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Laws, Volume 10, Issue 1 (March 2021) – 17 articles

Cover Story (view full-size image): Religious freedom in the USA during the coronavirus pandemic of 2020–2021 was a topical and controversial political issue. President Trump had an unclear approach on how to deal with the pandemic. State governors wrestled with the problem of whether to close religious places of worship and came up with a variety of responses. Trump-supporting Christian nationalists regarded restrictions on their religious behavior caused by COVID-19 to be clear breaches of their religious freedom. High-profile legal cases brought against the governors of California and Illinois by the Christian legal firm, Liberty Counsel, are examined in the paper. The conclusion is that, in the USA during the Trump presidency, religious freedom issues linked to the pandemic were a political football, whose solutions were closely linked to the ideology of the decision maker. View this paper
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Article
Protecting the Rights of Minorities under International Law and Implications of COVID-19: An Overview of the Indian Context
Laws 2021, 10(1), 17; https://0-doi-org.brum.beds.ac.uk/10.3390/laws10010017 - 23 Mar 2021
Cited by 3 | Viewed by 1154
Abstract
The concept of majority rule and respect for minority rights is demonstrated in several constitutions of the world. Oppression by the majority of the minority is barred by articles of these respective constitutions. Today, democracy is mostly a method of government of the [...] Read more.
The concept of majority rule and respect for minority rights is demonstrated in several constitutions of the world. Oppression by the majority of the minority is barred by articles of these respective constitutions. Today, democracy is mostly a method of government of the people that is ruled by the people. The issue of minority rights is at the center of the concept of civic rights. Minority protection, thus, operates on the hypothesis that religious, cultural, and linguistic affiliations are essential features of the very notion of a civic, just society. This paper offers an alternative account of why minority rights have international significance and more information on the value of an international, socially just process for the allocation of resources by states. By this approach, international minority rights speak to the wrongs that international law itself produces by organizing international political reality into a legal order. This article focuses on the uncertain effect of religious autonomy in India and the outcome of democracy in the country. While the Indian constitution guarantees autonomy to its religious minorities and promises minorities their freedoms, Indian democracy, which was once considered remarkable in scale and duration, has been weakened by the rise of xenophobic nationalism and threats to religious minorities. Even the safety and religious freedom of minorities have been compromised during COVID-19. In the last few decades, these trends have been clear; however, they have dramatically increased in the last few years, and the administration has turned a blind eye. Full article
(This article belongs to the Special Issue The Crisis of Religious Freedom in the Age of COVID-19 Pandemic)
Article
Complementary Protection in Japan: To What Extent Does Japan Offer Effective International Protection for Those Who Fall Outside the 1951 Refugee Convention?
Laws 2021, 10(1), 16; https://0-doi-org.brum.beds.ac.uk/10.3390/laws10010016 - 14 Mar 2021
Viewed by 1795
Abstract
This study focuses on what Japan’s Immigration Control and Refugee Recognition Act (ICRRA) calls ‘Special Permission to Stay’ (zairyū tokubetsu kyoka) on humanitarian grounds (SPS), and evaluates the extent to which SPS provides effective international protection for those who are not recognized as [...] Read more.
This study focuses on what Japan’s Immigration Control and Refugee Recognition Act (ICRRA) calls ‘Special Permission to Stay’ (zairyū tokubetsu kyoka) on humanitarian grounds (SPS), and evaluates the extent to which SPS provides effective international protection for those who are not recognized as refugees in Japan. The evaluation uses the European Union’s Qualification Directive (QD) as a yardstick. This paper explains the legal framework through which Japan offers complementary protection and explores the application of the law in practice. By investigating cases of SPS granted in Japan over a five-year period, the authors infer the prevailing legal interpretations on critical elements of complementary protection policy not clearly defined in the ICRRA. Case law is not widely available in Japan, but the authors have analysed all of the available case summaries provided by the Ministry of Justice only in Japanese. This work represents the first research conducted in English into these summaries. Further, several elite interviews were conducted with key senior immigration officials to gain insight into the inner workings of the Japanese system of SPS. Based upon the empirical evidence collected, the research demonstrates that the ICRRA often lacks clarity and is too discretionary, but that it also provides flexibility that allows a more inclusive application of the law. Full article
(This article belongs to the Special Issue Refugees and International Law: The Challenge of Protection)
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Article
Freedom of Worship during a Public Health State of Emergency in France
Laws 2021, 10(1), 15; https://0-doi-org.brum.beds.ac.uk/10.3390/laws10010015 - 25 Feb 2021
Cited by 1 | Viewed by 1195
Abstract
This paper analyses three key decisions issued by the French State Council in 2020 following emergency proceedings concerning the impact of pandemic-related measures on the freedom of worship. The Council interestingly recalls that the freedom of worship is a fundamental freedom, but shows, [...] Read more.
This paper analyses three key decisions issued by the French State Council in 2020 following emergency proceedings concerning the impact of pandemic-related measures on the freedom of worship. The Council interestingly recalls that the freedom of worship is a fundamental freedom, but shows, too, how it is influenced by circumstances when determining whether the measures limiting the freedom to practice one’s religion are proportionate to the goal of protecting public health. Full article
(This article belongs to the Special Issue The Crisis of Religious Freedom in the Age of COVID-19 Pandemic)
Article
The Right of Religious Freedom in Light of the Coronavirus Pandemic: The Greek Case
Laws 2021, 10(1), 14; https://0-doi-org.brum.beds.ac.uk/10.3390/laws10010014 - 23 Feb 2021
Cited by 4 | Viewed by 1293
Abstract
The purpose of this article is to take into consideration the impact of unprecedented restrictions due to COVID-19 on the exercise of religious freedom according to the Greek legislation and case-law. The crucial fact to be examined is the proportionality of the exceptional [...] Read more.
The purpose of this article is to take into consideration the impact of unprecedented restrictions due to COVID-19 on the exercise of religious freedom according to the Greek legislation and case-law. The crucial fact to be examined is the proportionality of the exceptional measures of the Greek State. At the beginning of the pandemic, religious ceremonies were allowed only in the presence of clerics, but nowadays they are permitted on the condition that the measures of “social distancing” are being followed strictly. As it is generally accepted, the Greek State managed to deal with the pandemic without deviations from constitutional order and protection of fundamental rights, in accordance with a “pressing social need”. In this context, the case-law of the Greek courts is of great importance, which ruled that the above mentioned restrictions did not offend the principle of proportionality, especially because of their temporary and short-term character. Nevertheless, these restrictive measures must be revised from time to time, considering the updated, epidemiological data in order to be selected the most appropriate and less stringent on a case-by-case basis. Consequently, these judgments do not give government a blank cheque regarding the management of the pandemic, but rather provide them with a clear framework which is able to guarantee the measures’ accordance with the Greek Constitution. However, the potential risk that people may become used to the restrictions imposed after the crisis has passed must not be overlooked. Full article
(This article belongs to the Special Issue The Crisis of Religious Freedom in the Age of COVID-19 Pandemic)
Article
Adult Restorative Justice and Gendered Violence: Practitioner and Service Provider Viewpoints from Queensland, Australia
Laws 2021, 10(1), 13; https://0-doi-org.brum.beds.ac.uk/10.3390/laws10010013 - 17 Feb 2021
Viewed by 1588
Abstract
This paper presents findings from a study exploring the experiences and viewpoints of conventional criminal justice actors, social and legal service providers, and restorative justice (RJ) conference facilitators/convenors regarding the use of adult RJ conferencing in cases of intimate partner, domestic, family (IPDFV) [...] Read more.
This paper presents findings from a study exploring the experiences and viewpoints of conventional criminal justice actors, social and legal service providers, and restorative justice (RJ) conference facilitators/convenors regarding the use of adult RJ conferencing in cases of intimate partner, domestic, family (IPDFV) and sexual violence (SV). Results indicated strong views about what IPDFV/SV victims needed from a system of justice, perceived failings of conventional justice systems in this regard, and the potential of RJ to deliver more efficacious justice. Nevertheless, using RJ in these cases posed concerns and challenges. Research participants identified steps that could be taken to overcome these issues through an RJ best practice framework underpinned by a victim-centred approach committed to victim empowerment, safety, healing, and practitioner training. Full article
(This article belongs to the Special Issue Criminology and Criminal Justice)
Article
Immunizing the Flock: How the Pandemic Court Rewrote Religious Freedom
Laws 2021, 10(1), 12; https://0-doi-org.brum.beds.ac.uk/10.3390/laws10010012 - 17 Feb 2021
Cited by 1 | Viewed by 1366
Abstract
When coronavirus began to descend upon the United States, religious freedom advocates across the country sounded the alarm that citizens’ religious practices and institutions were under threat. Although some of the most extreme arguments championed by these advocates were not validated by our [...] Read more.
When coronavirus began to descend upon the United States, religious freedom advocates across the country sounded the alarm that citizens’ religious practices and institutions were under threat. Although some of the most extreme arguments championed by these advocates were not validated by our legal system, many were. This article explores the underappreciated gains made by religious freedom advocates before the U.S. Supreme Court over the past year. As a result of the “Pandemic Court”, religious freedom in the United States has been rewritten. This promises to radically change the educational, employment, and health prospects of millions of Americans for the rest of the pandemic and long afterwards. Full article
(This article belongs to the Special Issue The Crisis of Religious Freedom in the Age of COVID-19 Pandemic)
Article
Behind the Wall of Indifference: Prisoner Voices about the Realities of Prison Health Care
Laws 2021, 10(1), 11; https://0-doi-org.brum.beds.ac.uk/10.3390/laws10010011 - 16 Feb 2021
Viewed by 1289
Abstract
While most Americans never see or become ensnared in the nation’s vast correctional system, there are unprecedented costs—economic, social, and ethical—that are being paid, one way or another, by everyone in this country. It is no secret that prison inmates face health threats [...] Read more.
While most Americans never see or become ensnared in the nation’s vast correctional system, there are unprecedented costs—economic, social, and ethical—that are being paid, one way or another, by everyone in this country. It is no secret that prison inmates face health threats behind bars that equal anything they face in the streets. Violent assault, rape, or the outbreak of highly infectious diseases are much more common in correctional facilities than in the general population. Prison conditions can easily fan the spread of disease through overcrowding, poor ventilation, and late or inadequate medical care. Effectively protected from public scrutiny, the prison health care system has almost zero accountability, thus escaping outside attention to serious failures of care. If you want to know about the practice of health care in prison settings, ask someone who has been “in” the system. Prisoners have a story to tell and this article gives voice to the experiences of those who have been directly impacted by the provision of health care in the prison system. Full article
(This article belongs to the Section Criminal Justice Issues)
Article
Migrants in the Attic: The Case of Migrants with Disabilities and Resettlement Services in Serbia
Laws 2021, 10(1), 10; https://0-doi-org.brum.beds.ac.uk/10.3390/laws10010010 - 10 Feb 2021
Viewed by 1164
Abstract
The global migrant crisis triggered an unprecedented number of asylum seekers in the Balkan region. In this case study, the state of migrants with disabilities—a community notoriously overlooked during global conflict—is explored through field interviews of settlement service providers in Serbia. A human [...] Read more.
The global migrant crisis triggered an unprecedented number of asylum seekers in the Balkan region. In this case study, the state of migrants with disabilities—a community notoriously overlooked during global conflict—is explored through field interviews of settlement service providers in Serbia. A human rights framework is espoused in first examining contemporary refugee law discourse and the corresponding gaps in current resettlement practice of migrants with disabilities. The study’s findings illuminate the need for a drastic shift in settlement services for those migrants most vulnerable to persecution in de facto destination countries. The discussion takes aim at “humanitarian silo” funding models and argues for international cooperation and transparency in accommodating migrants with disabilities internationally. Full article
(This article belongs to the Special Issue Refugees and International Law: The Challenge of Protection)
Article
Rethinking the Relationship between Women, Crime and Economic Factors: The Case-Study of Women Sentenced to Death for Drug Trafficking in Malaysia
Laws 2021, 10(1), 9; https://0-doi-org.brum.beds.ac.uk/10.3390/laws10010009 - 31 Jan 2021
Viewed by 1659
Abstract
This paper draws upon my doctoral research into the experiences of women who have been sentenced to death for drug trafficking in Malaysia. I utilise this case-study as a lens through which to examine the relationship between women, crime and economic factors. From [...] Read more.
This paper draws upon my doctoral research into the experiences of women who have been sentenced to death for drug trafficking in Malaysia. I utilise this case-study as a lens through which to examine the relationship between women, crime and economic factors. From my data derived from 47 ‘elite’ interviews, as well as legal and media database searches (resulting in information on 146 cases), I argue that current feminist criminological theorising should be updated to incorporate the relationship between women’s crime and precarious work. As I show, precarity is gendered and disproportionately affects women from the global south. Overall, I find that many of the women who have been sentenced to death in Malaysia were engaged in precarious work and drug trafficking was a way to make ‘quick money’ to address economic insecurity. Clearly, capital punishment is incommensurate with the crime. Full article
(This article belongs to the Special Issue Criminology and Criminal Justice)
Article
The Constitutionality of Providing Public Funds for U.S. Houses of Worship during the Coronavirus
Laws 2021, 10(1), 8; https://0-doi-org.brum.beds.ac.uk/10.3390/laws10010008 - 30 Jan 2021
Cited by 1 | Viewed by 1355
Abstract
U.S. constitutional jurisprudence precludes the direct government funding of religious activity. At the same time, the jurisprudence surrounding the U.S. First Amendment Religion Clauses has evolved to support the general inclusion of religious entities in programs through which a government advances some overarching [...] Read more.
U.S. constitutional jurisprudence precludes the direct government funding of religious activity. At the same time, the jurisprudence surrounding the U.S. First Amendment Religion Clauses has evolved to support the general inclusion of religious entities in programs through which a government advances some overarching public interest, such as health care or social services, but does not involve the Government in advancing religion per se. Moreover, the most recent U.S. Supreme Court cases hold that it is a violation of the First Amendment to exclude a religious actor, solely because it is religious, from a general public program and funding on equal terms with secular actors. Pandemic relief from the federal government has been made available to houses of worship (churches, mosques, synagogues, etc.) to mitigate the economic impact of government lockdown orders and public health restrictions on assembly, by offsetting loss of revenue and avoiding the suspension or termination of employees. The extension of such relief sits precisely at the crossroads of debated legal questions about whether such assistance is aid to religion—prohibited—or neutral disaster relief on equal terms with other community-serving entities—permitted. This article concludes that the inclusion of houses of worship is constitutional, given the trend and direction of U.S. law, although the matter will continue to be debated as the effects of the pandemic recede. Full article
(This article belongs to the Special Issue The Crisis of Religious Freedom in the Age of COVID-19 Pandemic)
Article
Religious Freedom and Education in Australian Schools
Laws 2021, 10(1), 7; https://0-doi-org.brum.beds.ac.uk/10.3390/laws10010007 - 30 Jan 2021
Viewed by 1309
Abstract
This article examines the constitutional allocation of power over primary and secondary education in Australia, and the place of and protection for freedom of religion or belief (FoRB) in Australian government and religious non-government schools. This article provides both an overview of the [...] Read more.
This article examines the constitutional allocation of power over primary and secondary education in Australia, and the place of and protection for freedom of religion or belief (FoRB) in Australian government and religious non-government schools. This article provides both an overview of the judicial treatment of the constitutional, legislative, and common law protection for FoRB and a consideration of emerging issues in religious freedom in both government and religious non-government schools, suggesting that the courts may soon be required to provide guidance as to how the available protections operate in both settings. Full article
(This article belongs to the Special Issue Education Law)
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Article
Donald Trump, the Christian Right and COVID-19: The Politics of Religious Freedom
Laws 2021, 10(1), 6; https://0-doi-org.brum.beds.ac.uk/10.3390/laws10010006 - 30 Jan 2021
Cited by 1 | Viewed by 2392
Abstract
This paper examines the issue of religious freedom in the USA during the coronavirus pandemic of 2020–2021, during the presidency of Donald Trump (2017–2021). It contends that the ability of state governors to close religious places of worship illustrates both the limits on [...] Read more.
This paper examines the issue of religious freedom in the USA during the coronavirus pandemic of 2020–2021, during the presidency of Donald Trump (2017–2021). It contends that the ability of state governors to close religious places of worship illustrates both the limits on the power of the president and that public health can take supremacy over religious freedom in today’s America. The paper is organised as follows: first, we identify the importance of religious freedom for the more than 20 million Americans who self-classify as Christian evangelicals. Second, we assess the transactional importance that President Trump placed on Christian evangelicals’ religious freedom. Third, we look at one kind of Christian evangelicals—that is, Christian nationalists—to see how they regarded restrictions on their religious behaviour caused by COVID-19. Fourth, we briefly examine several recent legal cases brought against the governors of California and Illinois by the Liberty Counsel, the leading Christian evangelical legal firm in the USA. Led by Matthew Staver, Dean of the Liberty University Law School, Liberty Counsel regularly represents Christian nationalists who challenge state-imposed restrictions on religious gatherings during the coronavirus pandemic. Full article
(This article belongs to the Special Issue The Crisis of Religious Freedom in the Age of COVID-19 Pandemic)
Editorial
Acknowledgment to Reviewers of Laws in 2020
Laws 2021, 10(1), 5; https://0-doi-org.brum.beds.ac.uk/10.3390/laws10010005 - 28 Jan 2021
Viewed by 1162
Abstract
Peer review is the driving force of journal development, and reviewers are gatekeepers who ensure that Laws maintains its standards for the high quality of its published papers [...] Full article
Article
Are There Moral Duties toward Refugees? Considerations in Legal Ethics
Laws 2021, 10(1), 4; https://0-doi-org.brum.beds.ac.uk/10.3390/laws10010004 - 19 Jan 2021
Cited by 1 | Viewed by 1382
Abstract
In the political and legal debate surrounding international refugee law, moral considerations play a large and important role. It often turns out, however, that the legal ethical reflection is not rooted deep enough. At first, it is necessary to demonstrate and justify the [...] Read more.
In the political and legal debate surrounding international refugee law, moral considerations play a large and important role. It often turns out, however, that the legal ethical reflection is not rooted deep enough. At first, it is necessary to demonstrate and justify the moral principle, on which the argumentation is based. There are different moral theories, among them the utilitarian, the egalitarian, the eudemonistical, and the deontological approach. These different approaches lead or at least can lead to different results concerning the question of what duties states or their citizens have toward refugees. The article is supposed to show that only the deontological approach is sufficient and appropriate in order to deliver a well-founded refugee ethics on the basis of moral duties and moral rights. The ethics of refugee protection is not an ethics of assistance to needy people, but the ethics of the prohibition of torts, namely, in particular, the violation of human rights. This is only inadequately reflected in international refugee law, because here the damage as such is not in the foreground, from which people flee, but the reasons why they are mistreated by persecutors. The damage-oriented approach clarifies the reasons for the different moral and legal status between persons in need of international protection, who have already reached the territory of the country of refuge and those who have not. The former are qualified as the holder of the subjective right not to be exposed to the dangers they have fled from, while the latter can in principle only appeal to the compassion and humanity of possible helpers. However, the boundary between “inside” and “outside” shifts according to the expansion of the de facto sphere of power of the acting person or state. This may also create a legal position for persons who are rescued by a ship at sea or whose living and travel conditions are essentially determined by the power of a state outside its territory. The damage-oriented approach shows furthermore that the refoulement ban has to be considered not only a mere side-aspect of the right to asylum but its core content. However, the right to asylum, cannot be considered a separate right beside the list of human rights. The refoulement ban is rather an integral part of every (“fundamental”) human right. This shows on the one hand that the separate right to asylum is redundant as long as it is supposed to protect against human rights violations. It is relevant only in the context of protection on reasons of solidarity. Finally, it can be shown that the national and international case law concerning the refoulement ban is insufficient because it is focused only on threatening torture and inhuman and degrading treatment, meanwhile, it neglects the threatening violation of other (“fundamental”) human rights. Full article
(This article belongs to the Special Issue Refugees and International Law: The Challenge of Protection)
Article
Environmental Legislation in European and International Contexts: Legal Practices and Social Planning toward the Circular Economy
Laws 2021, 10(1), 3; https://0-doi-org.brum.beds.ac.uk/10.3390/laws10010003 - 14 Jan 2021
Cited by 1 | Viewed by 1252
Abstract
Environmental issues and relevant policy plans are steadily involving the circular economy (CE) concept into business development. Such significant approaches to achieve environmentally sustainable economic development, they are supported and reinforced by dissatisfaction with the linear traditional approach of “take-make-dispose” model. This traditional [...] Read more.
Environmental issues and relevant policy plans are steadily involving the circular economy (CE) concept into business development. Such significant approaches to achieve environmentally sustainable economic development, they are supported and reinforced by dissatisfaction with the linear traditional approach of “take-make-dispose” model. This traditional production model is bounded on large quantities of directly accessible resources and energy. Therefore, at this study the transition of the linear take-make-dispose model was investigated toward the circularity approach of cost-effectiveness over eco-efficiency. In this respect the study focused on, mainly European, environmental legislation at the industrial sector and the abiding legal practices and social planning regarding CE. The collective presentation of directives and regulations was accompanied by representing those research considerations, social reflections, and legal practices’ impacting. The challenging issues and the key developmental prospects for future researches have been conclusively denoted. Full article
Article
Gender Bias in Indonesian Courts: Is Perma No. 3 of 2017 the Solution for Gender-Based Violence Cases?
Laws 2021, 10(1), 2; https://0-doi-org.brum.beds.ac.uk/10.3390/laws10010002 - 29 Dec 2020
Cited by 2 | Viewed by 1242
Abstract
To support women who are dealing with the legal system, especially women victims of gender-based violence, the Indonesian government issued Supreme Court Regulation (Perma) No. 3 of 2017 on Guidelines for Judging Cases of Women in Conflict with the Law. This regulation deals [...] Read more.
To support women who are dealing with the legal system, especially women victims of gender-based violence, the Indonesian government issued Supreme Court Regulation (Perma) No. 3 of 2017 on Guidelines for Judging Cases of Women in Conflict with the Law. This regulation deals with women as victims, defendants and witnesses, and is used for civil and criminal cases. The Perma appears to attempt to counterbalance existing discriminatory practices in the courts and their processes. This article discusses the effectiveness of the “special treatment” in Supreme Court Regulation (Perma) No. 3 of 2017 on Guidelines for Judging Cases of Women in Conflict with the Law. This Perma seems to provide hope for producing progressive court decisions by contributing to the elimination of discrimination against women in the court process. However, this expectation certainly needs to be reviewed, given that, in their entirety, any such proceedings involve not only judges but also other law enforcement officials, namely the prosecutors. Furthermore, the presence of this Perma is considered by some Indonesian feminists to contradict the Judicial Code of Ethics and Guidelines for Judicial Behaviour (“the Code”). The Code requires judges to be neutral in judging but this Perma demands the opposite. This study is a qualitative study, and the data is obtained through a literature study of research conducted on court decisions and gender-based violence cases involving Indonesian women. Full article
(This article belongs to the Special Issue Criminology and Criminal Justice)
Article
APUNCAC and the International Anti-Corruption Court (IACC)
Laws 2021, 10(1), 1; https://0-doi-org.brum.beds.ac.uk/10.3390/laws10010001 - 25 Dec 2020
Cited by 2 | Viewed by 1302
Abstract
The draft Anticorruption Protocol to the United Nations Convention against Corruption (APUNCAC) seeks to implement aggressive measures to fight corruption and impunity, including United Nations inspectors who would conduct independent investigations into allegations of corruption and hand cases to dedicated domestic anticorruption courts. [...] Read more.
The draft Anticorruption Protocol to the United Nations Convention against Corruption (APUNCAC) seeks to implement aggressive measures to fight corruption and impunity, including United Nations inspectors who would conduct independent investigations into allegations of corruption and hand cases to dedicated domestic anticorruption courts. APUNCAC is designed to be a free-standing proposal. However, it could be combined with Judge Mark Wolf’s proposal for an International Anti-Corruption Court (IACC). An advantage of combining IACC + APUNCAC is that the combination defuses the key arguments against the IACC. This article reviews evidence suggesting that leaders of nations that currently experience endemic corruption might find it politically expedient to adopt the proposed reforms. The article discusses the advantages of combining IACC + APUNCAC. The combination would establish an independent corps of elite investigators, endow them with strong powers to conduct independent investigations, and enable them to refer cases to dedicated anticorruption courts staffed by judges vetted by the United Nations Commission on Crime Prevention and Criminal Justice. APUNCAC establishes mechanisms to ensure accountability of judges serving dedicated anticorruption courts. By addressing the key arguments against the IACC, the proposal to combine IACC + APUNCAC may enable broad public support in nations that would require public support in order to secure ratification. Full article
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