Crime, Punishment and Article 3 ECHR: Puzzles and Prospects of Applying an Absolute Right in a Penal Context

Article 3 of the European Convention on Human Rights (ECHR), which provides that ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’, is considered to enshrine an absolute right. Yet it contains an under-explored element: inhuman and degrading punishment. While torture has been the subject of extensive academic commentary, and inhuman and degrading treatment has been examined to some extent, the prohibition of inhuman and degrading punishment has not been explored in significant depth, in spite of its considerable potential to alter the penal landscape.

This paper elucidates the key doctrinal elements of inhuman and degrading punishment ‘and treatment associated with it’, in the words of the European Court of Human Rights (ECtHR). It addresses a number of ‘puzzles’ or problems which arise in applying the absolute right enshrined in Article 3 of the ECHR to sentencing and imprisonment, clarifies ECtHR doctrine and highlights some of its key implications. Bringing a theoretically informed understanding to bear on the application of Article 3 of the ECHR in a penal context, the paper provides clarity and coherence to a complex and crucial intersection between human rights and penology.

Spiritual capital and democratization in Zimbabwe:A case study of a progressive charismatic congregation

Throughout Africa, charismatic Christianity has been caricatured as an inhibitor of democratization. Its adherents are said either to withdraw from the rough and tumble of politics ('pietism') or to preach a prosperity gospel that encourages believers to pour their resources into their churches in the hope that God will 'bless' them. Both courses of action are said to encourage such people to be politically quietist, with no interest in democratization or other forms of political activity. This is said to thwart democratization. This article utilizes an ethnographic case study of a 'progressive' charismatic congregation in Harare, Zimbabwe, in 2007, to provide evidence that 'pietism' and 'prosperity' are not the only options for charismatic Christianity. Drawing on the concept of 'spiritual capital', it argues that some varieties of charismatic Christianity have the resources to contribute to democratization. For example, this congregation's self-styled 'de-institutionalization' process is opening up new avenues for people to learn democratic skills and develop a worldview that is relationship-centred, participatory, and anti-authoritarian. The article concludes that spiritual capital can be a useful tool for analysing the role of religions in democratizations. It notes, however, that analysts should take care to identify and understand what variety of spiritual capital is generated in particular situations, focusing on the worldviews it produces and the consequences of those worldviews for democratization. © 2009 Taylor & Francis.

Holding Shareholders to Account: British Banking Stability and Contingent Capital

This chapter seeks to explain the relative stability of the British banking system in terms of its capital structure. From 1826 joint-stock banking was allowed, but shareholder liability was jointly and severally unlimited. Limited liability banks were allowed from 1857–8, but these banks issued partly paid shares with an obligation on shareholders to subscribe for uncalled capital. Contingent capital meant that shareholders and managers would suffer losses in the event of failure and this discouraged risk shifting at the expense of note-holders and depositors. Although individual banks collapsed, the failure rate of banks (in terms of number or capital) did not reach a critical level—10 per cent—beyond which the payments system might have been threatened. This chapter argues that agency problems and systemic risk rose after the abolition of contingent share capital in 1958 and the deregulation of the banking sector in the 1970s.

Regulatory Change and Capital Adjustment of US Credit Unions

We investigate the determinants of US credit union capital-to-assets ratios, before and after the implementation of the current capital adequacy regulatory framework in 2000. Capitalization varies pro-cyclically, and until the financial crisis credit unions classified as adequately capitalized or below followed a faster adjustment path than well capitalized credit unions. This pattern was reversed, however, in the aftermath of the crisis. The introduction of the PCA regulatory regime achieved a reduction in the proportion of credit unions classified as adequately capitalized or below that continued until the onset of the crisis. Since the crisis, the speed of recovery of credit unions in this category following an adverse capitalization shock was sharply reduced.

Capital Markets Union and ending short-termism: lessons from the European Commission's public consultationÂ

The European Commission’s initiative to establish a Capital Markets Union is in sharp conflict with the more radical goals of downsizing significantly certain financial activities and firms that have become too-big-to-fail and too-big-to-govern and of ending or at least drastically limiting extreme speculation and short-termism in finance and the real economy in order to increase financial stability. The recent public consultation on the Commission’s Green Paper Building a Capital Markets Union gives evidence of how weak such demands are compared to calls for deeper capital markets with more ‘shadow banking’ and rebuilding (sound) securitisation. The consultation is an example of how framing the problem and the refined better regulation agenda influence post-crisis financial reregulation and help to marginalize more radical ideas demanding a return to a more traditional banking model and transforming finance back to serving the real economy.

Escaping the Holocaust: human and health capital of refugees to the United States, 1940-42

The large-scale persecution of Jews during World War II generated massive refugee movements. Using data from 20,441 predominantly Jewish passengers from 19 countries traveling from Lisbon to New York between 1940 and 1942, we analyze the last wave of refugees escaping the Holocaust and verify the validity of height as a proxy for human and health capital. We further show this episode of European migration displays well-known features of migrant self-selection: early migrants were taller than late migrants; a large migrant stock reduces migrant selectivity; and economic barriers to migration
apply. Our findings show that Europe experienced substantial losses in human and health capital while the US benefitted from the immigration of European refugees.

Movement of Capital and Trade in Services:Distinguishing Myth from Reality Regarding the GATS and the Liberalization of the Capital Account

This article will analyze the interplay between capital movements and trade
in services as structured in World Trade Organization (WTO) law, and it will
assess the implications of the capital account liberalization for the freedom of
WTO Members to pursue their economic policies. Although the movement
of capital is largely confined to the domain of international financial or monetary
policy, it is regulated by WTO law due to its role in the process of
financial services liberalization, which generally requires liberalized capital
flows. From a legal perspective, the interplay between capital movements
and trade in services requires striking a delicate balance between the right
of market access and the parallel right of economic stability. Indeed, a liberalized
regime for capital movements could pose serious stability problems
during times of crisis. For this reason, it is necessary that Members are able
to derogate from their obligations and adopt emergency measures.
Regulating the movement of capital in the General Agreement on Trade in
Services (GATS) requires stretching the regulatory oversight of WTO law
over different aspects of international economic policy. Indeed, capital movements are a fundamental component of the balance of payments and have a
major role in shaping monetary, fiscal, and financial policies. This article will
analyze how the discipline provided by the GATS on capital movements will
affect not only trade in services, but also the Members’ policy space on
monetary and fiscal policy. The article will conclude that while the GATS offers enough policy space for the maintenance of financial stability, it does
not fully take into consideration the need of Members to control capital
movements in order to conduct monetary policies.

The International Regulatory Regime on Capital Flows

Capital controls and exchange restrictions are used to restrict international capital flows during economic crises. This paper looks at the legal implications of these restrictions and explores the current international regulatory framework applicable to international capital movements and current payments. It shows how international capital flows suffer from the lack of a comprehensive and coherent regulatory framework that would harmonize the patchwork of
multilateral, regional, and bilateral treaties that currently regulate this issue. These treaties include the Articles of Agreement of the International Monetary Fund (IMF Articles), the General Agreement on Trade in Services (GATS), free-trade agreements, the European Union treaty, bilateral investment treaties, and the Organization for Economic Co-operation and Development (OECD) Code of Liberalization of Capital Movements (OECD Code of Capital Movement). Each
of these instruments regulate differently capital movements with little coordination with other areas of law. This situation sometimes leads to regulatory overlaps and conflict between different sources of law. Given the strong links between capital movements and trade in services, this paper pays particular attention to the rules of the GATS on capital flows and discusses the policy space available in the GATS for restricting capital flows in times of crisis.

Punishment, youth justice and cultural contingency: Towards a balanced approach

Reflecting developments in the broader penological realm, accounts have been advanced over the last number of decades about a ‘punitive turn’ in the youth justice systems of Western democracies. Against the background of this work, this project seeks to identify convergent and divergent trends in the youth justice systems of England, the Republic of Ireland and Northern Ireland as well as the rationalities and discourses animating these. The results lend support to research emphasising the continued salience of national, regional and local factors on penal outcomes but also suggest the need to steer an analytical path somewhere between nomothetic (convergent) and idiographic (divergent) accounts.