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Between Criminalization and Protection

The Italian Way of Dealing with Migrant Smuggling and Trafficking within the European and International Context

Vincenzo Militello and Alessandro Spena

Abstract

This double issue is focused on migrant smuggling and human trafficking. Both subjects are mainly treated from an Italian perspective; however, since these crimes have a generally transnational character, the analysis also takes international (UN) and supranational (EU) measures into account. Moreover, in both parts, the legal perspective is supplemented by the phenomenological/criminological one (based on both media reports and judicial case-studies), so as to grasp the practical aspects emerging from the different ways in which migrant smuggling and human trafficking are de facto committed: in particular, the links between these two and other crimes are underscored, as well as the involvement of criminal organizations in their perpetration. Finally, both parts are driven by a human rights-oriented approach, which gives relevance to dignity of persons as a fundamental meta-value of our legal systems.

Santiago Wortman Jofre

Abstract

The present work analyses the case of Spain in relation to Compliance Management Systems and Corporate Criminal Liability. It studies the way criminal justice understands and uses Compliance Management Systems to target corporate criminality. Moreover, it aims to deconstruct the way Compliance Management Systems are implemented in different corporations. To that end, I conducted a series of semi-structured interviews with Compliance Officers and performed content analysis on judicial documents. While not being able to generalise or give definite conclusions, the results showed a misconnection between the aim of criminal law provisions and the profit-driven objectives of corporations. Furthermore, results unveiled the powerful motivation of requirements. Companies sought to implement Compliance Management Systems to access new markets, better supplies and insurance fee discounts. Rather than the threat of punishment the analysis indicated a stronger effect through the positive stimuli of requiring a Compliance Management System for a benefit. The study also showed a fear for the reputational consequences of being subjected to a criminal procedure, thus indicating a better predisposition to solve offences through alternative conflict resolution methods. The lack of a clear message from the criminal justice reduced the deterrent effect of punishment. This lack of clear standards may have fostered social disorganisation within the environment of corporations, thus constituting fertile ground for corporate crimes.

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Dominika Borg Jansson

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Dominika Borg Jansson

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Dominika Borg Jansson

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Dominika Borg Jansson

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Edited by Martin Lau and Faris Nasrallah

The Yearbook of Islamic and Middle Eastern Law (YIMEL) is the leading English language journal covering contemporary Islamic laws and laws of the Middle East. Practitioners and academics dealing with the Middle East can turn to YIMEL for an instant source of information on the developments in the Middle East region and wider Muslim world. YIMEL covers Islamic and non-Islamic legal subjects, including the laws themselves, of some twenty Arab and other Islamic countries. Focusing on YIMEL's role in publishing and disseminating ground-breaking and novel research on Islamic law, Volume 19 includes a Special Edition on the theme of Islamic Law and Empire consisting of a dedicated Preface and articles in Part I, as well as other contributions on legal developments in the Middle East and South Asia, important judgements and book reviews, assembled in Part II.

The publication's practical features include: - articles on current topics, - the text of a selection of important case judgments, - book reviews. Please click here for the online version including the abstracts of the articles of The Yearbook of Islamic and Middle Eastern Law.

Michał Rynkowski

Abstract

Religious courts have for centuries been part of the European legal landscape. Almost all churches and religious communities have their own judicial systems, often composed of courts or tribunals ordered hierarchically. The aim of this paper is to present cases from the jurisprudence of the European Court of Human Rights, in which a religious court was involved at the stage of domestic proceedings. The twelve cases in question originate from a number of European States, from Italy to Finland and from the UK to Turkey—and in one particular case, Israel. The applicants belonged to many denominations, predominantly Christian. The Court of Human Rights (and before that, the Commission of Human Rights) has been concerned, in the main, with religious courts in terms of compliance with the requirement for a fair hearing by an independent and impartial tribunal under Article 6 of the European Convention of Human Rights. The Court has come to various conclusions—for example, it accepted that courts of the Church of England comply with the requirement, it questioned whether the cathedral chapter of the Evangelical-Lutheran Church in Finland did so, and it indirectly criticized proceedings before the Roman Rota of the Catholic Church. The most recent judgment from September 2017, Nagy v. Hungary, and in particular many associated dissenting opinions, demonstrate that the matter is worthy of study, particularly in the contemporary context of religious freedom. Nevertheless, the cases are so different that it is difficult to discern a coherent line of jurisprudence, and the Court itself hardly ever refers to its own previous judgments in this field.

Ahmed Salisu Garba

Abstract

The re-enactment of religious preaching board laws to regulate religious preaching in some states of Northern Nigeria generated debates between Government on the one hand and religious/human rights groups on the other. This research examines the Preaching Board Laws of Kano, Borno and Kaduna States in Northern Nigeria through the prism of the Nigerian Constitution and other democratic norms that relate to the right to freedom of religion in all democratic orders. It applies argumentative methodology to raise and analyse the following questions: how reasonable and justifiable are these religious preaching board laws in a democratic Nigeria?; what gave rise to the enactment of these laws in the states under study?; what judicial review mechanism would be employed to determine their reasonableness and justifiability in a democracy?; how do they accord with the freedom of religion clause in the Constitution of the Federal Republic of Nigeria? The research establishes that some of the provisions of these laws are inconsistent with the provisions of the Nigerian Constitution and, by extension, international freedom of religion norms operating in all democratic orders. Second, Nigerian courts have not developed suitable balancing mechanisms for resolving conflicts between the right of the state to regulate and citizens’ right to freedom of religion otherwise called the two competing rights, in the light of which the research calls for the amendment of the laws to accord with the provisions of the Constitution and international freedom of religion norms acceptable in all democracies. The paper further recommends a harmonised proportionality test or judicial standard of review based on Nigeria’s religion-state relations and local experience for the use of courts, legislators and administrative agents coming face to face with this type of conflict in their official capacity.

Frank Cranmer

Abstract

The interactions between religious belief and employment law touch on a wide variety of issues, ranging from basic questions about the definitions of ‘religion’ and ‘belief’—and, indeed, of ‘employment’—to issues such as time off for religious observance, religious dress in the workplace and the extent to which an employer can impose its religious values on its workforce. This monograph looks at the major issues of religion in relation to employment law in the United Kingdom, primarily by reference to the recent case-law.

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Edited by Francesco Francioni, Natalino Ronzitti, Giorgio Sacerdoti and Riccardo Pavoni

Volume XXVI of the Italian Yearbook of International Law opens with a Focus on international law in regional and domestic legal systems, edited in cooperation with the Interest Group on “International Law in Domestic Legal Orders” of the Italian Society of International and European Union Law (SIDI). The volume further contains articles on the controversy over Istria’s cultural heritage, on the role played by human rights courts in countering abuses of power, and on the need to adopt a new regulatory approach to environmental law, as well as timely contributions on the judgment by the ECtHR’s Grand Chamber in Khlaifia v. Italy, on the Security Council’s reaction to the nuclear tests conducted by the Democratic People’s Republic of Korea, and on the Iraq (Chilcot) Inquiry Report. As in every volume the following sections, each containing a wealth of new information, are added: ‘Practice of International Courts and Tribunals’ and ‘Italian Practice Relating to International Law’.
The remaining part of the Volume contains a bibliographical index of Italian contributions to international law scholarship published in 2016, a book review section, and an analytical index for easy consultation and reference to materials cited in the Yearbook.

Published with the contributions of ENI and Tenaris.

Helge Årsheim and Pamela Slotte

Abstract

This article sets out to explore the extent to which developments currently taking place at the interface between law and religion in domestic, regional and international law can be conceptualized as instances of larger, multidimensional processes of juridification. We rely on an expansive notion of juridification, departing from the more narrow sense of juridificiation as the gradually increasing “colonization of the lifeworld” proposed by Jürgen Habermas in his Theory of Communicative Action (1987; Vol. 2, Beacon Press). More specifically, the article adapts the multidimensional notion of juridification outlined by Anders Molander and Lars Christian Blichner in their article ‘Mapping Juridification’ (2008; 14 European Law Journal 36), and develops it into a more context-specific notion of juridification that is attendant to the specific nature of religion as a subject matter for law.

Laura Salvadego

Abstract

This study analyzes counter-smuggling and counter-trafficking operations carried out in the Mediterranean, mainly focusing on the EU operations Sophia and Themis. The purpose is to assess a number of issues linked with naval operations from a human rights perspective. These issues include the applicable law, the exercise of criminal jurisdiction over smugglers and traffickers, national strategies of coastal States as regards migration control policy and, finally, international responsibility for human rights violations perpetrated in connection with these operations. Although the study is primarily aimed at both Ph.D students and legal scholars specialized in the field, it also seeks to provide insights that may be of guidance to NGOs, legal practitioners and legislators within the EU and its Member States.

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Edited by Abdulqawi A. Yusuf

Founded in 1993, the African Yearbook, now published under the auspices of the African Foundation for International Law, is the only scholarly publication devoted exclusively to the study, development, dissemination and wider appreciation of international law in Africa as a whole.

Through the study and analysis of emerging legal issues of particular relevance to Africa, such as the creation of viable continental institutions capable of promoting unity and security for the peoples of the continent, the effective protection of human rights, the need for accountability for mass killings and massive violations of the rule of law, the promotion of a rule-based democratic culture, the role of African countries in a globalizing world economy and in international trade relations, the Yearbook strives to be responsive to the intellectual needs of African countries in the area of international law, and to the continuing struggle for creating an environment conducive to the rule of law throughout the continent

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Edited by Stephan Wittich and Gerhard Loibl

The Austrian Review of International and European Law is an annual publication that provides a scholarly forum for the discussion of issues of international and European law, with emphasis on topics of special interest for Austria. Each volume of the Review includes general articles, current developments, and the comprehensive annual digest of Austrian practice in international law, encompassing judicial decisions, executive as well as parliamentary documents relating to international law. The concluding parts of the Review contain longer book reviews and shorter book notes. The current Volume covers 2014.

Contributors are: Markus P. Beham, Christina Binder, Irene Etzersdorfer, Maria Hadjipavlou, Gerhard Hafner, Volker Hauck, Peter Hilpold, Jane Alice Hofbauer, Marios Ieronymides, Philipp Janig, Ralph R.A. Janik, Nikolas Kyriakou, Sara Mansour Fallah, Karl Müller, Adamantios Theodor Skordos, Helmut Tichy, Stephan Wittich, and Ioannis Zelepos

Neil Boister

Abstract

This article explores how transnational criminal law is used as a tool to create a legal space within the state where the fugitive resides or is acting, in order in effect to re-set the border inside that jurisdiction and to make it possible, by proxy, to enforce another state’s law. It argues that transnational criminal law is used to establish a kind of fictional transnational legal space, created by changing domestic laws and practices of both the state exercising its jurisdiction and the state in which that jurisdiction is being exercised, so that restrictions on cooperative action are minimalized. It explores how that space is created and how it shapes the structure of transnational criminal law through the building of normative structures—both legal and administrative—to suppress the activities of alleged criminals in this space. But its specific focus is on how this purely functional relationship impacts on individuals caught within that space.

Mikkel Jarle Christensen

Abstract

This article analyses elements of the social structure of transnational criminal justice. The main goal of the analysis is to investigate if the terminology crafted around transnational criminal law as a distinct legal system corresponds to the social structuration of this space as it can be observed in the justice practices that drive it. To enable such an analysis, the article contributes both a theoretical discussion of how best to conceptualise the social spaces of transnational criminal justice as well as, more cautiously, an empirical investigation into the workings of these spaces, focusing the fight against drugs, terrorism, corruption and ecological crimes. Building conceptually on Pierre Bourdieu’s field theory, the analytical focal point of the article is the practices of transnational criminal justice and the professionals who are active in this space. This raises crucial questions of how the social practices of transnational criminal justice structures usages and developments of the law. Based on the identification and analysis of four separate but interrelated spaces of practice, the article argues that our theoretical understanding of transnational criminal justice and law needs to be recalibrated to take into account the different ways in which it is mobilised to create either security or good governance.

James Sheptycki

Abstract

Using the practical empirical example of the Interpol Organization, the paper explores the relationship between transnational organization and transnational law. Pace Jessup’s pioneering work in 1956, the central questions surrounding the notion of transnational law have involved understanding the use of legal tools in an administrative grey area of global governance across a range of legal institutions. This essay demonstrates how Interpol constituted as itself a formal ‘Intergovernmental Organization’ with its own self-governing structure and explores the use of one of its most powerful legal tools: the Red Notice. As a formally constituted igo with transnational reach and legally subject to its own constituted governance processes, Interpol is an example of what Neil Walker calls ‘constitutionalism beyond the State’. A fortiori, Interpol mobilizes a range of legal tools from transnational public international law and criminal law, as well as those of its own constitutional order, in making up its organization. Following Terence C. Halliday and Gregory Shaffer, and based on this empirical case study, the essay argues that Interpol is an important constituent element in the broader ‘transnational legal order’ of global policing. The challenge for socio-legal scholarship is to reveal how the transnational legal order of which Interpol is a part, is shaped by a variety of actors using different kinds of legal instruments because the institutional patterns thereby established have consequences for future developments. The transnational legal order of global policing is a synecdoche of global governance more generally and the specific case of Interpol provides the basis of some general claims about how to understand the concept of law under transnational conditions. The essay argues that Interpol is but a small constituent element of an evolving global system of rule with law. Rule with law emphasizes that in all practical circumstances legal tools are in the hands of knowing social actors. Understood this way, law is practical politics undertaken by means of legal tools. Interpol is but one element of a vast transnational legal order that has no democratic basis and which needs to be progressively uncovered through piecemeal empirical case studies. Read against the backdrop of broad socio-legal theory, such case studies offer critical insights concerning contemporary transnational legal ordering.

Cecily Rose

Abstract

Most transnational criminal law treaties do not benefit from any sort of monitoring mechanism that would allow states parties or other actors to assess their domestic implementation and enforcement. There are a few exceptions, as treaties and other instruments concerning drug control, corruption, and money laundering are indeed accompanied by monitoring mechanisms. But the general pattern across the field of transnational criminal law is clear. This article explores some possible explanations for why transnational criminal law treaties generally lack monitoring mechanisms, and it also highlights the significance of this absence from a compliance perspective. The article advocates not for the creation of more treaty monitoring bodies in the field of transnational criminal law, but instead seeks to explain their relative absence and its significance for the field. The argument, therefore, is not that monitoring bodies are necessarily desirable and ought to exist in greater numbers in this field, but rather that the absence of these bodies obscures information about compliance and impedes research about what these treaties are actually accomplishing. The current state of treaty monitoring in the field of transnational criminal law is significant because of the extent of what we do not know about the effects of these instruments.

Valsamis Mitsilegas and Fabio Giuffrida

The last decades have witnessed a growing emphasis on the relationship between environmental law and criminal law. Legislation aimed at tackling environmental crime has been adopted at national, eu, and international level and has been gradually evolving over time. These developments notwithstanding, the current legal framework faces a number of challenges in tackling the largely inter-related phenomena of transnational, organised and economic environmental crime. This study of Valsamis Mitsilegas and Fabio Giuffrida addresses these challenges by focusing on the role of the European Union- and more specifically its criminal justice agencies (Europol and Eurojust)- in tackling transnational environmental crime. The study analyses the role of Eurojust and Europol in supporting and coordinating the competent national authorities dealing with investigations and/or prosecutions on transnational environmental crime, and it shows that, for the time being, the full potential of these agencies is not adequately fulfilled with regard to fighting this phenomenon effectively.

Brill Research Perspectives in Transnational Crime is the first major research series focusing exclusively on the growing academic and policy area of transnational crime. The aim of the publication is to be interdisciplinary, inviting contributions in the field of transnational criminal law but also contributions by authors embracing socio-legal, criminological, international relations, and political science perspectives. Contributions by authors with a governmental and policy background are also invited.

The publication aims to highlight the emergence of transnational crime as a distinct policy field and area of academic scholarship. Brill Research Perspectives in Transnational Crime is seen as encompassing a number of key areas of criminality that the global community has been trying to address, including money laundering, organised crime, corruption, terrorism, environmental crime, and trafficking in human beings.

Brill Research Perspectives in Transnational Crime aims to attract a global audience and to promote comparative and transnational approaches to the field. It fills a gap in the academic literature across the disciplines, where there is a growing interest in publications in the field (as witnessed by the emergence of a number of research handbooks on Transnational Crime and Transnational Criminal Law in recent years).

It is a key reference point for academics, scholars, research students, and taught students in the field of transnational crime in disciplines including law, criminology, sociology, political science, and international relations. Brill Research Perspectives in Transnational Crime is also targeted to legal practitioners, government officials, policy makers, and NGOs.

Brill Research Perspectives in Transnational Crime is the result of a cooperative endeavor with the Criminal Justice Centre of Queen Mary University of London, from whose endorsement and intellectual leadership it benefits immensely.

Call for Papers
Authors are requested to submit material for consideration in English. All contributions will be subject to a peer review process. For further details please contact Valsamis Mitsilegas.

Need support prior to submitting your manuscript? Make the process of preparing and submitting a manuscript easier with Brill's suite of author services, an online platform that connects academics seeking support for their work with specialized experts who can help.

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Edited by Stephan Wittich and Gerhard Loibl

The Austrian Review of International and European Law is an annual publication that provides a scholarly forum for the discussion of issues of international and European law, with emphasis on topics of special interest for Austria. Each volume of the Review includes general articles, current developments, and the comprehensive annual digest of Austrian practice in international law, encompassing judicial decisions, executive as well as parliamentary documents relating to international law. The concluding parts of the Review contain longer book reviews and shorter book notes.
Volume 18 of the Series covers the year 2013.

Family Law in Britain and America in the New Century

Essays in Honor of Sanford N. Katz

Edited by John Eekelaar

In Family Law in Britain and America in the New Century: Essays in Honor of Sanford N. Katz nineteen leading family law scholars in the US and Britain pay tribute to Sanford Katz, Darald and Juliet Libby Millennium Professor Emeritus and Professor of Law, Boston College Law School by giving a critical account of developments in family law in their jurisdictions since 2000. Areas covered include the institution of marriage, financial and property issues, parents and children, the state and children, access to justice, and international issues as well as an overview by the Editor. The volume will provide a stimulating and accessible account of the state and current direction of travel of family law in those countries.

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Edited by Ardi Imseis

Under the editorship of Ardi Imseis, Volume 18 of the Palestine Yearbook of International Law features articles on: colonialism and apartheid; the Mavi Marmara Flotilla; populist legal movements; corporate accountability for human rights violations; the World Trade Organization; and state crimes.

The Yearbook is an unparalleled reference work of general international law, in particular as related to Palestine. The Yearbook regularly features English-language articles reviewing contemporary legal questions and translations of key legislation, court decisions, and academic material. It is intended for use by legal practitioners, government officials, researchers, scholars, and students. Published in cooperation with the Birzeit University Institute of Law, the Yearbook is a valuable resource for anyone seeking well-researched and timely information about Palestine and related legal issues.

Contributors: Valentina Azarova; Birju Dattani; Nina Jorgensen; Victor Kattan; John Reynolds; Ozlem Ulgen; Kim Van der Borght and Hisham Awwad.

The State Practice of India and the Development of International Law

Dynamic Interplay between Foreign Policy and Jurisprudence

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Bimal N. Patel

The State Practice of India and the Development of International Law by Bimal N. Patel provides a critical analysis of India’s state practice and development of international law. Providing insight into the historical evolution of Indian state practice from pre-1945 period through the 21st century, the work meticulously and systematically examines the interpretation and execution of international law by national legislative executive and judicial organs individually as well as collectively. The author demonstrates India’s ambitions as a rising global power and emerging role in shaping international affairs, and convincingly argues how India will continue to resist and prevent consolidation of Euro-American centric influence of international law in areas of her political, economic and culture influence.

Reforming the Common European Asylum System

The New European Refugee Law

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Edited by Vincent Chetail, Philippe De Bruycker and Francesco Maiani

This book, edited by Vincent Chetail, Philippe De Bruycker and Francesco Maiani, is aimed at analysing the recent changes of the Common European Asylum System, the progress achieved and the remaining flaws. The overall objective and key added value of this volume are to provide a comprehensive and critical account of the recast instruments governing asylum law and policy in the European Union.

This book is the outcome of the 7th Congress of the Academic Network for Legal Studies on Immigration and Asylum in Europe held in Brussels in 2014. Contributors are: Hemme Battjes, Céline Bauloz, Ulrike Brandl, Vincent Chetail, Cathryn Costello, Philippe De Bruycker, Madeline Garlick, Elspeth Guild, Emily Hancox, Lyra Jakuleviciene, Francesco Maiani, Barbara Mikołajczyk, Géraldine Ruiz, Evangelia (Lilian) Tsourdi, Patricia Van De Peer and Jens Vedsted-Hansen.

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Edited by Stephan Wittich and Gerhard Loibl

The Austrian Review of International and European Law is an annual publication that provides a scholarly forum for the discussion of issues of international and European law, with emphasis on topics of special interest for Austria. Each volume of the Review includes general articles, current developments, and the comprehensive annual digest of Austrian practice in international law, encompassing judicial decisions, executive as well as parliamentary documents relating to international law. The concluding parts of the Review contain longer book reviews, shorter book notes and a selective bibliography on international investment law prepared by the library of the Peace Palace in The Hague.
Volume 17 of the Series covers the year 2012.

Ira Mark Ellman and Sanford L. Braver

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Willem van Eekelen

This volume is an updated and expanded version of the author’s original book, first published by Martinus Nijhoff Publishers and based on his cum laude doctoral dissertation. That volume discussed how the Five Principles of Peaceful Coexistence drowned in the first war between a communist and a non-aligned state. This new edition reproduces the original text, but supplements it considerably in light of subsequent developments and official records and reports only later released or leaked to the public. It places Sino-Indian relations in the wider, current context of the rise of China, the position of Tibet and the disorganised state of Asia. The border dispute did not prevent substantial economic relations developing between the two countries and visits taking place at the highest political level. But it still gives rise to almost daily incursions, and in the current climate, the risk of a clash is growing, as forces have been strengthened and most of the Line of Actual Control has not been demarcated. This thought-provoking volume sheds light on what is still a complex and uneasy relationship.

John Eekelaar

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Vincent Chetail, Philippe De Bruycker and Francesco Maiani

John Eekelaar

Ann Laquer Estin

John Eekelaar

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Vincent Chetail, Philippe De Bruycker and Francesco Maiani

John E.B. Myers