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.