Operationalizing Green Governance: New Policy Strategies for Ecosystems and Resources: Exploring the Commons

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By Elena Blanco (Environmental Law Research Unit, CALR), Associate Professor of International Economic Law

 

Project: “Operationalizing Green Governance: New Policy Strategies for Ecosystems and Resources: Exploring the Commons” at the Watershed Bristol, 5-6 September 2018.

Neoliberalism has produced multiple, entangled, and intersecting crises that cannot be resolved from within conventional political and legal systems. A liveable, sustainable future requires a fundamental shift towards new ways of thinking and being where the limits of ecosystems and the Earth life systems are respected. As part of this new thinking Bristol was the setting of a second ‘Commons: Law and Politics’ extended two day encounter organized by Elena Blanco (UWE Bristol), David Bollier (Commons author and activist) and Professor Anna Grear (Cardiff).

The workshop addressed the following challenge: how can we transform Western Capitalist crises by using creative ‘legal hacks’ and new types of governance. Watershed provided the inspiring background for an intense two-day practical conversation where seventeen carefully selected contributors from Europe, America and Australia, coming from a range of disciplinary and practice-based backgrounds brought together stories, insights and perspectives. Theorists learnt from practitioners while practitioners were exposed to some imaginative, world-shifting thinking in contemporary scholarship. The relationship between modern capitalist law and the commons was subject to questioning while exploring creative legal hacks capable of inaugurating new patterns of resistance and constructive institution-building for commons-based alternatives.

Areas explicitly discussed included: the relationship and tensions between commons and indigenous cosmovisions; property forms and relations—including relationships concerning land, intellectual effort and the process of ‘invention’; contract as relationality and new rules of exchange, sharing and dissemination; the search for commons-normative market relations and alternative currencies of eco-social engagement; re-imagining law and generating legal hacks to reflect and facilitate each of the foregoing—including the redesign of the corporate form.

The two day workshop was followed by an open lecture by David Bollier – ‘Free, Fait and Alive: The Insurgent Power of the Commons’ on the evening of the 6 September as part of the Bristol Festival of ideas.

This workshop builds on an ongoing research agenda on the operations and legal forms of green governance within the Environmental Law Research Unit, especially a previous “The Future of the Commons” workshop (The Future of the Commons, Blanco, Feb 2018); and Elena Blanco and Razzaque “Natural Resources and the Green Economy”.  A third ‘Local Commons/Green Governance/Circular economy’ event focused on initiatives in Bristol will take place in 2019.

 

Showcasing undergraduate student law research at UWE Bristol.

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We are pleased to introduce the inaugural issue of the UWE Bristol Student Law Review (UWESLR), edited by Dr Tom Smith.

The future of legal research is, like the legal profession, dependent on our current students. As such, it is essential to both encourage the efforts of young scholars and to assist in the development of their research and writing skills. This publication intends to do so by showcasing outstanding examples of research by undergraduate Law students at UWE. This fulfills twin objectives: to reward their endeavours by sharing their work with a wider audience, and to demonstrate to both their peers and others the quality of the research produced by our future academics and lawyers.

This issue includes three articles; these are based on the submissions of undergraduate students as part of the final year Dissertations module for the Law and Joint Awards programmes. Annie Livermore writes about the use of surgical and chemical castration in the treatment of sex offenders; Amber Rush writes about the regulation, reintegration and rehabilitation of child sex offenders; and Georja Boag writes about the identification, protection, support and treatment of victims of human trafficking. All have produced excellent and engaging pieces of research, and should be congratulated for their efforts.

The Review represents part of an ongoing effort to make students a part of the academic research community within the Department of Law at UWE. The research culture of any university should reach beyond the individual and collective activity of professional researchers; students should feel part of the scholarly environment in which they are learning. It is hoped that the Review will help to create an unbroken chain between academic and undergraduate research. In doing so, researchers can pass on their expertise and experience to the next generation of scholars, and students can better develop their skills.

We hope you enjoy reading it. The full  UWE Bristol Student Law Review (UWESLR) is available to read and download here.

Treaty on the Prohibition of Nuclear Weapons workshop with Professor Dan Joyner at UWE Bristol.

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By Dr Noelle Quenivet.

On 10 September 2018 the International Law and Human Rights Unit had the pleasure to welcome Professor Dan Joyner of Culverhouse School of Law of the University of Alabama (USA) for a workshop on the newly adopted Treaty on the Prohibition of Nuclear Weapons. Prof Joyner is a renowned specialist in nuclear non-proliferation law who has extensively written on the subject and is currently penning a book on the new treaty. He also curates the widely known blog Arms Control Law.

The workshop started with a lunch to give participants the opportunity to meet with Prof Joyner in a less formal manner as well as to get to know each other as they came not only from UWE but also from the University of Reading and the University of Bristol. Participants included scholars well-versed into nuclear weapons and disarmament law as well as students on our LLB in European and International Law programme.

The aim of the workshop was to examine the new treaty from a variety of perspectives, such as human rights, armed conflict, use of force, security, environment, non-proliferation, organised crime, etc and it no doubt succeeded in doing this.

After a round of introduction, Prof Joyner started with a couple of key facts. The treaty was negotiated amongst 123 States and almost unanimously adopted (The Netherlands voted against whilst Singapore abstained). It will enter into force upon the receipt of the 50th instrument of ratification. Although at the time only 15 States have ratified the treaty and 60 have signed it, Prof Joyner forecasted that it would soon enter into force. Prof Joyner then brought us back in time, to the 1960s when all discussions relating to nuclear weapons were focused on non-proliferation rather than a blanket prohibition. In 1968 the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) was adopted at the height of the Cold War with the twin aims of stopping the proliferation of nuclear weapons (with a view to full disarmament) and promoting cooperation in the peaceful use of nuclear energy. A distinction was made between nuclear and non-nuclear States. A quid pro quo was found: the nuclear powers (the five permanent members of the United Nations Security Council, also commonly known as the P5) could keep their nuclear weapons but would ensure their non-proliferation (Articles I and II), work towards disarmament (Article VI) and submit themselves to the monitoring of the International Atomic Energy Agency (Article III) whilst the non-nuclear States would receive support in acquiring nuclear energy for peaceful purposes (Article IV). To support the disarmament process some States agreed to set up nuclear weapons free zones. Later, in 1996 the Comprehensive Nuclear-Test-Ban Treaty (CTBT) was adopted but it failed to gather enough ratification instruments to enter into force. That being said Prof Joyner explained that he believed all these treaties had helped eliminate, or at least, reduced the threat of the use of nuclear weapons. This general movement towards disarmament was further buttressed by a series of bilateral agreements between then Soviet Union and the United States of America.

The three pillars of the NPT are non-proliferation, the peaceful use of nuclear energy and disarmament. Prof Joyner observed that over the years the rhetoric had changed in the various review conferences that brought all State parties together. More and more lip service was paid to non-proliferation whilst a coalition of States whose focused had always been on the peaceful use of nuclear energy and on disarmament grew increasingly frustrated. Such States complained that the nuclear States were not working towards disarmament and that little had been achieved over the years. In reply the nuclear States would point out that the number of nuclear weapons had clearly diminished. Yet, to the non-nuclear States the aim was complete disarmament and not a reduction in number. Also they pointed out that nuclear weapons were still part of the military strategy and that such weapons were continuously being not only maintained but also modernised and upgraded.

Around 2014-2015 talks started about a humanitarian initiative led by NGOs working in the field of gender, the protection of the environment, international humanitarian law and human rights law. This eclectic group of NGOs managed to gain the support of some States to organise a conference whose aim was to show that nuclear weapons were amoral. Yet, to do so they used the law. Such initiative was not new and Prof Joyner admitted that he had not imagined at the time that it would be successful. So, surprisingly, this coalition of NGOs managed to persuade the United Nations General Assembly to approve a negotiating conference for a treaty prohibiting nuclear weapons. In other words, the treaty would be drafted under the auspices of the United Nations. The idea was that of establishing a comprehensive ban on nuclear weapons and to treat such weapons in the same way as other banned weapons such as chemical and biological weapons or landmines. The thrust was that some moral taboo should be attached to the use of such weapons.

The success of the negotiations can be partly explained by the fact that the negotiators tapped into the view that the nuclear States had got away with too much in the past. There was indubitable resentment that the NPT had not achieved what it was meant for, i.e. full disarmament. The nuclear States boycotted the treaty negotiations on the basis that it was just idealistic talking and that nuclear weapons were imperative for military strategy purposes. In particular they reminded the negotiating States that they were in fact benefitting from the nuclear umbrella themselves. The treaty in their opinion would be useless because the prohibition would only apply to States that did not have nuclear weapons and, in a grander scheme, might in fact lead to a delegitimation of the NPT. The reply of those in favour of the treaty was that they had waited too long under the NPT for disarmament to happen. Also, using the example of the Ottawa treaty (Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction) banning landmines, they expressed the view that it might be possible to create a customary international rule via a treaty (though Prof Joyner explained that it might be difficult owing to the specially affected States doctrine under international law) or that at least the treaty would become part of nuclear diplomatic talks and thus become a commonly used instrument raised in deliberations relating to nuclear weapons.

Prof Joyner finally shared his thoughts on the ratification process and potential State parties. He drew the audience’s attention to the fact that the treaty had been so phrased that States which did not have nuclear weapons but allowed other States to use their territory to station or deploy such weapons would not be able to become State parties unless such weapons were being removed from their territory. The application of this specific provision (Article 1(1)(g)) means that NATO States on whose territory US nuclear weapons are stationed, installed or deployed would not be able to become parties to the treaty. This explained The Netherlands’ vote against the treaty. Other non-nuclear States in Western Europe concerned by this provision are Italy, Belgium and Turkey. As a result such States are faced with a tough choice because Article 1(1)(g) clashes with their NATO commitments. A further issue is that of States such as South Korea or Japan who benefit from the US nuclear umbrella and find it difficult to side with the US.

The presentation was followed by an engaging discussion and critical analysis of the treaty. One of the first questions related to organised crime and in particular the black market in nuclear weapons. Prof Joyner explained that in the 90s after the fall of the Soviet Union efforts were made to secure its nuclear stock. Yet, nuclear materials still turn up but what is in fact more dangerous in his view is the dual use of such materials. Also he observed that there was a shift in the illegal nuclear market from fizzle materials to intellectual property (designs and data) which has its own challenges as there are non-tangible goods. He also pointed out that an elaborate set of shell companies may be set up to launder such illegal activities.

A second issue examined was that of the link between the jurisdiction of the International Criminal Court for the crime of aggression and the treaty and notably problems relating to whether States that were not a party to the treaty could see their nationals being prosecuted for using nuclear weapons. This led the group to examine the concept of jurisdiction as understood in a range of nuclear weapons treaty.

A third point related to the interrelationship between the NPT and the new treaty. Prof Joyner highlighted that the new treaty was meant to be in harmony but yet separate from the NPT. This was particular visible in the choice of words and concepts used in the treaty. As he explained, to some extent it is possible to treat the new treaty as an implementation of Article VI of the NPT.

The conversation then moved back to analysing the individual policies of States that have links to the US. For example, Japan, the only State that had suffered from the use of nuclear weapons, was struggling to explain why it was not able to become a party to the treaty. Similar debates were being held in Germany. During the discussion it was mentioned that the US had sent rather stern letters to its NATO partners informing that they should not sign or ratify the treaty. The new treaty had definitely changed nuclear diplomacy. Until then, the combination of the NPT and the work of the IAEA was the best of both worlds: it could keep its nuclear weapons whilst being ensure that no further States would gain access to the pertinent technology.

A reference to a declaration made by India that it did not believe that the treaty would eventually become customary law launched an interesting debate on whether India had proffered its first utterance with a view to becoming a persistent objector under international law. A wider discussion on the formation of customary international law and the doctrine of specially affected States that was first mentioned in the Nicaragua Case ensued.

Parallels with other treaties such as the Ottawa Convention on landmines and the Convention on Cluster Munitions were also drawn as some provisions of the new treaty seemed to have been heavily influenced by (or even copied/pasted from) the wording used in previous conventional weapons conventions. Also the fact that this treaty was the fruit of a concerted effort by NGOs was noted as another example of bottom up initiatives in the field of disarmament and weapons prohibition, much alike the current Ban the Killer Robots campaign. Prof Joyner observed that without the support of this eclectic group of NGOs the treaty would have never existed. Yet, it was also their engagement with the process that had led to a long preamble that at times read like a list of loosely connected items.

Plenty of other issues were debated at the workshop and there is no space here to go into details. There was certainly plenty of food for thoughts for Prof Joyner’s forthcoming book on the new treaty!

Application for three year study to investigate student success and retention

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By Kathy Brown

Last year two academics from the School of Criminology and Law at Liverpool John Moores University (JMU) contacted Jane Rees and me to see if they would like to join them in a longitudinal study that investigates student success and retention.  As academics both responsible for, and with particular interest in the retention and success of law students in Bristol Law School, Jane Rees and I joined the planned study. 

Jane Rees at a previous talk

Having previously been entertained by JMU colleagues at their Liverpool campus as part of a first planning exercise, last week Jane and I hosted Bleddyn Davies and Ester Ragonese (JMU) showing them the sights of Bristol and more particularly UWE’s Faculty of Business and Law building.  The purpose of the meeting was to draft an outline bid for Nuffield Foundation funding for a three year study across three universities starting in September 2019.  We were fortunate to be joined by Craig Lennox , from Research, Business and Innovation (RBI) at UWE Bristol, who shared valuable knowledge with us (‘we want a Craig’ – the words of Ester and Bleddyn!).  It was also fortuitous that Sarah Grabham was proximate to our meeting room and accepted our invitation for her to join us for a short time. 

Kathy Brown receiving an award for outstanding teaching

 

The proposed principal investigators will be Liverpool JMU.  Lauren Devine kindly shared her expertise and provided some advice and guidance for the Nuffield Foundation application with Jane and I and this, together with support from Thom Oliver from RBI is hoped will give the application the right focus and detail.  Once the application has been made each university will be embark on a pilot which will emulate our planned three year longitudinal study.  Funding for the pilot exercise is our next focus.

Ultimately it is hoped the results of the research will have multiple applications ranging from recruitment through to supporting law schools and other university departments to identify ‘why students stay’.

 

 

 

 

Second CALR Staff Research Seminar

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A second staff research seminar was held on 19 March 2018 and featured two presentations from members of the International Law and Human Rights Unit.

***

Noëlle Quénivet, Associate Professor in International Law and Head of the aforementioned Unit, started her presentation entitled ‘Is Duress a Successful Defence for Children Having Committed War Crimes?’ by explaining that often child soldiers are viewed as victims although they are involved in international crimes. Scholars argue that if they were to be prosecuted they would not be found guilty, notably because they would be able to use a number of defences to negate and/or excuse culpability. One of the most common defences cited in literature is duress which is defined as the compulsion of a perpetrator to commit a crime because he/she fears for his life and limb, the threat stemming from another person.

Noelle contended that the strict application of the requirements of duress actually leads to the conclusion that this defence cannot be successfully invoked by child soldiers. This is mainly due to 1) the lack of a contextual approach in the application of the defence of duress and 2) duress being viewed as a justification rather than an excuse. A potential solution would be to understand duress as an excuse and integrate some contextual elements into the elements of this defence.

First, it recognises the wrongfulness of the act whilst stressing that there is no criminal intent. This would ensure that the gravity of the acts children commit is recognised whilst the children’s lack of criminal intent is acknowledged too. Indeed, research shows that children who commit international crimes are not devoid of moral values and in fact feel culpable.

Second, the defence of duress would not require sacrifice or martyrdom. Duress as a justification requires the act to cause no greater harm than the harm that would be inflicted upon the perpetrator. Understood as an excuse, the defence of duress would mean that children only need to make an ‘understandable choice’.

Third, it would acknowledge the lack of autonomy of the child soldiers. After all excuses focus on the actor whilst justifications focus on the act. In the case of child soldiers it would mean understanding the limits of their agency as they are reduced to a tool by means of which another person commits murder. Yet, as Noelle explained, even such a broad understanding of the defence of duress does not offer a comprehensive defence to children who have perpetrated international crimes. In other words, child soldiers are unlikely to be able to avail themselves to this defence.

***

The next speaker, Amy Man, Lecturer and PhD Candidate at the Bristol Law School, presented a paper on ‘New Players and Old Rules: A Critique of the China-Ethiopia and China-Tanzania Bilateral Investment Treaties’ which is due to be published in late 2018. Amy began by explaining that international investment agreements which are formed by specific chapters in free trade agreements, regional agreements and a complex network of bilateral investment treaties (BITs) are often silent on social issues such as human rights.

The neoliberal assumption is that investment treaties boost the economy of developing States. However, this is still unconfirmed. The reality is that increasingly such treaties have a negative impact on the society of developing States. Indeed, such treaties create competing obligations in the name of investment protection. These obligations often lead to the host State to freeze its legislation (which is known as ‘regulatory chill’) to avoid disputes with foreign investors. This ‘regulatory chill’ prevents the host State from introducing labour and welfare laws as well as from development policies and measures that comply with the concept of sustainable development.

Amy argued that China, as an emerging and prominent actor in international investment law, is an innovator inasmuch as it has included the principle of sustainable development in bilateral investment treaties whilst recognising the importance of economic development and mutual cooperation. The most notable example is the China-Tanzania BIT. Under this BIT, the concept of sustainable development is explicitly referenced in the preamble, which highlights that the substantive provisions in the Agreement need to be read from the perspective of sustainable development. Furthermore, under the national treatment principle articulated in Article 3(2), the host State (which is most likely to be Tanzania) is allowed to adopt measures to promote local entrepreneurship. In contrast, the principle of national treatment is conspicuously absent from the China-Ethiopia BIT. Since Tanzania is the main recipient of capital in that particular relationship, the inclusion of this provision is remarkable as it demonstrates China’s more nuanced approach to its host partners. It also alludes to a Chinese approach to investment that is more in line with the concept of sustainable development, which is based on intergenerational equity.

Amy argued that incremental changes, such as Article 3(2) in the China-Tanzania BIT, in Chinese investment agreements are a step in the right direction. However, China is only one actor in a complex regime. The more traditional capital-exporting actors in international investment law must also develop an approach based on sustainable development, which needs to be evident in their investment agreements.

Noelle Quenivet Lectures at the International Criminal Court Summer School in Galway

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By Noelle Quenivet:

For the second year, Dr Noelle Quenivet, Associate Professor in International Law at Bristol Law School, was invited to lecture on ‘Prosecuting Crimes of Sexual Violence’ at the International Criminal Court Summer School organised by the Irish Centre for Human Rights of the National University of Ireland Galway.

The prestigious and long-standing school opened on 18 June with a public lecture by Judge Solomy Balungi Bossa of the International Criminal Court. The school also offered a special session on Africa and the ICC in collaboration with the Institute for Security Studies.

Besides, as previous years, eminent scholars, including Professor William Schabas who founded the school, and practitioners such as Dr Fabricio Guariglia (Director of the Prosecution Office of the ICC) and Peter Robinson (Defense Counsel at the Mechanism for International Criminal Tribunals), shared their knowledge and expertise with LLM students, PhD candidates and practitioners, all specialised in international criminal law.

Noelle Quenivet offered the participants a tour of the jurisprudence of the international criminal tribunals, focusing on the ICC and especially the latest case, Bemba, that has signalled the Court’s willingness to condemn sexual violence perpetrated against men as rape.

Noelle Quenivet explained that she was particularly pleased with this groundbreaking case, as in her PhD thesis, (later published in 2006 as a book Sexual Offenses in Armed Conflict and International Law), she had already argued in favour of a gender-neutral definition of rape and sexual violence. Despite the fact that the defendant had been acquitted on appeals she stressed that the jurisprudence on the definition of sexual crimes remained unaffected by the latest judgment.

 

Dr. Young presents Interdisciplinary Research on Organized Crime Control to the Ministry of National Security, Jamaica

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By Mary Alice Young:

Dr. Mary Alice Young (Law) and Dr. Michael Woodiwiss (History) are in Jamaica today to conduct a series of evidence-informed research presentations with members of the Jamaican law enforcement and policy making communities (the project has been fully funded by ACE).

Based on empirical research carried out in January 2018 in Kingston (one week before Jamaica’s government declared a State of Emergency in Montego Bay due to a rise in firearm deaths), the two UWE staff will present their research findings to law enforcement officers in the Jamaica Constabulary Force, and also in separate meetings to ministers from the Ministry of National Security.

They will also be presenting a preliminary paper for consultation, with a view to informing future policy making in the area of organized crime control in small island and developing states.

Professor Chinkin gives the Annual Lecture of the Welsh Institute for International Affairs (co-sponsored by UWE)

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By Jackie Jones:

The Annual Lecture of the Legal Affairs Committee of the Welsh Centre for International Affairs took place on 3rd May 2018, co-sponsored this year by the Law School. Professor Christine Chinkin, Director of the Institute for Gender, Peace and Security at the LSE, spoke about the Council of Europe Istanbul Convention: the negotiations, the sticking points and the value added of the newest regional convention to eliminate violence against women and girls. She also mentioned the ongoing campaign to pass a UN convention to eliminate violence against women and girls, which Prof Jackie Jones is heavily involved in – having just published a co-edited book making the legal case for a new treaty (with Prof Rashida Manjoo). Jeremy Miles, AM, Counsel General for Wales, was present to listen to the added value for Wales outlined by Prof Jones – lobbying to encourage Wales to pass legislation complying with the provisions of the Istanbul Convention. Wales is a world leader in eliminating violence against women, passing world-first legislation in 2015 and appointing National Advisors to eliminate violence against women. The entire lecture was recorded by BBC Radio.

Professor Chinken speaking next to WCIA banner

Dr. Philippe Karpe attends Centre for Applied Legal Research as Visiting Scholar

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By 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 him with us. Dr. Karpe took part in a wide range of teaching and scholarly activities offered by the Bristol Law School, as well as 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. 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 helped the students to better understand the practical 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 was a great asset to 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 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 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 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. This means using involved, immersed and applied research techniques so that a concrete and continuous contact with the relevant people can be established.

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? 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.

 

CALR Staff Research Seminar Series relaunched

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The Centre for Applied Legal Research (CALR) has relaunched the Staff Research Seminar Series. The first instalment was held on 26 February 2018 and featured two presentations both related to banking and finance law.

Sam Bourton, PhD applicant and Associate Lecturer at the Bristol Law School, opened the session with a paper entitled ‘Revisiting Dishonesty – The New Strict Liability Criminal Offence for Offshore Tax Evaders’. She started by explaining the difference between tax evasion and tax avoidance. Whilst both are ways to minimise financial liabilities, evasion in contrast to avoidance is unlawful. It is the failure to declare income, assets and other activities although taxes are due on them. Tax evasion can be tackled via non-criminal and criminal penalties. Non-criminal tax evasion usually requires the individual to pay what is owed and civil liabilities might arise. If the tax evasion is viewed as criminal then civil as well as criminal penalties might be imposed. The key difference is whether the individual was dishonest. Ms Bourton pointed out that despite the vast range of statutory offences that could be used to tackle tax evasion the UK actually uses the common law offence of ‘cheating the public revenue’ because it is phrased in broad terms an can incur huge penalties. In this case the mens rea element of the crime is of utmost importance: the person must have been acting with dishonesty. The test to ascertain the character of the person and whether he/she is sufficiently blameworthy was spelled out in R v Ghosh and widely criticised notably because there is no one standard in relation to honesty/dishonesty. As Ms Bourton explained that first the jury might not be able to understand the context in which the act was undertaken and second what is an honest or dishonest act hinges on each person’s own understanding of the concept of honesty. As a result it seems that the HMRC and CPS have only prosecuted the worst cases when it was easier to show dishonesty. The HSBC scandal revealed the scale of tax evasion in the UK and yet, HMRC only prosecuted one person and not for tax evasion but for lying on a form, COP9, asking him/her to confess to tax evasion. Recently HMRC has been given a target of 1,000 tax evasion prosecutions to be mounted per year. Concurrently the UK has adopted a new offence in the Taxes Management Act 1970 that allows for the application of a strict liability test, thereby removing the mens rea element of the crime for offshore offences. Here, tax evasion is now punishable by a fine and/or a maximum of six months imprisonment. Whilst many have expressed concern over the new offence, Ms Bourton stressed that it only applied to specific jurisdiction and only covered offshore tax evasion of £25,000 and over. At the same time the Ghosh test was revisited by the Supreme Court in Ivey v Genting Casinos, rendering the application of the test seemingly more straightforward. However, as Ms Bourton pointed out, this is not necessarily the case for cases relating to tax evasion. Ultimately the difference between tax avoidance and tax evasion hinges upon an individual’s own perception and therefore, according to Ms Bourton, motive must be taken into account. It crucially distinguishes between those who abide by the law and those who purposefully choose not to. Ms Bourton then finished her presentation by propounding her own (re)definition of the offence.

The next speaker was Prof Nic Ryder who presented the paper ‘Too scared to prosecute and too scared to jail?’ he had recently submitted to a journal for publication. Prof Ryder contrasted corporate liability as understood in the UK and in the US. He explained that the US had a long history of robust and forceful enforcement. In fact, when the scandal with Arthur Andersen LLP happened and the company was threatened with prosecution it yielded its licence as a consequence of which 25,000 employees lost their jobs. In other words, this move was tantamount to corporate death penalty. In light of this the Department of Justice altered its approach considering the impact of such actions on investors, employees and other relevant stakeholders. With this view it increased its use of deferred prosecution agreements, a move Prof Ryder questioned. Whilst such an attitude is mindful of the wider consequences of the prosecution of a company it is weak on deterrence. Indeed a company such as HSBC with a poor record of compliance with financial regulations such as weak anti-money laundering procedures, violations of the US Secrecy Act and violation of the UN sanctions regime will certainly not be deterred from continuing violating the law if deferred prosecution agreements are the preferred method of the Department of Justice to deal with financial crime. In the UK the situation is different. Courts have accepted the common law standard in relation to corporate liability for crimes which means that as long as it is possible to identify the person who has the directing mind and will of the company (Tesco Supermarkets LTD v Nattrass) a company can be prosecuted for violating financial regulations. In the UK deferred prosecution agreements are only used in relation to breaches of the Bribery Act 2010. Prof Ryder noted that in the UK the focus is increasingly on the prevention of economic crimes and thus verifying whether robust compliance procedures are in place. This, he believes, is a worthy mechanism that ought to be used more widely and not only in relation to bribery offences. Prof Ryder finished by explaining that the UK has launched a call for evidence in 2017 on corporate liability for economic crime and suggested five options for reform. He however believes that none of these options will be adopted as the consequences of the prosecution of banks are enormous for the domestic economy and there is no political appetite for such reforms. In other words ‘too scared to prosecute, too scared to jail’.