Double Jeopardy Without Parameters: Re-characterization in International Criminal Law

Olusanya, O. (2004). Double Jeopardy Without Parameters: Re-characterization in International Criminal Law. Series Supranational Criminal Law: Capita Selecta, volume 2. Antwerp: Intersentia. RAE2008

A study of the extent to which Irish law, policy and practice allow for Ireland's application of the United Nations Convention on the Rights of the Child, 1989 to pre-natal children

The central research question of this thesis asks the extent to which Irish law, policy and practice allow for the application of the United Nations Convention on the Rights of the Child (CRC) to pre-natal children. First, it is demonstrated that pre-natal children can fall within the definition of ‘child’ under the Convention and so the possibility of applying the Convention to children before birth is opened. Many State Parties to the CRC have interpreted it as applicable to pre-natal children, while others have expressed that it only applies from birth. Ireland has not clarified whether or not it interprets it as being applicable from conception, birth, or some other point. The remainder of the thesis examines the extent to which Ireland interprets the CRC as applicable to the pre-natal child. First, the question of whether Ireland affords to the pre-natal child the right to life under Article 6(1) of the Convention is analysed. Given the importance of the indivisibility of rights under the Convention, the extent to which Ireland applies other CRC rights to pre-natal children is examined. The rights analysed are the right to protection from harm, the right to the provision of health care and the procedural right to representation. It is concluded that Ireland’s laws, policies and practices require urgent clarification on the issue of the extent to which rights such as protection, health care and representation apply to children before birth. In general, there are mixed and ad hoc approaches to these issues in Ireland and there exists a great deal of confusion amongst those working on the frontline with such children, such as health care professionals and social workers. The thesis calls for significant reform in this area in terms of law and policy, which will inform practice.

Scaling laws of ambush predator 'waiting' behaviour are tuned to a common ecology

The decisions animals make about how long to wait between activities can determine the success of diverse behaviours such as foraging, group formation or risk avoidance. Remarkably, for diverse animal species, including humans, spontaneous patterns of waiting times show random ‘burstiness’ that appears scale-invariant across a broad set of scales. However, a general theory linking this phenomenon across the animal kingdom currently lacks an ecological basis. Here, we demonstrate from tracking the activities of 15 sympatric predator species (cephalopods, sharks, skates and teleosts) under natural and controlled conditions that bursty waiting times are an intrinsic spontaneous behaviour well approximated by heavy-tailed (power-law) models over data ranges up to four orders of magnitude. Scaling exponents quantifying ratios of frequent short to rare very long waits are species-specific, being determined by traits such as foraging mode (active versus ambush predation), body size and prey preference. A stochastic–deterministic decision model reproduced the empirical waiting time scaling and species-specific exponents, indicating that apparently complex scaling can emerge from simple decisions. Results indicate temporal power-law scaling is a behavioural ‘rule of thumb’ that is tuned to species’ ecological traits, implying a common pattern may have naturally evolved that optimizes move–wait decisions in less predictable natural environments.

ARTICLE: On the Curious Disappearance of Human Servitude from General International Law

The following study considers the fragmentation of law which occurred in 1956 with regard to the law on servitude. As States were unwilling to go as far as the Universal Declaration on Human in establishing that "no one shall be held in [...] servitude", the negotiators of the 1956 Supplementary Conventions moved to expunge the very term 'servitude' from the text and to replace it with the phrase 'institutions and practices similar to slavery' which could then be abolished 'progressively and as soon as possible'. The negotiation history of the 1956 Convention clear demonstrate that the Universal Declaration on Human was the elephant in the room and that it ultimately lead to a fragmentation of the law as between general international law manifest in the 1956 Supplementary Convention on the one hand and international human rights law on the other. It is for this reason that, for instance the 2001 UN and 2005 Council of Europe trafficking conventions mention both 'practices similar to slavery' and 'servitude' as types of human exploitation to be suppressed in their definition of 'trafficking in persons'.

Bridging Jeffrey's Rule, AGM Revision and Dempster Conditioning in the Theory of Evidence

Belief revision characterizes the process of revising an agent’s beliefs when receiving new evidence. In the field of artificial intelligence, revision strategies have been extensively studied in the context of logic-based formalisms and probability kinematics. However, so far there is not much literature on this topic in evidence theory. In contrast, combination rules proposed so far in the theory of evidence, especially Dempster rule, are symmetric. They rely on a basic assumption, that is, pieces of evidence being combined are considered to be on a par, i.e. play the same role. When one source of evidence is less reliable than another, it is possible to discount it and then a symmetric combination operation
is still used. In the case of revision, the idea is to let prior knowledge of an agent be altered by some input information. The change problem is thus intrinsically asymmetric. Assuming the input information is reliable, it should be retained whilst the prior information should be changed minimally to that effect. To deal with this issue, this paper defines the notion of revision for the theory of evidence in such a way as to bring together probabilistic and logical views. Several revision rules previously proposed are reviewed and we advocate one of them as better corresponding to the idea of revision. It is extended to cope with inconsistency between prior and input information. It reduces to Dempster
rule of combination, just like revision in the sense of Alchourron, Gardenfors, and Makinson (AGM) reduces to expansion, when the input is strongly consistent with the prior belief function. Properties of this revision rule are also investigated and it is shown to generalize Jeffrey’s rule of updating, Dempster rule of conditioning and a form of AGM revision.

Doping, sport and the law: time for repeal of prohibition?

This article concerns the legal issues that surround the prohibition of doping in sport. The current policy on the use of performance enhancing drugs (PEDs) in sport is underpinned by both a paternalistic desire to protect athletes’ health and the long-term integrity or ‘spirit’ of sport. The policy is put into administrative effect globally by the World Anti-Doping Agency (WADA), which provides the regulatory and legal framework through which the vast majority of international sports federations harmonise their anti-doping programmes. On outlining briefly both the broad administrative structures of international sport’s various anti-doping mechanisms, and specific legal issues that arise in disciplinary hearings involving athletes accused of doping, this article questions the sustainability of the current ‘zero tolerance’ approach, arguing, by way of analogy to the wider societal debate on the criminalisation of drugs, and as informed by Sunstein and Thaler’s theory of libertarian paternalism, that current policy on anti-doping has failed. Moreover, rather than the extant moral and punitive panic regarding doping in sport, this article, drawing respectively on Seddon’s and Simon’s work on the history of drugs and crime control mentality, contends that, as an alternative, harm reductionist measures should be promoted, including consideration of the medically supervised use of certain PEDs.

A Case for Humanity in the Law of Rape.

One of Irigaray’s most insistent criticisms of the operation of patriarchal law is its overwhelming focus on the protection of property at the expense of law that regulates relations between and amongst persons. This paper argues, with reference to Irigaray’s work, that the conceptual change involved in such a reorientation of law’s focus has important implications for the legal perception of the harm of rape and woman’s sexuality. The possessive paradigm operates in the law of rape by disassociating the harm of rape from its psychic and subjective impact and encouraging the ‘simple’rape/ ‘real’ rape dichotomy. In returning subjectivity to woman herself we can begin to see perhaps how the crime of rape involves a harm to woman that affects the whole of her being, and to be. Such a reading allows the law to perhaps move away from understanding rape as a violation of undifferentiated bodies to a violation of the innate ‘virginity’ of woman.

The Paradox of Performative Immediacy: Law, Music, Improvisation

In a 1999 essay, J.M. Balkin and Sanford Levinson called for law to be considered as a performing art. Against or perhaps going further than Balkin and Levinson, this commentary claims that while engagement with performance practices in the arts, such as music, is of the utmost value to law and legal theory, we must not take for granted what it means to ‘‘perform’’. Uniting Jacques Derrida’s la Villette performance (with jazz legend, Ornette Coleman) with his writings on performativity in law, this commentary looks to the musical practice of improvisation to trouble the notion of performance as immediate and singular and to question taken for granted distinctions between text and performance, writing and music, composition and improvisation. The consequence of this refined understanding of the performative on legal theory and the actual practice of law is a reconceptualization of law as improvisation, that is, both singular and general, pre-existent and immediate, and a refocusing on the creativity that lies at the heart of law’s conservativism.

Law's Ethical, Global and Theoretical Contexts: Essays in Honour of William Twining

Law's Ethical, Global and Theoretical Contexts examines William Twining's principal contributions to law and jurisprudence in the context of three issues which will receive significant scholarly attention over the coming decades. Part I explores human rights, including torture, the role of evidence in human rights cases, the emerging discourse on 'traditional values', the relevance of 'Southern voices' to human rights debates, and the relationship between human rights and peace agreements. Part II assesses the impact of globalization through the lenses of sociology and comparative constitutionalism, and features an analysis of the development of pluralistic ideas of law in the context of privatization. Finally, Part III addresses issues of legal theory, including whether global legal pluralism needs a concept of law, the importance of context in legal interpretation, the effect of increasing digitalization on legal theory, and the utility of feminist and postmodern approaches to globalization and legal theory.

Why do national court judges refer to human rights treaties?: A comparative international law analysis of CEDAW

An analysis was conducted of 325 national judicial decisions across 55 jurisdictions, in which CEDAW was referred to in the reported decision. Despite predictions to the contrary based on previous scholarship, significant variations between courts in their interpretation of CEDAW occurred relatively infrequently, courts referred relatively seldom to interpretations of CEDAW by other national courts, and there was little evidence of transnational dialogic approaches to judging. An analysis of these results suggests that domestic judges invoking CEDAW act primarily as domestic actors who use international law in order to advance domestic goals, rather than acting primarily as agents of the international community in applying CEDAW domestically, or contributing to the transnational shaping of international law to suit national interests. The Article suggests an understanding of the domestic implementation of a human rights treaty as not only law, but a unique kind of law that performs a particular function, in light of its quality as something akin to hard and soft law simultaneously.

Spatial justice: law and the geography of withdrawal

While spatial justice could be the most radical offspring of law’s recent spatial turn, it remains instead a geographically informed version of social justice. The majority of the existing literature on the subject has made some politically facile assumptions about space, justice and law, thereby subsuming the potentially radical into the banal. In this article, I suggest that the concept of spatial justice is the most promising platform on which to redefine, not only the connection between law and geography, but more importantly, the conceptual foundations of both law and space. More concretely, the article attempts two things: first, a radical understanding of legal spatiality. Space is not just another parameter for law, a background against which law takes place, or a process that the law needs to take into consideration. Space is intertwined with normative production in ways that law often fails to acknowledge, and part of this article is a re-articulation of the connection. Second, to suggest a conception of spatial justice that derives from a spatial law. Such a conception cannot rely on given concepts of distributive or social justice. Instead, the concept of spatial justice put forth here is informed by post-structural, feminist, post-ecological and other radical understandings of emplacement and justice, as well as arguably the most spatial of philosophical discourses, that of Deleuze–Guattari and the prescribed possibilities of space as manifold.

Confronting law affectively: encounters of a Patpong sex tourist

When considering spaces of sex-work such as Patpong in Bangkok, Thailand, the inclination is to be drawn into habitual debates concerning the legitimacy of sex-work and the clear objectification of sex-workers. While these concerns are valid and real, there are significant absences in terms of the theoretical mapping of the space, such as the affect of the presence of law, bodies, space and the sexual encounter itself. Law emerges as the most significant presence, since it both forms the transactional surface of Patpong and produces the confusion and revilement that results from the confluence of cold legal exchange with the tactile intimacy of the sexual encounter. This text explores the ethnographic space of Patpong in order to understand ways in which law’s transactional, effective surface is both embodied through subjectivication and spatially emplaced, yet also disrupted through the affective agency of the bodies and spaces it enfolds in order to produce this surface. This exploration will point to the limitations of law’s effective surface and suggest ways in which law might be located within a regime of affect, which returns the law to the body it subjectivises.

Law, technology and water conflicts in developing societies: a case study of tank systems in Tamil Nadu

The study examines the relationship between law, technology and water conflicts from colonial days to the present in traditional (water) tank systems in the south Indian state of Tamil Nadu. Tanks are man-made water systems developed for irrigation and many other purposes in semi-arid areas. The thesis adopts a historical approach to study the development of law, particularly property rights, and takes an empirical approach to investigate the tank conflicts. Archival documents on irrigation development, Case laws, Focus Group Discussions, Open ended Interviews and Field visits to selected tank chains are used as source material for the discussion. Case studies of conflicts are described and analyzed at three levels - Vaigai river basin for a macro level, Kothai Anicut system in Cauvery basin for a meso level, and twenty other interconnected tanks for a micro-level. The thesis deviates from the conventional understanding that tanks as traditional systems as simple and local technologies but considers them to be complex. It argues that the use of commonly held systems such as tanks within the colonial and post colonial laws as state ownership has been the source of many conflicts. In particular, it finds most tank conflicts are a product of progressive and absolute state control over water and the systems established using colonial land revenue administrative law. The law continues to treat tanks as pieces of landed property held by state and the individuals rather than as technology systems that presupposed the regime of property rights introduced after the colonial times. The modern interventions in water including the reservoir building, and altering the hydraulics of rivers and streams aggravate tank conflicts and lead to their further detriment. The study brings the focus to ground realities, and offers new perspectives on understanding tank systems in dynamic ways.