Laws, Volume 11, Issue 2 (April 2022) – 20 articles

This paper examines the “protective potential” of the Global Compacts on Refugees and Migrants vis à vis existing commitments to fundamental rights within the European Union (EU). The relationship between the two normative frameworks is scrutinised to establish the extent to which the two might be mutually supportive or contradictory, since this determines the Compacts’ capacity to inform the interpretation of EU fundamental rights within the Common European Asylum System (CEAS). This paper explores this protective potential through three of the Compacts’ key guiding principles: respect for human rights and the rule of law, the principle of non-regression, and the principle of non-discrimination. The Compacts’ commitments to the first two are presented as sites of coherence where the Compacts concretely express pre-existing protections within EU law and provide a blueprint for implementation in the migration sphere. However, the Compacts’ principle of non-discrimination reveals an area of friction with EU primary law. It is argued that the implementation of this principle can address the inherently discriminatory system underpinning EU law. Within the EU, rather than undermining international and national human rights obligations, the Compacts present an opportunity to refine the implementation of existing EU fundamental rights obligations applicable to migrants and refugees. Full article

Coastal and estuarine margins are considered natural resources with various functions and are covered by different management and protection tools. In Portugal, the Maritime Public Domain (MPD) aims to regulate property in maritime and coastal areas, assuming that these are public resources of the nation. Little is known, however, about how the MPD considers estuarine margins, which are also valuable, and vulnerable, environmental areas. This article analyses how the concept of MPD applies to the estuarine margins in Portugal. Moreover, as this concept has been subsequently adopted by other countries with close roots such as Angola, Brazil, and Mozambique, this paper also explores if estuaries are further considered in their legislation. For this purpose, it undertakes an analysis of legal documents establishing the MPD, focusing on the definition, types of areas where it applies, the width of the margins, ownership, and use restriction. The findings show that estuaries are considered by the MPD in Portugal and in the similar instruments of the other three countries. Nevertheless, their approaches differ, especially on the width of margins and the flexibility of the ownership regime, suggesting that the potential to protect margins has not been globally reinforced by the countries adopting MPD after Portugal. This study offers new insights on the MPD and brings to the fore a gap in the literature that deserves to be further explored in other countries with different legal traditions and deepening the analysis on the added value for the protection of estuarine margins. Full article

To allow for the effective functioning of a state, measures are necessary to limit the power of government, securing to the people certain fundamental human rights. These limitations are frequently referred to as ‘constitutionalism’. This essay explores the nature of constitutionalism found in India, and specifically as it has evolved through judicial interpretation—the process whereby judicial decisions have given meaning and content to the written constitution. In this way, the judiciary has balanced the power of government with the rights of the people. Constitutionalism is indispensable to effective governance, balancing power with right. Full article

This paper examines the role of cultural evidence submitted by anthropologists and social scientists to assist individuals seeking asylum in the United Kingdom. Expert evidence is an essential element in the way that Immigration Judges decide asylum claims. The paper begins by looking at the role of experts and the limits of scientific evidence in the legal process. I set out the context in which expert evidence features in the First-Tier Tribunal of United Kingdom’s Immigration and Asylum Chamber (IAC). I then show how Immigration Judges in the Upper Tribunal of the IAC assess expert evidence in ‘country guidance’ cases decided between 2015 and 2019. Analysis reveals that experts submit a range of different types of evidence, that judges problematically assess this evidence and that there are serious defects in the judicial process. I conclude by suggesting ways to mediate between the very different roles, perceptions and training of experts, lawyers and judges. Full article

The turbulent transition of power from the Ghani administration to the Taliban regime has not only signalled a death knell to the fundamentals of representative democracy, but it has also provided fertile ground for the large-scale exodus of refugees into neighbouring nations. In view of this, a scrutiny of the Indian state’s response to the influx of Afghan refugees is warranted. India is not a signatory to the 1951 Refugee Convention, nor to the 1967 Protocol, and, in the absence of any concrete national refugee law and policy, Afghans who are seeking refugee status are processed on a haphazard case-by-case basis. In chalking out a future course of action, this paper aims to analyse India’s response to the possible Afghan refugee inflow in the aftermath of the Taliban takeover and in light of India’s recent endorsement of the Global Compact on Refugees (GCR). Against the backdrop of the limited mandate of the UNHCR and the lack of “political will” from the successive governments, we contend that the Supreme and High Courts of India have been instrumental in construing a tentative shield of protection for persons already in the country, which is working out of a judicial form of the endorsement of the non-refoulment principle, in the absence of legislative and executive commitments, and the preferential “acts of kindness” strategy, which discriminates amongst different refugee groups as per origin or religious belief. Moreover, it is argued that the GCR has made few inroads into the overall paradigm as to how refugees are perceived in India. The research concludes that India must enact legislation on refugees for any constructive engagement beyond archaic quick-fix solutions. Full article

In feminist criminology, there is a growing body of research exploring pathways to prison, but few studies have specifically sought to map women’s journeys into the criminal justice system for crimes of physical violence and sex offending. Gender comparative research is sparse, and, to date, we know little about women and men imprisoned in Thailand for these types of crimes. Subsequently, in this paper, we report findings from a gender comparative feminist pathways study conducted in Thailand, with a specific focus on violence and sex offending; namely, homicide, sexual assault, human trafficking, and sex work-related offences. We utilise a qualitative analysis of life-history interviews to centre and value these women’s and men’s voices, establish their backstories, and thematically map their imprisonment trajectories. Three pathways to prison emerged: (1) lifestyles of contravention, (2) harmed and harming, and (3) destructive masculinity. Utilising the participants’ descriptions, we highlight similarities and variance by gender within and between these pathways. Full article

How should employers and employees negotiate the strange and unexpected issues that COVID-19 has forced us to confront in the past two years? Remote work, in particular, has dramatically changed the dynamic of many people’s jobs, often altering the tasks and boundaries of employment, blurring the lines between work and home, public and private. U.S. employment law, and particularly the powerful employment-at-will doctrine, sets a clear standard but can sometimes be a blunt instrument. Is there any nuance to be found, or to be desired, from employers in these unprecedented times of COVID-19? We will discuss the doctrine of employment-at-will, the standard it creates for American employment, and the various exceptions to it that have arisen over the past several decades. We will then examine a couple of hypothetical workplace scenarios that could arise in a work-from-home environment, discuss how current law would address them, and whether the letter of the law is the best source of guidance in these matters. We will further discuss the challenges faced by many companies as they attempt to deal with these abrupt changes to their working environments. What are the effects, if any, on long-standing employment traditions and practices? What are the legal issues that may arise from them? Full article

This study examines whether Victim Impact Panels reduce DUI recidivism 5 to 8 years postsentence. Original 2-year data on 410 DUI offenders who attended a Victim Impact Panel and 373 DUI offenders from the same court system who did not attend a Victim Impact Panel indicated slight recidivism reduction effects. Logistic regression results at the 5-year period reveal that not attending a Victim Impact panel increases the odds of another DUI by a factor of 1.5 with an upper 95% confidence odds level of 2.2. At the 8-year mark, non-VIP participants were 1.8 times more likely to record another DUI with an upper 95% confidence odds level of 2.6. Offenders with a prior DUI who attended a Victim Impact Panel had significantly lower recidivism rates after 8 years relative to non-attendees. Prior research suggested that males in the 26–35-year age group benefitted more from Victim Impact Panel participation. These data indicate that the effects of age are relatively uniform across male age groups. Overall, these recidivism results indicate that the emotional messages communicated by victims to DUI offenders might carry sustained effects. Full article

The state of Massachusetts (MA) has passed comprehensive climate change legislation and a roadmap of achieving Net Zero emissions in 2050, which includes the protection of environmental resources (e.g., soil) and green space across the state. Soil resources are an integral part of the land cover/land use. They can be a significant source of greenhouse gas (GHG) emissions because of the conversion of “low disturbance” land covers (e.g., evergreen forest, hay/pasture) to “high disturbance” land covers (e.g., low-, medium-, and high-intensity developed land). These often “invisible” GHG emissions can be considered as “negative externalities” and “external costs” because of the difficulty in assigning ownership to the emissions. The combination of remote sensing and soil information data analysis can identify the ownership associated with GHG emissions and therefore expand the range of policy tools for addressing these emissions. This study demonstrates the rapid assessment of the value of regulating ecosystems services (ES) from soil organic carbon (SOC), soil inorganic carbon (SIC), and total soil carbon (TSC) stocks, based on the concept of the avoided social cost of carbon dioxide (CO₂) emissions for MA by soil order and county using remote sensing and information from the State Soil Geographic (STATSGO) and Soil Survey Geographic Database (SSURGO) databases. Classified land cover data for 2001 and 2016 were downloaded from the Multi-Resolution Land Characteristics Consortium (MRLC) website. The results provide accurate and quantitative spatio-temporal information about likely GHG emissions, which can be linked to ownership. The state of MA can use these remote sensing tools and publicly available data to quantify and value GHG emissions based on property ownership, therefore “internalizing” the costs of these emissions for a cost-effective climate mitigation policy. Full article

The number of satellites in low Earth orbit is constantly increasing, particularly with the introduction of larger satellite constellations in recent times. This has resulted in a very crowded environment in Outer Space, which poses a number of challenges, not only to activities in Outer Space but also to the activity of observing Outer Space. Prior to humankind’s entry into and progressive exploration of Outer Space, the practice of astronomy, what Venkatesan et al. describe as the “millennia-old ability to observe, discover and analyse the cosmos from the surface of the Earth”, linked humankind to Outer Space; in particular the Indigenous Peoples whose practice of astronomy is integral to their ways of life. The Indigenous relationship with Outer Space through astronomy requires protection to ensure the continuation of Indigenous culture. However, the aforementioned continual increase of satellites in Outer Space has started to disrupt the view of the night sky and its components from Earth, disrupting the practice of astronomy as a whole and, thus, Indigenous practice. Therefore, humankind’s future plans for Outer Space must be constructed with humankind as a whole in mind, including the astronomy practices essential to the way of life of many Indigenous Peoples. Full article

How is the concept of “vulnerability” employed in Canadian immigration law? This article presents findings from research conducted as part of the VULNER project (2019–23). We analyze how vulnerability is operationalized in Canada’s inland refugee (or asylum) determination procedures compared to its overseas resettlement program by first discussing some general principles, followed by an examination of the treatment of women and LGBTQI+ individuals seeking protection. We show that legal-bureaucratic logics have constructed two very heterogeneous worlds of vulnerability that may reproduce and exacerbate vulnerabilities rather than create a more inclusive, equitable protection regime in law, policy, and practice. Full article

The study’s relevance stems from the wider and more active use of shared workstations and the increasing demand for an adequate civil law assessment of contractual co-working relations. The research goal was to identify and, using the analogy, evaluate possible models of legal assessment of co-working contracts from the perspective of civil law. The research methods include special technical and legal tools, such as legal modeling, doctrinal civil means of analysis and synthesis, induction and deduction, and generalization. The research identified the theoretical and law enforcement ambiguity in the legal assessment of co-working contracts and the recommendations on the direct and analogic application of existing civil law instruments to solve this problem. The significance of the study includes its potential to promote co-working as an innovative format for organizing business, work activities, and contributing to an overall increase in the efficiency of civil transactions in Russia. The results of the work may be useful not only for Russian actors, but also for actors in those jurisdictions where co-working also does not have a direct civil law enforcement. At the same time, the research focuses on the potential of analogy in overcoming the ambiguity of the legal regime of new economic phenomena and in creating new legal structures. Full article

A model Anticorruption Protocol to the United Nations Convention against Corruption (APUNCAC) would implement international requirements to report the beneficial ownership of funds involved in certain financial transactions. The purpose is to discourage the laundering of illicit funds by attaching legal consequences to each failure to obtain and submit a required report of beneficial ownership, and each failure by a front man who poses as a beneficial owner to supply true information regarding the identity of the actual beneficial owner. This article is the fifth in a series of articles describing APUNCAC’s anti-money-laundering (AML) provisions and focus on beneficial owner transparency. The companion articles focus on issues regarding international jurisdiction and enforcement of APUNCAC regarding distant offshore personnel, illustrate the application of APUNCAC to specific money laundering channels, answer frequently asked questions (FAQ), and translate APUNCAC’s key provisions into proposed Financial Action Task Force (FATF) recommendations. This article explains how APUNCAC’s key provisions may be translated into Organization for Security and Co-operation in Europe (OSCE) recommendations, why the OSCE may be especially inclined to adopt the recommendations, and why support of this initiative might be the most promising path that could be adopted by the international community to combat corruption, money laundering, and the violations of human rights that are associated with these crimes. Full article

The making and implementation of global policy are prominent areas of activity for the global refugee regime, with a specific focus on policy relating to the categories of vulnerable refugees. Recent collective efforts globally have highlighted the importance of meaningfully including refugees themselves; and a discursive shift away from the language of vulnerability towards that of empowerment in policy making, and humanitarian assistance. Despite this, efforts to implement these commitments have largely been unsuccessful, raising questions about how refugees are engaged in these processes, and in what ways the label of vulnerable continues to influence the making and implementation of global refugee policy. Using the case of Canada’s engagement with the global refugee regime, and with refugee women in particular, this article argues that the continued framing of refugee women as vulnerable has impeded progress, and that for transformative policy to be realized, refugee women must be seen as actors with capacity to participate, and must be included in all processes of policy making, implementation and evaluation. A feminist geopolitical framework is presented as a way to decenter states and institutions in favor of centering the individual embodied experiences of refugee women in global refugee policy making. By doing so, empowerment can be realized in policy and practice. Full article

The aim of the study is to identify legal instruments, implemented in France, supporting short food supply chains and, more generally, local food systems. The research has identified these tools from a variety of domains and levels, including national laws, government policies, and local government initiatives, and analysed them in relation to various forms of short supply chains present in French territory, which are the key components of local food systems, such as direct marketing, producers’ stores, basket systems, urban agriculture, and deliveries to public catering. Overall, the French instruments are multiple, diverse, mostly innovative, take into account social, environmental, and solidarity values, and can be good examples to follow. Most of them are established at the local level, being thus an expression of new models of local food governance, corresponding to the values of a participative economy and food democracy. Full article

Although the concept of vulnerability has become increasingly prevalent in both domestic and international migration policy in recent years, its precise meaning and implications remain ambiguous and under-examined. Without a coherent understanding of what makes individuals vulnerable, the concept can either act as a justification for additional consideration or reinforce stereotypes of disempowerment. To address this lack of clarity, this article presents the results of an extensive review of Canadian case law. Drawing on data from over 750 cases primarily from the Immigration and Refugee Board and the Federal Court of Canada, this study sought to examine how the concept of vulnerability is used by both decision-makers and parties to cases involving migrants seeking legal status and various forms of protection (including, but not limited to, asylum) under national or international law in Canada. Although an analysis of case law necessarily produces only a partial image of the landscape, this review identified two understandings of vulnerability at play: a procedural one associated with the need to ensure access to justice and a fair hearing, and a substantive one where vulnerability is linked to the categorization of particular groups. In both instances, the recognized importance of the concept is offset by its narrow and inconsistent application and a failure to acknowledge the role that the institutions and mechanisms of “protection” play in creating and perpetuating vulnerability. Full article

Articles 27 and 34 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) recognise Indigenous Peoples’ laws. Art. 34 gives Indigenous Peoples the right to maintain their juridical systems or customs in accordance with international human rights standards. Although the UNDRIP is soft law, its core is arguably customary law and, therefore, a binding source of law. For States with Indigenous People, such as Norway, the UNDRIP is of paramount importance, from a legal, political, and not least moral perspective. This paper discusses norm hierarchies and tensions that are created in the meeting between the Indigenous customary law of the Sámi and statutory domestic Norwegian law. The introduction of customary, commonly unwritten, Indigenous rules into the judicial portfolio of a State creates an obvious challenge: what is their legal status? Can Indigenous law set aside domestic statutory norms? Some might argue that due to historical wrong, Indigenous law should always take precedence when domestic law conflicts with it. While Norwegian domestic law acknowledges the precedence of certain core human rights treaties over domestic laws, the same is not valid for Indigenous rights. How then should Indigenous custom be dealt with before a court of law, and how do the different legal systems relate to each other? This paper is foremost based on theoretical, to a lesser degree also on empirical material. It discusses on a general level the relationship between different legal systems within the same State and, on a specific level, the dealing of the Norwegian courts with Sámi Indigenous laws and customs. Full article

APUNCAC is a draft international convention designed to address systemic corruption, strengthening UNCAC’s provisions and adding mechanisms to make it more effective. ‘Corruption’ includes public officials abusing their powers. This article addresses an especially insidious form: when laws are created and applied to deny equal protection under the law. Ruling elites control the executive and parliament, to pass laws that selectively target and disadvantage a segment of the population. Our empirical data comes from a historical case, massive government-sanctioned wage theft from Western Australian Aboriginal workers between 1901 and 1972. We use these data to analyse how this kind of corruption works in practice, to evaluate APUNCAC’s measures and strategies, to see what specific measures might be used or modified, and where APUNCAC might need supplementing. We argue that Article 4(3) could have a major impact, especially supported by other Articles and processes, such as dedicated independent courts and strategic engagement with local courts. We evaluate two scenarios: The first scenario is prospective, assuming that APUNCAC is adopted. We evaluate the possible impact of APUNCAC in deterring future corruption involving selective application of the law. The second scenario is retrospective. We evaluate the possible support that APUNCAC might provide regarding court actions that seek redress for potential litigants, such as WA Aboriginal people who were injured in the past. Full article

During the COVID-19 pandemic, the protection of public health became a political priority worldwide. Slovakia’s COVID-19 response was initially praised as a global success. However, major rights restrictions were introduced in spring 2020, with some of these endorsed by the parliament. This article uses Rossiter’s and Schmitt’s concepts of the exception and Agamben’s distinction between life and survival to highlight the risks pertaining to the framing of the protection of public health as contradictory to human rights guarantees. It investigates how human rights were discussed by Slovak parliamentarians in relation to key legislation, that introduced a COVID-19 contact tracing app and allowed repeated prolongation of health emergencies by the executive with parliamentary approval. The findings indicate that democratic parliamentarians prioritized public health considerations framed in terms of security and effectiveness rather than rights, dissociating biological survival from political life. In contrast, extreme political actors became outspoken critics of emergencies, referring to human rights. As such, the deliberations represent a missed opportunity by democratic legislators to justify public health protection via a human rights lens and risk undermining democracy in Slovakia. Full article

On 17 June 2021, the Government of the Republic of Slovenia adopted a Bill on Long-term Care. This legislative activity also raised the question of the existence and effectiveness of a legal environment to promote social infrastructure development for housing and care of older adults. Social infrastructures include the facilities in which long-term care services are provided. Therefore, the new legislative proposal also raised the issue of the regulation of this social infrastructure and the housing and care solutions as a part of the social infrastructure since they benefit individuals and communities. Furthermore, in line with the growing trend towards deinstitutionalisation, the legal environments should enhance alternative housing solutions for the elderly. The purpose of this article is to describe the foundations of the social infrastructure for older adults and examine the legal basis for its provision. The research belongs to legal geography studies, which means that the substance of laws and materialisation in space are considered. We identified two primary spatial–legal barriers to overcome, which are (a) the separate treatment of the housing and health aspects and (b) the absence of the guarantee schemes for the construction of housing-with-care solutions. The results would be helpful for the optimal organisation of integrated care, which individual research groups in Slovenia are studying. Full article