Laws

The Truth and Reconciliation Commission has called upon Canada to engage in a process of reconciliation with the Indigenous peoples of Canada. Child Welfare is a specific focus of their Calls to Action. In this article, we look at the methods in which discontinuing colonization means challenging legal precedents as well as the types of evidence presented. A prime example is the ongoing deference to the Supreme Court of Canada decision in Racine v Woods which imposes Euro-centric understandings of attachment theory, which is further entrenched through the neurobiological view of raising children. There are competing forces observed in the Ontario decision on the Sixties Scoop, Brown v Canada, which has detailed the harm inflicted when colonial focused assimilation is at the heart of child welfare practice. The carillon of change is also heard in a series of decisions from the Canadian Human Rights Tribunal in response to complaints from the First Nations Child and Family Caring Society of Canada and the Assembly of First Nations regarding systemic bias in child welfare services for First Nations children living on reserves. Canadian federal legislation Bill C-92, “An Act respecting First Nations, Inuit and Métis children, youth and families”, brings in other possible avenues of change. We offer thoughts on manners decolonization might be approached while emphasizing that there is no pan-Indigenous solution. This article has implications for other former colonial countries and their child protection systems. Full article

In 2007 the International Commission against Impunity in Guatemala began working to support the work of the Public Prosecutor’s Office to investigate and prosecute cases of corruption. In this short article, I address three questions: What was the design of CICIG? What were its results? How did the institutional design contribute to the impact it had in Guatemala? To answer these questions, I first discuss the problem of impunity and provide an interdisciplinary review of the factors that impact when a state punishes crime. In the following section, I briefly explain the institutionalist framework that guides my analysis of the work of CICIG and explain the theoretical importance of institutional design in the functioning of prosecutorial organs. In the third section I describe the institutional design of CICIG, its impact, and its limitations. In this section I explain how key characteristics in its design made this international commission a creative solution against impunity in a context where prosecuting state agents for human rights violations or corruption was virtually impossible. I conclude this article highlighting some key lessons from CICIG on matters of institutional design. Full article

Cryptocurrencies have been developing very rapidly in recent years, and their use is becoming more and more widespread in different areas. The use of digital currencies for legal uses is advancing along with technological development, but, at the same time, criminal activities are also emerging to take advantage of this boom. The aim of this paper has been, first, to analyze the various ways in which individuals and criminal organizations have taken advantage of the phenomenon of cryptocurrencies to carry out fraudulent activities such as laundering money of illicit origin and, second, to provide an overview of the legal tools that have been developed in this regard in Europe and, more specifically, in Spain to combat these activities. Undoubtedly, cryptocurrencies bring great benefits to the economy, but it is also necessary to know the risks and abuses that have been developed to prevent them. Full article

The overwhelming majority of unsuccessful petitions in the Organization of American States’ Inter-American human rights system are unsuccessful because they are dismissed at the pre-admissibility or admissibility phase rather than at the merits phase. Although this preliminary screening of applications constitutes the major obstacle to petitioners seeking justice, there has been relatively little scholarly analysis of the potential interplay of legal and attitudinal factors at this phase. That is, whether this phase may be where the biases that the system has been accused of (i.e., bias against leftist regimes and a “hierarchization” of negative rights and liberties over social justice) manifest themselves. This article fills this gap in the literature by undertaking a comprehensive quantitative analysis of Inter-American Commission on Human Rights admissibility decisions that measures the impact of a broad range of factors and compares the dynamics of admissibility decisions with those of merits decisions. In so doing, it places into context backlash against the system that has led to recent changes in the system’s procedures. Full article

The paper investigates whether the implementation of MiFID II, a packet of financial legislation applying broadly to European Union financial markets, has led to a change in the volatility of some European developed and emerging stock markets. We show that for the developed capital markets considered in the analysis, MiFID II did not lead to a decrease in the volatility of capital markets. On the contrary, for all analysis intervals considered (3 months, 6 months, 12 months, 18 months and 24 months), the impact on volatility is positive, with volatility increasing in the case of the FTSE 100, CAC40 and DAX stock indexes. There is a similar significant relationship for the Czech stock market, but only over the three-month interval. For the Polish and Romanian stock markets, which enforced MiFID II later, a negative impact of MiFID II on volatility could also be observed. In the Romanian market, MiFID II had a negative impact on volatility on the short-term horizon, while for the Polish market, the impact of MiFID II on volatility is noticeable on a longer term of 24 months. Full article

Rethinking ‘sharing’ and the relationship between ‘sharing’ and ‘jurisdiction’, this meander proceeds in three parts. It begins with a journey to and through the forests of the nineteenth-century Rhineland, rereading Marx’s journalistic reports on debates in the Sixth Rhine Province Assembly about proposed amendments to forest regulation (including an extension of the definition of ‘wood theft’ to include the gathering of fallen wood) as a reflection on the making of law by legal bodies. From the forests of the Rhineland, the paper journeys to the forests of England, retracing the common story about the development, by legal bodies, of the body of common law principles applicable to ‘innkeeping’. Traveling to and through the ‘concrete jungles’ of the United States of America, the paper concludes with a reflection on Airbnb’s common story of creation as well as debates about the legality of Airbnb, Airbnb-ing, and ‘sharing’. Full article

The Regulation of Transnational Bribery by Kevin E. Davis, strips out the universal character of illegitimate payments used to bribe public officials of foreign countries in the milieu of international business which has been known for years. The manuscript deals with various definitions of bribery as a transaction in which an official misuse his or her office “as a result of considerations of personal gain, which need not be monetary”. The book highlights the current debate about prohibiting transnational bribery. Such a debate is not about the practicality or desirability of the United States’ FCPA, which at one time was the only law in the world that efficiently banned transnational bribery. Full article

This article outlines recent events concerning the conservation and management trajectory of a highly migratory shark species, the shortfin mako (Isurus oxyrinchus), in the North Atlantic, where it has been routinely captured recreationally and as part of commercial fishing operations alongside other species. Noting recent warnings concerning the high mortality of the species in this ocean region, and the threat of imminent population collapse, this article sets out a number of applicable law of the sea provisions, and carries out an evaluation of relevant measures for target and incidental capture species, discussing their applicability to the mako fishery. It also presents an analysis of regional and global governance actions taken to date by the international community and by individual actors, noting a number of shortfalls, and outlining potential responses. Full article

The adoption of the Charter of Fundamental Rights has strengthened the position of the European Ombudsman, since the Charter contains an article specifically dedicated to the Ombudsman. At the same time, the Ombudsman, through her/his practice, contributes to the implementation in the everyday life of the provisions of the Charter and their further development. The consolidation and development of the provisions of the Charter by the European Ombudsman have proceeded especially rapidly since the Charter of Fundamental Rights received the status of a binding act. Due to the fact that the right to “good administration” contained in the Charter of Fundamental Rights has become one of the basic human rights in the EU since the Charter became legally binding, the competence of the European Ombudsman has acquired a new substantive and factual (functional) content, expanding her/his ability to positively influence the EU administration in the field of governance and respect for fundamental rights. This article examines, based on legal acts, statistical and other factual data, the interrelated issues (such as institutional and human dimensions of European integration) of ensuring the effectiveness of the Charter of Fundamental Rights through the activities of the European Ombudsman. Full article

Competition over environmental and natural resources characteristically lies at the heart of armed conflicts in Africa. It is also common knowledge that some companies dealing in products such as laptops, smart phones, and jewellery import minerals from conflict-affected areas, thereby indirectly fuelling conflicts in these areas or undermining human rights. For a continent endowed with natural resources including minerals, Africa has suffered the brunt of this predicament. This state of affairs has lent impetus to the adoption of several regulations geared towards curbing irresponsible business practices by companies relying on such minerals, the goal being, amongst others, to guarantee the protection of human rights. In May 2017, the European Union adopted regulations intended to stop the importation of conflict minerals in Europe, debatably making giant strides in the direction of the protection of human rights. These regulations are to come into force in 2021. However, can these regulations advance the much-desired goal of the protection of human rights in Africa on issues pertaining to conflict minerals? By analyzing the 2017 EU regulations in light of previous regulations of a similar nature, the paper concludes that the said regulations constitute a weak normative framework and could in fact have unintended consequences on the fundamental rights of civilians in natural resource-rich conflict areas of Africa. Full article

The criminal punishment system plays a critical role in the production of race, gender, and sexuality in the United States. The regulation of marginalized women’s bodies—transwomen, butches, and lesbians—in confinement reproduces cis-heteronormativity. Echoing the paternalistic claims of protection that have inspired “bathroom bills,” gender-segregated prison facilities have notoriously condemned transwomen prisoners to men’s prisons for the “safety” of women’s prisons, constructing cisgender women as “at risk” of sexual assault and transgender women as “risky”, overlooking the reality of transwomen as the most at risk of experiencing sexual violence in prisons. Prisons use legal and medical constructions of gender that pathologize transgender identity in order to legitimize health concerns; for example, the mutilation of the body in an effort to remove unwanted genitalia as evidence to warrant a diagnosis of gender identity disorder, or later gender dysphoria. This construction of transgender identity as a medical condition that warrants treatment forces prisoners to pathologize their gender identity in order to access adequate gender-affirming care. By exploring the writings of queer and trans prisoners, we can glean how heteronormativity structures gender and sexuality behind bars and discover how trans prisoners work to assemble knowledge, support, and resources toward survival. Full article

From the perspective of media ecology, this paper explores the question of responsibility for the effects that media have on society. To explain these media effects, two approaches are singled out. (1) The instrumental approach assumes that a medium works as a tool used by a user for a purpose. (2) The environmental approach focuses on the capacity of a medium to become an environmental force that reshapes both the habitat and the inhabitants. The instrumental approach to media, when taken too broadly and without an understanding of its limits, leads to conspiracy theories and inadequate social and political assessments. The more advanced and sophisticated environmental approach allows for an adequate understanding of media evolution and its effects but does not comply with the traditional legal notions of guilt and responsibility for actions, as there is no jurisdictional human or institutional agency when environmental forces are in play. After charting the distinction between the instrumental and environmental views of media, the paper focused on how the instrumental effects of media turn into environmental effects. The purpose of the paper is to develop and offer a media ecological apparatus for possible further juridical discussions regarding the regulation of the networking society. Full article

This article studies religious arbitration from the perspective of global legal pluralism, which embraces both normative plurality and cultural diversity. In this context, the article considers that UK arbitration law regulates both commercial and religious arbitration while relying on a monist conception of arbitration. It further identifies two intertwined issues regarding cultural diversity, which find their source in this monist conception. Firstly, through the study of Jivraj v. Hashwani ([2011] UKSC 40), this article shows that the governance of religious arbitration may generate a conflict between arbitration law and equality law, the avoidance of which can require sacrificing the objectives of one or the other branch of law. The Jivraj case concerned an Ismaili arbitration clause, requiring that all arbitrators be Ismaili—a clause valid under arbitration law but potentially not under employment-equality law. To avoid such conflict, the Supreme Court reduced the scope of employment-equality law, thereby excluding self-employed persons. Secondly, based on cultural studies of law, this article shows that the conception of arbitration underlying UK arbitration law is ill-suited to make sense of Ismaili arbitration. In view of these two issues, this article argues that UK arbitration law acknowledges normative multiplicity but fails to embrace the cultural diversity entangled therewith. Full article

New technologies and so-called communication and information technologies are transforming our society, the way in which we relate to each other, and the way we understand the world. By a wider extension, they are also influencing the world of law. That is why technologies will have a huge impact on society in the coming years and will bring new challenges and legal challenges to the legal sector worldwide. On the other hand, the new communications era also brings many new legal issues such as those derived from e-commerce and payment services, intellectual property, or the problems derived from the use of new technologies by young people. This will undoubtedly affect the development, evolution, and understanding of law. This Special Issue has become this window into the new challenges of law in relation to new technologies. Full article

This article explores how we interpret, write history, and make sense in a digital age. The study takes place at the intersection of three disciplines: Media and Communication Studies, Postcolonial Theory, and Law. This exploration is conducted in and through an examination of attempts to make sense of “official,” “legal” documents” that emerged out of indigenous ⬄ colonial encounters during the 19th century in New Zealand. Subsequently, this paper focuses on McKenzie’s seminal study of the New Zealand’s Treaty of Waitangi/Te Tiriti o Waitangi, and Jones and Hoskins’ study of The Second New Zealand Land Deed. These two studies are then interfaced with and considered in light of a recent governmental review of New Zealand’s ICT sector, infrastructure and markets. Here, the focus is on Regulating communications for the future: Review of the Telecommunications Act 2001, and the Telecommunications (New Regulatory Framework) Amendment Bill. This article finds that in a digital age—a world of deep fakes and total manipulability of mediated or recorded space—the hermeneut is required to enter and negotiate a (constrained) creative relationship: as an artisan, architect, or artist, with an interpretative context and/or medium. Full article

Since 2020, the spread of COVID-19 has had an overwhelming impact not only on our personal lives, but also on domestic regulatory frameworks. Influential academics have strongly underlined that, in times of deep crisis, such as the current global health crisis, the long-term workability of legal systems is put to a severe test. In this period, in fact, the protection of health has been given priority, as a precondition that is orientating many current legal choices. Such an unprecedented health emergency has also raised a serious challenge in terms of fundamental rights and liberties. Several basic rights that normally enjoy robust protection under constitutional, supranational, and international guarantees, have experienced a devastating “suspension” for the sake of public health and safety, thus giving rise to a vigorous debate concerning whether and to what extent the pandemic emergency justifies limitations on fundamental rights. The present paper introduces the Special Issue on “The crisis of the religious freedom during the age of COVID-19 pandemic”. Taking as a starting point the valuable contributions of the participants in the Special Issue, it explores analogous and distinctive implications of the COVID-19 pandemic in different legal contexts and underlines the relevance of cooperation between religious and public actors to face a global health crisis. Full article

The Province of Quebec is currently in the process of adopting building information modeling (BIM) for major infrastructure projects. However, legal and contractual concerns such as the tendering process, adjudication criteria, intellectual property and risk–reward sharing mechanisms hinder the implementation of an efficient BIM process. This paper addresses the following question: How do norms, whether legislative, regulatory or contractual, functionally or dysfunctionally affect the effective implementation of BIM in Quebec’s public infrastructure framework? This paper suggests that the use of Integrated Project Delivery (IPD) should help mitigate legal barriers hindering BIM implementation, while preserving balance between fairness and encouraging collaboration. Quebec’s normative framework, which includes legislation, regulations, contracts and infra-regulatory rules, should be modified to standardize collaborative mechanisms, integrate two-stage negotiated processes such as rank-and-run or best and final offer and enable the assessment of tenderers’ objective qualities and more subjective qualities. Furthermore, a risk–reward sharing mechanism should be implemented through target costing, and upstream participation from a wide range of stakeholders should be encouraged. Full article

There has been a paradigm shift in global communications since the death many years ago of prominent Canadians Marshall McLuhan and Pierre Elliott Trudeau. The correspondence between the two friends, from 1968 to 1980, presciently touched on our contemporary wired global village and the challenges it presents to personal privacy and to freedom of expression. I examine the relationship between the two men, as laid out in their letters and, to a lesser extent, in secondary sources, highlighting matters of privacy and media. Privacy hovers over the correspondence, even when it is not the stated topic. McLuhan, who is credited with the term “global village”, discussed with Trudeau the effect of new media on people’s notions of tribe and identity and privacy. Proving a direct influence from one man to the other, in either direction, is not possible, but there is much to play with. The gap is, as McLuhan often said, “where the action is”. Full article

Throughout the Trump administration, media coverage of extremist factions of the American right grew considerably, as did the actual membership and numbers of those factions. Included among these factions, and operating on a spectrum that ranges from the center-to-fringe right, are white supremacist, Christian nationalist, and militia/patriot/sovereign citizen (broadly termed constitutionalist) movements. While the American right is heterogeneous, most of these groups are composed of white men, and male supremacism is often a common ideological denominator. Based on historical trends, recent activity, and ongoing movement mobilizations, we should anticipate increased recruitment and activism on the part of anti-statist right-wing groups during the Biden administration. While much has been written about the threat of terroristic violence these groups pose and their varying levels of engagement with white supremacist beliefs, examinations of gender have largely focused on masculinity. This note takes up the relationship between anti-statist right-wing movements and women by sketching three key areas that warrant further examination: (1) how collective interpretations of the law leave women vulnerable by refusing the legitimacy of federal legislation; (2) the threat of militia violence against women, particularly those who hold elected office; (3) how racial and gender exclusions preclude women from having their claims to membership in anti-statist right-wing movements be fully recognized. As we take stock of the growing threat posed by these movements, it is incumbent on us to critically examine the threats to women’s rights posed by the anti-statist right. Full article