Student blog post: Can the events that happened during the Maydan protests in Ukraine be qualified as crimes against humanity?

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This post (edited for publication) is contributed to our blog as part of a series of work produced by students for assessment within the module ‘Public International Law’. Following from last year’s blogging success, we decided to publish our students’ excellent work in this area again in this way. The module is an option in the second year of Bristol Law School’s LLB programme. It continues to be led by Associate Professor Dr Noelle Quenivet. Learning and teaching on the module was developed by Noelle to include the use of online portfolios within a partly student led curriculum. The posts in this series show the outstanding research and analytical abilities of students on our programmes. Views expressed in this blog post are those of the author only who consents to the publication

Guest Author: Susanna Lando 

November 2013: President Yanukovych announces that Ukraine will not be signing the European Association Agreement. Within a couple of days the situation gets out of hand. The question however is: are the acts committed enough to qualify as crimes against humanity under the International Criminal Court (ICC) Statute? In my opinion, they are.

After President Yanukovych’s decision went public, peaceful protests started in the capital Kiev. The facts are briefly outlined in the diagram I have made below (Euromaidan Press for details).

© Susanna Lando

Source: here

Although not a party to the Rome Statute, Ukraine accepted the jurisdiction of the ICC by a declaration under Article 12(3).The prosecutor however chose  not to continue the investigations on the basis that neither the widespread nor the systematic requirements were present (see I Marchuk, ‘No Crimes Against Humanity During the Maydan Protests in Ukraine? Or the ICC’s Prosecutor Flawed interpretation of Crimes Against Humanity?’ (2017) 35 Boston U Int’l LJ 50-55). The concept of crimes against humanity is outlined in Article 7 of the Rome Statute. Its chapeau contains two elements: the acts must be widespread or systematic and directed against a civilian population (see video for details). In addition, both an actus reus and a mens rea must be identified. The actus reus consists of acts of serious violence listed under Article 7(1)(a)-(k). The mens rea requires knowledge of the attacks on the civilian population, and the awareness that the acts constitute part of the attacks (ICTY, Prosecutor v Kunarac, para 99)

Let’s first look at the chapeau and whether it is fulfilled in relation to the events that took place during the Maydan protests. A civilian population comprises any person who is not a member of the armed forces (Article 50(1) of Additional Protocol I to the Geneva Conventions). A person ceases to be a civilian when he/she takes a direct part in the hostilities which is defined as the ‘(collective) resort by the parties to the conflict to means and methods of injuring the enemy’ (Interpretative Guidance on the Notion of Direct Participation in the Hostilities 43). In this case, however, the Maydan protests were performed peacefully and without weapons, therefore the individuals can be classed as civilians.

As the test for widespread or systematic is a disjunctive test (ICC, Situation in the Republic of Kenya, ICC, para 94), I will therefore only examine the requirement for systematic attacks. This concept was defined in Prosecutor v Katanga (ICC, para 394) and Prosecutor v Gbagbo (ICC, para 223) which referred to ‘the organised nature of the acts of violence and the improbability of their random occurrence’. The acts were frequent between December 2013 and February 2014 and they followed a clear scheme; there was an escalation in the choice of the different methods of violence: the beatings, the kidnappings, restrictive anti-protest laws, and finally the use of snipers and grenades. The pattern is, I believe, clear, and the acts were premeditated and planned as mentioned in Prosecutor v Akayesu (ICTR, para 580), which shows that the mens rea for the act was also present. Furthermore, it should be noted that the fact that they might have been committed for the President’s personal ends is irrelevant (ICTY, Prosecutor v Kunarac, para 103).

The specific crime concerned in this case in my opinion is persecution (Article 7(1)(h) Rome Statute). This entails three further requirements to the ‘chapeau’ of crimes against humanity. These include: ‘severe deprivation of fundamental rights contrary to international law (Commentary Rome Statute), on the basis of political, […] religious grounds or gender, and in connection with any act referred to in article 7(1)’.

With regards to fundamental rights being violated on the basis of discriminatory grounds, I believe there was a breach of Articles 7 and 10 of the ECHR in conjunction with article 14. Article 7 states that there shall be ‘no punishment without the law’. In this case the Maydan protesters were unlawfully arrested for charges with a higher penalty than the one applicable before the anti-protest laws. Article 10 refers to people’s freedom of expression which was clearly violated as the anti-protest laws cannot be viewed as falling within any of the lawful grounds for restrictions listed in the Convention (such as territorial integrity and prevention of crime). Finally, Article 14 regards discrimination on the basis of any ground such as ‘ethnicity, religion, political or other opinions […]’. The facts clearly suggest that the Ukrainian protesters were discriminated against because of their political ideas. Therefore both the first and second requirement for persecution are satisfied.

Finally, the acts must have been committed in connection to other acts enumerated in Article 7(1) of the ICC Statute. As Zimmermann explains, ‘[e]ven isolated acts […] will, if committed in connection with widespread or systematic acts of persecution, render those acts […] crimes against humanity’ (A Zimmermann, ‘Implementing the Statute of the International Criminal Court: The German Example’ in LC Vohrah et al (eds), Man’s Inhumanity to Man: Essays on International law in Honour of Antonio Cassese (Kluwer 2003) 977, 984). In my opinion it is therefore quite evident, based on the facts, that the beatings, kidnappings, shootings and anti-protest laws were aimed at intimidating and mistreating the population in order to force them to stop the protests.

Therefore, I argue that there are no doubts as to the nature of the crimes committed during the Maydan protests: they were crimes against humanity. Unfortunately, there has been a lack of interest in the application of international criminal law in this matter.

Student blog post: To which extent is it possible to include cultural genocide in the definition of genocide as stated in the ICC Statute?

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This post (edited for publication) is contributed to our blog as part of a series of work produced by students for assessment within the module ‘Public International Law’. Following from last year’s blogging success, we decided to publish our students’ excellent work in this area again in this way. The module is an option in the second year of Bristol Law School’s LLB programme. It continues to be led by Associate Professor Dr Noelle Quenivet. Learning and teaching on the module was developed by Noelle to include the use of online portfolios within a partly student led curriculum. The posts in this series show the outstanding research and analytical abilities of students on our programmes. Views expressed in this blog post are those of the author only who consents to the publication.

Guest author: Nikita Isaac

In this blog post I am addressing the highly topical issue of ‘cultural genocide’ and its potential inclusion in the definition of genocide. Whilst there is no legal definition of cultural genocide, we can still consider it as falling within the definition of genocide as stated in Article 6 of the ICC Statute. Several definitions of cultural genocide have been propounded by academics, one being a ‘purposeful weakening and ultimate destruction of cultural values and practices of feared out groups’ (pp 18-19). I believe that cultural genocide is present in many situations such as Darfur. This blog post argues that it is possible to include cultural genocide in the definition of genocide.

Signature of the Genocide Convention (Source: here.)

The work of Lemkin who coined the term genocide supports my view as in his broad definition he included cultural genocide alongside physical and biological genocide. He believed that physical genocide and cultural genocide were ‘one process that could be accomplished through a variety of means(D Short, ‘Cultural Genocide and Indigenous Peoples: A Sociological Approach’ (2010) 14 IJHR 833, 835), whether through mass killings or coordinated actions aimed at destroying essential foundations of group life.

The resulting definition in the ICC Statute is far from what Lemkin envisioned as still today cultural genocide is unrecognised legally. The travaux préparatoires of the Genocide Convention included a section on cultural genocide which was then excluded from the final version even though it had been deemed a serious human rights violation and thought to be a stand-alone crime. It is this version, that of the Genocide Convention, that was adopted in the ICC Statute. Political factors had played a part in the exclusion of cultural genocide as the United States were against formulating criteria relating to cultural genocide given their historical relationships with indigenous peoples (L Kingston, ‘The Destruction of Identity: Cultural Genocide and Indigenous Peoples’ (2015) 14 Journal of Human Rights 63, 65). So, ‘[t]he wording of the Convention was shaped … not to criminalize their own behaviour’ (C Powell, ‘What do Genocides Kill? A Relational Conception of Genocide’ (2007) 9 Journal of Genocide Research 527, 532).

The ICC Statute preamble states that parties to the statute are ‘[c]conscious that all peoples are united by common bonds, their cultures pieced together in a shared heritage, and concerned that this delicate mosaic may be shattered at any time’. Thus, if culture is a protected interest by the states that are parties to the ICC Statute why is cultural genocide not recognised?​​​​​​​

This picture shows how indigenous children were stripped of their cultural identity when forced into westernised schools. (Source: here.)

The example of what has happened to some indigenous groups in North America such as the Winnemem Wintu (see article by Kingston) substantiates my view that cultural genocide should fit within the definition of genocide. Cultural genocide affects these tribes as their culture and identity are stripped away over time and destroyed, though they may not suffer physical harm. The Winnemem Wintu are federally unrecognized (Kingston, p 70) by the US government and so are unprotected. Of the 14,000 Winnemem Wintu people only 123 remain (Kingston, p 70). They have continually lost land from the 1800s onwards (Kingston, p 70) and their cultural life as they know it is being decimated in front of their eyes. Their very means of life have been restricted through fishing bans, using plants for medicine and loss of ceremonial grounds (Kingston, p 70). The definition of genocide clearly does not safeguard indigenous people even though the loss of culture to them is just as devastating as loss of life (Kingston, p 72; see also this video). The UN Declaration of Rights for Indigenous People offers protection now, but it has taken over 60 years to reach this point and in that time indigenous people suffered detrimentally. I argue that culture can be seen as a fundamental human right. Yet, although this shows progress with regard to cultural issues, in no way does it criminalize the behaviour against indigenous people which means that there is still no international platform to criminalize cultural genocide.

This picture displays the shocking difference before and after a child was forced into school (Source: here.)

A case which reaffirms my opinion is Prosecutor v Krstic as it dealt with the genocide of Muslim men and boys in the safe area of Srebrenica (see video). It is interesting to note that the ICTY opened the discussion of cultural genocide stating that ‘[t]he destruction of culture may serve evidentially to confirm an intent, to be gathered from other circumstances, to destroy the group, as such (para 53). So, it is taken that cultural destruction satisfies the test of dolus specialis needed to fulfil the mens rea of genocide. Judge Shahabuddeen dissenting acknowledged, ‘it is not convincing to say that the destruction, though effectively obliterating the group, is not genocide because the obliteration was not physical or biological’ (para 50). So, referring back to the Winnemem Wintu, although they have not physically or biologically suffered, it does not mean that they have not suffered through other means. The Winnemem Wintu have suffered through losing their culture due to the construction of a dam on their historic and sacred land. This undoubtedly reinforces the claim that cultural genocide can be recognised via case-law despite not being expressly included in the statute of an international criminal tribunal.

(Source: here.)

Overall, I truly support the idea that it is possible for cultural genocide to be included in the definition of genocide as stipulated in the ICC Statute. As discussed, originally, a much broader definition of genocide was drawn up that included cultural genocide; however, this was excluded, thereby leaving indigenous people unprotected for decades. This has had a knock-on effect in the case law which, although making obvious references to cultural issues in relation to genocide, does not recognise ‘cultural genocide’ as a crime as such.

Student blog post: In light of the article by Melissa Bellitto, ‘The World Bank, Capabilities, and Human Rights: A New Vision for Girls’ Education beyond’ (2015) Florida Journal of International Law 91 discuss the role of the World Bank as a funder of education.  

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 This post (edited for publication) is contributed to our blog as part of a series of work produced by students for assessment within the module ‘Public International Law’. Following from last year’s blogging success, we decided to publish our students’ excellent work in this area again in this way. The module is an option in the second year of Bristol Law School’s LLB programme. It continues to be led by Associate Professor Dr Noelle Quenivet. Learning and teaching on the module was developed by Noelle to include the use of online portfolios within a partly student led curriculum. The posts in this series show the outstanding research and analytical abilities of students on our programmes. Views expressed in this blog post are those of the author only who consents to the publication.

Guest blog post: Daniele Tatoryte

Introduction

This blog post examines the role of the World Bank as a funder of education. Defined as an international organisation that helps emerging market countries to reduce poverty and promote prosperity, the World Bank is part of the World Bank Group, which is a family of five international organisations, and is composed of the International Bank for Reconstruction and Development and the International Development Association. The World Bank funds a variety of projects notably relating to education by providing loans in developing countries. It has been involved in education since 1962, thus being the largest international funder of education for development in low-income countries and supporting them with $3 billion a year. Overall, the World Bank has funded 2512 education projects. In this blog post I will first discuss the issue of gender inequality and then discuss education in the broader framework of human rights as I believe that the World Bank’s important role in supporting education should be more human rights focused.

 Gender Inequality

The Convention on the Elimination of Discrimination Against Women is the key international legal instrument that seeks to eliminate all forms of discrimination against women. In spite of its existence, girls (M Bellitto, ‘The World Bank, Capabilities, and Human Rights: A New Vision for Girls’ Education Beyond 2015’ (2015) 27 Florida Journal of International Law 91) are the most affected by education inequality as a large majority does not have access to education owing to cultural and social barriers (M Nussbaum, ‘Women’s Education: A Global Challenge’ (2004) 29 Signs: Journal of Women in Culture and Society 332). It is submitted that if girls could access education, they would better tackle issues such as medical care and contribute to the economy of the State, which is the aim of the World Bank (Bellitto at 101). Scholars such as Nussbaum and Sen have criticised the fact that women are treated as economic commodities and that their worth is based on their ability to contribute to the formal economy (see discussion in Bellitto at 95). The best way to deal with this problem is to implement anti-discriminatory laws that eradicate discrimination, a good illustration being India that has adopted a rights based approach in primary education. The World Bank, UNESCO and the Global Partnership for Education are focused on improving gender equality and empowering girls and women through quality education. To attain these goals, projects such as The Education 2030 Framework for Action (FFA) aims to achieve greater results by 2030. Some of their goals are to train more teachers, to support gender equality and improve the quality of teaching. In this light it is argued that educational planning could be a good approach to take into account and tackle all factors affecting education.

(The first UNESCO chart below shows the number of children (according to education level and gender) who were not enrolled in education between 2000 and 2015 whilst the second   indicates that the number of children without access to education varies depending on the continent.)

 

 Human Rights and Education

So, how can this problem be tackled? First, one may argue that the World Bank is bound by human rights law. After all, it has international legal personality as it fulfils three requirements: (1) it is independent from its member states in its functioning; (2) it possesses the capacity to create international rights and obligations; (3) and it possesses the capacity to bring or defend international claims (see here at 364-365). Unfortunately many courts do not have jurisdiction over international organisations and so there is no international judicial remedy against the World Bank. That being said, the Inspection Panel of the World Bank plays an important role as a control mechanism. If the funding provided by the World Bank is not used correctly, a claim can be brought by a minimum of two individuals so that the Inspection Panel can start an investigation. For example, in Nepal a claim, later dismissed, was made that discrimination on the basis of sexual orientation applied to vocational education. Another solution could be to direct the funds of the World Bank to local NGOs, rather than to central governments and education ministries (see here at 61-62), with a view to making education more effective and compliant with human rights law.        ​​​​​​​

Conclusion             

From my point of view, the World Bank and the State should work together to overcome social and cultural barriers affecting gender inequality in education. Undoubtedly, there has been a marked improvement in providing education and achieve gender equality. That being said, I could also argue that the approach the World Bank is adopting towards education is more economic than human rights based as primary education is supposed to be free and accessible to everyone. If access to education depends on one’s ability to pay for it then the human rights to education is violated. Moreover, it should be stressed that education is a necessity for the economic growth and development of these countries. On the one hand the World Bank provides these developing countries with funding to improve their economy but on the other, it takes away their financial independence and obliges them to violate human rights law by complying with conditions such as the privatisation of schools. Consequently, the implementation of a monitoring body independent from the World Bank is essential to improve its functioning and ensure that all its actions comply with human rights law.

A summary of this blog post in the form of a Prezi presentation is available here.

 

 

Student blog post: With Reference to the Case-Law of the European Convention on Human Rights Do Prisoners Have the Right to Vote and, if yes, to which Extent?

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This post (edited for publication) is contributed to our blog as part of a series of work produced by students for assessment within the module ‘Public International Law’. Following from last year’s blogging success, we decided to publish our students’ excellent work in this area again in this way. The module is an option in the second year of Bristol Law School’s LLB programme. It continues to be led by Associate Professor Dr Noelle Quenivet. Learning and teaching on the module was developed by Noelle to include the use of online portfolios within a partly student led curriculum. The posts in this series show the outstanding research and analytical abilities of students on our programmes. Views expressed in this blog post are those of the author only who consents to the publication

Guest author: Magdalena Vakulova

Introduction

The right to vote has always been a hot topic. In fact, fights to achieve universal suffrage have been here for centuries, and still continue today. Even though the right to vote is one of the basic principles of democratic society and the strongest ‘say’ the citizen can have as well as one of the fundamental human rights encapsulated in Article 25 of the International Covenant on Civil and Political Rights (ICCPR) there are still many ambiguities over potential restrictions to this right.

The current law in the United Kingdom denies the right to vote to prisoners while incarcerated (People Act 1983, part 1 section 3). However, according to Hirst, a case decided by the European Court of Human Rights, the denial of right to vote for prisoners falls outside the given margin of appreciation as the automatic ‘blanket ban‘ contradicts the very essence of this right.

Referring to the relevant case law I will examine the right to vote for prisoners in the UK. I decided to focus on the UK because the judgment (Hirst v UK) was not only the first one in a long series of cases relating to universal suffrage for prisoners but was also applied in different jurisdictions across Europe. I will be arguing that even though the States were given a wide margin of appreciation to exclude prisoners from the voting process, this can only be done if it does not violate the whole essence of the right. In my opinion reasonable restrictions of this right should be allowed and approved as compatible with Article 3, 10 and 14 of the European Convention on Human Rights (ECHR)

Mr Hirst’s Argument

In this video Mr Hirst, convicted of murder, argues in favour of prisoners’ right to vote as a basic human right. 

The Right to Vote as the Basis of Democract

First, we must understand that the right to vote is not only a basic aspect of citizenship but also viewed as the ‘core principle’ (L Beckman ‘The Right to Democracy and the Human Right to Vote: The Instrumental Argument Rejected’ (2014) 13 Journal of Human Rights 381) of the democratic system (Watch this video which explains why a voting right for everyone is so important in a democratic society.) In order to ensure effective democracy within the State the basic human rights of every citizen (Scoppola v Italy, para 51) must be preserved and this without discrimination or unreasonable restrictions incompatible with the terms of the ECHR (Hirst v UK (paras 27 and 41)). Moreover, everyone’s right to participate in voting is implied in Article 21 of the 1948 Universal Declaration of Human Rights and more explicitly outlined in Article 25 of the ICCPR where the right to vote is established as a binding norm of international law. Further Article 3 of Protocol 1 to the ECHR states that the right to vote is not only the key aspect of effective political democracy but also an important element of the Convention system (Mathieu-Mohin and Clerfayt v Belgium, para 47). Therefore the exclusion of prisoners from the right to vote must be reconcilable with the purposes of Article 3 of Protocol 1 (Hirst v UK (No. 2), para 62). However, in my opinion, the UK has departed from this fundamental norm as it has prevented prisoners from exercising this basic right and so has fully blocked their access to the democratic system.

The Margin of Appreciation and UK Arguments 

In the case of Hirst v UK it was held that a blanket ban on prisoners’ right to vote under s. 3(1) of the 1983 Act is not compatible with Article 3 of Protocol 1. Even though the States are endowed with a wide margin of appreciation and the rights under Article 3 are not absolute, the automatic ban falls outside these margins (Hirst No 2, para 82) as it is not proportionate (Scoppola, paras 93-102; Hirst No 2, paras 76-85) (see also Sauvé v Canada (Supreme Court of Canada), paras 37 and 54-62).

The first  argument that the UK submitted to the European Court of Human Rights was that as prisoners had breached a social contract, they lacked moral virtue and therefore did not deserve this right. The second ground of the government’s reasoning was that this restriction was a punishment which helped enhancing civic responsibility (Hirst No 2, para 50).

The Response of the ECtHR to the UK Arguments 

The ECHR rejected the UK arguments. Firstly, it argued that the lack of moral virtue is contradictory to the fact that the State requires prisoners to fulfill other civic duties. Moreover the ECHR emphasized that the right to vote is a right and not a privilege (see also Sauvé, paras 14, 19-24 and 37; Hirst No 2, paras 59 and 75) which you deserve through a good moral virtue.

Secondly, it was held that incarceration per se is not a reasonable justification for violating fundamental rights. Whilst the ECHR to some extent approved the idea of a voting ban being understood as a punishment (Hirst No 2, paras 74-75, see also Dikson v United Kingdom) it however stressed that any such restriction  needed to have a clear link between the punishment and the restriction (see Hirst No 2, Joint Dissenting Opinion of Judges Wildhaber, Costa, Lorenzen, Kovler and Jebens, para 8 and Dissenting Opinion of Judge Costa, para 3). Yet, there was no such evidence that the UK had even thought about the link to the offense (see discussion by Weston) or any other justification of the punishment. In contrast the UK applied the automatic ban to every prisoner. The UK reasoning was not objective at any point and therefore I agree that the ban contradicts the very essence of the universal suffrage (see Mathieu-Mohin, para 52).

Conclusion 

In my opinion the reasoning of the European Court of Human Rights in Hirst was correct as the UK’s justification for the ban was discriminatory and not legally tenable. In this light I think that the UK should carry out debates and amend the current legislation so that the restriction of the right to vote is possible to some extent at least. Furthermore I believe that enfranchisement will help prisoners in their rehabilitation.

Visiting Scholar Dr Philippe Karpe at the Bristol Law School

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Written by Dr Noelle Quenivet

Between 10 February and 10 March 2018 the Centre for Applied Legal Research hosted Dr Philippe Karpe as Visiting Scholar. Dr Philippe Karpe is a senior legal researcher and international expert working for CIRAD, a French agricultural research and international cooperation state organization working for the sustainable development of tropical and Mediterranean regions. Worldwide there are 850 CIRAD researchers assigned in 40 countries involved in an array of projects. Dr Karpe is currently posted in Nairobi, Kenya.

Invited by the International Law and Human Rights Unit and the Environmental Law Research Unit it was a pleasure to have Dr Karpe with us as he took part in a wide range of teaching and scholarly activities offered by the Bristol Law School whilst also pursuing his own research on indigenous people and the management of natural resources. By education Dr Karpe is a public international lawyer who studied at the universities of Nancy, Paris 10 and Strasbourg in France and holds a ‘habilitation à la direction de recherche’ (Accreditation to supervise research,) a French post-doctoral degree allowing him to supervise PhD students. Besides supervising PhD candidates at CIRAD he also teaches at the universities of Strasbourg (France) and Hokkaido (Japan). The bulk of his work however consists in planning and running projects with and for international organisations (eg United Nations Development Programme-UNDP, World Bank), NGOs (eg Rainforest Foundation Norway, Organisation des Nations Autochtones de Guyane-ONAG) and other stakeholders applying his expertise on governance and rule of law, including indigenous peoples’ rights (general and particular rights, especially land rights, forest’s and carbon’s rights, forest users’ rights, women’s rights), socio-environmental safeguards, sustainable forest management, rural and forest land tenure (including for the implementation of the Voluntary Guidelines on the Responsible Governance on Tenure of Land, Fisheries and Forests in the Context of National Food Security-VGGT), participative management of lands (including the use of artificial intelligence), participative mapping, institutional arrangements and stakeholder commitments (civil society, forest communities, etc.).

Dr Karpe led workshops on three modules (‘Natural Resources’, ‘Corporate Governance and Corporate Social Responsibility’ and ‘European Environmental Law and Policy’) offered on our LLM programmes. In each of these modules he shared with the students his extensive knowledge and practical expertise in the relevant fields. In particular he brought law to life by using concrete legal problems he had been confronted with in his own field work. For example in the module ‘Natural Resources’ led by Prof Jona Razzaque Dr Karpe produced real forest legal texts that were enacted by regional, national and local public authorities. The students could thus see how forests are protected (or not). This undoubtedly allowed the students to understand better the practical applicability and application of the law as well as its (sometimes unintended) consequences on local populations. In the module ‘Corporate Governance and Corporate Social Responsibility’ the students were asked to engage in a discussion on ethical aspects of activities carried out by multinational enterprises using real contracts that were agreed upon between indigenous people and organisations. Passionate discussions in this workshop run by Dr Karpe and Dr Sabine Hassler on for example the protection of traditional knowledge in India and the protection of the intellectual property rights of the indigenous peoples ensued. This inquisitive and practice-oriented type of engaging with the students was again displayed in the workshop on the EU Common Agricultural Policy (CAP) in the module ‘European Environmental Law and Policy’. Together with the module leader, Christian Dadomo, Dr Karpe challenged the students to analyse the current CAP reform and its interface with the environment and, more largely, the future shape of the society. He notably discussed with the students the negative and positive connections between agriculture, the society and the environment (eg pollution, deforestation, drying up of rivers, etc) and how the reform of the CAP deals with these issues. Dr Karpe’s visit to UWE was no doubt an asset to further nurture our practice-led and student-centred teaching culture on the LLM programme at UWE.

Throughout his stay at UWE Dr Karpe also took the opportunity to attend a number of external engagement events organised by the units of the CALR such as the Brexit and Corruption talk by Dr Lorenzo Pasculli and the Brexit and Trade Relations panel discussion. As a scholar working often far away from European legal issues he particularly enjoyed this insight into one of the most commonly debated issue in the UK: the withdrawal of the UK from the European Union. In this context, he sincerely enjoyed the great variety and quality of the different UWE’s opportunities to develop and enrich the knowledge on many scientific and political vital present concerns.

Dr Karpe had the opportunity to deepen his present academic research especially on Harmony with Nature, the Commons, the indigenous peoples and the farmers by collecting many references and academic articles on the UWE’s virtual library and by daily discussions with colleagues on a variety of topics, some of them relating to research methods and methodology (eg epistemology, social-legal studies and critical legal studies). Furthermore his stay at UWE gave him the opportunity to consider some new academic concerns such as conflict, war and the humanitarian legal framework.

On two occasions Dr Karpe presented his work to UWE staff and students. At a first event he shared with us his practice-based research and at a second reflected upon his work as a lawyer in the field. A roundtable on ‘The Future of the Commons’ was organised on 28 February 2018 to discuss the definition of the concept of the ‘Commons’ and develop the ‘Commons Thinking’. Dr Karpe’s intervention focused on his own experience of the commons in the African context. For example he was once confronted with what appeared to be an odd situation in a village. The local population did not seem to be related or linked, the concept of society did not seem to apply either and it appeared that each person was working for him/herself. A positive, classic lawyer would have undoubtedly failed to realise that there was something beyond that and that in fact these individuals were connected by a common, shared ‘space’. Dr Karpe then questioned whether the concept of the commons was an answer to this practical/technical problem which could be turned into a political concern. He posited that current values do not conform to aspirations of justice and that contemporary laws do not help support, protect and promote the life of individuals who live in such a situation. Yet, as a lawyer, his job is to establish justice between people and to find solutions to concrete technical as well as political problems. Thus in his view the concept of the Commons appear to be the most suitable tool. However, when trying to write the law of the Commons the lawyer faces the harsh reality of having to acknowledge that law simply is not the most appropriate tool. For example, law is usually split in different areas such as contract law, family law, property law, etc and yet the Commons transcend these separations. Also the Commons are a ‘space for development’ as they create opportunities for changes and evolution. This all makes it difficult to freeze the Commons into law. Dr Karpe then argued that for him it was crucial that human rights be at the centre of all these activities. Law should be created around human rights. He also challenged the vertical relationship of law whereby constitutional law sits at the top of the hierarchy of any national legal system. Whilst he admitted that this might sound revolutionary as lawyers struggle to understand law in anything but hierarchical terms and categories he emphasised that only a horizontal understanding of the law could avoid corrupting the Commons. As he explained his support for the Commons he however warned that the concept of the Commons might in specific contexts be used as a new form of colonialism enabling State and organisations, for example to deny rights to indigenous people on the basis that under the principle of non-discrimination and shared access to resources no special rights should be given to them.

Last but certainly not least Dr Karpe gave a talk entitled ‘Has the Wandering Lawyer Reached his Destination? – The Adventures of a Lawyer Working in the Field’ which gave him the opportunity to reflect on his work. It was an enlightening talk as Dr Karpe shared with us over 25 years of research in Cameroon, the Central Republic of Africa, Madagascar, Democratic Republic in Congo, Gabon, etc. He kicked off this presentation by asking ‘What am I? What is my purpose as a lawyer?’. Looking at the type of jobs he usually carries out he acknowledged that his work tends to touch upon a range of topics (eg weddings, contracts, etc) though it does focus on forestry. Yet, as a human being he questions what his real role is. For him, he should be promoting justice and more specifically social justice. As a result he does not question the abstract internal coherence of the texts, the content of texts or their effectiveness and efficiency as such. Rather, these are only steps in this research work. The basic research question is ‘under which conditions may the lawyer contribute to improving the living conditions of the local population?’. The objective is thus to understand how law can contribute to improving the living conditions and ensure the protection of a certain idea of a community of life. For this, four assumptions – in the meantime, he challenged them –  must be made: 1) laws and rules may contribute to social change and lawyers are thus useful; 2) laws and rules have a political function; 3) there is a community of life and 4) the function of laws and rules is to guarantee social peace. Likewise Dr Karpe conceded that there were a number of challenges: 1) working with disadvantageous groups such as indigenous people, rural women, etc; 2) the status of users’ rights in developing countries and 3) the status of peasants. All these challenges relate to various aspects of vulnerability and deprivation of rights. With this in mind the lawyer must think about how he can have a positive impact on society. In Dr Karpe’s eyes the most suitable way to understand societies and to then be in a position to support them is to conduct extensive research in the field. For example this means using involved, immersed and applied research techniques so that a concrete and continuous contact with the relevant people can be established. Closer to the problem one can feel it. Dr Karpe also stressed that the nature of the field obliges all actors to adopt an interdisciplinary approach and so he works with economists, anthropologists, biologists, pharmacologists, etc, bearing in mind that each person brings his/her own views and perceptions of the situation and that all these views as well as methodologies need to be integrated into one’s work. Does that mean that the lawyer disappears? As Dr Karpe stressed he remains a positive lawyer (one that is trying to find the best solution to a problem that affects people), a humanist (there is no doubt a need for empathy and humility in these circumstances) and a ‘questionnaire’ (a person who asks questions) and thus a ‘wandering lawyer’. In his opinion this ‘wandering lawyer’ has a fundamental political and moral obligation to remember, think, defend and realise the key destiny of a lawyer: social justice. As a result he/she must revise his/her vision of the law, its essence, substance and form. Four main research themes derive from this stance towards law and the role of the lawyer: 1) the commons, the harmony between nature, humanity and values (justice); 2) the nature and the content of the law (juridicity); 3) the tools for implementing the law and 4) the methodologies of knowledge of law. Dr Karpe presented some of the results of his reflection, explaining that the law should not be in the form of specific provisions, that the new ‘Common Law’ should correspond to a right of communion, a transcendental right and that the new Common Law must correspond to an idea, that of a community of life. Under the Common Law individuals enjoy the same rights and there is no hierarchy of rights. That being established, Dr Karpe questioned the way law is created, articulating the idea that law is often crafted by a certain type of persons for a certain type of person and for a specific objective and that consequently law may not be really that ‘common’ in fact.

As Dr Karpe left UWE he had made contact with many colleagues in the Bristol Law School and hoped to be able to involve these colleagues in his work. He proposed to establish an opened think-thank on the Commons, the Wandering Lawyer, Law and the Juridicity, named: “the Rainbow Team”. Discussions were also had about future collaboration notably in the form of common projects relating to the protection of the environment, biodiversity and conflict. It was with regret that we had to let Dr Karpe go back to his work as it was such a pleasure to talk to him on a variety of topics.

Guest Lecture: Dr Jane Rooney: Article 2 of the European Convention on Human Rights in Armed Conflict

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By Noelle Quenivet

On 14 March 2018 the Centre for Applied Legal Research welcomed Dr Jane Rooney, Lecturer at the University of Bristol, to present a paper on ‘Article 2 of the European Convention on Human Rights in Armed Conflict’. Dr Rooney began by explaining that she was challenging the commonly held view that human rights law and the European Convention on Human Rights more particularly subject States to a higher threshold than international humanitarian law.

To support her key argument Dr Rooney took the example of internal disturbances that are not covered by international humanitarian law as they do not reach the required levels of violence and organisation of non-State actors. In such instances Article 2 ECHR becomes of paramount importance. Under this provision force may not be used unless absolutely necessary and so the European Court of Human Rights will examine whether force has been used in a proportionate manner as well as how the operation was planned and controlled. As she explained, Article 2 ECHR contains two types of positive obligations (substantive and procedural) and negative obligations. With regard to negative obligations, Dr Rooney observed that they are never looked at in an extra-territorial context. She added that even in an internal context they are only examined in cases relating to terrorism, high levels of violence and internal disturbances but not armed conflicts. As a result a human rights paradigm is applied because the situation at hands is not one that falls within the remit of international humanitarian law. A law-enforcement perspective is thereby espoused.

Dr Rooney focused her attention on three cases against Russia: Isayeva (2005), Finogenov et al (2011) and Tagayeva et al (2017) as they provided good examples of high levels of violence yet not necessarily falling within the scope of international humanitarian law. The first case relates to the bombardment of civilians leaving the siege of Grozny, the second examines the hostage crisis in a Moscow theatre and the third looks at the hostage take-over of school in Beslan.

In McCann et al the European Court of Human Rights scrutinised the planning of the operation as and applied an honest belief test to establish whether the principle of proportionality had been complied with. Yet, in Armani da Silva (2016) the Court applied a subjective test of proportionality. Dr Rooney argued that it seemed that increasingly the European Court of Human Rights was adopting a rather deferential attitude towards the State. For example in Finogenov it used the margin of appreciation doctrine to allow the State a certain degree of discretion. Usually, the Court sets out the test and applies it. Another exampled used by Dr Rooney was the use of poisonous gas. In Finogenov the Court deemed it proportionate whereas under international humanitarian law such weapons (ie riot control agents) are banned. Dr Rooney pinpointed that whilst political considerations were embodied in international humanitarian law this was not the case of human rights law. Was it however possible that the Court was building political considerations into its jurisprudence?

In an armed conflict paradigm, force will be used and individuals will be killed but the principles of distinction, discrimination and proportionality will set the limits to the use of force. In other words the use of force is intimately related to the designation of people in an armed conflict.  The reason for this is that international humanitarian aims to protect those who are not taking part in hostilities. The principle of proportionality under this legal regime allows for incidental loss of civilian life but only on the basis that it is proportionate to the military advantage. Thus international humanitarian law is more permissive in relation to the lethal use of force.
In Tagayeva the Court appeared to use international humanitarian law to decide on the legality of the attack carried out by the Russian forces with a view to freeing the hostages in the school. After all it did refer to Article 51(4) of Additional Protocol I to the Geneva Conventions and Articles 1 and 2 of the Protocol III to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects (Incendiary Weapons) in describing the relevant legal framework. However, it turns out that although the Court mentioned international humanitarian law it did not use it. In fact the Court examined whether the basic principles on the use of force and firearms by law enforcement officials had been complied with. Here the Court examined whether a legal framework was in place on the national level, concluding that it had failed to set the key principles of the use of force as required by the Convention. In fact the Court seemed to focus its attention on the negative obligation of Article 2 ECHR, investigating the planning and control as well as the investigation after the attack. It observed that Russia had failed to take precautionary measures although it was aware that the individuals had travelled to North Ossetia, similar attacks had been carried out and no warning was issued to the school administration. As for the investigation since no inventory of the weapons used was made, the evidence was disposed of summarily, etc it failed to comply with the principles of Article 2 ECHR. Interestingly, as the Court concentrates on issues prior and after the attack it seems that it is using these tools to deter States from using force, stressing the importance of working on prevention and investigation and the need for States to put in place appropriate measures to avoid the recurrence of such unlawful uses of force.

The European Court of Human Rights defers to the state on proportionality of use of force on the grounds that the judiciary is not equipped with the expertise or democratic legitimacy for making such a decision that is vital to national security. An evaluation of the jurisprudence indicates that adopting a human rights/law enforcement paradigm can result in a more permissive regime of use of force than under the armed conflict paradigm.  International humanitarian law should serve as a point of reference for the European Court of Human Rights in ‘internal’ disturbances, especially where the alternative is a more permissive regime of use of force on the part of the state; where politics dictates the characterisation of the violence as a domestic disturbance rather than an armed conflict; as well as its characterisation as internal or transboundary. Dr Rooney concluded by stating that there needs to be further assessment of the cross-section between counter-terrorism and armed conflict regimes in order to clarify our expectations of state behaviour in these difficult circumstances.

Elena Blanco takes part in Repair Acts Project

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Elena Blanco was invited to take part in the exciting network of artists, social scientists, lawyers, environmental and social justice activists brought together under the Repair Acts  (AHRC Funded project)

Teresa Dillon, Professor of City Futures at the School of Art and Design, UWE with Caitlin DeSilvey, (University of Exeter, Co-investigator) brought together a wide-range of perspectives, research an experiences within the creative and exciting background of the Pervasive Media Studio.

The day moved from the conceptual, to the stories and methodologies of practice and research towards a more socially just, sustainable system that abandons the consumerist agenda of persistent, unlimited growth. Bringing forward some of the discussion that arose on the research event organised by Elena Blanco on  ‘The Future of the Commons’  on finding a ‘post-value paradigm’ and a new role for law and policy the Repair Acts workshop identified a network of systems change, ideas and policy that emerged as a next step of this creative project that will develop throughout 2018.

This was followed by a public event at Arnolfini by with Ravi Agarval, Ben Gaulon and Lara Houston (Urbanknights.org). For more information please visit: http://repairacts.net/

Student blog post: Common Reporting Standards – Criminal Information Nowhere to Hide?

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This post (edited for publication) is contributed to our blog as an excerpt from an LLM Dissertation by Yen Lai. Views expressed in this blog post are those of the author only who consents to the publication.

Our financial world today remains as a black hole whereby the illicit capital flow or unreported assets of financial criminals are utterly difficult to gauge on its extent, especially in the tax haven. The real magnitude of criminal use of tax haven is always uncertain, because of its bank secrecy facilitates criminal activities like tax evasion, money laundering and conceal the illicit money trail related to other white collar crimes.  The tax scandals such as Panama Paper and Paradise Paper could be tip of the iceberg. The aftermath revealed the inefficiency of authorities when tax information is needed to be “leaked” by financial firms because it is extremely hard to keep track on the money trail with intention to hide over the world.

Currently, the most extensive feature of the Common Reporting Standard by OECD consists of a model of Multilateral Competent Authorities Agreement that allows information to be exchange automatically after a jurisdiction signs into it. This Automatic Exchange of Information is particularly useful in transmitting information such as the money flow between jurisdictions, the changes of residence, the purchase or disposition of property, value-added tax refunded, etc.  This will provide timely information on non-compliance where tax has been evaded. However, there is a foreseeable problem of too much or too little information being exchanged between jurisdiction and how the investigators process and utilise the data will be highly concerned.

Firstly, the US as one of the major economy and ranked as second most secrecy jurisdiction, is not a signatory to CRS, but adopted own FATCA. There will be too many bilateral or multilateral Competent Authority Agreements (CAAs) become available to facilitate the automatic exchange of information within the CRS.  The matter of cost and efficiency arise with the problem of too much information.  Secondly, there is lack of provision to demand a jurisdiction to sign a CAA with another jurisdiction, even if the latter complies with confidentiality and data protection safeguards.  A secrecy jurisdiction can be a signatory to CRS, upholding its reputation, by choosing another secrecy jurisdictions or major financial centres to exchange information.  Thirdly, there is incompleteness in the non-reciprocity mechanism for developing countries as there is no provision of a timeframe on when a full reciprocity would be required.  Fourthly, it is a big obstacle to require a consensus from the jurisdictions that have signed the CRS before accepting a new jurisdiction.  It indicates a risk of secrecy jurisdiction acts on self-interest purpose.  Fifthly, non-reciprocity is offered to jurisdictions without an income tax, which means secrecy jurisdictions can send information but not receiving information from another jurisdiction.  This can promote the status quo and corruption of a secrecy jurisdiction because the prosecution of financial criminals will be hard without the information on its residents’ foreign income from another jurisdiction.

It is perceptible that CRS is a voluntary scheme that mainly depends on a jurisdiction to fulfil its commitment through their national legislation. The UK has passed numerous legislation in tackling tax evasion while complying the CRS. The problem with the UK legislation is that it is too hard to prosecute a company for the facilitation of tax evasion by their customers or suppliers.  Moreover, the Big Four accounting firms involved in numerous scandals outbreak show a growing consensus in facilitating the wrongdoing of their clients.  Hence, Criminal Finances Act 2017 has significant reform that introduces two offences to held account for ‘fail to prevent’ the facilitation of UK tax evasion and far-reaching to the evasion of foreign tax that was assisted by any firms incorporated in the UK; rather than trying to attribute the criminal acts in proving the “directing mind” of the firm.  The new offences come with greater powers for law enforcement to regulate the risk profile of financial sector and professional services firms in relation to tax evasion issues and their compliance programmes.  Other than that, the UK lawmakers passed several regulations in complying the CRS, such as extending the Data-gathering Powers Regulations 2016, International Tax Compliance Regulations 2015 and the Client Notification Regulations 2016.

In conclusion, CRS does not aim to change a secrecy jurisdiction’s fiscal policies but merely to eliminate the secrecy through exchange of information. Positive movement can be seen in the increasing number of jurisdictions that have signed up to the CRS, compliment by the progress in the law-making of each jurisdiction. CRS’s automatic exchange of information demonstrates a transparency improvement and certainly better than previous exchange information on request. Notably, the CRS will not be a succession until all jurisdictions implement it, as of the nature of tax evasion and facilitation of tax haven involve uncountable complexity network.

Bibliography

Primary source:

Statutes and statutory instruments:

Criminal Finances Act 2017, ss 45-46

Data-gathering Powers (Relevant Data) (Amendment) Regulations 2016, SI 2016/979

Foreign Account Tax Compliance Act (2010) 26 USC § 6038D; 26 USC §§ 1471-1474

International Tax Compliance (Client Notification) Regulations 2016, SI 2016/899

International Tax Compliance Regulations 2015, SI 2015/878

Secondary source:

Reports:

European Parliament, ‘Organised Crime, Corruption, And Money Laundering: Recommendations on Action and Initiatives to Be Taken’ (CRIM Special Committee 2013)

Knobel A and Meinzer M, ‘Automatic Exchange Of Information: An Opportunity For Developing Countries To Tackle Tax Evasion And Corruption’ (Tax Justice Network 2014)

Knobel A and Meinzer M, ‘”The End Of Bank Secrecy”? Bridging The Gap To Effective Automatic Information Exchange’ (Tax Justice Network 2014)

OECD, ‘Standard For Automatic Exchange Of Financial Information In Tax Matters: Implementation Handbook’ (OECD Publishing 2017)

Mitchen A and Sikka P, ‘Tax Dodging Is Their Business’, The Pin-Stripe Mafia: How Accountancy Firms Destroy Societies (Association for Accountancy & Business Affairs 2011)

Teka R and Donaldson R, ‘Corporate Liability For Economic Crime: Submission From Transparency International UK’ (Transparency International UK 2017)

 

Journal articles:

Ambrosanio M and Caroppo M, ‘Eliminating Harmful Tax Practices In Tax Havens: Defensive Measures By Major EU Countries And Tax Haven Reforms’ (2004) 53 Canadian Tax Journal 685

LeVine R, Schumacher A and Zhou S, ‘FATCA And The Common Reporting Standard: A Comparison’ [2016] Journal of International Taxation

van Duyne P, ‘Money-Laundering: Pavlov’s Dog And Beyond’ (1998) 37 The Howard Journal of Criminal Justice 359

Websites:

Christensen J, ‘Panama: The Making Of A Tax Haven And Rogue State – Tax Justice Network’ (Tax Justice Network, 2016) <http://www.taxjustice.net/2016/03/30/panama-the-making-of-a-tax-haven-and-rogue-state/> accessed 4 September 2017

Fitzgibbon W, ‘EU Encouraged To Name European States In Tax Haven ‘Blacklist’ – ICIJ’ (ICIJ, 2017) <https://www.icij.org/investigations/paradise-papers/eu-encouraged-name-european-states-tax-haven-blacklist/> accessed 4 December 2017

Fowler N, ‘The OECD Information Exchange ‘Dating Game’ – Tax Justice Network’ (Tax Justice Network, 2016) <https://www.taxjustice.net/2016/10/25/oecd-information-exchange-dating-game/> accessed 1 November 2017

Martin N, ‘The Common Reporting Standard: Are You Ready?’ (PwC, 2016) <https://www.pwc.co.uk/who-we-are/regional-sites/london/insights/the-common-reporting-standard-are-you-ready.html> accessed 10 February 2018

 

 

Centre for Applied Legal Research to present at SLSA Conference 2018 

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The Annual Conference of the Socio-Legal Scholars Association is one of the high points of the legal academic calendar, and this year UWE’s Centre for Legal Research will be out in force showcasing current research at “the other place”. Bristol University is hosting the conference this year from March 27 – 29.

Emma Whewell is presenting a paper in the mental health stream entitled “Pre-proceedings and capacity: the impact of professional language and other barriers on parents with learning disabilities”. Emma has undertaken research into pre-proceedings protocols in Family Law, and this paper will showcase some of her research. Laura Walker has done research on resilience and mental health, but for the SLSA she is presenting a paper in the Law and Emotion stream entitled “The Role of Empathy in the Sentencing of Women in England and Wales”, one of several papers from the Centre for Legal Research that looks at criminal justice either directly or indirectly.

Ed Johnston will be presenting his paper entitled “The Defence Lawyer in the Modern Era and the Evolving Criminal Trial” reporting on his research in the criminal justice field. He is not the only UWE researcher presenting on criminal justice topics as Professor Phil Rumney is chairing two panels in the Sexual Offences stream and is presenting a paper with Duncan McPhee (Criminology) entitled “Exploring the Impact of Multiple Victim Vulnerabilities on Rape Investigations in England and Wales”. Tom Smith will be reporting on a pilot study undertaken at the Bristol Magistrates Courts looking at the lack of local newspaper reporting of the courts. Tom will be presenting with Marcus Keppel-Palmer and the partners from the Journalism Department, Sally Reardon and Phil Chamberlain. An early report was made to the Society of Editors and quoted by John Whittingdale MP.

Looking at criminal offences in the context of sports law is Matt Hall who is presenting a paper based around his PhD research into the offences around alcohol and drunkenness at football stadia. Matt will be arguing the case for liberalising the laws which apply only in the context of football and not other sports. Matt will also be co-presenting a second paper in the Sports law stream with Marcus Keppel-Palmer reporting on their content analysis of sports photographs in national newspapers in a paper entitled “The Connoted Message of Sports Photography in National Newspapers”. Marcus will have a busy conference as he is also presenting a paper in the Law and Music stream entitled “Law, Outlaw and Deviancy in Bro Country”.

The week before Easter also sees the Association of Law Teachers Conference, to be held at Keele University, and amongst UWE’s researchers presenting papers there are Kathy Brown, Rachel Wood and Thomas Webber.

IPO Develops New Tools For Universities

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Marcus Keppel-Palmer, the Associate Head for the Faculty of Business and Law for Pro Bono, was one of the panel members working with the Intellectual Property Office (IPO) developing a new range of Intellectual Property (IP) resources for use in Schools, Universities, and businesses.

The new suite of resources aim to develop a greater understanding on on IP with students and how IP impacts on their future careers.

The resources known as IP Tutor Plus were launched on January 9th 2018.

IP Tutor and IP Tutor Plus

The IP Tutor tools, developed by the IPO, CIPA, CiTMA, lecturers and industry professionals, provides information on IP.

IP Tutor Plus is a resource for university lecturers to deliver IP lectures. There are four modules; creative, humanities, STEM and law, business and accounting subject areas.

IP for Research

Created for PhD students and researchers to develop a greater understanding of how IP can maximise the impact of their research.

IP management tools

The Intellectual Asset Management Guide for Universities and Lambert Toolkit support the setting of IP strategies within universities, and the management of effective collaborations between universities and businesses.

Resources for further education

Before students reach university, the Future Innovators Toolkit provides level 3 Science, Technology, Engineering and Mathematics (STEM) teachers with the resources they need to introduce IP at any point in the curriculum.

More details can be found here.