and own only 1% of the world’s property. Women get 30-40% less than men for an equal volume of work despite the fact that they hold 10-20% administrative and managerial positions. They also make up 5% of the heads of states. But, unfortunately, 70% of the 1.2 billion people living in poverty are female. 60% of the 130 million children in the age group of 6-11 years, who do not go to school, are girls. The women constitute 67% of the world’s 875 million illiterate adults and 3 out of 5 women are illiterate in South Asia. Globally speaking, there are 50% women out of all people living with HIV/AIDS. Approximately, 35% women worldwide have been subjected to either physical or sexual intimate partner violence or sexual violence by a non-partner at some stage of their lives. However, few national studies reveal that around 70% of women have been physically or sexually abused by their intimate partners.  

The Constitution of India is a document of high endowments that bequests civil liberties and human freedoms to all Indians to lead their lives in peace and harmony. Articles 14 and 15 are the most important guarantees ever envisaged by the Constitution of India whereunder Right to Equality that addresses the issues of discrimination and provide equal protection of laws in India and Article 14 further confers the Right to Equality before the law and equal protection of laws throughout the territory of India and Article 15 prohibits the discrimination on the grounds of religion, race, caste, sex or place of birth. However, the biggest irony against the menace of racism is that these rights are available to the citizens of India but only against the Indian State and not against the discrimination that is practiced and committed by private individuals. Moreover, Article 16 stipulates the equality of opportunity to all citizens of India. Further, Article 39 (a) gives rights relating to the means of livelihood sans discrimination.

There are slew of other legislations enacted under the Constitution of India exclusively designed to safeguard equality and protection against racial discrimination such as The Criminal law (Removal of Racial Discrimination Act, 1949), Protection of Civil Rights Act, 1955, The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Protection of Human Rights Act, 1993. In India, the instances of racial discrimination are manifested by resorting to utter some cusswords or swearwords like “Habshi (Carnivorous)”, “Pagal (Crazy), “Kalia (Black)”, “Monster”, “Chutia (Moron)”, “Chini-Mini (From China)” and “Chinkies (Chinese like)” against people from countries of Africa, Afro-Asia and North-East India. Therefore, in 2012 government of India recommended that all states notify the term “Chinki(es)” as an offence under The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Section 153 of the Indian Penal Code, 1860. The Constitution of India succors the country organize itself as a single geo-political entity wedded with the core principles of human rights, diversity, federalism, pluralism and multi-culturalism.

Racial Discrimination in India and International Law

The principle of non-discrimination is fundamental to international law in its all visages. The etiology of racism and racial hara-kiri is the sham similarity of the human body with the personality. This etiology of racism germinates a misconception that gestates and generates a compendium of conflicts of ethnic, gender, religious and sexual orientations. Individually, human body is blessed with a multitude of features and characteristics that are attributed to the human body based on these sham similarities. These attributions and imputations create impediments and mistrust among the human relationships in a diversity-driven society like India or elsewhere. Under International Law prohibition of racial discrimination has been ensured in all nine core international human rights treaties and International Court of Justice (ICJ) opined in Barcelona Traction Case (Belgium v. Spain, 1970) that “prohibition of racial discrimination” constitutes an erga omnes obligation (a legal obligation which all states have an interest in ensuring). Therefore, the 1965 UN Convention on Elimination of All Forms of Racial Discrimination (CERD) defines “racial discrimination” as any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. Non-discrimination and equality before the law and of the law, according to UNO, constitute fundamental principles of international human rights law. Therefore, since 1967 India is also a party to CERD and it cannot back out from its international human rights obligations under Article 53 of the 1969 UN Convention on Law Treaties (VLCT). Thus, principle of non-discrimination postulates that all states must treat their citizens, subjects and nationals with equality before the law and must provide equal protection of laws.

The constitutional consolidation of rights has immensely immortalized the idea of equality which ultimately internationalized the paradigm of equality as human right. In the capitalist paradigm that operates in the USA, equality as human right can be understood in terms of economic, social and cultural rights as well civil and political rights as “All persons born or naturalized in the United States, and subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The Fourteenth Amendment declares that equal protection to all person not simply to ex– slaves or black persons and the Equal protection clause could be used to protect the rights of other classes of citizens as well.  Throughout the nineteenth century and the early part of the twentieth century, the court consistently interpreted the fourteenth Amendment and other constitutional provisions not to require the equal treatment of races and of men and women.

Lego-Institutional Response to Racial Discrimination

National Human Rights Commission of India (NHRC) conducted a study that revealed 54% people from North-East India do not find New Delhi a safe and secure place to live in terms of ethnic tolerance. Whereas, 67% people from North-East faced ethnic and racial discrimination in New Delhi. The living and working conditions for North-East Indians in New Delhi and elsewhere in North India are horrible and inimical and in violation of sociological constitutionalism as propounded by the Supreme Court of India (SC)  in the case of Karma Dorjee & Others v. Union of India & Others (December 14, 2016) whereby petitioner had alleged that people from north-eastern region, who move out of their states in search of better opportunities in studies and jobs, were subjected to racial taunts, hate crimes and violence on a daily basis due to their physical appearance at the hands of people of their own country.

The Ministry of Home Affairs having considered the magnitude of the racial and hate crimes against the people of North-East India in Delhi constituted a committee headed by Mr. M.P. Bezbaruah on February 05, 2014 to suggest suitable remedial measures to address the impugned issue of racism and hate crimes in India. The Bezbaruah Committee had submitted its report in 2014 whereunder it was recorded that 86 percent of migrated North-East Indians have faced discrimination and harassment in Delhi that had left an indelible and humongous psychological and physical impact upon them. The Bezbaruah Committee had made drastic recommendations to be incorporated in the Indian Penal Code (IPC), 1860 to address this multi-dimensional problem of racial violence as under:

  1. Legal Assistance Facilities: A panel of lawyers consisting of 50% women lawyers from North-East India for legal assistance such as Legal Awareness Training for representatives and vulnerable areas of North-East Indians.
  2. Strengthening of Law Enforcement Agencies: Law enforcement agencies should be sensitized and trained including police personnel and minimizing the delays and quality of investigation, recruiting sufficient number of SC/ST/Minorities as police personnel from North-East India.
  3. Special Police Initiative: The Fast Track Courts (FTCs) must be established in India to attend racial and hate crimes. North-East Special Police Unit should have the power of a Police Station and Special Police Squad supervised by the North East Special Police Unit should be created and a Special Helpline No. 1093 for youths from North-East must be established and synchronized with PCR 100 number and Data bank of all crimes against the people from North-East India.
  4. Educating People about North-East India: The People of India and posterity must be educated about the history and culture of North-East India by introducing appropriate writings in the text books and NCERT should introduce certain aspects of the “Northeast Ethos” into the curriculum.
  5. Creating Awareness: The Ministry of Information and Broadcast must give primacy to North-East in its media coverage. The resources of North-East must have as visible faces in the visual media. Media must be cautious while covering sensitive hate and racial issues. Moreover, tourism and indigenous games of North-East should be promoted while introducing new sport schemes for the region.

These recommendations were appreciated and accepted positively and an early enforcement thereof was assured by the Government of India. However, no implementation has seen the light of day even after two years. Hence, it is quintessential to implement these recommendations by enacting an Anti-racial Law to address the mounting derogatory and discriminatory attacks on people of different races in India. However, the Supreme Court of India desisted from passing any direction on the recommendation for amending the IPC by inserting two new provisions—Sections 153C and 509A–which was opposed by the Government of India on the ground that Sections 153A, 153B and 505(2) already exist as a part of the penal provision that address the situation of racial violence and hate crimes in India. Moreover, the Supreme Court took the cognizance of the suggestion put forward by the Government of India that the proposal was under examination and said “whether the law should be amended is for the Union government to decide in its considered assessment of the situation, the nature of the problem and the efficacy of existing provisions. A mandamus to legislate cannot be issued.” Thus, SC has made the following substantial directions in the case:

  1. To set up a three-member panel headed by a Joint Secretary-level officer with two other members to be nominated by the Union government for enhancing the sense of security and inclusion in the people of North-East India by addressing racial violence and hate crimes.
  2. The panel shall have powers to ensure strict action in incidents of racial discrimination, racial atrocities and racial violence and suggesting measures to curb such hate and racial crimes.
  3. To emplace the efficacious monitoring mechanism suggested by the Bezbaruah Committee in its report should be implemented and “should not like innumerable instances of its ilk, languish in dusty shelves of long forgotten archives”.
  4. The involvement of the law enforcement machinery is alone not sufficient to resolve the problem and stressed that mindsets have to be changed including in universities, colleges and educational institutions, places of work and in society.

Solution

The constitutional construction of constitutionalism on human rights instill a sense of pride among We, the People of India, but constitutionalization thereof is subjected to prejudices in every layer of state set-up, administrative apparatus and political paraphernalia of the country.  Consequently, India has become an ivory tower of iniquitous social orders and Indian society stands stratified today on the ground of being a member of a particular social group or social origin or minority or religion or race or caste or political opinion and so on so forth. It is well-established fact that India is a land that cannot survive without the democracy of diversity and majesty of multi-culturalism. Since India has become a party to 1965 UN Convention on the Elimination of All Forms of Racial Discrimination in 1967.Therefore, time has, indeed, come to have an all-compassing Anti-Racial Law to curb the menace of growing racial violence, hate crimes and xenophobia.

 

Nafees Ahmad is an Indian national who holds a Doctorate (Ph.D.) in International Refugee Law and Human Rights from the Aligarh Muslim University of India where he concentrated on International Forced Migrations, Climate Change Refugees & Human Displacement Refugee, Policy, Asylum, Durable Solutions and Extradition Issus. He conducted research on Internally Displaced Persons (IDPs) from Jammu & Kashmir and North-East Region in India and has worked with several research scholars from US, UK and India and consulted with several research institutions and NGO’s in the area of human displacement and forced migration. He has introduced a new Program called Comparative Constitutional Law of SAARC Nations for LLM along with International Human Rights, International Humanitarian Law and International Refugee Law.  He has been serving since 2010 as Senior Visiting Faculty to World Learning (WL)-India under the India-Health and Human Rights Program organized by the World Learning, 1 Kipling Road, Brattleboro VT-05302, USA for Fall & Spring Semesters Batches of US Students by its School for International Training (SIT Study Abroad) in New Delhi-INDIA nafeestarana@gmail.com, drnafeesahmad@sau.ac.in

January 1, 2017 | Permalink | Comments (1)